Defending Jacob

by William Landay

  [The witness did not respond.]

  Mr. Logiudice: And yet now you want the grand jury to believe every word you say.

  Witness: Yes.

  Mr. Logiudice: All right, then. Go on with your story.

  23 | Him

  Northern Correctional Institution,

  Somers, Connecticut.

  The visiting booth at Northern seemed designed to disorient and isolate. A claustrophobic sealed white box, about five feet wide by eight feet deep, with a windowed door behind me and a plate-glass window in front. A beige dial-less phone on the wall at my right hand. A white counter to rest my arms on. The booth was designed to keep the prisoners caged in, of course: Northern was a level-five maximum security facility that permitted only no-contact visits. But it was I who felt entombed.

  And when he appeared in the window—my father, Bloody Billy Barber—hands cuffed at his waist, a tangle of ash gray hair, smirking down at me—amused, I suppose, at his pissant kid showing up here finally—I was glad for the thick glass slab between us. Glad that he could see but not reach me. The leopard in the zoo wanders to the edge of his pen and, through the bars or across an unjumpable moat, he stares at you with contempt for your inferiority, for needing that barrier between you. There is a shared understanding in that moment, nonverbal but no less real: the leopard is predator and you are prey, and it is only the barrier that permits us humans to feel superior and secure. That feeling, standing at the leopard’s cage, is edged with shame, at the animal’s superior strength, at his hauteur, his low estimation of you. To my own surprise, what I felt in those first moments in my father’s presence was precisely the zoo-goer’s subtle shame. The surge of emotion took me by surprise. I had not expected to feel much of anything. Let’s be honest: Billy Barber was a stranger to me. I had not seen him in forty-five years or so, since I was a kid. But I could not have been more frozen by him. He held me as surely as if he had somehow materialized on my side of the glass and wrapped me in his arms.

  He stood there framed in the window, a three-quarter-length portrait of an old con, his eyes on me. He gave a little snort.

  I broke eye contact, and he sat down.

  A guard stood several feet behind him, near the blank wall. (Everything was blank, every wall, every door, every surface. From what I could see, Northern C.I. seemed to be made up entirely of unbroken white plaster walls and gray concrete walls. The facility was new, completed only in 1995, so I assumed the lack of color was part of some crazy-making penal strategy. After all, it is no harder to paint a wall yellow or blue than white.)

  My father picked up his phone—even as I write the words my father I feel a little thrill, and my mind reverses the film of my life back to 1961 when I last saw him, in the visiting room at the Whalley Avenue jail; that is the moment of divergence, the whole contingent, ramifying course of our two lives begins there—and I picked up my phone.

  “Thanks for seeing me.”

  “They’re not exactly standing in line.”

  On his wrist was the blue tattoo I had remembered for so many years. It was actually quite small and indistinct, a little fuzzy-edged crucifix that had darkened with age to plum purple, like a deep bruise. I had misremembered it. I had misremembered him: he was only average height, thin, more muscular now than I’d imagined. Ropy jail-house muscles, even at seventy-two. He had picked up a new tattoo as well, much more intricate and artful than the old one: a dragon that coiled itself around his neck so that its tail and snout met at the base of his throat like a necklace pendant.

  “About time you come see me.”

  I sniffed. The risible suggestion that his feelings were hurt, that he was the victim here, pissed me off. What balls. Typical con, this guy was—always wheedling, angling, gaming.

  “What’s it been,” he went on, “a whole life? A whole life I’m rotting away and you don’t have time to come see your old man. Not even once. What kind of kid are you? What kind of kid does that?”

  “You practice that speech?”

  “Don’t smart-mouth me. What’d I ever do to you? Huh? Nothing. But a whole life you never come see me. Your own father. What kind of kid doesn’t visit his own father for forty years?”

  “I’m your son. That should explain it.”

  “My son? Not my son. I don’t know you. Never laid eyes on you.”

  “Want to see my birth certificate?”

