“The State calls Julie Cummings.”
Ben watched as the prosecution’s first witness of the day approached the bench. She was tall, lanky, about Zak’s age. Her brown hair hung straight down, no frills. She was reasonably attractive, Ben thought, but she didn’t look entirely comfortable in the elegant black dress she was wearing. Probably selected by Madame Prosecutor, unless Ben missed his guess.
While the witness was being sworn, Ben leaned toward Zak and whispered. “I’m worried about this. Nothing hurts worse than bad words from an … intimate acquaintance.”
“Relax. Julie’s a sweetheart. We understood each other.”
“Then why is she testifying for the prosecution?”
Zak shrugged. “Who knows? Probably subpoenaed. Mark my word-she won’t lay a finger on me.”
Ms. Cummings took her seat in the witness box and Granny began her questioning. “Ms. Cummings, what do you do?”
“I’m the regional director for the Society for Prevention of Cruelty to Our Other-Than-Human Neighbors.”
“And could you briefly tell the jury what that distinguished organization is?”
“It’s an animal rights activist group. We’re committed to using nonviolent means to prevent the mistreatment of animals.”
“Were you with this organization six years ago?”
“Yes. I wasn’t regional director yet, but I was there.”
“And did you ever have an occasion to meet the defendant, George Zakin?”
“I did. He was also with the organization.”
“And what was his role?”
“He was in the Operations section.”
“And what did Operations do?”
“They were in charge of, well, operations.”
“Such as …”
“Raids. We would raid animal testing laboratories, try to free the animals. Sometimes we would hold protest rallies outside a zoo or corporate headquarters. That sort of thing.”
“Do you remember when Mr. Zakin joined the organization?”
“Yes, I remember it very well. I was against bringing him in.”
Granny feigned surprise. “Really? Why?”
“Because he had a criminal record.” Juror eyes widened with interest. Another of Granny’s promises was being delivered on. “He’d been a member of an anti-Klan group in Montgomery and he’d been caught with a bunch of bomb ingredients. Plastique, if I remember correctly. He was charged with possessing illegal materials and conspiracy to use them. He did two years.”
Granny pulled out the official records pertaining to Zak’s conviction and went through the hoops necessary to have them admitted as exhibits so the jury would be able to examine them in the deliberation room. Ben didn’t bother objecting. There was no point. Although mere arrests or accusations were not admissible, a felony conviction was.
“And why did that bother you, Ms. Cummings?”
“Well, I didn’t think we needed a hothead in Operations. As I said, we’re dedicated to the use of nonviolent means to achieve our ends. What did we want with some bomb expert? Even if he didn’t make bombs for us, just having him around made us look bad.”
“I gather you were overruled.”
“I was. And Zak became a member of the organization.”
Granny turned a page in her outline. “How did that work out?”
“At first, well. Much better than I expected, actually. He had a lot of energy-I have to give him credit for that. He got a lot of new programs rolling, and most of them were successful. I think his energy was contagious. He inspired others in the group to work harder, to become even more dedicated.”
“Was there a downside to having Mr. Zakin in your group?”
“Not at first. But after the incident at Chesterson Laboratories, we all wished we’d never heard of George Zakin.”
Ben whispered in Zak’s ear. “Still think she’s your understanding friend?”
Zak did not respond.
Granny continued questioning. “Could you tell the jury what happened at the Chesterson Laboratories, please?”
“Chesterson was one of the worst animal experimenters in the country, both in volume and degree. They went through hundreds of animals a year, most of them primates, and the experiments they performed on those poor animals were abominable. Pure torture. Killing them slowly to test a new mascara, that sort of thing. So we planned a raid. To set free the chimps imprisoned there.”
“I take it the raid was unsuccessful.”
“No, the raid was a huge success. We got in, got out, and the chimps were freed. But something happened we didn’t plan on. One of the researchers was killed during or near the time of the raid. Needless to say, our group was blamed.”
“Was any particular member blamed?”
Ben rose to his feet. “Objection, your honor. May I approach the bench?”
Judge Pickens nodded. Ben walked to the semi-privacy of the judge’s station up front; Granny came scampering behind him.
“Your honor,” Ben explained, “counsel is about to enter testimony relating to charges that were brought against my client after this Chesterson incident.”
“How do you know?” Granny said. “Are you a mind reader?”
“No, but I’m not a fool, either. And I know that if I wait until after the cat is out of the bag, no ruling on earth will make the jury forget what they’ve heard. Judge, my client was charged with this murder, but he was completely exonerated. The jury voted unanimously for acquittal.”
“Only because Kincaid did some fancy footwork during the trial.”
Pickens’s eyebrows lifted. “This Kincaid?”
“The very same,” Granny said. “He’s the genius who got Zakin off the hook-and back on the streets.”
Judge Pickens looked as if he had an unpleasant taste in his mouth. “You must be very proud of yourself, Kincaid.”
“Your honor, we all know that absent a conviction, evidence of prior arrest and charges is not admissible.”
