“Ladies and gentlemen of the jury, this is a crime that-”
DA Drabble hesitated. It was a slight pause, but Ben noticed, just the same. The DA could be forgiven this bobble. The last time this court had heard opening statements in this case, they had been interrupted by a fanatic with a gun. At some level, Drabble’s subconscious mind had to be searching the room, looking for any indication of danger.
“This is a crime,” Drabble continued, “of the worst sort-cold-blooded murder. And as the evidence will show, it was committed for the worst possible reason. Not for love, money, jealousy, revenge, or any of the baser emotions that normal people can understand, if not condone. This was a crime of hate-pure, blind, unreasoning hate. Johnny Christensen did not take this life because of anything Tony Barovick did. He committed murder because of who Tony Barovick was.”
Drabble was good. As before, when Ben had seen him on television, Drabble impressed him with his unforced yet deliberate manner. He didn’t come off as rigid and self-righteous, as so many DAs did. He didn’t insult opposing counsel. He didn’t resort to melodrama-well, not much-and he skipped most of the cheap theatrics, waving bloody photographs in the air and such. It was probably not a sign of any innate superiority; truth was, Drabble didn’t need to resort to any of that. He knew how to communicate, how to make the jury listen and, hardest of all, how to make them believe.
“On that chilly spring morning just a short time ago, Tony Barovick left his place of business and headed for home. He was probably thinking about the usual things-getting some groceries for dinner, what he might watch on television that night. What he didn’t know-what he couldn’t possibly know-was that he was being stalked-yes, stalked-by two students, two fraternity boys he had served back at his club. What had he done to offend them? you might wonder. Had he insulted them? Stolen from them? Hurt them? No, Tony hadn’t done any of those things. Tony hadn’t so much as mixed up their drink order. They were out to get him simply because he was a homosexual. And they didn’t like homosexuals. Indeed-they hated homosexuals.”
Ben scanned the courtroom. It was packed, as he’d expected. A few of the spectators were the usual thrill seekers, but most of the gallery was taken up by the press. CNN and Fox News and some of the other national outfits had set up camp in the hallway outside, so it was no surprise that they were allocated many of the choice seats. Several on-air personalities and celebs had been spotted in the courtroom. Rumor was that Dominick Dunne had a contract to write a book about the case, and John Cusack was negotiating for the movie rights. Everyone wanted a piece of the action.
Boxer Johnson, the bailiff who’d been clubbed over the head by the killer of Brett Mathers, was back on the job. Ben knew he’d taken a lot of grief after the execution; the shooter had knocked him out in the men’s room and stolen his uniform and gun. He seemed none the worse for it today; he stood at attention at the rear of the gallery, calm, watchful. An assured, strong presence.
In addition to the media reps, Ben also spotted a few people he’d read about last night, after he and Christina recovered from the shooting incident and finished with the police and the medics and he began cramming every bit of relevant information about this case into his head. Many of the people Tony Barovick had worked with and the potential witnesses were here, including the owner of the club, Mario Roma, and Tony’s barmaid and friend, Shelly Chimka. Scott Banner, the president of Johnny’s fraternity, was sitting behind her. Roger Hartnell was in a wheelchair, thanks to the bullet wound, but he was here, against doctor’s orders. He said it was important that he make an appearance, both as the local director of ANGER and as Tony’s former partner. They all sat together, behind the DA’s table, presumably to show their support for Tony.
Only one person sat behind the defendant’s table by choice. And Ben had spent the entire morning studiously trying to avoid eye contact with her.
“They were driven by one motive and one motive alone,” Drabble continued. “Blind, unreasoning hate. Hate born of fear, of ignorance. The same kind of hate that sent six million Jews to the gas chamber. The same kind of hate that killed 168 people at the Murrah Building in Oklahoma City. The same kind of hate that killed thousands at the World Trade Center. The kind of hate that cannot be tolerated in any civilized society.”
Vicki, the new intern, whispered into Ben’s ear. “This seems unduly inflammatory. Are we going to let him get away with this?”
Ben eyed Christina carefully. They were both tempted to object-this was pretty over-the-top. But Kevin Mahoney had told them that Judge Lacayo was usually lenient about what he’d allow in openings and closings. And they couldn’t deny that this was a hate crime-a critical part of their strategy was to acknowledge up front what Johnny had done, and what he had not done. They both decided to let it pass.
“This is what they did,” Drabble continued, his voice darkening. “First, they beat him mercilessly, giving him no chance to defend himself or escape. Then they used a Taser to torture him. Then they cut him. With a knife. And finally, when Tony must have felt that he couldn’t possibly feel any more pain, when he was crying out for mercy, they put wooden blocks under his knees and ankles, took a five-pound iron maul hammer and shattered his legs-first his left, and then, after the initial shock wave of pain had subsided, the right.”
Ben checked Johnny’s expression. He was holding up pretty well, all things considered. He’d been a wreck when the marshals brought him into the courtroom this morning. Crying like a baby, shaking visibly, begging for help. Christina had taken him to a rest room to scrub him up and get him back in control before the jury arrived. She’d been largely successful, though he had no idea how she’d managed it. No one was going to leave this trial with a good impression of the kid, but at least now he didn’t look like guilt incarnate.
Ben wondered what was going through Johnny’s mind as he heard the DA recount the list of horribles in which he had participated. Was he remorseful? Ashamed? Or was he secretly proud of himself, of what he had done in the name of his holy cause?
“Do you know what it feels like to have a thousand volts of electricity run through your body?” Drabble asked. “It isn’t pleasant. Your legs turn to rubber. You lose all control of your bodily functions. You can’t stop twitching. You can’t control your bladder. You lie on the ground and flop back and forth like a jellyfish.” Drabble leaned in closer. “But as bad as it is, it probably doesn’t compare with seeing someone take a knife to your flesh and cut it while you watch helplessly. And it certainly doesn’t compare to having your knees braced by two wooden blocks and seeing your legs destroyed with a five-pound hammer. Is it even possible for those of us who didn’t experience it to know what that would feel like? To measure the intensity of the anguish that poor boy suffered? To conceive of the magnitude of hate that would be necessary to commit such acts on another human being?”
Okay, Ben thought, so now he was being a little melodramatic. But it was an extraordinary crime-a brutal, hideous, inhuman one. It would be difficult, if not impossible, for any DA to discuss it without sounding intense.
“When Tony Barovick was found, just a short time after his destruction at these hands, in the fraternity house of which the defendant is a member, he was dead. Now the defense attorneys may try to suggest that Tony was killed somewhere else-but the evidence will show otherwise. The defense may suggest that the defendant beat Tony Barovick but didn’t quite kill him-but the evidence will show otherwise. What the defense will not deny is that Johnny Christensen attacked Tony Barovick, cruelly and mercilessly-because he did. Did Christensen want Barovick to die? Was that his intent?” Drabble paused. “I think his actions speak for themselves.
“Now I still remember the voir dire we did several weeks ago,” Drabble continued, “and I know many of you have mixed feelings on the subject of homosexuality. Some of you have deep-seated reasons, religious reasons, and we are not here to challenge those. But what I am here to say is-” At this point, Drabble whirled around and pointed at Johnny. “-what this man did was not an acceptable protest to another man’s lifestyle choice!”
He fell silent, letting his words reverberate in the jurors’ ears. “And it is important that we, as a society, make it clear that we will not accept this kind of conduct. As jurors, you swore to uphold the law, and that duty was never more important than it is today. Why? Because there are some people who hate women. Who hate children. Who hate people of other races, other religions. Who hate fat people. Bald people. There will always be those who hate. But this-this!” He grew quiet, finishing with barely a whisper. “This must never happen again. Never!”
After a measured moment of silence, Drabble took his seat. Judge Lacayo nodded in Ben’s direction.
“Here’s your outline,” Vicki whispered.
Ben smiled. Christina was right-he liked the new kid on the block. She was quiet, a bit timid, so unaggressive he wondered if she could ever possibly survive as a trial attorney-which was exactly what people used to say about him. Small wonder he liked her.
“Thanks, but Drabble didn’t use notes, so I won’t either.”
“You know what you have to do?” Christina whispered to him.
He nodded. “I’m going to be brief.”
“I think that’s best.”
Ben took his position before the jury. He knew he didn’t have the slickness, the imposing presence or, for that matter, the good looks of his opponent. But he had managed to learn a thing or two about talking to juries. He’d learned, for instance, not to lie to them, because contrary to popular belief, most jurors were not stupid, and they would pick up on a lie immediately-and never trust him again. And he’d learned that, for the most part, jurors weren’t really impressed by hyperbole or dramatic surprises or courtroom theatrics. The stuff that made good television did not necessarily make a good trial. In his experience, what juries really liked was someone who would just tell them what happened, tell it straight, and let them draw their own conclusion. Of course, as he also knew, if the story was told properly, the conclusion could be artfully predestined-without giving the impression of doing so.
“First of all,” Ben said, echoing the words he had heard Kevin Mahoney speak all those weeks ago, “let’s establish what this trial is not about. It is not a referendum on gay rights. It is not a campaign for more hate crimes legislation. It is not a forum for sending messages to the populace at large. Nothing you do here will alter the history of World War II or alleviate the tragedies born of terrorist acts. You have been brought here to do one thing, and one thing alone-to determine whether this man’s guilt has been proven beyond a reasonable doubt. As the judge will later instruct you, any other consideration is grossly improper.”
Ben took a moment to size up the jurors. He hadn’t had his usual opportunity to get to know them during the voir dire, but he’d read the transcript and reviewed Kevin’s notes. Now he needed time to read the lines of their faces. He sensed that a few of them were wary of him, perhaps even suspicious. That wasn’t a great surprise. Some people were naturally suspicious of defense attorneys, usually those on the right side of the political fence or with a strong law-and-order bent. Many assumed anyone accused of a crime was probably guilty, that trials were a waste of time, that attorneys only existed to put the guilty back on the streets. The best way he could win them over would be to come clean about his client’s flaws.
“Second, I am not here to convince you that my client, Johnny Christensen, is a great human being. He isn’t.” Ben could almost feel Ellen’s eyes boring into him, not to mention Johnny’s. Never mind. He knew what he was doing. “He was neither good, nor kind, nor nice the day Tony Barovick was killed. He was mean and brutal and ignorant, and in many respects he represents the very worst part of this country, the faction that finds it acceptable to commit acts of cruelty and violence in the name of some higher cause. My partner has been trying to convince me Johnny’s not that bad, just misguided and poorly educated, but I’m not buying it. Frankly, I don’t even like sitting at the same table with him.”
Ben watched the eyebrows of more than one juror rise. Well, at least now he had their attention. “And you know what? I don’t mind telling you that, either. Know why?” He leaned over the rail. “Because it doesn’t matter. None of it matters. Whether you like him or you don’t doesn’t matter.” He paused. “I know you’re not stupid people. I know you won’t be led by your emotions. If you convict-and that is an if-it will be because of the facts presented to you at this trial, and not because you do or don’t like someone.”
Ben walked slowly to the opposite end of the rail. “Now let me clearly state that we do not disagree with much of what the district attorney has said. We will not try to dispute the undisputed facts. Johnny Christensen did participate in the beating of Tony Barovick. We acknowledge that. But he was not the principal actor in that crime and, most significantly, he did not kill Tony Barovick. His cohort, Brett Mathers, did not kill him. Nor did Tony Barovick die from the beating. They left him in a vacant lot seriously injured, to be sure, but very much alive.”
Ben didn’t detect much reaction from the jury. Many probably thought he was splitting hairs. Okay, Johnny beat him to the edge of death but didn’t deliver the finishing stroke-big deal. But that kind of thinking was exactly what Ben wanted. Because the charge brought by the district attorney was not aggravated assault, not even manslaughter. It was murder-murder in the first degree. If he could convince the jury that Johnny did not deliver or participate in the delivery of the death stroke, there was just the tiniest chance he might come out of this trial alive.
