The Occupied

by Craig Parshall

  I stood in the X-ray machine line. I was carrying no coins. Nothing to cause a delay. The only thing to toss into the bowl on the conveyor belt would be car keys. I waited. A police officer beckoned me through the doorframe of the body scanner. I passed through without a hitch. The officer took a long look at me.

  Then he waved me through.

  I headed for the second floor, breathing easier. A crowd was squeezing in, and I joined them, deliberately picking an empty spot toward the back. It was in the middle of a bench already jammed with court watchers, and I had to step over legs and shoes to get there.

  Howard Taggley, the public defender, was already seated at the counsel’s table on the left. Donny Ray was sitting next to him in an ill-fitting suit that the defense must have provided for him. At the prosecution table was Steve Sandusky, the deputy DA. I had checked out Sandusky’s credentials online before going to sleep at the YMCA the night before. He was a veteran prosecutor who obviously knew his craft.

  At this stage, the burden of proof is never high for the prosecution. At the preliminary hearing Sandusky only needed to show that a homicide had probably occurred and that Donny Ray was probably the one who had committed it, and once that low threshold was crossed, then, next stop, pretrial motions and the inevitable march toward a jury trial.

  And if the case against Donny Ray didn’t get booted and he was bound over for trial, the sheriff’s department would have no motivation to search for another killer. The case against Donny Ray would drag on. Delays. More motions. I knew the drill. Meanwhile the trail to Bobby’s murderer would grow cold. And for Butch Jardinsky, what little tolerance he had left for my independent investigation would come to a screeching halt. Bobby deserved better. The truth, not a show trial.

  The white-haired judge for the preliminary, Martha Prescott, appeared at the bench and announced the case in her soft voice.

  Sandusky began his case predictably, putting on the senior investigating deputy who was first on the scene along with his partner. He described the initial call from some nature lovers who had been looking for wildflowers and berries and found a dead body instead.

  The deputies arrived and then slogged through the marshy land along Pebble Creek until they found Bobby, naked from the waist up, on the bank of that tiny tributary of the Little Bear River. Next, the description of the corpse. The gunshot wound to the head. The gaping slash across the left side of his chest, below the heart.

  Then testimony from the pathologist who did the autopsy. Determining it to be a death by the hand of another. A graphic explanation of the entrance wound in the back of the head, execution style. Description of the post-death torso wound through which the heart of the victim had been removed. No evidence of a struggle on Bobby’s corpse: his fingernails showed no signs of having scraped at the flesh of the assailant—thus, no DNA—and no other bruises or abrasions indicating a fight with his aggressor.

  On the surface, the courtroom rhetoric should have plucked a chord familiar to my trial lawyer’s ear. But this time when they talked about “the victim,” they were referring to my high school friend. As the testimony droned on mechanically, I would rather have been somewhere else.

  The second-to-last witness was Colin Jennings, the investigating detective who searched the home of Donny Ray and found a handgun on the premises. He was a decisive, articulate, reliable witness. Detective Jennings ended by describing the size 12 Sierra Trading Post hiking boots that he found in Donny Ray’s closet. Taggley calmly rose to his feet and said he would stipulate that the prints in the mud found at the crime scene were from a size 12 Sierra Trading Post boot.

  Then Taggley went to town cross-examining Jennings. Several bullets fired at the prosecution’s case. Each time, Taggley hit the target.

  Did those boots bear any trace whatsoever of mud, soil sample, or vegetation of the types that exist in the Pebble Creek area?

  No.

  Is it a fact that the bullet that killed Bobby Budleigh came from a nine-millimeter handgun?

  Yes.

  Did you ever find such a weapon in Donny Ray’s apartment?

  No.

  Was the handgun in Donny Ray’s apartment a different weapon, namely a thirty-eight caliber?

  Yes.

  Boom.

