Daniels looked around the courtroom, quieting the whispers of shock as soon as they had started. Two reporters jumped up and headed for the doors. Daniels stared at Sam for a long moment. “Very well, Mr. Johnstone,” Daniels said, and then, without looking at Ann, asked, “Ms. Fulks, I’m assuming the State does not object to Mr. Johnstone and his client withdrawing the motion?”
“We do not.”
“The motion having been withdrawn, are there other matters we need to discuss before the court recalls the jury?”
“No,” Ann said.
“There is one thing,” Sam said.
“Yes?” Daniels asked.
“I’d ask the court to remind the State of its continuing obligation to supplement discovery if and when additional information is uncovered as part of its continuing investigation.”
“Your Honor, I object!” Ann was on her feet. “Counsel seems to be implying—”
“Ms. Fulks, sit down,” Daniels said.
“Judge—” Ann interrupted.
“Ms. Fulks, I’m talking!” Daniels barked. Ann sat quickly, chagrined. “We have already seen the State’s failure to properly disclose come uncomfortably close to derailing this trial. I’m going to remind you once, and once only, of the State’s affirmative responsibility to disclose information of an exculpatory nature, and I’ll tell you right now that if additional information is found to have been improperly withheld, this court will likely declare a mistrial and assess costs against the State—this time over the objection of both of you, if necessary. Am I clear?”
On direct, Punch Polson testified for an entire day. From Sam’s perspective, the testimony was devastatingly effective. The detective had been thorough, careful, and complete in his investigation. He had obviously been well-prepared by Ann. The testimony provided a comprehensive overview of the investigation, connecting the dots and filling in information omitted by earlier witnesses. He calmly and professionally admitted shortcomings in the State’s case: the late identification of Howard’s fingerprint, the yet-to-be-identified fingerprints on the murder weapon and at the scene, the unidentified DNA, the lack of witnesses, the circumstantial nature of the case, as well as other evidentiary unknowns. He was, in short, an excellent witness for the prosecution. Ann finished her direct and sat down, clearly pleased. Punch sat in the witness’s chair, drinking from a paper cup, calmly awaiting Sam’s cross.
Sam faced a stark choice. He could cross-examine Polson and attempt to show the jury where mistakes or omissions had been made. But Ann had wisely already gotten the evidentiary shortcomings on the record, and by venturing down that road, Sam risked reinforcing in the jury’s mind what appeared to be a competent, professional investigation. The other option was equally unappealing: by foregoing cross-examination of Polson, Sam risked leaving the jury with the impression that he had no factual basis upon which to contest Polson’s decision to arrest Tommy.
“Mr. Johnstone?” Daniels was impatient.
The jury already knew about the prints and semen. “No questions, Your Honor.”
44
“You’re late,” Veronica said. “You’re never late.”
“Sorry.” Sam took off his jacket and dropped it on a chair. She liked the way he felt at home. “I’ve been on the phone with a private fingerprint examiner out of Denver. I hired my own now that I see I can’t trust the State.”
“Well, I’m just glad to see you,” she said. “Let’s eat, and then I want to watch a show on television. Sunday night’s my favorite.”
It was, of all things, a courtroom drama. Sam watched with more interest than he might have anticipated as a pair of improbably attractive lawyers defended their obviously innocent clients against trumped-up charges brought by overeager, politically-motivated prosecutors. An hour later, with the verdicts of acquittal having been rendered by a television jury, Veronica stirred. “So,” she asked. “Are you going to put Tommy on the stand?”
“I don’t know yet,” Sam said. He was trying to sip bourbon from a tumbler she had given him, despite his overpowering urge to quaff the entire thing in one gulp and pour another three fingers. For whatever reason—Fear? Anxiety? Stress? All three?—he had a burning desire to get stinking drunk. It was dangerous. Before he left home, he’d read a chapter of the book Martinez had given him and tried the breathing exercises. The trial was reaching its most critical point, and the last thing he needed was to lose preparation time or show for trial feeling in less than tip-top shape.