“You may have noticed that the DA didn’t say anything about how Tony got to the fraternity house-because the investigators don’t know. They’ve scrutinized the vehicles belonging to Johnny and his partner-and found nothing. The DA didn’t say anything about what actually caused Tony’s death-because they’re a little fuzzy on that point, too. They can’t tell you to what extent the illegal drug trade at Tony’s club-which Johnny Christensen had nothing to do with and played no part in-may have created a motive for murder.
“The DA would suggest that this is an open-and-shut case, but there are, in fact, many unanswered questions. And that’s a problem. Because you can’t convict a man just because you don’t like him, or because he did something else that was bad. You can’t convict when you don’t really know what happened, or where, or who did what. In order to convict my client of the crime with which he has been charged, you must find him guilty beyond a reasonable doubt. Think about that. Beyond a reasonable doubt. That’s a very high standard. And it’s one that the district attorney, for all his good intentions, simply can’t make.”
Ben buttoned his jacket, turned and took his seat, careful not to let his eyes wander toward his client-or his client’s mother.
It had started. Let the games begin.
If television legal dramas were required to play out a trial in real time, Ben mused, there would never be another lawyer show. In fact, there would never have been a first; Perry Mason would have sunk into obscurity. Because even with a case as dramatic and extraordinary as this one, 75 percent of the trial was dull as dust. The endless procedural rigmarole could bury any viewer’s interest-all the procedural hoops the law required, the painfully protracted process of establishing foundations and complying with the increasingly complex rules of evidence. The constant interruptions for bench conferences, jury breaks, the judge stepping out to attend to other business. Small wonder every legal drama he’d ever seen had taken outrageous liberties with reality. Jury trials need a good editor to keep them interesting.
And this trial was no exception. Despite the packed room full of spectators desperate for action, Judge Lacayo first went through his preliminary instructions to the jurors, parties, and counsel, making a record of everything the appeals court might want while the court reporter took it all down. Even after Drabble started putting on the prosecution’s case, the excitement level did not increase much. His first three witnesses were purely pro forma types, establishing elements everyone knew and no one disputed but that were necessary to lay a proper foundation in the event of an appeal: such as establishing that a person had died, and that the person was Tony Barovick.
It was not until the fourth witness, called after the lunch break, that the witness stand began to heat up. And even that was not immediate. First the prosecution had to establish the police officer’s experience, years of service, flawless record, qualifications, yadda, yadda, yadda…
“Officer Montgomery,” Drabble said eventually, “please tell us what you were doing shortly after midnight on the morning of March 22.”
“I was patrolling in my vehicle with my partner, Officer Raymond, in the area of Phillips College when I received a call on my radio.”
“And what was the call?”
“An anonymous tip about a possible 510 at the Beta house on campus.”
“Did you respond?”
“Of course.” Montgomery was a slim man with an erect, almost stiff, bearing. He struck Ben as an honest man, and he conveyed that sense to the jury in his testimony. “We were the closest vehicle in the area. I notified campus security and proceeded to the fraternity house.”
“When did you arrive?”
“A few minutes after midnight. We approached the front door. I knocked and called out, but there was no response.”
“What did you do?”
“The door was open, so we went inside. We soon entered one of the side rooms-a den or sitting room or something. That’s where we found him.”
“And by him you mean…”
“Tony Barovick. We didn’t know that was his name at the time, of course. All we saw at first was… the mess.”
The transformation of the officer’s face was, Ben did not doubt, unintentional, but quite evident just the same.
“Would you please describe what you saw?”
Despite his obvious reluctance, the officer answered the question. “You could see at once that something was very wrong-the boy’s legs were twisted back at unnatural angles. His clothes were torn and soaked with blood. His face had been cut. There was some kind of burning on his face. Like he had been… cooked or something. And his legs…” The officer shook his head, taking a deep breath to maintain his even tone. “Well, his legs were like hamburger meat. All pulped and shattered and… gone.”
“Could you tell if he was still alive?”
“There was no way that poor kid could be alive. But I took his pulse-standard procedure. He didn’t have one.”
“What did you do next?”
“Called homicide, naturally. Called the coroner’s office.” He grimaced. “Sent my partner out to get my coat. It was warm outside, but it was cold in that frat house. Or maybe it just seemed like it-with that mutilated body. Gave me the chills.”
“Understandable, I think, given the circumstances. Did you do anything else before you left the premises?”
“While I waited for the detectives to arrive, I looked for members who might be able to tell me what happened.”
“Did you find any?”
“Not at first. The house was empty. Apparently some big fraternity function was taking place elsewhere on campus and most of the members were there. But I did find an e-mail message left up on one of the computers in an upstairs bedroom that talked about an ‘afterglow’-that was their word-taking place at midnight at Remote Control. So I radioed that information into HQ and they sent officers to the bar. After the detectives arrived, my partner and I returned to our vehicle and went back out on the street to resume our duties. But to tell you the truth-it was a struggle.”
“You couldn’t get back to work?”
“No. I just kept thinking about what I had seen. That horrible scene. Couldn’t get it out of my mind. I ended up having to knock off early. I can’t explain it very well but when you’ve seen something like that-” He shook his head. “I mean, it isn’t just that it’s so visually disgusting, although it was that. It’s the thought that someone-anyone-would be capable of doing such a thing to another human being. Who could be so heartless?”
Ben felt the eyes in the jury box turning toward Johnny.
“I thought about applying to be on the investigating team looking for the assailant, but I put it out of my head. And you know why? Because I’m a big believer in the law. Law and order. And I knew that if I ever found the man who had done that, I wouldn’t be interested in reading him his Miranda rights. I’d just want to make sure that bastard never had a chance to do anything like that to anyone else ever again.”
Ben objected, of course, but it was pointless. The officer wasn’t delivering evidence, and the jury had already heard his commentary. There wasn’t much he could do on cross, either, since he didn’t doubt anything the officer had said, and his testimony didn’t yet link the crime to Johnny. It would be a tactical error to browbeat a witness who was just delivering the undiluted and unquestioned facts. So he contented himself with trying to lay a foundation for the future.
“When you entered the fraternity house, did you see any signs that a beating had taken place?”
Montgomery looked at Ben as if he’d lost his mind. “I certainly saw the results of the beating.”
“You know what I mean, Officer. I’m trying to determine where the beating occurred.”
“There was blood under the body.”
“Although perhaps not as much as you might expect if this extensive beating had actually taken place there.”
“I couldn’t say. I’m not the coroner.”
“Did you notice any overturned chairs or furniture?”
“No.”
“No scuffs, no dents, no broken lamps, no bits of duct tape, no damage whatsoever.”
Montgomery frowned. “Maybe the boys were careful not to hurt their house when they tortured their victim.”
“I can think of a more likely explanation, Officer. And I bet you can, too.” Ben glanced at the jury, hoping to see their brains whirring. Some defense lawyers tried to spell everything out in capital letters during cross. He always thought that it was better if he gave the jury the necessary information but let them reach the conclusions on their own. If they thought they were being clever-thinking ahead of the game-they were more likely to go where he wanted them to go. “Now, after you found the corpse, you assumed that the assailant had been a member of the fraternity, right?”
“It seemed a logical conclusion.”
“But in fact you never saw any member of the fraternity with the victim, did you?”
“Obviously not.”
“And in fact you testified that no members were in the house at that time, right?”
“Right.”
“What’s more-the front door was open.”
“That’s true.”
“So anyone could’ve brought the boy into that house. As far as you know.”
“The coroner’s re-”
“As far as you know, Officer. You’re here to tell the jury what you know.”
Montgomery sat back in his chair. “I didn’t see who brought him into the house.”
“Good. Thank you for clearing that up for me.”
During the break, Ben asked Vicki if she had any suggestions. She might be a bit on the meek side, but she was very organized, and organization was by far the most important asset when trying a case. Her notes were detailed and accurate; her files were systematically arranged and accessible.
“Anything I left out?” Ben asked.
“I thought you were great,” she said, not quite making eye contact. “I didn’t see how you could do anything with that witness. But you did-without being confrontational or alienating the jury. I could see where you were going. I think the jury could, too.”
“Let’s hope. I’m going to get some coffee. Can I get you anything, Johnny?”
He shook his head. For a boy sometimes given to great bursts of Sturm und Drang, he had been quiet, almost invisible, since the trial actually began. Ben had see this phenomenon before. Pretrial-it never seems quite real. More like some crazy TV movie-of-the-week that’s sure to have a happy ending. But once testimony begins, it becomes very real. As do the potential consequences.
“I could use some coffee. Assuming I can’t have anything stronger.”
“A safe assumption. Okay, that’s three coffees and one chocolate milk.”
Vicki put down her legal pad. “I’ll come with you.”
“There’s no need-”
“I want to,” she said, looking down toward his shoes. “I’m going to stick to you and Christina like glue. I want to get the full trial experience.”
Ben gave Christina a look. “Maybe we should let her take the next witness.”
Sergeant Sasser was one of three officers who went to Remote Control the night of the murder, following up on the lead from Sergeant Montgomery. He was a middle-aged man with a bushy salt-and-pepper mustache and hair that reminded Ben of praline pecan ice cream.
“What did you do when you entered the club?” Drabble asked him.
“We made a few inquiries and soon found the group of young men from the Beta house. There were six of them, all sitting together in a corner booth around a table. They were laughing and drinking, hooting and hollering. They weren’t hard to find.”
“Are any of the men who were at that table in the courtroom today?”
“Yes,” he said, nodding toward the defendant’s table. “Jonathan Earl Christensen.”
“Did you confront the men?”
“Not at first. The other two officers and I took a seat at an adjoining booth. I wanted to hear what they were saying.”
“And were you able to overhear anything?”
“Oh yeah. They didn’t seem to care who heard.”
“What were they saying?”
“Objection,” Ben said, rising to his feet. “Hearsay.”
Judge Lacayo nodded. “Sustained.”
Drabble frowned, then rephrased. “What, if anything, did you hear the defendant say?” Admissions by the defendant against his own interest constituted an exception to the hearsay rule.
Sasser did not hesitate. “He was bragging about beating up Tony Barovick.”
“Did he call Mr. Barovick by name?”
“No. He called him ‘that flaming faggot’ and ‘that sick queer’ and-well, other harsher terms.”
“The court appreciates your discretion,” Judge Lacayo said speedily. “And it does not believe any further detail is necessary. We get the idea.”
“Did he provide any specifics about what he had done to this… victim?”
“Yes. He specifically mentioned using a Taser. In fact, he showed it to his friends. He talked about cutting him. And he talked about swinging a hammer. His exact words were-pardon me, your honor-’we broke that little cocksucker’s legs into a million pieces.’ ”
Several members of the jury gasped-literally gasped. In a split second, Ben knew that the “magnitude of hate” about which Drabble had spoken in his opening had been transformed from the theoretical to the all-too-real.
“Did he seem regretful or remorseful about what he had done?”
“Objection,” Ben said. “This is a fact witness, not a psychiatrist.”
The judge frowned. “Well, the witness can describe the defendant’s demeanor or emotional state, as he witnessed it. Perhaps you should rephrase, Mr. Prosecutor.”
Drabble nodded. “Did you hear the defendant say anything that suggested that he showed any remorse about what he had done?”
“No. As I said, he was bragging. He and his buddy were proud of themselves. That was evident. The whole group was laughing it up.”
Ben felt the eyes burning his way-and past him-to Johnny. He knew what the jurors had to be thinking. What kind of monster was this?
“How long did you listen to the conversation?”
“As long as we could. As far as I was concerned, it was the easiest way to obtain rock-solid evidence. Sit in a chair and listen while the perp inadvertently confesses in front of three police officers. But after a while, one of them started to leave. That’s when I moved in.”
“What did you do?”
