A Time for Mercy

by John Grisham

  Jake said, “He’ll put her on, get her statement, then fight like hell when we start with the abuse.”

  “But the abuse is coming in, right?” Libby asked. “There’s no way to keep it out.”

  “It’ll be up to Noose,” Jake said. “He has our brief and we’ve argued, convincingly, at least in my opinion, that the abuse is relevant. To keep it out will be reversible error.”

  “Are we trying to win the trial or the appeal?” Carla asked.

  “Both.”

  And so they debated as they ate bad deli sandwiches to ward off hunger.

  * * *

  —

  THE STATE’S NEXT witness was Dr. Ed Majeski, the pathologist hired to perform the autopsy. Dyer led him through the usual list of dry questions to establish his expertise and made much of the fact he had performed, over a thirty-year career, two thousand autopsies, including approximately three hundred involving gunshot wounds. When offered the opportunity to question his credentials, Jake declined and said, “Your Honor, we accept Dr. Majeski’s qualifications.”

  Dyer then approached the bench, with Jake, and whispered to the judge that the State would like to introduce four photos taken during the autopsy. This was no surprise because Dyer had produced the photos in a pretrial hearing. Noose, as usual, deferred a ruling until that moment. He looked at the photos again, shook his head, and said, away from the mike, “I don’t think so. This jury has seen enough of the blood and gore. The defense’s objection is sustained.”

  It was obvious that His Honor was troubled by the crime scene photos and their gruesomeness.

  Dyer switched to a rather cartoonish diagram of a generic corpse and put it on the screen. For an hour, Dr. Majeski belabored the obvious. Using far too many medical terms and jargon, he bored the courtroom with testimony that proved, beyond any doubt, that the deceased died of a single bullet wound to the head, one that blew away most of the right side of his skull.

  As he droned on, Jake couldn’t help but think of Earl and Janet Kofer, seated not far away, and their pain at hearing such details about their son’s fatal injury. And as always when he thought of the parents, he reminded himself that he was fighting to keep a kid away from the gas chamber. Now was not the time for sympathy.

  When Dyer mercifully tendered the witness, Jake jumped to his feet and stepped to the podium. “Dr. Majeski, did you draw a sample of blood from the deceased?”

  “Of course. That is standard practice.”

  “And did this sample reveal anything significant?”

  “Such as?”

  “Such as the level of alcohol in his system?”

  “It did.”

  “Now, for the benefit of the jury, and for me as well, could you please explain how one’s alcohol level is measured.”

  “Certainly. The blood alcohol concentration, better known as BAC, is the amount of alcohol in the bloodstream, or in urine, or on one’s breath. It is expressed as the weight of ethanol, or alcohol, in grams, the metric unit, in one hundred milliliters of blood.”

  “Let’s keep this simple, Doctor. The legal limit for drunk driving in Mississippi is point-one-zero BAC. What does that mean?”

  “Sure, it means point-one-zero grams of alcohol per one hundred milliliters of blood.”

  “Okay. Thank you. Now what was Stuart Kofer’s BAC?”

  “It was quite significant. Point-three-six grams per hundred.”

  “Point-three-six?”

  “That’s correct.”

  “So, the deceased was three and a half times over the legal limit for driving?”

  “Yes sir.”

  Juror number four, a white man of fifty-five, glanced at juror number five, a white man of fifty-eight. Juror number eight, a white woman, appeared shocked. Joey Kepner shook his head slightly in disbelief.

  “Now, Dr. Majeski, for how long had Mr. Kofer been dead before you drew a sample of his blood?”

  “Approximately twelve hours.”

  “And, is it possible that during that twelve-hour period the alcohol level could have actually decreased?”

  “Unlikely.”

  “But it’s possible?”

  “That’s unlikely, but no one really knows. It’s rather hard to measure, for obvious reasons.”

  “Okay, let’s stick with point-three-six. Did you weigh the body?”

  “I did, as always. That’s standard procedure.”

  “And how much did he weigh?”

  “One hundred and ninety-seven pounds.”