“Well, if he’s innocent, why wouldn’t he testify?”
“There are a lot of reasons. First, he doesn’t have to. He’s got absolute right to silence.”
“I know, but—”
“Second, because it’s fraught with danger,” Sam said. “The State’s witnesses are almost all experts at being in court. Cops, criminologists, scientists—they have all testified before. They know what to say and what not to say. Hell, some of them have taken classes in how to present evidence. But your average guy doesn’t know what to say or when to shut up. He’s easily manipulated by a good prosecutor, and Ann is a good prosecutor.”
“But even if he gets tripped, if he’s innocent—”
“He’s got a pretty lengthy rap sheet, and unless he testifies that won’t come in. But if he testifies, his record is fair game.” Sam finished his drink and reached for the bottle.
“You’d best be careful,” Veronica said.
“I’ve got it.”
She nodded. “When will you decide?”
“Probably no sooner than I have to, but certainly not before she finishes her case,” Sam said. “It really comes down to weighing how well he’ll stand up under cross-examination against how good Ann’s case is. If I think he’s in real danger of being convicted at the end of her case, I’ll put him on. But if there’s any chance of acquittal, then I’ll try and convince him to trust me and sit it out.”
“How do you think he’d do?”
“Frankly, I think he’d suck. He’s immature, emotional, and naïve. He’s proud, somewhat narcissistic, and angry. Any one of those traits will work against him on the stand, and I’m afraid that if he testifies Ann will pick him apart in front of the jury.”
“What does he want to do?”
“Oh, he’s raring to go. He thinks that if he just testifies this will all be behind him. What he doesn’t understand is that if I agree to his testifying, it means, excuse my language, that he is in deep shit at that point.”
“So if he testifies—”
“That means I am so certain he’s gonna be convicted there’s nothing to lose, or that he insists and has disregarded my advice. He’s the client. It’s his case. It’s always his option.”
They stared across the table at each other. “Your dinner is getting cold,” she said.
“I guess I don’t have much of an appetite,” he countered.
“Well, force something down or you’re going to be feeling that bourbon tomorrow. Why did you hire your own examiner, by the way?”
“Because I have an idea,” he said. “It’s a long-shot, but it’s possible.”
45
“The State calls Gus Hadley,” Ann said. Sam took a deep breath and let it go, then swallowed about five ounces of water in a single gulp. He was somewhat dehydrated, but other than that not much the worse for wear from the weekend. Fortunately, the next witness wouldn’t do his client much harm.
“State your name,” Ann said.
“Name’s Gus Hadley, just like you said.”
“Thank you, Mr. Hadley. Now, do you know—excuse me, did you know a woman named Emily Smith?”
“I did. I manage the apartment she lived in.”
“What can you tell me about Ms. Smith?” The question was vague and overbroad, but because he had a pretty good idea what the witness would say, and because the testimony was probably harmless, Sam let it go.
“Well, as I told you afore, I ain’t a snoop, so I don’t spend my time watching what goes on
, know what I mean? But I get paid to upkeep the place, so I keep my eyes open as necessary.”
“Go on,” Ann encouraged the witness.
“That Emily, she was a good-looker. She had lotsa guys lookin’ in on her. Some a them were young men, and some was older. The night afore she died I seen that guy go into her house.” He pointed at Tommy.
“Let’s take a step back,” Ann said, adding, “I want to make sure I understand.” What she really wanted, of course, was to have the witness repeat what he’d just said, just in case a juror or two was dozing after lunch. “Now, you were where?”
“In my living room, which looks out on the parking lot.”
“And Emily’s apartment is, er, was, where?”
“Right next to mine.”
“So, you were at the window in your apartment and you saw the defendant do what?”
“I seen him pull up in his truck, get out, and go into Emily’s house.”
“And you’re sure it was him?”
