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  “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.

  32

  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.”

  33

  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?” Admissi
ons 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?”