“I put the defendant and his friend Brett Mathers under arrest. We had heard more than enough to justify it. Pursuant to the arrest, we searched them.”
“Find anything?”
“On the defendant, we found the Taser. His friend had the hammer in his car. They both had split knuckles with blood smeared on them. Later tests showed that-”
“Objection,” Ben said. It was an easy win. The jury would have to wait and hear from a forensic expert what the later tests showed-namely, that the blood and skin fragments under Johnny’s nails came from Tony Barovick.
“Did you participate in the later custodial interrogations of the defendant?”
“Yes, I did. Christensen was tight-lipped at first, didn’t want to talk. Used his phone call to contact his mother, denied doing anything wrong. Claimed he’d been lying to his friends, that it was some sort of hazing game they played to scare new members. But he cracked pretty quick. Before the sun came up, he’d begun confessing. He admitted to participating in the assault on Tony Barovick. Using the knife, the Taser. Shattering Barovick’s jaw. Helping his buddy with the leg fracturing. Pretty much everything.”
“Thank you,” Drabble said solemnly. “Pass the witness.”
Small gains, Ben reminded himself as he approached the podium. That’s what you strive for. This was the prosecution’s case, not his, and Drabble wasn’t putting people on the stand to make Ben happy. If he could accomplish any little thing, it was a successful cross.
He didn’t waste any time. He knew a police witness would never warm up to him-they were specifically trained not to-so there was no point in trying to win him over.
“You testified that there were six men sitting around the table where you eavesdropped. But you only arrested two of them, right?”
Sasser was nonplussed. “Jonathan Christensen and Brett Mathers were the only two who talked about assaulting the victim. The other four were just the audience. They seemed to think it was a wonderful thing the boys had done and a great cause for merriment, but they didn’t admit to participating.”
“Did you ever consider the possibility that Johnny Christensen might have been exaggerating?”
“That he might be claiming to have hurt the victim more than he really did? Why would he?”
“You said yourself that his audience seemed to enjoy this talk. Maybe he was trying to impress them.”
Sasser shook his head. “You know, counsel, I might be willing to go along with you on that-if I hadn’t seen the corpse upon which every disgusting act they described had been perpetrated.”
Ben knew better than to let a cop witness take the ball away from him. “Sergeant Sasser, you’re supposed to be testifying as to what you saw and heard-and nothing more. And you didn’t see Johnny Christensen strike Tony Barovick, did you?”
“No.”
“And the fact that he talked about it afterward doesn’t prove that he did, does it?”
“Well…”
“Have you ever heard anyone say something that wasn’t true?”
“Sure, but-”
“Especially when they’re trying to impress someone, right? You might’ve told a lie or exaggerated details on occasion to make a good impression yourself.”
“I never bragged about pummeling someone with a five-pound hammer. That’s for damn sure.”
Well, Ben told himself, I certainly opened the door for that one, didn’t I? He tried to press on quickly.
“Did you overhear anything that would indicate where the beating took place?”
“Not that I recall. I might’ve forgotten. Since we’d already found the body, there didn’t seem to be much question-”
“You’re assuming the beating took place at the fraternity house, where the body was found. But wouldn’t that be a rather odd place to attack and kill someone?”
Sasser shrugged. “Not especially. I assume they lured the boy there or forced him to come. It would afford privacy. They could turn up the stereo to drown out the screams.”
“And wouldn’t it be even stranger to leave the body there? Where the crime would certainly be traced back to them.”
“I never claimed these guys were geniuses. I expect they thought they had some time before they had to dispose of the body.”
“So you’re saying they killed the man right there, in their own home, left the body in the den, and went out for a beer?”
Sasser started to get agitated. “You can’t judge these people by normal standards. Anyone capable of doing what those two did clearly does not think like a normal person.”
This was getting him nowhere, Ben realized. Time to shift gears.
“You’ve admitted that the late Brett Mathers was also involved in this alleged beating, right?”
“Right. He’d be sitting at your table now, too, if he were still alive.”
“How can you know exactly what Johnny did and what Brett did?”
“I can’t. And fortunately the DA tells me it doesn’t matter.”
“Objection. What is the relevance of this questioning?” Drabble asked, addressing the bench. “We all know that when the commission of a felony results in a homicide, felony murder charges may be brought against all participants. And the last I heard, beating someone with a sledgehammer was a felony. So what difference does it make who did what?”
A huge difference, Ben thought, if not now, then for sentencing purposes. But he couldn’t argue that. “The point, your honor, is that two people were involved, and the prosecution doesn’t know which of the two-if either-actually killed Tony Barovick.”
“I’ll allow further questioning on this point,” Lacayo said. “But I warn you, Mr. Kincaid, that I will be instructing the jury on the elements of felony murder at the conclusion of the evidentiary phase, and if your client participated in any felony that resulted in a death, he is liable on this charge.”
Ben nodded, then returned his attention to the witness stand. “You mentioned your initial questioning of Johnny Christensen. I’ve had the pleasure of reading the transcript of that interrogation several times. Did Johnny ever confess to beating Tony Barovick with a hammer?”
“He talked about it in great-”
“Answer my question, sir. Did Johnny ever confess to using the hammer? Did he confess to even touching the hammer?”
Sasser exhaled slowly. “No.”
“In fact, he specifically said that it was his buddy Brett who used the hammer, right? And come to think of it, you found the hammer in Brett’s car, right?”
“Right.”
“In fact, according to Johnny, Brett was the one who committed all of the most brutal parts of the beating. Brett was the one who broke Tony’s legs. And used the Taser. And Johnny says he tried without success to get Brett to stop.”
“It’s no big surprise, after we’ve got him dead to rights, that he would try to pin everything on his friend.”
“Move to strike,” Ben said, “and I’ll ask the court to instruct the witness not to engage in speculation about motives.”
Lacayo nodded, without much enthusiasm. “The witness will limit his remarks to what he actually saw or heard.”
The flaw in this argument, as Ben knew all too well, was that Brett, before he died, had tried to pin everything on Johnny. But, happily, that transcript wasn’t coming in. “The bottom line, sir, is that you don’t know where the victim was killed, or how, or by whom. At best, all you know is that a beating took place. But that does not equal murder.”
“You ever had your legs shattered?” Sasser shot back.
“I’m sorry, Sergeant, but in cross-examination, I get to ask the-”
“Because I have.” He turned toward the jury. “In the war. Vietnam. You can’t imagine how that hurts.”
“Objection,” Ben said hastily. “Nonresponsive. Not relevant.”
“It is relevant!” Sasser shouted. “The only reason I survived is that I got medical attention fast.”
“Move to strike!” Normally, law enforcement witnesses were well behaved and by-the-book. Something inside this guy had snapped.
The judge pounded his gavel. “The witness will refrain from-”
Sasser ignored him. “But Tony Barovick didn’t get medics. They just left him lying on the floor to die. To bleed to death. They didn’t care.”
Lacayo shouted across the room. “Mr. Drabble, take control of your witness!”
“This witness is dismissed,” Ben said. “Move to strike his irrelevant statements. In fact, I move to strike his entire testimony.”
“Why?” Sasser growled. “Because you’re afraid of the truth?”
Ben rushed to the bench. This emotional outburst might have an impact on the jury, but it could also give him a mistrial, or possibly even grounds for appeal.
“I’ll go,” Sasser said, stepping down from the stand. Then suddenly, he whirled back around on Ben. “But don’t tell me we can’t call it murder because we don’t know who did what or which of the many tortures actually killed that poor boy. It was brutal, cold-blooded murder. And anyone-everyone-who had anything to do with it deserves to die!”
“What’s he doing?” Swift asked Baxter, under her breath. “Listening to the room.”
“What?”
“Don’t ask.”
The two female law enforcement officers stood silently and watched as Mike stared off into space-or at least as far as it was possible to stare in this small and sordid public rest room. Crime scene technicians swarmed around them. A man in yellow coveralls was on his hands and knees picking up bits of trace evidence with adhesive strips. Another was rubbing Luminol on the tile as if it were floor wax, looking for errant blood traces in a sea of red. And Mike appeared oblivious to it all.
“How long does this usually take?” Swift asked.
“No telling. Until he comes up with something. Sometimes not long. And sometimes… well, let’s just say we might want to adjourn to that deli I spotted outside and get lunch. And dinner, if necessary.”
Swift grimaced. “I hope it doesn’t take that long. This place smells.”
“Most murder scenes do.”
“Thanks, Sergeant, I have worked a crime or two. But this joint is way above average on the stink scale. It probably smelled bad even before it contained a corpse. But now we have that all-too-rare combination of urine, decaying flesh, and copious amounts of blood. A whole can of Glade couldn’t freshen this place up.”
One of the local Chicago crime techs, a man named Grayson, perked up. “Actually, it isn’t any of those things. It’s the cranial gases.”
“Cranial gases?”
He nodded. “Released when the gunshot blew off half the guy’s head. Stinks to high heaven. Worse than colon dissections.”
“So we’re all carrying around little stink bombs in our heads?” Baxter pulled a face. “Remind me not to put a gun in my mouth.”
Swift approached Mike and gave him a slap on the shoulder. “All right, Yoda. Enough communing with the universe. Whaddaya think?”
Mike slowly diverted his gaze to her. “He thought he was safe.”
“Come again, slick?”
“He thought he was in the clear. He knew someone was out to get him, but he thought he’d managed to escape whoever it was or whatever he’d done. Probably going to catch the first bus out of town and never come back.”
“I can confirm that,” Grayson said, pointing at the materials he had carefully removed from the victim’s satchel and wrapped in plastic. “Bus ticket. Unused.”
Mike nodded. “Must’ve been a hell of a shock when he turned around and saw… whoever.”
Baxter’s eyes narrowed. “How do you know he did?”
Mike pointed to a red smudge on the steel flush handle above the right-side urinal. “Blood-but no fingerprints. He must’ve been standing right here, facing away, when the killer smashed his head back. Probably taking a leak, turned around-and there he was. He recognized his killer.”
“How can you be sure of that?”
“Because he didn’t scream immediately. If a stranger had come this close, he would’ve shouted. But he recognized the assailant. He probably tried to talk his way out of it. Didn’t work. Judging from the lacerations on the jaw and the chest, the killer knew how to fight. He put the victim out of commission fast. And then blew his head off.”
“Okay, Sherlock,” Swift said, “I’ll buy all that. Got a theory on why the poor slob was killed?”
“If I knew that, I’d know who did it. Unfortunately, I don’t.” Mike thumbed through the contents of the dead man’s travel bag. “Twelve-inch ruler. Zircon-studded dog collar.”
“Guy must’ve had a big dog, judging from the collar,” Swift said. “My mama always favored Great Danes, herself.”
Mike didn’t reply. He turned to Grayson, who was testing something with his pocket-size lab kit. “What’s that?”
“A white creamy substance I found inside the victim’s satchel.”
“Yes, but what is it?”
“I can’t be sure. I’ll need to get it back to the lab.”
“Grayson, I saw you test it. Tell me what it is.”
“I can’t be positive until-”
“Grayson.”
“My professional integrity requires-”
“Grayson!” Mike jerked the man toward him by the collar. “Are you aware of how much I outrank you?”
“Sir… you’re not even a member of our force. You’re out of your jurisdiction.”
“Which won’t help your sorry ass one little bit if I tell your supervisor you disobeyed a direct order from a superior officer. Understand me?”
“Yes. Sir,” he added.
“So I’d appreciate it if you’d answer my question. What is it?”
“Nonoynol-9,” he answered sullenly.
“And what the hell is that?”
“It’s… most commonly used as a spermicide.”
“Thank you, Grayson. Dismissed.”
Grayson left the bathroom as quickly as possible.
“Bit hard on him, weren’t you?” Swift asked. “Since he was basically right. You’re out of your jurisdiction.”
