Hate Crime Page 26

  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 distanc
e 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.

  Part Three. What Is False Within

  40

  “Let me carry that catalog case, Mr. Kincaid.”

  “I’m fine. Call me Ben.”

  “Can I get you something to drink, Mr. Kincaid?”

  “Not right now. Ben.”

  “Do you need any supplies? Legal pads, Post-it notes?”

  “No, thanks.”

  “Anything at all? Fresh coffee? Sharpen your pencils?”

  Fetch your slippers? Ben took Vicki firmly by the shoulders. “Vicki, I admire your zeal. I know you’re trying to do a good job. But seriously-relax. We hired you to be a legal intern. Not a gofer.”

  She flushed, then looked away shyly. “I just know how much stress you and Christina are under. I want to help in any way I can.”

  “You are helping. And doing a great job. So don’t worry about it. We’ll get this meeting started, then maybe-”

  “Chocolate milk!” the young woman said, snapping her fingers. “Christina told me how crazy you are for it. I’ll get some out of the fridge.”

  And she was gone before he could say another word.

  Ben took a seat beside Christina at the office conference table. “Have I mentioned how much I like your new intern?”

  “At least she talks to you. She gets so bashful around me she can barely finish a sentence. I think she must be a little sweet on you, hard as that is to imagine. You really like her?”

  He nodded. “I’ve always gone for those quiet, subservient types.”

  “Well, that explains-” She thought better of it. “Jones? Loving?”

  “Present or accounted for,” Loving replied.

  Vicki returned with the chocolate milk. “I hope it’s okay cold. I didn’t know whether I should warm it.

  Ben grimaced. Warm it? “This will be fine.”

  “All right,” Christina said, addressing the troops, “I don’t suppose I need to tell anyone that this trial is going against us in a big way. We have to face
facts: Drabble saw us coming and headed us off at the pass. Those last two witnesses were disasters.”

  “Those last two witnesses just told the truth,” Jones grumbled.

  “I don’t know that. And for our purposes, it’s beside the point. Johnny is in trouble.”

  “Because he’s a murderous, hatemongering creep.”

  “Jones! That’s our client you’re talking about!”

  “Don’t I know it! I’ve had to clean up the mess outside the offices twice now, thanks to him. And he’s not even paying his bills!”

  “Whether you like it or not, we took the case. And we’re losing.”

  “Maybe we should be losing.”

  Christina pointed a finger. “What’s wrong with you, Jones? As I recall, you were all for this case when Ellen Christensen first came into the office.”

  “Did you hear what he did?” Jones replied. “Did you hear what that kid from the frat house was saying? How our client just… destroyed poor Tony Barovick? And laughed about it?”

  “We can’t sit in judgment of our clients,” Ben interjected. “No one is guilty until a verdict is rendered. And for that matter-I talked to Mike earlier today. He asked if I’d send him a copy of Tony Barovick’s journal. He thinks maybe Tony wasn’t quite the sainted martyr the media has painted him.”

  Jones slapped the table. “Don’t tell me we’re going after the victim! That’s got to be the all-time sleaziest tactic.”

  “Not if it’s the truth.”

  “The truth! What are we going to say-that he deserved to have his legs shattered with a hammer?”

  “As you know, Mike has been investigating the murder of two low-level criminals. Mike believes they were involved in some kind of drug-pushing deal that operated out of Remote Control. And he thinks Tony Barovick may have been in on it.”

  “That’s total bullshit.”

  Ben disagreed. “It makes sense. Tony was the manager, after all. He was in every night. How long could something like that go on without him knowing about it?”

  “It’s a crock.” Jones swung around in his chair. “I don’t buy it, and the jury won’t, either.”