  The final witness for the prosecution was Ada Johnson, the middle-aged woman who had driven by Pebble Creek when the sun was going down on the night of the murder. In her testimony she said that in the dusky last light of day she glanced to the right and noticed a tall man with long hair walking next to a shorter man, and they both were stepping through the high grass of the open field that ran adjacent to the creek. The short man, Bobby, turned around and looked at her car, and she recognized his face from a later viewing of his photograph in the sheriff’s department.

  Sandusky asked her, “And the other man, the taller one you saw that night, is he in the courtroom today?”

  She nodded and responded, “Yes, sir.”

  “Can you point him out?”

  Ada pointed to Donny Ray and described the clothes he was now wearing in court. Judge Prescott announced that the defendant had been identified.

  Taggley launched into his cross.

  “Mrs. Johnson, how fast were you driving that night on that section of the road when you saw the two men?”

  “Forty, maybe slightly faster.”

  “It was getting dark?”

  “Sun just beginning to set. I’d call it dusk.”

  “You were able to identify Bobby Budleigh because he turned around and you could see his face?”

  “That’s right.”

  “That taller man next to him, though, he never turned around, right?”

  A pause as Ada looked over at the prosecutor. At the bench, Judge Prescott leaned toward her. “Mrs. Johnson, don’t look to the deputy district attorney for the answer. Either you know the answer or you don’t. Do you understand the question?”

  “I do, Your Honor.”

  “What is your answer?” the judge asked.

  Another pause. “I’m sorry, I don’t recall. Don’t remember if he turned around.”

  Taggley jumped on that. “Would you agree that while you identified the defendant in this courtroom just now, you actually have an uncertain memory regarding whether you saw his face that night or not?”

  “I’m mixed up.”

  “Then how,” Taggley asked, “did you know to point to Mr. Borzsted just now?”

  “From the photographs at the sheriff’s office.”

  “You mean the visit to the sheriff’s office when they showed you several photographs of several different men?”

  “Yes, that’s it.”

  “But is it true that you saw Donny Ray’s picture in the local newspaper a few months before? In an article about some prison inmates from Manitou who had recently been paroled?”

  She bobbed her head a bit. “I think so.”

  “And that fixed Donny Ray’s face in your mind?”

  “Uh, well, no, I can’t say that’s what happened.”

  “Then let’s go to your meeting in the sheriff’s office. That is when you pointed to one photograph of one man and you said that he was the taller man with long hair who you had seen that night out by the country club and by Pebble Creek, right?”

  “Right.”

  “But then the deputies asked you if you were sure, and you said, ‘No, I am not sure.’”

  “I guess that’s what happened.”

  “Then you pointed to another photograph of a different man, and you said, ‘That’s him,’ right?”

  “Yes.”

  “And when asked if you were certain, you said once again, ‘No, I’m not.’”

  She tilted her head. “Something like that, yes.”

  “Then,” Taggley said, going in for the kill, “finally, you pointed to a third photo of a third man—this time it was the photo of the defendant, Donny Ray Borzsted—and you said that he was the taller man with long hair that you sa
w that night?”

  She nodded. “That’s exactly right.”

  “But that time, after saying that, the deputy who was talking to you, he never asked you if you were certain about that particular photo, unlike the other photos, right?”

  Ada squirmed a bit in the witness chair. “I’m not sure . . . Maybe that’s true.”

  “The truth is, Mrs. Johnson, you really aren’t sure whether the defendant seated here is the man that you saw on that early evening at sunset in dusky light conditions, while you were driving by the scene going forty miles per hour, right?”

  The witness looked to the judge.

  Judge Prescott said, “The truth, Mrs. Johnson, as you can best recall it, and if you cannot answer, simply say so.”

  Several seconds ticked by in silence. Finally Ada Johnson said, “I just can’t be sure what I remember about that taller man. But I feel pretty sure that the defendant right there is the man I saw that night. He’s the right height, I guess. And hair too.”

  Taggley quit while he was ahead. On redirect Sandusky labored to rehabilitate his witness, with moderate success.