“Details, details…” He grabbed Baxter’s arm and pulled her over. “Let’s test your deductive reasoning powers, Sergeant. What did this poor schmuck do for a living?”
She stared at the contents of the bag. “Dog collar. Ruler. Little bracelets.”
“And spermicide,” Mike added. “They all add up to?…”
She shook her head. “I don’t get it.”
“That’s all right. It’s not a sign of inferior detective skills. More like a sign that you’re a wholesome person. Now, Special Agent Swift here probably got it a long time ago. Am I right?”
Swift grinned. “My mama didn’t raise her girls in a convent.”
Baxter looked annoyed. “So spill already. What does it all add up to?”
Swift batted her eyelashes. “Sex, sugah.”
“Sex? I mean, I get the spermicide, but-” She stopped short. “Ohhh. I am so embarrassed.”
“I would say kinky sex,” Swift added, “but that’s so judgmental.”
Mike smirked. “You may recall that Shelly-the bartender at Remote Control-told us about a chicken? A male prostitute, for the unenlightened. Charlie, I think she called him. She said he was at the bar the night Tony Barovick was killed. Left not long after Tony did.”
“Just like Manny Nowosky.”
Mike nodded. “These people are all linked-and not just by the fact that they’re now dead. They’re being systematically picked off because they are all connected to… something. And the most likely candidate?”
Swift agreed. “The Ecstacy ring.”
“Wait a minute,” Baxter said, trying to catch up. “If the victims were all involved in a drug ring, that would mean that Tony Barovick-”
“Was not exactly the saint the popular press has made him out to be.”
Baxter’s eyes widened. “If you’re right, a lot of protesters currently camped out in front of the courthouse are going to have to repaint their placards.”
“Yeah. And find a new martyr.” Mike grabbed his trench coat. “Come on, gang. Let’s check out this loser’s apartment.”
“Right behind you, tiger.”
“Oh, and Baxter?”
She stopped at the door. “Yeah?”
Mike smiled. “Those weren’t little bracelets.”
She covered her face with her hand. “Oh, geeeez…”
As Christina hurried down the long courtroom corridor, she listened intently to the words coming over her cell phone.
“I really do think there may be a connection, Chris. Between Tony Barovick, and the drill bit through the head guy, and this new victim. I know the evidence is slim, but my instincts tell me there’s something there.”
“Like what?”
“I have no idea. But I intend to find out. So let’s stay in touch with each other, okay? And exchange information. I’ll show you mine if you show me yours.”
“Sounds good. Thanks for keeping me informed, Mike. I really appreciate it.”
“Least I can do. Hey-do me a favor. You and Ben be careful.”
“Okay. Why?”
“Someone tried to off your client once, remember? Trashed your place, took a few potshots at you. From what I hear, these ANGER dudes are seriously militant. I don’t want you to get caught in the cross fire like the last lawyer did.”
“Understood.”
“Not that I normally think taking out defense attorneys is a bad thing. But I make an exception for you.”
“Thanks, Mike. You’re sweet.”
“I suppose there’s no point in trying to talk you into dropping the case.”
“ ‘Fraid not.”
“Right. Can’t be sensible. You get that from Ben. I could probably get the local PD to assign a security detail.”
“I can’t do my job with security dogs hanging over me.”
“Yeah. That’s what Ben said, too. Give my best to that former brother-in-law of mine, okay?”
“Will do, Major. Talk to you again soon.”
Christina gazed at herself in the mirror. No matter how many times she tried a case, she knew she would never get used to it. The pressure, from the first smash of the gavel to the last, was unrelenting. And it was worse when the stakes were so high. Worst of all when she knew the next witness was a critical one, perhaps the critical one. And she had to cross-examine.
Life was simpler when she had been a legal assistant. But not as much fun.
Before she left the ladies’ room, she made the traditional last-minute glamour check. Hair all properly pinned back. Check. No makeup smears. Check. Lipstick not on teeth. Check. Lunch not in teeth. Check. Everything as it should be.
She took a deep breath and smiled at that cute freckled face in the mirror. Show time.
Roger Hartnell was waiting for her in the corridor outside the courtroom. He was using a cane today but seemed to be able to get around reasonably well. “Ms. McCall! I need to speak to you.”
“I’m surprised to see you up on your feet so soon.”
“Turned out it wasn’t as bad as it looked. Bullet just winged me.”
“Hurt much?”
“Only when I move.”
“Then why aren’t you at home in bed?”
“Because I need to talk to you.”
“Look, if it’s about my dropping the case-”
“I’ve just come from a meeting of the ANGER steering committee.”
“Mr. Hartnell, I understand how you feel about our representation. I’m sure if I’d known Tony I’d feel the same way. But I can’t drop the case. So no matter what you and your committee think-”
“Miss McCall, you have been targeted.”
Christina felt a cold grip at the base of her spine. “You mean-the sniper-the figure hanging in the lobby.”
“I don’t know anything about that. We don’t condone violence. What I’m talking about is… publicity.”
“I’m not following.”
He reached into his briefcase and pulled out a display mounted on stiff cardboard. “Starting tomorrow morning, these ads are going to run in major newspapers and magazines all across the country.”
The layout contained four photos. The top and largest bore the caption: THIS IS TONY BAROVICK. Below, in a photo that appeared to have been taken at Remote Control, were seven people, including Roger and Shelly and the club owner, Mario Roma. THESE ARE HIS FRIENDS. The third photo was captioned: THIS IS THE MAN WHO KILLED TONY BAROVICK. Johnny Christensen, dudded out in his prison coveralls. And the final row of photos was captioned: THESE ARE HIS FRIENDS.
There were only two. Ben and Christina.
Christina felt her jaw stiffening. “You can’t do this. This is slanderous.”
“Our attorneys assure me it is not. All we say is that you have befriended your client, which you clearly have done.”
“I’m not talking about me. I’m talking about Johnny. This ad calls him a killer-which has not yet been established in a court of law. He could sue you.”
“But by the time that case comes to trial, this murder trial will be over, and he will be a convicted killer. Imagine a convicted killer crying because we called him a killer a week early. I just don’t see him raking in the dough.”
Christina pushed the layout away in disgust. “You’re determined to see that Johnny is convicted, aren’t you?”
“Of course I am. I loved Tony. I want his killer punished.”
“No, you want Johnny punished. You have no idea who killed Tony. All you know is what the police tell you. And take it from me, Roger-sometimes they’re wrong.”
“Not this time. I’m certain of it.” He put the layout back in his briefcase. “And soon the rest of the world will be certain, too.”
As soon as Christina saw DA Drabble coming through the metal detector, she stepped forward. “Oh, Richard! Glad I bumped into you. The courtroom assignment has been changed.”
He looked at her warily. “It has?”
“Yeah. Apparently a larger room opened up when Judge Pennington finished a big rape trial. We’re going to take over his space.”
“And that’s?…”
“Top floor. End of the corridor.”
A slow smile spread across his face. “Vengeance is sweet, huh?”
“I don’t get you.”
“But he who laughs last, laughs best.”
“You’re just a bundle of clichés this morning, aren’t you?”
He laughed. “Nice try, Ms. McCall, but you’re not going to throw me for a loop on my own home court.”
“You don’t believe the court has been moved?”
“Oh, I can believe that easily enough. I was in the clerk’s office last night and heard them talking about a reassignment. But they were discussing the possibility of going to Judge Cantrell’s courtroom. In Building Three.”
“But there was-”
“So nice try, little lady, but it’ll take a better scam than this lame bit of business to make me late for Lacayo’s court.” He grabbed his briefcase and hurried merrily down the corridor.
Ben came up behind her. “We really are going to Judge Pennington’s courtroom, aren’t we?”
Christina nodded. “Cantrell’s has to be fumigated. Someone saw a rat.”
“And you knew Drabble wouldn’t believe you when you told him.”
“Which is why I met him at the door. Before he had a chance to hear it from someone he trusted.” She checked her watch. “He’s going to be fifteen minutes late. At the least.”
Ben whistled. “You know, Christina, you are just evil.”
She held up her hands. “I can’t help it if he’s a suspicious person.” She smiled. “Who needed to learn a lesson about the consequences of messing with me.”
Among the reasons Christina wasn’t looking forward to this cross was the fact that Amber Wilson seemed like a nice person who was, after all, only doing her job. But in this case, the coroner’s testimony was too important to give her a pass. She had to cross the lady as if she were a combination of Satan, Hitler, and Richard Nixon combined.
Once court finally got under way-and Judge Lacayo finished tongue-lashing Drabble and his entourage for being late-the DA began his direct examination.
“Dr. Wilson, would you please tell us when you became involved in the Tony Barovick case?”
Wilson twisted around to face the jury. “I arrived soon after the body was discovered.”
“And what did you find?”
“A severely damaged corpse. As was immediately apparent, the victim had a shattered jaw, two shattered legs, and numerous cuts and abrasions. The body was covered with blood.”
“He was dead?”
“Very.”
“Were you able to determine a cause of death?”
Wilson ran a hand through her brown hair. “Technically, the cause of death was cranial asphyxia-technically, that’s the cause of almost every death. What caused oxygen starvation of the brain is more difficult to say. In this case, the victim had been so mistreated, had been so… damaged in so many ways, it’s impossible for me to say exactly which blow killed him. It could have been the one to his neck and jaw causing a closure of the respiratory passages in the neck, or a compression of the major blood vessels in the neck-the carotid arteries and jugular veins. The blows to the legs could have caused shock, leading to heart failure.”
“Are there ways to determine which blow resulted in death?”
“Not reliably, not in this case. The body was too severely damaged. I did detect evidence of heart failure-but he had been beaten so severely that he had two cracked ribs. He’d been subjected to intense electric shock. Any of those things could have been lethal. It’s really just a matter of which one kicked in first.”
“And you can’t say for certain which did?”
“Not reliably.” She glanced at Christina. “And I feel certain the defense counsel wouldn’t want me to speculate. Bear in mind-contrary to what some people believe, the human body’s physiological and muscle systems do not immediately shut down at death.”
“But you can reliably say that the beating caused the death.”
“Absolutely. That was evident.”
Christina could see that Wilson had prepared carefully for this testimony. She also appeared to have anticipated Christina’s planned line of attack; she was very carefully delineating what she could be certain about and what she couldn’t. While at the same time making sure she gave Drabble what he needed to get a conviction.
“Dr. Wilson,” Drabble continued, “the defendant has raised some questions regarding when death occurred. Is it possible for a medical examiner to make a determination as to the time of death?”
“Yes, it is. There are several methods of doing it. Liver mortis-which is the discoloration of the skin to a pinkish color caused by the settling of blood cells in the small vessels of dependent skin and tissues-does not begin until one to two hours after death, and rigor mortis-the progressive stiffening of the body caused by chemical changes in the muscle tissues-does not begin until two to four hours after death. Since only a short period of time had passed, neither of those were very useful. Fortunately, there are other indicators of the stage of decomposition-body temperature, analysis of the stomach contents, and so forth. Immediately following death, the human body begins to decompose. The rate of decomposition is steady, predictable, and measurable, and barring extraordinary circumstances, will provide a reliable measure for at least the first two hours after death.”
Drabble nodded. “I see. Did you reach any conclusions regarding time of death in this case?”
“Absolutely.”
“So the time of death would be…”
“Eleven p.m. Eleven-fifteen at the latest.”
Drabble nodded thoughtfully. “The defendant has suggested that the beating took place at another location at around 9 P.M.-just after Tony Barovick left the club-and was over by 9:30.”
“No. Not possible. The beating might have begun then, but the killing stroke-the death of Tony Barovick-came later.” She was adamant, and with good reason, Christina knew. Johnny was with fraternity brothers who could alibi him from about 9:30 to 10:45. Wilson was placing the murder at a time when Johnny was alone, before he rejoined his friends at Remote Control.