  “Like I give a shit about a fuckin’ birth certificate. You think that’s what makes a son? One squirt fifty years ago, that’s what you are to me. What’d you think? I’d be happy to see you? Did you think I’d be jumping up and down, whoop-dee-fuckin’-doo?”

  “You could have said no. I wasn’t on your visitor list.”

  “No one’s on my fuckin’ list. Whattaya think? Who would be on my fuckin’ list? They don’t let people visit here anyway. Just immediate family.”

  “You want me to leave?”

  “No. Did you hear me say that?” He shook his head, frowned. “This fuckin’ place. This place is the worst. I haven’t been here the whole time, you know. They move me around. You do bad somewheres else, they send you here. It’s a hole.”

  He seemed to lose interest in the subject and he fell silent.

  I did not speak. I have found in any Q&A, in court, in witness interviews, wherever, often the best thing you can do is wait, say nothing. The witness will want to fill the awkward silence. He will feel a vague compulsion to keep talking, to prove he is not holding back, to prove he is smart and in the know, to earn your trust. In this case, I think, I waited just out of habit. Certainly I had no intention of leaving. Not until he said yes.

  His mood shifted. He slumped. Almost visibly, he went from petulant to resigned, even self-pitying.

  “Well,” he said, “you came out big, at least. She must’ve fed you good.”

  “She did fine. With everything.”

  “How is she, your mother?”

  “What do you give a shit?”

  “I don’t.”

  “So don’t talk about her.”

  “Why shouldn’t I?”

  I shook my head.

  “I knew her before you did,” he said. He squirmed in his chair with a leer, wiggled his hips, mimed fucking her.

  “Your grandson is in trouble. Did you know that?”

  “Did I—? I didn’t even know I had a grandson. What’s his name?”

  “Jacob.”

  “Jacob?”

  “What’s so funny?”

  “The fuck kind of faggot name is Jacob?”

  “It’s a name!”

  Bouncing with laughter, he sang in falsetto, “Jaaaacob!”

  “Watch your mouth. He’s a good kid.”

  “Yeah? Can’t be that good or you wouldn’t be here.”

  “I said watch your mouth.”

  “What’s little Jacob in trouble for?”

  “Murder.”

  “Murder? Murder. How old is he?”

  “Fourteen.”

  My father lowered the phone to his lap and slumped back in his chair. When he sat back up again, he said, “Who’d he kill?”

  “No one. He’s innocent.”

  “Yeah, so am I.”

  “He’s really innocent.”

  “Okay, okay.”

  “You never heard anything about this?”

  “I never hear about anything in here. This place is a toilet.”

  “You must be the oldest con in here.”

  “One of ’em.”

  “I don’t know how you survive it.”

  “You can’t hurt steel.” The handcuffs forced him to raise both arms as he held the phone in his left hand, and he flexed his unoccupied right arm. “You can’t hurt steel.” But then his bravado vanished. “This place is a hole,” he said. “It’s like living in a fuckin’ cave.”

  He had a way of swinging between the two poles of hyper-machismo and self-pity. It was hard to tell which one was a put-on. Maybe neither was. On the street this sort
of emotional volatility would have seemed crazy. In here, who knew? Maybe it was a natural reaction to this place.

  “You put yourself in this place.”

  “I put myself in this place and I’m doing my bid and I’m not complaining. You hear me complaining?”

  I did not answer.

  “So what d’you want outa me? You want me to do something for poor innocent little Jacob?”

  “I may want you to testify.”

  “Testify to what?”

  “Let me ask you something. When you killed that girl, what did it feel like? Not physically. I mean, what was in your mind, what were you thinking about?”

  “What do you mean, what was I thinking about?”

  “Why did you do it?”

  “What do you want me to say? You tell me.”

  “I just want you to tell the truth.”

  “Yeah, right. Nobody wants that. Especially the people who tell you they want the truth—trust me, they don’t want the truth. You tell me what you want me to say to help the kid out and I’ll say it. I don’t give a shit. What do I give a shit?”