“’Course I’m sure.”
“Is the man you saw enter Emily’s apartment in this courtroom?”
“Yup. I just told you that.”
Ann ignored the slight. “For the record, could you point him out, describe where he is sitting and what he is wearing?”
“Well,” Gus said. “He’s wearing a brown sport coat and sitting right next to Mr. Johnson, the lawyer. Right in front of me.”
“Do you mean Mr. Johnstone, the defense attorney?”
“Well, I guess. I mean that fella there with the bad leg.” Sam smiled in spite of himself.
“You saw him go into the apartment?”
“Yep.”
“Did you see him leave?”
“Yep.”
Sam sat up in his chair. This was not what Gus had told him. Gus said he’d not seen Tommy leave and that he’d had no real good idea when and if he did.
“What time was that?”
“Oh, I’d say about four,” Gus offered.
“So, when was the next time you saw Emily?”
“Never did.”
“But you saw the defendant leave?”
“Yup.”
“How can you be sure of the time?”
“Well, I’m a light sleeper,” Gus said. “I was up ’cause my stomach was bothering me a bit. I know it was about four ’cause I looked at the clock.”
“Your witness, counsel.”
Sam had gotten increasingly angry during the man’s testimony and was now in full froth. He spent some time looking at the papers on the desk in front of him. It was almost impossible to successfully impeach a witness based on statements he’d made out of court while not under oath, but he was going to try.
“Mr. Johnstone, does the defense wish to cross-examine this witness?”
“Yes, Your Honor,” Sam said. “But I wonder if we might take a brief recess?”
“Denied, Mr. Johnstone. It’s been less than an hour since lunch,” Daniels said impatiently. “We’ll break at three o’clock.”
“Thank you, Your Honor,” Sam said, rising. Juror 465 made no attempt to suppress her satisfaction with the judge’s ruling. His mind racing, Sam stalled for a bit more time. “Just a moment, Mr. Hadley, while I review my notes.”
Sam would have to tread lightly. The admissions Hadley had made during his earlier interview with Sam had been off the record and unsworn. Today, he was both sworn and on the record. Today’s testimony counted, and Sam had not expected it to change.
“Mr. Hadley, your testimony today is much different than it was when you and I spoke last month, is it not?”
“Objection. No foundation, assumes facts not in evidence—”
“Sustained.”
It was a good objection, Sam knew. “Withdrawn. Let me rephrase, Mr. Hadley. Last month, you and I spoke, did we not?”
“Yeah, I think you came over to my place.”
“And when we spoke last month, you indicated that, while you thought you’d seen my client go into the decedent’s apartment, you had no idea when he’d left, if he left at all—isn’t that right?”
“No, I don’t think so. I think I’m sayin’ the same thing today I always have said.”
“Did you tell me last month that you’d gone to bed and watched Bonanza after a man arrived and went into Emily’s home?”
“Well, yeah.”
“And didn’t you tell me that you’d gone to sleep watching that show, and that when you’d awakened the truck the man had driven was gone?”
“Well, yeah,” Gus said. “But I remember now that I seen him leave around four.”
“How is it you remember that here and now, but you didn’t remember when I was speaking with you?”
“’Cause I remember now.”
“Just like that?”
“Well, just seems like things have been coming to me, the more I think about it.”
“Okay, Mr. Hadley, let’s go at it this way. You saw a man you claim was my client get out of a truck and enter Emily Smith’s apartment—true?”
“True.”
“But that cannot be true, can it?”
“Whaddaya mean?”
“Well, because Emily Smith’s apartment is beside yours, you can’t actually see her front door, can you?”
“Well, no, but I can see her front porch if I put my face against the window.”
The jury tittered. Sam sensed an opening. “But you’re not a nosy person, are you?”
“Well, no.”
“And so on the night in question, you didn’t push your face against the window to watch, did you?”
“Well, no.”
“So, you really don’t know if the man you think was my client ever went into that apartment, now do you?”