Christina watched carefully as several of the jurors shifted around in their chairs. They’d been hoping medical science could tell them with certainty who was lying. And that was what they were getting now-or so they thought.
“And you’re sure of this?”
“Beyond a doubt. To a medical certainty.”
“Thank you, Doctor. Your witness, Ms. McCall.”
Christina slowly made her way to the podium. She hated experts. Cross was bad enough with normal people-it was all but unbearable with someone who was only on the stand because it was an accepted fact that she knew more about the matter at hand than you did.
“First, Dr. Wilson, I’d like to talk about the cause of death.”
“Very well,” she said, all forthright and chipper. Christina knew that wouldn’t last long.
“I appreciate your honesty in telling the jury that you really don’t have the slightest idea what the cause of death was. Very forthcoming of you.”
“Ye-ess,” Wilson said, waiting for the other shoe to drop.
“I was troubled, though, by your assertion that the death must’ve come as a result of the beating by Johnny Christensen and Brett Mathers. Since you don’t know what the cause of death was, how can you pretend to know who caused it?”
“I believe he has admitted beating the boy-”
“Yes, but not to killing him.”
“And I saw the results of the beating. Given the severe trauma of the body, it would be ridiculous to suggest that anything else could’ve caused the death.”
Was that a challenge, Doctor? “My point is that you don’t know exactly what Johnny did. The killing stroke-to use your own words-could have come from another person.”
Wilson shook her head. “Even if it was his fraternity friend-”
“But what if it was another person altogether? A third person.”
“I’ve heard no evidence of a third person.”
“But you can’t rule out the possibility.”
“When we have two self-confessed perpetrators who conducted an extensive torture and beating, it seems absurd-”
“Dr. Wilson, could Tony Barovick have been strangled?”
Christina’s sudden switch threw the coroner off balance. “Uh-strangled?”
“Sure. You said he died of oxygen deprivation to the brain. You hypothesized that a jaw or neck injury might’ve caused asphyxiation. Wouldn’t a simpler explanation be that someone strangled him?”
Wilson hesitated. “I haven’t heard anything about any strangling…”
“And that’s the problem, isn’t it? You don’t want to attribute the death to strangulation-because Johnny never confessed to any strangling. You want to attribute death to one of the things he did confess to. But that doesn’t make it the cause of death. Especially if a third person was involved.”
Wilson was beginning to squirm. “I think it’s pointless to speculate when we know the victim endured a hideous assault.”
“You’ve read the transcript of Johnny Christensen’s so-called confession, haven’t you?”
“Of course.”
“So let me ask you, Doctor-is it possible that a person could have endured all that Johnny described and still live?”
“Oh, anything’s possible, but-”
“In fact, judging from Johnny’s description, the beating-although horrible, to be sure-did not involve anything that would absolutely, positively cause death, right?”
“I assume the defendant downplayed the intensity-”
“Well, now assume he told the absolute to-the-letter truth. Despite the severity of the injuries, those wounds were not necessarily fatal, right?”
“I agree that survival was possible. But given that he didn’t-survive, that is-and that we know this horrible assault occurred, to speculate about third parties and intervening causes is just indulging in fantasy.”
“Were there contusions on Tony Barovick’s neck?”
Again, the switch caught her flat-footed-which, of course, was exactly what Christina wanted. “It’s true, there were abrasions on the anterior neck, but-”
“And streaking arethema on the lateral aspect of zone one?”
Wilson did a double take. “Ye-esss…”
“And the cartilaginous tracheal rings were crushed?”
Wilson sighed. “Been doing some reading, Ms. McCall?”
“I try to stay informed. All of those factors are possible indicators of strangulation, aren’t they?”
“True. But just the same,” Wilson continued, “with a body so severely tortured and mutilated, those injuries could have been caused by any number of things.”
“Including strangulation by a third person?”
Wilson’s frustration was mounting. “This whole speculation about a third person is useless.”
“Useless to the prosecution, yes. You don’t want to suggest strangulation as a possible cause of death, because in his confession Johnny didn’t say anything about strangulation. You want to pin it on something he confessed to doing.”
“No, that isn’t-”
“Nonetheless, simple strangulation, subsequent in time to the beating, is a possible cause of death. Correct?”
Wilson took a deep breath. “As I testified, the time of death was shortly before the body was found. There wasn’t time-”
“Well, let’s talk about that,” Christina said, flipping a page in her notebook. “You say the time of death was about 11:15-and in no case earlier than 11:00.”
“That’s correct.”
“And you base this conclusion on the body’s decomposition, which you tell us is steady and predictable.”
“Absolutely.”
Christina snapped her fingers. “Come to think of it, what you actually said was that absent extraordinary circumstances, the rate was steady and predictable. What would some of those extraordinary circumstances be, Doctor?”
“They are all wildly improbable.”
“Try me.”
“If the body was exposed to radiation-which it wasn’t. If he’d been feverish at the time of death-which he wasn’t.”
“What about if he’d been refrigerated?”
“Excuse me?”
“Refrigerated. What if?”
“But the body wasn’t refrigerated. It was found in a fraternity house.”
“Was it terribly cold in that fraternity house?”
She looked at Christina as if she’d asked to see her knickers. “Not that I recall.”
“Think harder, Doctor. When I visited your office last week, you mentioned that the room was cold. And Officer Montgomery told us it was so chilly he sent his partner after his coat.”
“If you say so.”
“But it was you who said so, Dr. Wilson. And you were right. Do you know how cold it was? When the doors and windows in the room were shut? Before the police arrived?”
“I couldn’t possibly know. No one could.”
“Well, actually, Doctor-I could.” From the defendant’s table, Vicki passed her a photo that had already been admitted into evidence. “The crime scene technicians photographed and videotaped the entire room where the body was found-including the north wall, which is where the thermostat is located. I took the liberty of having that section of the photo enlarged.” She slid it across the witness stand. “Let me ask you again, Doctor-what was the temperature in that room?”
Wilson frowned. “Sixty degrees.”
“Sixty? Now that’s pretty cold, especially in a small room with all the doors and windows shut. Wouldn’t have taken long to cool to that temperature.”
Wilson tossed down the photo. “I will admit that it is an abnormally low temperature, but it’s hardly a refrigerator.”
“So how much effect do you think that low a temperature would have on the body’s decomposition?”
“I couldn’t say exactly. Not much.”
“I might have to argue with you there, Doctor.” Vicki passed Christina a large and heavy leather-bound book. “This is called Principles of Forensic Science and Criminology and was written by the late Dr. T. S. Koregai. It’s generally considered one of the definitive works on the subject. In fact, I think you have one in your office, don’t you, Doctor?”
“You know I do.”
“Dr. Koregai provides a chart in which he sets down the effect of increasingly low temperatures on postmortem decomposition. According to him, if the temperature is sixty degrees, you can expect decomposition-get this-to happen a third as fast as normal. He says the entire process would be slowed.” She pondered a moment. “You know, I’m no math whiz, but I think that means that instead of the time of death being an hour before you arrived, it was more like 9:30 or 10:00-when Johnny Christensen was in the company of several friends.”
“I suppose it’s theoretically possible-”
“Thank you, Doctor. No more questions.”
There was quite a stir in the courtroom after she finished. Half the reporters in the gallery ran out the back doors clutching their cell phones; the others were scribbling furiously in their notebooks. They seemed to think this was a breakthrough. And it had been a good cross-if she did say so herself.
But Christina didn’t kid herself. She might have established that Johnny could be telling the truth-but not that he was telling the truth. Unless she could come up with an explanation of who killed Tony Barovick and why, it was all too likely that the jury would conclude that the beating Johnny admitted to caused the death. Or that anyone capable of doing such a horrible thing to another human being deserved to die whether he delivered the killing stroke or not.
One observer who was not a reporter nonetheless headed out the back doors as soon as the judge called for a recess, thinking this was not supposed to happen. Johnny Christensen had to be convicted. If these two shysters kept doing what they were doing-well-this case might never be put to rest.
Should’ve killed them before, back when they were pinned down in front of their office. Before they had a chance to stir up more trouble than they could possibly imagine.
Never mind. There were many more cheap, readily accessible handguns in the world. If the case continued to progress in this manner-and there was any chance at all of Johnny Christensen escaping punishment-the sniper scene would be reenacted. With more positive results.
Warning had been given-and ignored. There would be no more warning shots. Now it was time to shoot to kill.
Outside the courtroom window, four stories down, Christina could hear chanting. Some of the gay rights protesters were getting rowdy, it seemed. “Don’t wait-punish hate!” they chanted, over and over again. Probably heard about what just happened in court today, Christina mused. Just hope they didn’t bring their snipers this time.
“Christina?” It was Ellen Christensen, standing just behind the rail. She saw Ben flinch the instant the woman spoke. “That was wonderful, what you did up there.”
“Well, thank you.”
“Will the jury believe Johnny now?”
“We still have a lot of work to do. But we’re off to a good start.”
A new voice barked in her ear. “You should be ashamed of yourself, you cheap little hustler!”
Christina instinctively ducked. She froze. Then, not hearing any gunfire, stood back up. Was she getting jumpy? Considering all that had happened, she thought she had good cause.
It was Mario Roma, the owner of Remote Control. “Tony was a good boy!” he bellowed. “He deserves better than to have some two-bit lawyers playing tricks to put his killer back on the street!”
Ben ran to her side. She was aware that her knees were knocking. All this turmoil was really starting to get to her. “Sir, all we’re trying to do is bring the truth to light.”
“Bullshit!” From the corners of the room, the bailiffs were advancing. “I know exactly what you’re trying to do. You should be ashamed of yourself!”
One of the bailiffs-Boxer Johnson-tapped Roma on the shoulder. He did not stop.
“There’s a word for a woman who will do anything for money. You’re nothing but a cheap, two-bit whore!”
The bailiffs took one arm each and forcibly removed him from the courtroom, still screaming. “Remember this, lady, everyone gets theirs in the end. What goes around, comes around. Count on it!”
“That was bizarre,” Ben said. “Talk about coming out of nowhere. Why would that guy want to-” He turned and saw that Christina was trembling.
“Hey.” He took her by the arms without even thinking about it, then did and let them go. “What’s wrong?”
“I don’t know,” she said, with a tremor in her voice. “I’m just… tired of all these threats.” She put a hand on the gallery railing to steady herself. “I’m starting to get a bad feeling about this case. This whole mess. Like something horrible is going to happen.”
“Buck up, Chris. We’ve still got a long way to go.”
“I know,” she said, her voice grim. “That’s what worries me.”
Ben had handled psychiatrists in the past, so Christina asked him to take this one. He wasn’t sure he was the best choice; he might have a slight edge on Christina in the psychojargon department, but she had it all over him when it came to understanding people. But it was her case and her call, and he knew that for whatever reason she was feeling a bit on edge. He could do it this time for her.
Drabble’s decision to call a psychiatrist to the stand during his case-in-chief was an interesting and somewhat unusual choice born of one central reality of trial practice: The prosecution never knows what the defense is going to do. They can guess, but they can’t be certain. The prosecution is supposed to tell the defense every detail of their case, their evidence, witnesses, everything. But the defense doesn’t have to reveal anything. Often the prosecution has no idea what the defense case will be till they hear it live and in person in the courtroom. Prosecutors have many other advantages-most notably the tight connection with law enforcement, the institutional resources, and usually, the judge. But in the department of foreknowledge, they were vulnerable.
Which led to the psychiatrist. Drabble couldn’t be certain Christina wouldn’t try some sort of insanity defense. The violence of the beating would certainly support it. She could argue that Johnny had been temporarily insane, or that he had been brainwashed by peer groups. Not their best shot, in Ben’s view, but a definite possibility. And Drabble couldn’t count on being able to call the psychiatrist later in rebuttal. Kevin Mahoney had advised Ben that Judge Lacayo adhered to the “heart attack” standard-he allowed the prosecution to call additional rebuttal witnesses only if some surprise development in the defense case had been of such magnitude as to induce a heart attack. Suggesting that a man who mercilessly beat a homosexual to a pulp was crazy wouldn’t qualify. Thus, the psychiatrist-now. The fact that he was also an expert in hate groups was a bonus.