  The state rested. Then the defense rested, with Taggley having called no witnesses of his own. Smart move.

  Judge Prescott was pondering something up there on the bench, her hands folded and her gaze seeming to travel beyond the courtroom. Then she asked the prosecutor a question. “Mr. Sandusky, help me out here. What exactly is the prosecution’s theory of this case?”

  Nothing compelled the prosecutor to explain it at that early stage of the case. But I was betting that the prosecution would make the effort anyway. I was right. They needed to show the judge they were the side wearing the white hat. Nothing to hide.

  Sandusky rose to his feet, smiling confidently. “That there is probable cause to believe that the defendant is the man who committed this crime. Though he has filed a notice of alibi, he has offered no alibi evidence yet that he was somewhere else at the time of the crime. There’s the fact that he has been identified by Mrs. Johnson. He owns boots of the type that left boot marks at the crime scene. He is a gun owner, and a bullet from a handgun was found in the back of the victim’s head.”

  “But what’s your theory,” the judge snapped, “on why Dr. Bobby Budleigh was tramping around that part of Pebble Creek that early evening?”

  “He is an environmental expert. And a former resident of Manitou.”

  “So?”

  “Well, our information is that a few months before, he had told a witness by the name of Henry Franklin that he was walking around in that area because of an ‘environmental’ reason.”

  “Namely, what?”

  “We aren’t certain, Your Honor. But just yesterday Mrs. Budleigh, the victim’s wife, came across an e-mail on her late husband’s computer and informed us of its existence.”

  “And?”

  “The e-mail was to his partner in his environmental consulting business explaining that he was going back to Manitou a second time and indicating why.”

  Silence. Sandusky looked down at his file, apparently reviewing the e-mail. I was about to hear, at last, the best evidence of why Bobby had returned to Manitou.

  “Unfortunately,” Sandusky continued, “the e-mail was a little vague.”

  “Give it a try, Mr. Sandusky,” the judge said. “And the defense needn’t worry, Mr. Taggley,” the judge went on. “This information is outside the record at this preliminary, so it will play no part in my decision. Now, Mr. Sandusky, proceed.”

  “The e-mail simply said, ‘I will be out of town for a week. Heading back to my hometown of Manitou, Wisconsin. Primarily business, but also very personal.’”

  “That’s it?” the judge asked.

  Sandusky said that was it.

  “I know you aren’t required,” the judge went on, “to prove motive for the crime. But regardless, any theory of motive, Mr. Sandusky?”

  The deputy district attorney shook his head. “Not at this time, Your Honor.”

  The judge was poker-faced when she noted, “No matter. As we all know, motive is not essential. Moreover, at this stage of the case, it doesn’t take much to satisfy the low burden of proof. Just probability. Nothing more. Thank you for elaborating, Mr. Sandusky.”

  The prosecution and defense summed up. Nothing new. I was getting the uneasy feeling that the prosecution’s case against Donny Ray’s case may have crossed over the necessary threshold, though just barely. If that was true, my ability to keep digging would be stymied.

  Judge Prescott adjourned the hearing for ten minutes and whisked off the bench and through the door to her chambers, leaving the gathered crowd to wait in awkward murmurs.

  Judge Prescott returned to the bench, tidying up her court file in front of her, framing it with her two hands like a picture, first top and bottom, then side to side. She looked out at the courtroom. “Anything else before I make my ruling?”

  Both counsel agreed there was nothing more to add. The judge began to summarize the evidence dispassionately. I listened for some clue where she was heading. Some glimmer. A turn of a phrase. But the judge was giving me nothing.

  Until she announced her ruling. “The state’s case, at this preliminary stage,” she said, “is riddled with problems. The failure to show, within the range of reasonable probabilities, any concrete link between the defendant’s gun, or the defendant’s boots, or even the defendant’s presence, and the crime itself or the crime scene.” She stopped talking. I stopped breathing.