  “He was thirty-three years old and weighed one ninety-seven, right?”

  “Correct, but his age should not be factored in.”

  “Okay, let’s forget his age. For a man his size, and with that much alcohol, how would you describe his ability to operate a vehicle?”

  Dyer stood and said, “Objection, Your Honor. This goes beyond the scope of his testimony. I’m not sure this expert is qualified to give such an opinion.”

  His Honor looked down at the witness and asked, “Dr. Majeski, are you qualified for this?”

  He smiled with arrogance and said, “Yes, I am.”

  “Objection overruled. You may answer the question.”

  “Well, Mr. Brigance, I certainly wouldn’t want to be in the car with him.”

  This drew a few brief smiles from some of the jurors.

  “Nor would I, Doctor. Would you describe him as being completely impaired?”

  “That would be a non-medical term, but, yes.”

  “And what are the other effects of so much alcohol, sir, in non-medical terms?”

  “Devastating. Loss of physical coordination. Greatly reduced reflexes. Walking or even standing would require assistance. Slurred or indistinguishable speech. Nausea, vomiting. Disorientation. Severe increases in heart rate. Irregular breathing. Loss of bladder control. Memory loss. Perhaps even unconsciousness.”

  Jake flipped a page on his legal pad to allow these frightening effects to rattle around the courtroom. Then he stepped to the defense table and picked up some papers. Slowly, he returned to the podium and said, “Now, Dr. Majeski, you said you’ve performed over two thousand autopsies in your distinguished career.”

  “That’s correct.”

  “How many of those deaths were caused by alcohol poisoning?”

  Dyer stood again and said, “Objection, Your Honor, on the grounds of relevance. We’re not concerned here with the death of anyone else.”

  “Mr. Brigance?”

  “Your Honor, this is a cross-examination and I’m given wide latitude. The drunkenness of the deceased is certainly relevant.”

  “I’ll allow for now but let’s see where it’s going. You may answer the question, Dr. Majeski.”

  The witness shifted his weight but was obviously enjoying the chance to discuss his experience and knowledge. “I’m not sure, exactly, but there have been several.”

  “Last year, you did the autopsy for a fraternity boy down in Gulfport. Last name of Cooney. Do you remember that one?”

  “I do, yes, very sad.”

  Jake glanced at his paperwork. “You concluded that the cause of death was AAP, acute alcohol poisoning, correct?”

  “Correct.”

  “Do you remember the kid’s BAC?”

  “No, I’m sorry.”

  “I have your report right here. Would you like to see it?”

  “No, just refresh my memory, Mr. Brigance.”

  Jake lowered the papers, looked at the jury, and said, “Point-three-three.”

  “That sounds accurate,” Dr. Majeski said.

  Jake returned to his table, shuffled some papers, withdrew a few, and returned to the podium. “Do you recall an autopsy you performed in August of 1987 on a Meridian fireman named Pellagrini?”

  Dyer st
ood with stretched arms and said, “Your Honor, please. I object to this line of questioning on the grounds of relevance.”

  “Overruled. You may answer the question.”

  Dyer fell hard into his chair, and his theatrics drew a harsh look from the bench.

  Dr. Majeski said, “Yes, I remember that one.”

  Jake scanned the top sheet, though all the details were memorized. “Says here he was forty-four years old and weighed one hundred and ninety-two pounds. His body was found in the basement of his home. You concluded that the cause of death was AAP. Does this sound right, Doctor?”

  “Yes it does.”

  “Do you happen to recall his BAC?”

  “Not exactly, no.”

  Again, Jake lowered the papers, looked at the jury, and announced, “Point-three-two.” He glanced at Joey Kepner and saw the faint beginnings of a smile.

  “Dr. Majeski, is it safe to say that Stuart Kofer was near death from his alcohol consumption?”

  Dyer bounced up again and angrily said, “Objection, Your Honor. This calls for an opinion that is far too speculative.”

  “It does indeed. Objection sustained.”