Ben didn’t know the doctor, didn’t know if he was the type who’d say anything, and frankly, didn’t care. If Drabble wanted to put him on, it couldn’t be good for their case, so he did his best to keep him off the stand.
“Your honor, this is not relevant,” Ben argued in chambers.
“It is rather unorthodox,” Lacayo said, leaning back in his chair, his fingers pressed against his lips.
“Yeah,” Ben said. “Especially when we’re not running an insanity defense.”
“I don’t know that,” Drabble said calmly. “But even if they don’t use the word insanity, they will no doubt argue that this nice boy from a pleasant middle-class family couldn’t possibly commit this awful crime. We’re entitled to rebut that.”
“That is not what he’s doing,” Ben insisted. “He’s suggesting that because a man is a member of a certain organization-”
“Two, actually.”
Ben grimaced. “That his association with these groups incriminates him. It’s a First Amendment issue.”
Drabble waved his hands in the air. “All the witness will say is that the fact that the defendant was in antigay groups demonstrates that he was predisposed to harbor hatred toward gay people. Duh.”
“You know it won’t stop there,” Ben said. “The witness’ll be suggesting that because he went to some meetings where the use of violence was espoused, that meant he acted in conformity on the night in question. A clear evidentiary violation.”
“I will not argue that,” Drabble said, getting a little hot. “I don’t have to. Your client has confessed, remember?”
“Not to the murder.”
“Close enough.”
“This is like the O. J. Simpson prosecutors suggesting that because O. J. dreamed about hurting his wife that meant he did.”
“As I recall,” Drabble said, “the prosecutors lost that case big time. Maybe you shouldn’t protest so much.”
“You’ll go beyond that,” Ben said. “You’ll turn it into a-”
Lacayo held up his hands. “Quiet! I’ve heard enough. I’m going to allow the testimony.”
“Your honor!” Ben started.
“I said, quiet! I’m ruling. I’ll allow the testimony, but only for the purpose of showing that the defendant was psychologically capable of the crime. I want no assumptions that he did anything more than what he has confessed to doing.”
“Understood,” Drabble said.
“And I don’t want a lot of psycho mumbo jumbo that will only confuse the jury, either.” He peered across the desk at Drabble, and Ben felt certain a pointed message was being communicated. “I don’t think this is a complicated case. Let’s not turn it into one.”
“Dr. Pitney,” Drabble said, after exhaustively establishing the man’s professional credentials and that he had spent ten hours examining Johnny Christensen, “would you call the Christian Minutemen a hate group?”
“Absolutely.” The man had a bushy red beard which he seemed to have a hard time keeping his hands off of. “They deny it, of course. They justify all their beliefs in terms of carefully chosen scriptures. But by my standard, and that of most of my colleagues, an organization that opposes people based on who they are, based on being members of a discrete group, is a hate group.”
“Is there any documentation backing up your view on this point?”
“Of course. You’ve already admitted the group’s printed principles and tenets into evidence. I would invite the jury to read it when they have a chance. Pay particular attention to the passages about ‘the plague of homosexuality,’ the equation of ‘consensual sodomy’ with child abuse, the suggestions that homosexuality is a mental disease adopted by choice by the ungodly. Homophobia is all over the document-and this is something that is handed out to all prospective and new members of the organization.”
“Is this… unusual?”
Pitney shifted around in his seat. He was doing a good job, Ben noted, of making eye contact with the jury, but not in such a direct and obvious manner that it made them uncomfortable or feel they were watching a performance. “Depends on what you mean. When this organization was first created, about sixty years ago, its principles also included equally vehement passages about people of other races. That has fallen away, of course. In our modern world, that wouldn’t be tenable; they’d be perceived as a KKK-another supposedly Christian group. And the principles still have many incredibly sexist antifemale passages. As with many fundamentalist groups, they are very fond of the New Testament scriptures about a wife cleaving to her husband and being subservient to him. That, too, is falling out of favor, even with extremists. Homosexuality is another matter, however. Although times are changing, prejudice against homosexuals is still acceptable in many quarters, particularly with some religious groups. From the standpoint of an organization, it’s still a viable basis for hate.”
“And the Christian Minutemen have been involved in hate crimes against gays?”
“Its members have. More than thirty in the past five years. Of course, the organization always disavows any responsibility for the crimes, just as it has in the present case. But it still happens. Repeatedly. You draw you own conclusions.”
“Where do these people come from? How do they become the way they are?”
“It’s hard to explain. Because it’s always a combination of factors. Almost never a single linear event. I’ve yet to meet a member of one of these groups who was actually harmed in some way by a homosexual. But there is a great appeal in some psyches to having someone to hate. Some cause to rally around, some mission. And in some cases, an excuse for violence.”
“In your experience, Dr. Pitney, is this an example of failed parenting?” A pointed question, Ben knew, because Johnny’s mother was listed as a witness for the defense.
“Sometimes. But you know, I’ve examined large families where one of the parents-usually the father-promoted prejudices to his children. Some of the offspring adopted it lock, stock, and barrel, and even as adults engaged in the same racist slurs and attitudes. And some of the children reject the hate education while still in their teens. By the same token, I’ve interviewed young people who grew up in good homes with well-educated, non-prejudicial parents who ended up joining radical militia groups. That’s not the most common scenario, but it does happen.”
“What makes the difference?”
“I don’t know.” Ben looked up; that was something he didn’t hear often from an expert witness. “It’s a combination of nature and nurture. Sometimes it’s a part of teen rebellion, either to adopt or to refuse to adopt these prejudices. Sometimes it’s personality-some people, happily, are just not predisposed to hate, no matter what the situation. Some young people are exposed to a forceful personality at a critical juncture who transforms their way of thinking. Education is obviously a factor, as is wealth. But you know what I really think makes the difference? And I’ll admit up front I have no way of proving this. But I think in the long run it has to do with the subject’s… how to say it?… exposure to ideas. Never once have I encountered a well-read man who was also a hatemonger. There are no Ph.D.s in the KKK. I truly believe that people who expose themselves to the arts-fine arts, visual arts, poetry, literature-people who expose themselves to good ideas will not end up adopting bad ones. It’s the guys who don’t come into contact with new and better thoughts-who do their work and pay the bills but aren’t exposed to new ideas in any way that influences them-who are most likely to hang on to the old bad ideas they learned as a child.” He paused. “Or in a keenly bigoted fraternity house.”
Drabble nodded, turning a page in his notebook. “Now, Dr. Pitney, you’ve had a chance to examine the defendant, Jonathan Christensen, haven’t you?”
“Yes.” Pitney detailed the hours he spent, the tests he performed, records he reviewed, laying the foundation for the testimony to come.
“Did you reach any conclusions regarding the man’s sanity?”
Pitney nodded. “John Christensen is all too sane. Plagued by hate. More than ready to act upon it. But unfortunately, that does not make him insane. Not even temporarily.”
“Based upon your time with him, why do you believe he committed this horrible crime?”
“Objection,” Ben said, grateful to have an excuse to interrupt. “It has not been established that Johnny committed any crime.”
Drabble smiled. “I’m so sorry. I’ll rephrase. Why do you believe he committed the horrible beating to which he has confessed?”
“It all comes down to the one word: hate. I believe he nurtured these antigay sentiments for some time. He attended an ultrafundamentalist church and no doubt heard some of it there. But it really mushroomed when he joined the fraternity and started going to the Minutemen meetings. He was totally indoctrinated.”
“How so?”
“Historically, Jonathan has not been an especially bright student, nor has he been good at sports, nor has he been very popular. He was one of the kids who slip through the cracks. Till he joined the Minutemen. I believe he was so glad for the companionship, so pleased to feel a part of something larger than himself, that he was particularly susceptible to hate teachings. Fraternity houses have historically been hotbeds of sexism-guys playing macho for their friends by talking trash about women. That sort of language, of course, has become politically incorrect in recent years. In many respects, homophobia has filled the gap.”
Drabble looked puzzled. “The problem is, Doctor… it’s one thing to privately harbor some prejudices. But to snatch someone from a public place and quite literally beat him to a pulp-that’s something else again.”
“True, this was an extreme case-but that’s not all that uncommon, unfortunately. These things start small-just some guys sitting around talking. The tension builds, the need to act upon their words becomes more urgent. And the next thing you know-someone’s swinging from a rope. In this case, Johnny has admitted he was in the company of a like-minded friend who had performed violent acts in the past, and he claims that the victim made sexual advances to them. For two people in this mind-set, that could be more than sufficient provocation to trigger a violent episode.”
“In his statement, the defendant has always claimed that his friend, Brett Mathers, was the principal actor.”
“And that may well be. But what difference does it make? I wouldn’t have done what he did, or permitted it to happen, no matter what a friend did. Neither would you. But John Christensen did. Not out of insanity. Out of cold-blooded hate.” He shook his head, at once moved and disgusted. “John Christensen isn’t crazy. But he is evil.”
“Objection!” Ben said, rising.
Judge Lacayo craned his neck. “The man’s an expert, and he’s entitled to his opinion.”
“But that had nothing to do with psychiatry. I hardly think that’s common jargon in his field!”
“Overruled,” Lacayo said. “Please continue, Mr. Drabble.”
Ben sat down beside Christina and whispered into her ear. “I’m not going to cross this guy.”
“Agreed. Just get him out of the jury’s face as soon as possible.”
Drabble continued his direct. “And you’re sure about this conclusion, Doctor?”
Pitney paused, gathering his thoughts. “Remember that the beating is acknowledged to have taken something like half an hour. Now imagine being beaten, knifed, hammered for that long a period of time. You know that poor boy cried out for mercy. The defendant has acknowledged that he did. Probably offered to do anything if his assailants would only stop hurting him.”
Pitney wiped his brow, visibly shaken. “Frankly, most people, even if they started, couldn’t have gone on after that. Even most deranged psychopaths couldn’t have continued. John Christensen wasn’t fueled by insanity in any way, shape, or form. He was driven by his selectively sociopathic hatred. Even now he believes what he did was justified. Maybe even believes it was some sort of divine intervention. Someone like that isn’t crazy. But he is absolutely without question the most dangerous element in any society. The one capable of unspeakable evil. The one most important to stop.”
Roger changed my life. He really did. I can’t claim that he was my first lover, or even my first male lover. But he was the one who mattered. He always will be.
He came in on Friday night with a bunch of other guys from a drag racing strip. Most of them grabbed one of the video consoles and started scanning the pictures, not so much looking for love as entertaining themselves. But Roger held back. I saw him, sitting at the table, quietly sipping a margarita. And the more I watched him, the more I had a sense that although he was part of the gang, he wasn’t. That he didn’t belong. And that started me thinking…
As I’ve mentioned before, I don’t have perfect radar, but it didn’t take me long to figure out that he was gay. I waited on his table attentively, made a few casual remarks, dropped the names of a few gay haunts, felt him out. When the rest of his buddies left, he stayed. I went off duty, had Shelly make us another round, sat down with him and talked. And talked and talked and talked. It was easy-we had so many of the same interests and preoccupations. We agreed on almost everything. And made a date to meet the next Thursday for lunch. So we could talk some more.
The first time Roger spent the night, I thought that might feel strange, but I was wrong. It felt terrific, calming, thrilling. Not just sexually, although that was certainly part of it. But it was more. It was feeling, for the first time in my life, that I didn’t have to hide anything, that I didn’t have to put on a show. That I could just be who I really was, without repercussions. That’s a wonderful, freeing feeling.