“That’s not exactly true,” Granny interjected. “It’s not admissible to prove the truth of the matter asserted or to prove that he likely committed the present murder.”
“What other reason could you possibly have?”
“We’re using it simply to explain why Zak was booted out of the animal rights organization and to show that they considered him dangerous. This can come in as evidence of prior bad acts, pursuant to Rule 404b. I jumped through all the appropriate pretrial hoops.”
“That’s true,” Pickens agreed.
“That’s ridiculous,” Ben snorted.
“What’s the matter, Kincaid?” Pickens growled. “You think you’re the only one who has any fancy footwork?”
“Your honor, it’s perfectly obvious she just wants the jury to know that he was tried once before for murder. This will be grossly prejudicial.”
“I’m sure it will be prejudicial to your client, Kincaid. But I believe the probative value outweighs the prejudice in this case. I’m going to let it in.”
“Your honor!” Ben exclaimed. “This is absolutely-”
“I’ve ruled, Kincaid.”
Ben’s face tightened. “I move for leave of court to take an immediate interlocutory appeal on this issue.”
“Denied.”
“Your honor, this is simply wrong!”
Pickens brought out his gavel and pointed it so far forward it practically touched Ben’s nose. “I’ve made my ruling, Kincaid. You can live with it or you can leave. Your choice.”
Ben stomped back to defendant’s table, fuming. That ruling was absolutely contrary to law, and he knew it. It could possibly be the basis for a later appeal, but he doubted that remote possibility would be of much comfort to Zak.
Granny repeated her question, and the witness answered, carefully choosing her words. “Many people believed George Zakin should be blamed.”
Ben grimaced. Another unnecessary twist of the knife from Zak’s “understanding friend.”
“What was the reaction of your organization to all this?”
She pushed a few wisps of hair behind her ear. “Well, after that, the rest of the leadership finally came around to my way of seeing things. They realized he was dangerous, a loose cannon. Turned out he’d been agitating all along for the group to become more militant, to plant bombs, sabotage equipment. He was out of control.”
“Out of control,” Granny repeated, just in case someone missed it. “Dangerous. So what action did your group take?”
“We kicked him out, basically. We didn’t want him.”
“I can understand that,” Granny said somberly. “It’s just a shame that someone else did. No more questions.”
Ben pressed his lips close to Zak’s ear. “You were kicked out? You told me you left! You never said you were kicked out.”
Zak didn’t answer him.
“Well? Is it true?”
Zak shrugged. “I probably wouldn’t have used those words.”
Ben pressed his hand against his forehead. Great. Just great. As if he didn’t have enough to deal with. “When are you going to get a clue, Zak? You don’t keep secrets from your lawyer!”
Zak looked away sullenly, like a little boy scolded but not much chastened.
Ben took his place behind the podium. He had only one arrow in his quiver. He thought it best he fire it off before the jury dwelt too long on what they had just heard. “Ms. Cummings, I don’t want to be indelicate, but isn’t it true that you and the defendant were once … romantically involved?”
“We slept together, if that’s what you mean.” She answered matter-of-factly and without the least trace of embarrassment. “In the early days, before I knew him well. But it didn’t last long. I was never in love with him, and frankly, he was never very good in bed. It wasn’t any big deal.”
“Still,” Ben insisted, “you must have been somewhat … distressed when he left you.”
“Is that what he told you? That he dumped me?” She laughed loudly. “Let me tell you something, Mr. Lawyer. That’s not how it happened. I saw Zak come on to everything female that walked through the door. I didn’t need to be told he would be perpetually unfaithful, that he would always be looking for more women to conquer. And I didn’t care to be part of his harem. So I dumped him.”
Ben took a deep breath. This wasn’t exactly going the way he wanted. “Ms. Cummings, forgive me, but despite your protestations to the contrary, I’m detecting a very … bitter tone in your voice.”
“No, you’re confusing anger with bitterness. I am angry-I think he’s a dangerous, unreliable person, and I think he caused considerable damage to the animal rights cause. But I’m not bitter because he didn’t sleep with me anymore. I didn’t want him to sleep with me anymore.”
“Still, how can we be sure your testimony isn’t motivated by … well …”
“Look, if you’re trying to suggest I just made all this up to get back at him, forget it. I was asked by the prosecutor’s office to tell what I know, so I have. But I’ve got no axe to grind. Frankly, until they called me, I hadn’t thought about Zak for years.”
Ben could see he was getting nowhere with her, and his cross-ex quiver was empty. He hated to end on such an unproductive note, but there was nothing else to ask her about. “No more questions.”
As he took his seat, Ben tried to console himself. She had established that Zak knew how to make a bomb, that he had done it in the past. And that he was “dangerous.” But she hadn’t known anything about the present case. She certainly hadn’t established that he made this bomb, the one that killed Dwayne Gardiner.
Which was true-Julie Cummings hadn’t. But the next witness would.