  “Let me put it this way. When it happened, were you thinking anything? Anything at all? Or was it kind of an irresistible impulse?”

  The corner of his mouth curled upward. “An irresistible impulse?”

  “Just answer.”

  “Is that what you’re going for?”

  “Never mind what I’m going for. I’m not going for anything. Just tell me what you felt.”

  “I felt an irresistible impulse.”

  I exhaled loud and long. “You know, if you were a better liar, you might not be in here.”

  “If you weren’t such a good liar, you might not be out there.” He eyed me. “You want me to help get the kid off, I’ll help you. He’s my grandkid. Just tell me what you need.”

  I had already decided Bloody Billy Barber was not going to come within ten miles of the witness stand. He was worse than a liar—he was a bad liar.

  “All right,” I said, “you want to know what I came for? This is what I came for.” I held up a little packet: a sterile swab and a plastic envelope to hold it. “I need to wipe your gums with this. For DNA.”

  “The guards won’t let you.”

  “Let me worry about the guards. I need you to let me.”

  “What do you need my DNA for?”

  “We’re testing for a certain mutation. It’s called MAOA Knockout.”

  “What in the fuck is MAOA Knockout?”

  “It’s a genetic mutation. They think it might code your body to be more aggressive in certain environments.”

  “Who thinks that?”

  “Scientists.”

  His eyes narrowed. You could practically read his thoughts, the selfish opportunism of a career con: maybe here was an argument to flip his own conviction.

  “The more you talk, the more I think maybe Jacob isn’t so innocent.”

  “I didn’t come here to hear your opinion. I came to get your spit on this Q-tip. If you say no, I’ll go get a court order and come back and we’ll take it the hard way.”

  “Why would I say no?”

  “Why would you do anything? Guys like you I don’t understand.”

  “What’s to understand? I’m the same as anyone else. Same as you.”

  “Yeah, okay, whatever.”

  “Don’t give me ‘okay, whatever.’ Did you ever stop to think that without me you wouldn’t exist?”

  “Every day.”

  “See? There.”

  “It’s not a happy thought.”

  “Well, I’m still your old man, kiddo, whether you like it or not. It don’t have to make you happy.”

  “It don’t.”

  After some negotiation and a call to the deputy warden, a deal was struck. I would not be allowed to swab my father’s mouth personally, which would have been the best method because it would create the cleanest chain of custody: I could testify that the sample was genuine because the Q-tip never left my possession. Not at Northern. “No contact” meant no contact. At length, I was allowed to give the kit to a guard, who passed it to my father.

  I talked him through the procedure step by step on the phone in the visiting booth. “All you have to do is break open the package and wipe the Q-tip around your cheek a little. Just so it soaks up a little spit. Swallow first. Then wipe it on the inside of your cheek near the back of your mouth, back where your jaws meet. Then I want you to put the Q-tip in that plastic bottle there, without touching the tip to anything else, then screw the top on. Then I want you to put that label across the top, and sign and date the label. And I need to be able to watch you do all that, so don’t block me.”

  With his hands still cuffed, he ripped open the paper package holding the swab. It was a long wooden stick, longer than an ordinary Q-tip. He put the swab straight into his mouth like a lollipop and he pretended to bite it. Then, looking at me through the window, he bared his teeth and wiped the cotton tip across his upper front gums. Then he swirled it around at the back of his mouth, in the pocket of his cheek. He held the stick up to the window.

  “Now you.”

  Part

  THREE

  “I have in mind an experiment. Take an infant—regardless of ancestry, race, talent, or predilection, so long as he is essentially healthy—and I will make of him whatever you like. I will produce an artist, soldier, doctor, lawyer, priest; or I will raise him to be a thief. You may decide. The infant is equally capable of all these things. All that is required is training, time, and a properly controlled environmment.”