Roger wants to meet my parents. Well, I have to be honest-I’m not ready for that. And what would be the point? My father wouldn’t speak to him any more than he will speak to me. I’m not sure my mother would be much better, no matter how hard she tried. Roger isn’t just gay, he’s black. Not that that should have anything to do with anything. But I lived with those folks for seventeen years. I know how they think, and I’m very afraid of what they might say. It’s sad that I can’t share the most glorious thing that has ever happened to me with my parents, but that’s the way it is. You can take the hard line with your kids and feel very self-righteous about it, but it always results in a division. A lack of closeness. And a lack of trust. And things are so good with me and Roger right now, I just don’t want that intruding upon our happiness.
Knowing Roger has been such a transforming, liberating experience for me. I don’t know if I can possibly explain it to someone who hasn’t been there. But before Roger, no matter where I went, no matter what I did, indeed, no matter how happy I might have been, I always felt… apart. Alone.
But not now. With Roger, I know I’ve made a connection, one that matters. I know we are together, that we will always be together. No matter what happens. How can I not? I’m in love. For the first time in my life, I am truly head over heels in love. And it feels great.
It wasn’t as bad as visiting the scene of a homicide, Mike told himself, trying to bolster a sunnier outlook. It wasn’t as bad as a trip to the coroner’s office. It wasn’t as bad as root canal surgery.
But who was kidding whom? It was pretty damn bad.
“Contents of a dead man’s apartment. If you can call it that,” Baxter said, dictating into an imaginary recording device. “Two half-eaten pizzas. Sour milk. Tacky shag carpet. The pungent aroma of human waste. Cockroaches. Lots of dirty-make that stale and crunchy-underwear. And here in the cupboard, more sex toys than can be found in most adult bookstores.” She slammed the cupboard shut. “Charlie the Chicken was one class act, wasn’t he?”
Mike tilted his head. “He was working with a limited income, I think.”
“That,” Baxter said, “plus he was slime. Bad combination.” She got too close to the sofa and the smell of-she didn’t want to know-almost gagged her. “Thank goodness he had a rent invoice in his bag. Otherwise, we would’ve never found this hellhole. Although at the moment, I’m thinking it’s a dubious blessing.”
Special Agent Swift entered from the rear bedroom. “Hey, kids! Back here! Water bed.”
Mike winced. “Too trite.”
“How could this guy afford a water bed?” Baxter wondered aloud.
“Maybe he got it from an old lady as a tip.”
“It’s the only thing I could call actual furniture,” Swift said. “All indications are that he hadn’t been here long.”
“And didn’t plan to stay long, either,” Mike added, “judging from the bus ticket in his pocket. He knew someone was after him.”
“You’re sure of that, Sherlock?”
“Sure enough. See the muddy footprints beneath the front window? The wear on the floorboards? He knew his killer was after him. He was watching for him. Probably scared to death.”
“Hey!” Baxter shouted. “Over here!” From an open drawer on a spindly end table that looked as if it would collapse if you blew on it hard, she withdrew a framed photo. “I think we have a shot of our victim.”
Mike scrutinized the photograph. He was a young man, probably early twenties, if that. He had dark hair and slightly chubby chipmunk cheeks. It conformed in all respects with the face they’d found in the bus station men’s room. What was left of it.
“This is excellent,” Swift enthused. “It may not be all that current. But it beats running around with another one of those computer-enhanced jobs.”
Baxter nodded. “Pretty unlucky that both our victims had half their faces erased.”
“It’s not luck,” Mike said firmly. “It’s design. Our killer is smart-probably experienced. He’s trying to hide the trail. Prevent us from identifying the victims. So we don’t recognize the connection.”
“Which is?” Baxter said, eyebrow arched.
Mike didn’t answer. He stared at the photo. It gave him a much better picture of what the deceased looked like than he had gotten from the shattered remains in the men’s room. “You know, I’ve seen this face before. But I can’t quite place where.”
“Ever work vice?” Swift asked.
“Not for any length of time.”
“Drugs? DEA files?”
Mike batted his fingertip against his lips. “Maybe. I don’t know. It’ll come to me. I hope.”
“Maybe you should see the department hypnotist,” Baxter suggested.
Mike shook his head. “Memories recalled under hypnosis aren’t reliable. You can almost never get them admitted in court. Judges are really down on it.”
“Where do they stand on massage therapy?” Swift asked, her full-lipped grin spreading. “I’ve heard mine is very stimulating.”
“I’m not surprised,” Baxter said, “given how much practice you must’ve had.”
“R-r-r-r-ar.” Swift made a cat claw in the air. “So whaddaya say, handsome? Haven’t you held me at bay long enough?”
“Not that I’m not tempted,” Mike said, “but I’m heading back to your office. Give me enough time, and possibly enough beer, and I’ll remember.” He tucked the photo under his arm. “This could be the break we’ve been waiting for.”
After the disastrous testimony from the psychiatrist, Ben comforted himself thinking that it couldn’t get any worse, not with the innocuous list of witnesses left to the prosecution. Once again, he was dead wrong.
“The state calls Gary Scholes.”
Ben whispered to his client. “You sure this is going to be okay?”
“I’m tellin’ ya-nothing to worry about,” Johnny insisted. He seemed more upbeat than he had since the trial began. “Gary and I are brothers. We took a pledge of loyalty. He wouldn’t do anything to hurt me.”
“Then why is he testifying against you?”
“He was subpoenaed, man. He can’t help it. But he’ll make ’em sorry, once he’s up there. We Betas stick together.”
Ben watched as the gangly college student ambled to the front of the courtroom. All witnesses were nervous, but he seemed particularly unhappy to be where he was. And Ben noticed that the man did not look at his pal Johnny as he passed by their table.
In the first few minutes, Drabble established that his witness knew Johnny Christensen, that he was a member of the same fraternity, and that he had attended some of the meetings of the Christian Minutemen. “Were you a member of that organization?”
“Yes. Have been for years.”
“Even though it’s an antigay group?”
“The Christian Minutemen aren’t anti-anything.” Scholes ran a hand through his hair. He was wearing a suit and tie-standard courtroom attire-but looked ferociously uncomfortable in them. “We are opposed to homosexuality. Homosexuality is a sin, as the Bible makes explicitly clear. But we embrace all people. We try to help gay people find the way. We help them find a cure for their problem.”
Drabble tilted his head. “A cure?”
“Yes. The Christian Minutemen believe that homosexuality is a disease, possibly a mental disorder, and I might add that many well-known and respected authorities support our position. We believe that with therapy and conditioning and spiritual counseling, people can overcome this disease and lead wholesome, natural lives.”
Ben tapped the end of his pencil on the table. He never liked it when he was unsure where the prosecutor was going. Why was Drabble going to such pains to establish his witness’s position on gay issues?
“So you bear no enmity toward the homosexual community.”
“No. I may not approve, but I bear them no malice. I believe in counseling, therapy. I do not believe in violence. The Minutemen do not officially promote violence, and we’ve done our best to squash the rumors that some of our members were involved in… gay-bashing.”
“How long have you known the defendant, Jonathan Christensen?”
“Since he joined the fraternity.”
“Were you friends?”
“I’d say so. We spent a lot of time with each other, along with the other frat guys.”
“Did you ever hear him express his opinions regarding gay men?”
“Oh yeah. He-”
“Objection,” Ben said, approaching the bench. Drabble followed. “Hearsay. Not relevant. More prejudicial than probative.”
“Goes to motive,” Drabble replied. “Obviously.”
“My client’s position regarding homosexuals is well established,” Ben rejoined. “Anything more on this subject is just cumulative. Worse, the prosecutor is implying that Johnny’s disapproval of homosexuality proves he committed murder.”
“It does seem to me as if we could skip this part,” Judge Lacayo said. “Let’s move on to the heart of the man’s testimony.”
Drabble grudgingly complied. “Mr. Scholes, were you with Johnny Christensen on the night in question?”
“Part of the time, yeah.”
“Which part?”
“I saw him around eleven P.M. in a club near campus called Remote Control.”
“And not before?”
“Absolutely not.”
“Why were you at Remote Control?”
“It was a regular hangout for the guys in our frat house. You could probably find some of us there any night of the week. An e-mail had gone around inviting members to meet there after a sorority function taking place earlier that night.”
“Did you know Johnny Christensen would be there?”
“Not till I arrived, with three others. We saw Johnny and Brett, so we joined them.”
“How long were you with them?”
“Until the police arrested Johnny and Brett.”
“What were the topics of conversation?”
“There was only one.” His lips puckered, as if he had an unpleasant taste in his mouth. “Johnny and Brett were describing how they’d just beaten up some… homosexual.”
“Were they bragging about it?”
Scholes took a deep breath. “Yes. They were very proud of themselves. Played it all out for us, practically in real time. Made a big joke of it.”
“Wait a minute,” Johnny whispered, back at the defendant’s table. “What’s going on here?”
Ben didn’t answer. Seemed the fraternity of brothers wasn’t as tight as Johnny thought.
Drabble continued. “It was a joke?”
“Yes, they thought it was very amusing. They were particularly delighted by their victim’s pleas for mercy, his begging for his life. Johnny would kind of imitate the boy’s voice, you know, real high and effeminate-sounding. ‘Please don’t kill me. Please. I’ll do anything.’ ” Scholes licked his lips. “He thought that was hilarious.”
The courtroom fell silent. All eyes were on the defendant, not the witness.
“Did Johnny reenact the beating?”
“Oh yeah. He was high as a kite, you know? Irrepressible. Showed us his mean right, his uppercut. ‘This is the swing I used to break his jaw,’ he said. And he showed us all his tools-the knife, the Taser. Brett told us about the hammer.” He shook his head. “They were so proud of themselves.”
“What was the reaction from the rest of the group? Did they laugh?”
Scholes shrugged. “Some of them did. A little. Especially after they’d had a few beers. But mostly Johnny and Brett were entertaining themselves. They were oblivious to the rest of the world.”
“And what was your reaction?”
“I was sick. I stayed because I didn’t want to create a scene, but the whole thing repulsed me. Bad enough to torture another human being like that-but then to take so much pleasure in it. To laugh and brag about it. I thought I was going to vomit.”
Back at the defendant’s table, Johnny held his head in his hands. “I can’t believe this.”
“Shhh,” Ben whispered. “The jury is watching.”
“But-he’s a brother! Why would he turn on me like this?”
Because he has a conscience? Ben thought. He couldn’t believe what he was hearing, either, but for entirely different reasons. Why would Drabble risk putting one of Johnny’s friends on the stand, just for this? All this grotesque braggadocio had been related by the police witnesses. Another version wasn’t necessary. There had to be something more.
“How long were you at the bar?” Drabble continued.
“About an hour. Maybe a little more. By that time, Johnny and Brett were starting to wind down, and I thought I could leave without taking any grief from anyone. I started to go and others followed my lead-and that’s when the police moved in.”
“Were you questioned?”
“For a time. They eventually let me go. Johnny and Brett were the only ones they arrested.”
Drabble closed his notebook, gripped the corners of the podium, and leaned forward, an earnest expression on his face. “Now, Mr. Scholes, I’m going to ask you another question, and this is very important, so please take your time before answering. During this entire sordid conversation-the bragging, the reenacting, the laughing and joking-did Johnny ever say that he had killed his victim?”
“No. He never used that word.”
“Did Brett?”
“No. They talked about how bad they hurt him, but never said they killed him. In fact, early on, I remember specifically hearing Brett saying, ‘We shoulda just killed him.’ Which of course suggests that they didn’t.”
Ben and Christina looked at each other, eyes widening. What was going on here? Why was Drabble making their defense for them? Christina seemed faintly pleased, but Ben knew Drabble would never intentionally have his witness buttress a defense theory, even if it was the truth. There had to be more to this. And whatever it was, he felt certain he wasn’t going to like it.
“Was there any reaction when Brett made that statement?” Drabble asked.