  After a perfect buildup, Jake was ready for the punch line. He stepped toward his table, stopped, looked at the witness, and asked, “Isn’t it possible, Dr. Majeski, that Stuart Kofer was already dead when he got shot?”

  Dyer yelled, “Objection, Your Honor.”

  “Sustained. Don’t answer that.”

  “Nothing further,” Jake said as he glanced at the spectators. Harry Rex was grinning. On the back row, Lucien beamed at his protégé and could not have been prouder. Most of the jurors appeared to be stunned.

  It was almost three and His Honor needed another round of meds. He said, “Let’s take the afternoon recess and get some coffee. I’d like to see the lawyers in chambers.”

  * * *

  —

  LOWELL DYER WAS still fuming when they gathered around the table. Noose had disrobed and was lining up little bottles of pills as he stretched at his desk. He gulped them down with a cup of water and took a seat at the table. He smiled and said, “Well, gentlemen, with no insanity to fight over, this trial is moving right along. My compliments to both of you.” He looked at the prosecutor and asked, “Who’s your next witness?”

  Dyer tried to shrug it off and appear as cool as his opponent. He took a deep breath and said, “I don’t know, Judge. I planned to call Kiera Gamble to the stand, but right now I’m somewhat reluctant. Why? Because we’ll get into the abuse. As I’ve said before, it’s simply not fair to allow these people to testify to matters that I cannot effectively rebut on cross-examination. It’s not fair to allow them to slander Stuart Kofer.”

  “Slander?” Jake asked. “Slander implies false testimony, Lowell.”

  “But we don’t know what’s false and what’s true.”

  “They’ll be under oath,” Noose said.

  “True, but they’ll also have every reason to exaggerate the abuse. There is no one to rebut it.”

  Jake said, “The facts are the facts, Lowell. We can’t change them. The truth is that these three were living in a nightmare because they were abused and threatened, and the abuse was a major factor in the killing.”

  “So it was for retribution?”

  “I didn’t say that.”

  “Gentlemen. We’ve been discussing this for some time and I have been briefed by both sides. I am persuaded that the case law in this state leans toward the exploration of the reputation of the deceased, especially in a factual setting like this. Therefore, I will allow it, to a point. If I believe that the witnesses are exaggerating, as you say, Mr. Dyer, then you can always object and we’ll revisit the issue. We’ll take it slow. We have plenty of time and there is no hurry.”

  “Then the State rests, Your Honor. We’ve proven our case beyond a reasonable doubt. The intoxication of the deceased does not alter the fact that he was murdered by Drew Gamble, whether on duty or not.”

  Jake mumbled, “What a ridiculous law.”

  “It’s on the books, Jake. We can’t change it.”

  “Gentlemen.” Noose grimaced in pain and tried to stretch. “It’s going on four o’clock. I have an appointment with a physical therapist at five-thirty. I’m not whining but my lower lumbar needs some work. It is difficult to sit for more than two or three hours at a time. Let’s dismiss the jury, take an early recess, and reconvene in the morning at nine sharp.”

  Jake was pleased. The jurors would go home with Kofer’s blackout drinking fresh on their minds.

  45

  Dinner at Jake’s office was another round of sandwiches, though far tastier. Carla rushed home from the trial, gathered Hanna, and together they grilled chicken and put together gourmet-style paninis. They delivered them to the office and ate with Libby, Josie, and Kiera. Portia was at home checking on her mother and would rejoin the team for another late session. Harry Rex was at his office, putting out fires, while Lucien begged off and needed a drink.

  As they ate, they replayed the day’s events, from the prosecutor’s opening statement through all the testimony. As upcoming witnesses, Josie and Kiera were still banned from the courtroom and were eager to hear what had transpired. Jake assured them that Drew was holding up just fine and being taken care of. They worried about his safety but Jake said he was well guarded. The courtroom was full of Kofers and their friends and it was undoubtedly a painful spectacle for them to endure, but, so far, no one had misbehaved.

  They talked about the jurors as if they were old friends. Libby thought number seven, Mrs. Fife, was particularly disgusted by Kofer’s drinking. Number two, Mr. Poole, a deacon in the First Baptist Church and strict teetotaler, seemed bothered by it too.