It was a minor point, but Sam had made it and the jurors would have to take into account the lack of proof that Tommy had ever crossed the threshold into Emily’s home.
“But I seen him come out!” Gus insisted.
“What did you see?”
“I seen the guy—that guy,” Gus insisted, pointing at Tommy, “leaving her apartment.”
“Mr. Hadley, what you’re saying today is that you saw someone who looked like my client walking from the area of her front porch to his vehicle—true?”
“Well, yeah.”
“And you don’t know if he’d ever been in the house, do you?”
“Well, I suppose he coulda stood on her porch for a couple a hours, yeah,” Hadley said, pleased with himself as the jurors and audience cautiously laughed.
“So, you don’t know anything about what happened at Emily’s place during Bonanza for sure, and really after the guy you think was my client arrived—’cause you’re not nosy, right?”
“Well, yeah. But I know what I seen.”
“Now, Mr. Hadley, you were watching Ms. Smith’s apartment, weren’t you?”
“Well, it’s kinda part of my job.”
“Did you ever go out with her?”
“Well, no.”
“Did you ever ask her out?”
“Well, yeah, but we didn’t go out, if that’s what you’re askin’.”
“Because she turned you down?”
“Well. . . yeah.”
“So, you were watching her house, weren’t you?”
“I already told you—”
“—Because you wanted to know what she was doing, true?”
“No. It was my job.”
“No more questions, Your Honor.”
Javier Vargas was a small Hispanic man hailing from Brownsville, Texas. He’d been in Custer County for a couple of years now, having arrived originally to work construction. But times had gotten hard, he’d gotten in some trouble with the law, and had spent the better part of the last year in and out of jail.
“Are you familiar with a man named Tommy Olsen?” Ann asked.
“Yeah.”
“How so?”
“We were locked up together,” Vargas said. “Are in jail together, I g
uess.”
“And what are you in for?”
“I’m doing a one-year split for possession with intent.”
“And when are you scheduled to get out?”
“Next month.”
“So, on or about the 10th of January, did anything happen between you and the defendant?”
“Yeah,” Vargas said. “I was minding my own business and he came into my cell and started beating the hell out of me.”
“Did he give a reason?”
“No.”
“Did he say anything?”
“Objection. Hearsay,” Sam said, standing.
“Your Honor, the statement will be one against interest.”
“Overruled. You may answer.”
“Well, he called me a ‘punk’ and a ‘dirtbag.’ Then he told me if I did it again, I was gonna get mine, ‘just like that bitch.’”
“That’s a goddamned lie!” Tommy hissed.
“Quiet down!” Sam whispered, putting a hand on Tommy’s arm, which felt like a steel cable. “Let me handle this.”
“But I didn’t say that!”
“Be quiet and let me handle this,” Sam repeated. Juror 465 was eyeballing Tommy, shaking her head slightly.
“And what did you were ‘gonna get yours, just like that bitch’ mean to you?”
“Objection!” Sam was on his feet.
“That he was going to cut my throat just like he—”
“Move to strike, Your Honor,” Sam said.
“Sustained. The jury will disregard the answer,” Daniels instructed. Sam sat down.
“No further questions. Your witness,” Ann said.
Sam sat for a moment. The best way to attack this kind of witness was to show bias—that in return for his testimony, he was going to receive some sort of benefit. But since Vargas had been sentenced earlier, there was likely nothing along those lines to go after. Attacks on character and reputation for truthfulness were allowed, but Ann had wisely gotten Vargas to admit he was a felon. Sam had reviewed his file, and while Vargas’s record was a long one, it was primarily penny-ante drug and alcohol stuff. Tommy had essentially agreed that things went down like Vargas said, except for the last statement. By attacking the statement, Sam would reinforce its importance in the trial. Moreover, if Sam attacked Vargas, he would almost certainly have to put Tommy on the stand, and he hadn’t made up his mind on that yet.
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