“Yes. Johnny fell strangely silent, for the first time. He seemed to kind of withdraw inside himself. His head drooped.”
“What did you make of that?”
“Well, at first I just thought the booze was wearing off. You know-he was coming down from the buzz. Then, out of nowhere, I heard him say, real quiet like, ‘Brett is right.’ ”
A buzz rose from the gallery of the courtroom, a mixture of whispers and scratched pencils and shuffling and craning. All eyes were fixed on the witness stand.
“He said that?”
“Yeah. And I said, ‘What are you talking about?’ He answered right away. He said, ‘We should’ve killed that filthy faggot. I should take care of that myself. I should go back and finish what we started.’ ”
The buzz grew. Eyes widened all around the courtroom.
“Objection!” Ben said, not because he had any grounds but because he thought he had to. “This is hearsay-”
“Admission against interest,” Drabble said calmly.
“-and was obviously invented by the prosecution to counteract our defense. This testimony does not appear in any of the witness’s prior statements!”
“I just remembered a few days ago,” Scholes said. “When I read in the paper that Johnny was claiming he didn’t kill that kid.”
“The objection is overruled,” Lacayo said.
“But your honor,” Ben continued, trying to break the spell these deadly words had cast over the courtroom, “this is an eleventh hour switch obviously concocted to-”
“You’ll have a chance to expose any perceived faults in the testimony during cross,” the judge said firmly. “The objection is overruled. Proceed.”
“It’s not true,” Johnny whispered, as Ben retook his seat. “I don’t remember saying anything like that.”
Ben motioned for him to be silent. The last thing they needed was for the jury to see him desperately protesting his innocence. Stay calm, he mouthed.
Drabble resumed his questioning. “And what if anything did the defendant do after he made that statement?”
“Nothing at first. But about a minute or so later, he got up, with this really weird expression on his face-and left the bar.”
Now the noise in the gallery was so intense Judge Lacayo had to clap his gavel a few times and order silence. Sitting behind the defense table, Ellen Christensen’s eyes closed, her face contorted in pain.
“He left?” Drabble said, acting surprised, although Ben knew perfectly well he wasn’t. “For how long?”
Scholes tossed his head to the side. “Hard to say exactly. Maybe fifteen minutes.”
“And this would be when?”
“Around 11:10, I think.”
Ben felt a cold chill grip his spine. Eleven ten-still within the window of the coroner’s estimated time of death.
“And how long does it take to get from the bar to your fraternity house?” Drabble asked.
“Only a few minutes. You can walk it in five.”
“So let me get this straight. At 11:10, the defendant says, ‘I should finish what we started,’ leaves the bar for fifteen minutes, then returns.”
“Objection, your honor,” Ben said. Thank God he finally got an opening. “He’s leading the witness.”
“True enough,” Lacayo replied. “Sustained.”
“What’s more, I object to this entire line of questioning. It’s all supposition based on hearsay. The witness can’t testify about what my client did after he supposedly left the bar. This evidence isn’t probative of anything.”
Drabble arched an eyebrow. “Then it shouldn’t pose any threat to you.”
“I move to strike,” Ben continued, advancing toward the bench. Drabble joined him. “In fact, I move for a mistrial.”
“On what grounds?” the judge asked.
“On the grounds that this speculative and irrelevant testimony has permanently tainted this jury.”
“Tainted them with the truth?” Drabble asked.
“The mere fact that the man left the table for a little while doesn’t prove he killed anybody.”
“And I’m sure you’ll make that point on cross and in closing,” Lacayo said. “Anything else?”
“Yes! At the very least, I move that the jury be instructed to disregard this line of questioning.”
“That will be denied,” Lacayo ruled.
“Your honor, he’s lying!”
“That’s why God made cross-examination, counsel.”
“If nothing else,” Ben pleaded, “strike the testimony on grounds of fundamental fairness. The prior defense attorney interviewed the witness extensively, but he didn’t hear anything about this.”
“Maybe he didn’t ask the right questions,” Drabble said.
“That is another issue you can address on cross,” the judge added.
“What’s more,” Ben said, glaring at Drabble, “the prosecution has a legal obligation to come forward during the pretrial period with any damaging evidence they intend to use at trial. But we never heard about this.”
“We gave them the witness,” Drabble said. “Good grief, do we have to give them a list of questions to ask? We can’t lead them by the hand every step of the way.”
“Defendants are supposed to be tried by evidence, not by ambush.”
“Gentlemen, please!” Lacayo held up his hands, clearly indicating he wanted the discussion to end. “I’m sympathetic to what you’re saying, Mr. Kincaid-and I know the appeals court will rip me a new one if I allow anyone to be tried by ambush. But I don’t feel this one detail varies that much from what you already knew the witness was going to say-”
“It destroys our entire defense!”
“-and you did have access to the witness beforehand. It would be different if he lied to you, but there’s no indication before me that he did-only that you failed to cover an important area of potential testimony. We can’t do everything for you, you know. Sometimes counsel has to stand on their own two feet.”
Ben bit his tongue.
“We’re burning daylight, gentlemen, and I’m still hoping we can finish the prosecution’s case today. Let’s move along.”
The attorneys returned to their positions. Drabble passed the witness. Ben launched in on him immediately. “Mr. Scholes, do you consider yourself a good person?”
The witness was understandably perplexed. “I guess.”
“Are you a loyal person?”
Scholes’s lips tightened. Now he knew where this was going. “I try to be.”
“And I believe you’ve said you considered Johnny Christensen your friend?”
“True, but-”
“Do you think he considered you a friend?”
“I like to think so.”
“And when you sat together in that bar last March and he was talking, do you think he expected you would repeat what he said to third parties?”
“Probably not, and normally I wouldn’t. But this is murder!”
A fair point, Ben thought quietly. “Nonetheless, he was speaking to you in confidence.”
“Well, not really, because as it turned out, the police were listening at the next booth.”
“But neither of you knew that. He must’ve thought he could trust you.” Ben had no idea whether this would fly or not, but it had to be to their advantage to portray the witness as a traitor and a snitch rather than a whistle-blower.
“I guess.”
“But as it turns out, your loyalties were somewhere else altogether, right?”
“I… don’t know what you mean.”
“How long have you been in the Christian Minutemen?”
He seemed taken aback by the sudden shift in topic. “I’ve already said-for some time.”
“Over three years, to be more precise.”
“Y-yes. That’s right.”
“You’re rising up the ranks in the local chapter, aren’t you?”
“I’m the assistant deputy director.”
“And what’s the position of your organization regarding the murder of Tony Barovick?”
“We have publicly condemned the actions of the accused.”
“Even though he’s one of you.”
“Even so.”
“The fact is,” Ben said, “Johnny has become something of a liability, hasn’t he?”
“I’m… not sure what you mean.”
“Oh, come on now, Mr. Scholes. You’ve been to the meetings. It must’ve been discussed. If Johnny Christensen is linked to the Minutemen, it could really mess up that supposed nonviolence position of yours.”
“Attacking that boy was his idea, not ours.”
“So you say. But in any case, Johnny has become a political liability, and you’ve gone out of your way to distance yourselves from him. That’s why you’ve cooperated with the police, isn’t it? You’d be happiest if Johnny disappeared from the face of the earth. Not because of what he did-but because he got caught.”
“I’m just telling you what I know.”
“And then some. You and your little gang of hooligans want to see Johnny convicted, and you’re not afraid to make up a story to see that it happens!”
“Objection,” Drabble said. “This is just harassment and speechifying.”
“I didn’t hear a question in there anywhere, Mr. Kincaid,” the judge said sharply. “Do you need instruction on how a cross-examination is to be conducted?”
“No, sir. Could we get the witness some instruction on the difference between the truth and a great big lie?”
“Objection!” Drabble boomed.
Ben winced. Shouldn’t have done that…
“Mr. Kincaid!” Lacayo pointed his gavel. “I’ll only warn you once. I will not have this kind of behavior in my courtroom.”
“My apologies, your honor.”
“Consider yourself sanctioned. You may deposit five hundred dollars with the clerk of the court on your way out today.”
Great. Looks like I’m taking the bus home. “Sorry, sir. I’m just… frustrated.”
“May I answer his question?” Scholes asked. “Because I’m not lying!”
Ben readdressed himself to the witness. “Then why didn’t you mention this hot little tidbit about Johnny leaving the bar before?”
“I told you. I didn’t think of it.”
“Until just before your courtroom appearance. After you’ve been interviewed by the defense attorneys. After the prosecution has learned about our defense.”
“I remembered reading in the Trib that Johnny was claiming-”
“What about the other three men at the table?”
“I-I’m not following you.”
“All the frat boys at the table that night were interviewed by the police and by the defense attorneys. Why is it that none of them-not one-recalled hearing Johnny say anything about ‘finishing what he started’?”
“I was sitting closest to Johnny. And at that time, he was speaking quietly.”
“And no one else noticed that he was gone for fifteen minutes?”
“It might not have been that long. I’m not sure. They probably just thought he’d gone to the bathroom and didn’t keep track of the time. But I did.”
“And why is that?”
“Because I’d heard what he said just before he left.”
Ben took a deep breath, trying to collect his thoughts. He was getting nowhere with this witness-worse, he was giving the man a chance to repeat and reinforce everything he had said. He needed to extract what little he could from this witness and get him out of here.
“Mr. Scholes, you don’t know where Johnny went when he left the table, do you?”
He hesitated. “I… don’t know for a fact.”
“And you don’t know what he did while he was gone, either, right?”
“I didn’t see what he did. No.”
“And did he at any time say that he had killed anyone?” Ben presumed that if he had, it would’ve been mentioned already.
“Not specifically. Mostly he just bragged like before and massaged his hand.”
Ben blinked. “His hand?”
“Yeah. He kept rubbing his fingers and palm. He seemed to have strained it or something.”
Strained it-strangling someone?
“Thank you. No more questions.” And good riddance.
Lacayo addressed the prosecutor. “Any redirect?”
Drabble shook his head. “No. And the prosecution rests.”
Christina made the usual motion for a directed verdict, which the judge denied without even thinking about it. The prosecution had more than made its case, and everyone in the room knew it. The judge dismissed the jury for the day, instructed the defense to be ready to begin tomorrow morning, and adjourned the court.
Pandemonium ensued. Reporters pressed against the rail, trying to get quotes from Ben and Christina, from Drabble, from Johnny. Christina declined their kind offers to preview her defense to them and started packing.
Ben felt a tugging at his wrist. Johnny.
“This isn’t goin’ so hot, is it?”
Ben wasn’t sure how honest to be. “Things rarely look good for the defense after the prosecution rests. If they don’t have a solid case, they don’t go to trial. But now we get our chance.”
“But we don’t have anything. Do we?”
“We have you.”
Lines formed around Johnny’s eyes. “Do you think they’ll believe me?”
After one look into those eyes, there was no way Ben was going to tell him what he really thought. “I hope so.” He nodded toward Christina. “Team meeting?”
“Definitely.”
The marshals took charge of their prisoner, and Ben and Christina bundled all their materials together and charted a course for the rear of the courtroom.
What Ben had told Johnny was absolutely true-things never looked good for the defendant at the conclusion of the prosecution’s case. But at the same time they rarely looked this grim. Usually he had some ace up his sleeve, some trick or theory or angle. But this time Drabble had seen him coming. He’d deflected their intended feint like a master swordsman, literally destroying their defense before they’d had a chance to put it on. If the jury thought Christina had called into question the coroner’s estimated time of death, Johnny’s disappearance at 11:10 might not be so incriminating. But if they didn’t…
They had to come up with something new-something different. But what could it be? What could possibly make the jury forget what they had heard, forget the horrible punishment Johnny had visited on another human being-and then laughed about? This case had more aggravating circumstances than all of Ben’s previous cases combined. If Johnny was convicted, any plea for mercy in sentencing would be laughable. The death penalty was a dead cert.