  Jake said, “Wait till they hear the rest of the story. The drinking will seem like child’s play.”

  They covered all twelve. Carla didn’t like number eleven, Miss Twitchell, age twenty-four, the youngest and the only one not married. She had a sneer that never went away, and she continually glared at Drew.

  At eight, Hanna was bored with whatever the adults were doing in the big room and wanted to go home. Carla left to put her to bed. Despite the boredom, she was thoroughly enjoying the trial itself because the long days were being spent with Jake’s parents.

  Portia returned and went to the library for some research. Jake said, “Okay, Josie, you’re the first one up tomorrow. We’re going to talk through your testimony again, word for word. Libby will play the role of the prosecutor and fire away whenever she wants.”

  “Again?” Josie asked, already tired.

  “Yes, again and again. And Kiera, you’re next. Keep in mind, Josie, that after you testify, you will be released and you can stay in the courtroom. Kiera will be called next, so I want you to listen and observe everything she says and does as we go through it again.”

  “Got it. Let’s have it.”

  * * *

  —

  ANOTHER STORM AT daybreak knocked out the electricity. An automatic generator in the courthouse failed to kick on, and by 7:30 the elderly janitorial crew was scrambling to fix the problems. When Judge Noose arrived at 8:15 the lights were at least flickering, a hopeful sign. He called the power company and raised hell, and half an hour later the lights came on for good. The window units sputtered to life and began straining to combat the thick humidity in the courtroom. When he assumed the bench at 9:00, his robe was already wet around the collar.

  “Good morning,” he said loudly into his mike, which was working at full volume. “Seems as though we lost power in a storm a few hours ago. It has been restored but I’m afraid the heat will be with us for a few hours.”

  Jake cursed him for selecting that badly designed and dilapidated old building for a trial in August, but only in passing. He had more important matters on his mind.
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  “Bring in the jury,” Noose said.

  They filed in, dressed for the day in short-sleeve shirts and cotton dresses. As they took their seats, a bailiff handed each a funeral fan—a decorative piece of cardboard glued to a stick—as if flapping it back and forth in front of their noses would bring relief from the stifling heat. Many of the spectators were already waving them.

  Noose said, “Ladies and gentlemen of the jury, I apologize for the loss of power, and the heat, but the show must go on. I will allow the attorneys to remove their jackets, but keep the ties please. Mr. Brigance.”

  Jake stood and smiled as he turned the podium to face the jury. With his jacket still on, he began with “Good morning, ladies and gentlemen. I’m allowed at this time to make a few remarks about what I hope to prove in the defense of Drew Gamble. Now, I am not going to risk losing credibility with you by suggesting that there might be questions about who shot Stuart Kofer. It’s pretty clear. Mr. Lowell Dyer, our fine district attorney, did a masterful job yesterday proving the State’s case. Now, it’s up to the defense to tell you the rest of the story. And there is so much more to the story.

  “What we will attempt to do is describe the nightmare that Josie Gamble and her two children were living.” With a clenched fist he tapped the podium in rhythm as he said, “It was a living hell.” He paused for a second, then tapped out “They are lucky to be alive.”

  A little too dramatic, Harry Rex thought.

  Not nearly loud enough, Lucien said to himself.

  “About a year ago, Josie and Stuart met in a bar, which was fitting for both of them. Josie had spent plenty of time in bars and honky-tonks, as had Stuart, and it should be no surprise that that’s where they met. Josie told him she lived in Memphis and was visiting a friend, one who did not happen to be in the bar. She was alone. It was a lie. Josie and her two children were living in a borrowed camper on the property of a distant relative who had told them to leave. They had no place to go. A romance of sorts quickly ensued, with Josie in hot pursuit once she learned that Stuart owned his own home. And he was a deputy in Ford County, a man with a good paycheck. She’s a cute girl, likes tight jeans and other clothing that might be considered suggestive, and Stuart was smitten. You’ll meet her in a minute. She’s our first witness, the mother of the defendant.