  Then she finished. “Those missing links are not just material. They are fatal. Accordingly,” Judge Prescott announced, “I am dismissing the criminal complaint against the defendant, Donny Ray Borzsted. But I am dismissing it without prejudice. The state can refile a criminal complaint if additional evidence is presented.”

  Donny Ray was looking up at the ceiling with a big grin on his face. But the thrill of victory wouldn’t last long.

  Sandusky was on his feet. He announced that the probation department had issued a hold against Donny Ray for possession of a firearm, a violation of the terms of his probation. Sandusky turned to look Donny Ray in the eye. “We ask that the defendant be held in jail until that probation revocation hearing. I’m confident that Mr. Borzsted will be found in violation and shipped back to prison where he belongs.”

  Judge Prescott didn’t give it a second thought. “Motion to detain defendant in custody in the county jail pending the probation hearing is granted.” Then she gaveled the hearing to a close. Everyone rose.

  The crowded courtroom began to disperse as onlookers moved toward the aisles to leave. My row was packed in tight, and I had to wait for the others to file out. That is when I noticed a deputy with a sidearm standing in the aisle. He pointed his finger in my direction. “You need to come with me, Mr. Black,” he said as the court watchers quickly shuffled out of my row, some of them glancing back at me with suspicion. The jig was up.

  Up at the front, Taggley was on his feet. And so was Donny Ray, who I noticed had been unshackled during the hearing. A young deputy approached him and reached out with the cuffs as Donny Ray held his wrists out.

  But in that next fraction of a second, things went berserk.

  Donny Ray lunged for the deputy’s handgun, and an instant later he had it in his hand, and the deputy was struggling with him while the service revolver was pointed into the air. Shrieks and screams from the people in the courtroom. Taggley tripped over his chair at counsel’s table in a frantic attempt to get away from the fracas.

  The deputy by me had unholstered his service handgun and was blowing through the crowd, running to the front, his weapon dropped to his side as he reached for the stunner on his belt with his other hand and yelled for everyone to get down.

  A moment later he was on top of Donny Ray and zapping him in the neck with his stun gun. Donny Ray dropped like a sack of potatoes.

  More uniformed officers poured into the courtroom. Onlookers were ordered to stay in the courtroo
m as the shackled and dazed Donny Ray Borzsted was dragged out.

  For an hour, deputies filed through the courtroom taking down names and addresses from each of us, together with the accounts of what we had just witnessed.

  As the room was beginning to thin out, the deputy who had disabled Donny Ray approached me.

  “Great work, Deputy,” I said. “You deserve a commendation. At a minimum.” Then, resigned to the inevitable, I told him that I was ready to go with him.

  He looked around the room. “We still have to finish our reports here. Tell you what, you can take off. I’m sure we can find you.” Then he said with a smirk, “If not, Detective Ashley Linderman will obviously know where you are.”

  I wondered at the locker-room banter that had to be going on in the sheriff’s department about the two of us.

  Driving back to the YMCA, it struck me that I was no longer on the run. I could find a nicer place to stay for the night. After giving it some thought, though, I decided against it. There was something about the dormitory aura of my tiny room at the Y and the stark realism of the place, even the common bathroom at the end of the hall that we all used. It seemed strangely right for another night. A kind of monastery atmosphere.

  Which would make me the monk tasked with hunting down a ruthless demon. But I was convinced that Donny Ray, nasty as he and his brother Karlin were, was not one of them.

  51

  The next morning, I walked until I found a donut and coffee place called The Java Shop a few blocks from the YMCA, then hunkered down to a cinnamon twist and a double espresso, joining the host of patrons in their twenties and thirties who had their laptops open.

  Mine was open to the Manitou High School class reunion Facebook page. I was on an uncharted fishing expedition, trying to find out why Bobby had been a target. Looking for anything.

  I scanned backward through the postings, looking for a unifying thread regarding Bobby Budleigh. There were multiple messages grieving over Bobby’s murder. And epithets against the vile person responsible for it, whoever it was.