  —JOHN F. WATKINS,

  Principles of Behaviorism (1913)

  24 | It’s Different for Mothers

  For years I never expected to lose in court. In practice, I did lose, of course. Every lawyer loses, just as every baseball player makes an out seventy percent of the time he goes to bat. But I was never intimidated, and I spat on prosecutors who were—the politicians and wheeler-dealers who were afraid to try a case that was not a sure thing, who would not risk a not-guilty. To a prosecutor, there is no dishonor in a not-guilty, not when the alternative is a sleazy deal. We are not measured by simple won-lost records. The truth is, the best won-lost records are not built on great trial work. They are built on cherry-picking only the strongest cases for trial and pleading out the rest, regardless of the right and wrong of it. That was Logiudice’s way, not mine. Better to fight and lose than sell out your victim.

  That is one reason I loved homicides. You cannot plead guilty to murder in Massachusetts. Every case must go to trial. The rule is a remnant of the days when murder was punishable by death in this state. In a capital case, no shortcuts were permitted, no deals. The stakes were simply too high. So to this day every homicide case, no matter how lopsided, must be tried. Prosecutors cannot cherry-pick the sure winners for trial and the long shots to dump. Well, I liked to think, so much the better. Then the difference will be me. I will win even with the weaker case. That was how I saw it. But then, we all tell ourselves stories about ourselves. The money man tells himself that by getting rich he is actually enriching others, the artist tells himself that his creations are things of deathless beauty, the soldier tells himself he is on the side of the angels. Me, I told myself that in court I could make things turn out right—that when I won, justice was served. You can get drunk on such thinking, and in Jacob’s case I was.

  As the trial approached, I felt a familiar battlefield euphoria. It never crossed my mind that we would lose. I was energized, optimistic, confident, pugnacious. All of it in hindsight seems strangely disconnected from reality. But it is not so strange, if you think about it. Treat a man like an anvil and he will long to hit back.

  The trial began in mid-October 2007, at the height of leaf season. Soon the trees would release their leaves all at once, but for the moment the foliage was in its final brilliant efflorescence of red, orange, and mustard.

  On the eve of the trial, a Tuesday night, the air was
unseasonably warm. The overnight temperature did not fall much below sixty degrees, and the air was dense, humid, agitated. I woke up in the middle of the night, sensing something wrong in the atmosphere, as I always do when Laurie cannot sleep.

  She was lying on her side, up on one elbow, head propped in her hand.

  “What’s wrong?” I whispered to her.

  “Listen.”

  “To what?”

  “Sh. Just wait, listen.”

  Outside, the night rustled.

  There was a loud screech. It began as an animal’s yelp then quickly rose into a piercing high-pitched shriek, like the screel of a train’s brakes.

  “What on earth is that?” she said.

  “I don’t know. A cat? A bird maybe? Something is killing it.”

  “What would be killing a cat?”

  “A fox, a coyote. Raccoon, maybe.”

  “It’s like we live in the woods, all of a sudden. This is the city! I’ve lived here all my life. We never had foxes and coyotes. And those huge wild turkeys we get in the yard? We never had any of that.”

  “There’s a lot of new development. The town’s getting built up. Their natural habitats are disappearing. They’re getting flushed out into the open.”

  “Listen to that sound, Andy. I can’t even tell what direction it’s coming from or how far away it is. It’s like it’s right next to us. It must be one of the neighbors’ cats.”

  We listened. It came again. This time the dying animal’s screeches definitely sounded like a cat. The cry began recognizably as a cat’s mewling before the wild, electrified shrieks began.

  “Why is it taking so long?”

  “Maybe it’s toying with its prey. Cats do that with mice, I know.”

  “It’s awful.”

  “It’s nature.”

  “To be cruel? To torture your prey before you kill it? How is that natural? What evolutionary advantage does cruelty give?”

  “I don’t know, Laurie. It’s just the way it is. Whatever would attack a cat like that—some starving coyote or wild dog or whatever—I’m sure it’s desperate. It can’t be easy to hunt around here.”