by Ed Gaffney
Sweet grandma number one and the cute schoolteacher had remained two definite allies. They were following everything Zack said during his opening carefully, smiling, nodding sympathetically. The old black man was also in the defendant’s camp. Sweet grandma number two, the hearing-impaired truck driver, and the Hispanic phone worker had started on the fence when Zack began, but by the time he was ready to question Babe, they had returned to the fold.
Most of the others were harder to read, but everyone was paying very close attention. Except for one woman on the top row, who looked pretty disgusted with the whole thing. At this point, she looked like a guilty for sure.
But for a defense attorney, that was an outstanding position to be in before you even started to present your case.
Of course, any enthusiasm about how they were doing had to be tempered by the knowledge that the case they were about to present was essentially the testimony of Babe Gardiner.
And true to form, as he took the stand, Babe looked just awful. The pumpkin-orange jumpsuit was badly wrinkled, and he had acquired a slight bruise on his chin and the hint of a fat lip since yesterday. For one of the meekest persons Terry had ever known, the guy couldn’t go two days without getting into a fight.
And with the terrible posture, shifty eyes, and atrocious hair, it was a safe bet that Babe was going to have to rely on something other than sex appeal to connect with the jury.
There was a sense of anticipation as Zack stood at the podium, waited for Babe to finish taking his oath, turned a page of his notebook, and prepared to ask his first question.
There hadn’t been a lot they could do with Babe to prepare him for his testimony. Every time they tried to speak to him about how to present himself at trial, he got overwhelmed.
So they had focused on what they thought they might be able to control. They told him what the first question would be. And they made him practice the answer, until he looked straight ahead, and said it in a clear and confident voice.
Good afternoon. Would you state your name for the record, please?
My name is Rufus Gardiner.
Good afternoon. Would you state your name for the record, please?
My name is Rufus Gardiner.
Good afternoon. Would you state your name for the record, please?
My name is Rufus Gardiner.
And so here they were. Time for Babe’s big shot at making that solid, positive first impression. The one he’d never get a chance to make again. Zack looked up, smiled his most winning, relaxing smile, and said, in a clear and confident voice, “Good afternoon. Would you state your name for the record, please?”
And Babe just sat there. Then he swallowed, blinked a few times, looked up, looked away, and finally muttered to no one in particular, “Uh, Babe, uh, Rufus, uh, Babe Gardiner.”
They were off to a great start.
TWENTY-THREE
DIRECT EXAMINATION BY ATTORNEY WILSON:
Q: It’s getting late, Babe, so I’d like to ask you just two more very important questions before we break for the day. First, did you, on March 19, 2004, enter the Nite & Day Convenience Store and rob Steve Hirsch at knifepoint?
(Commonwealth v. Gardiner, Trial Volume V, Page 240)
“BY NOW, YOU ALL KNOW THAT THERE IS SOMETHING very unusual about this case.”
Elmo sat and watched as the blond lawyer did his opening.
And he was goddamn terrific. Openings weren’t supposed to be any big thing, but you had to be an idiot to think that Gardiner didn’t have a real chance at beating this.
He turned off the TV, got up, and went to his car. He’d call on the cell phone on the way over to Wally’s house. They were going to have to grab the lawyer.
VERA’S CONVERSATION WITH ROGER TEDESCO’S mother had generated a list of about a dozen people who Roger had been in contact with over the past several years.
The problem was that Roger was so bad at staying in touch with his mother, most of the contacts she was able to remember were either old, or were only first names—like Jenny from high school. But they were the only leads Vera had. The uniformed patrols were canvassing the area around the lake to see if anybody had noticed anything unusual five or six months ago, when they thought the body might have been dumped. But there wasn’t much hope that anything was going to come of that.
Vera had decided to start with the contacts that were nearest to the lake. First on the list was Phyllis Krantz. According to Roger’s mother, she was an old girlfriend who was a hairdresser on Main Street up in Overton.
Remarkably, when Vera had checked, not only was Hair Today the only hair salon in Overton on Main Street, but Phyllis Krantz worked there on Mondays, Tuesdays, Wednesdays, and Saturdays. So Vera made an appointment to speak to her during Phyllis’s lunch break, and drove up to Overton.
Hair Today consisted of a big room with four stations for stylists in the back, and a reception desk and waiting area in the front. Only two stylists were working when Vera arrived—a large woman with red hair who was doing a foil coloring job on a teenage girl, and Phyllis.
Phyllis Krantz had a Goth look—black clothes, jet black hair, straight bangs, heavy makeup. She was small, and moved quickly, grabbing some personal things from her counter and putting them in her bag. They turned left out of the salon and went into the little deli next door. They ordered a couple of salads and drinks, and sat down at one of the tables along the back wall to eat.
Phyllis picked up a piece of lettuce, dipped the end of it into the little plastic container of salad dressing that had come with the meal, and put it into her mouth. “Sorry,” she said with a little shrug and a sheepish grin. “I’m a salad picker.” The words came out of her mouth like she spoke through a speeded-up tape recorder. She wiped her hands on her napkin. “I try to eat vegetables with a fork, and it turns into a mess. Give me a pair of scissors and I’m a miracle worker. But utensils make me look like a three-year-old. So what’s Roger done now?”
It took Vera a second to catch up to Phyllis’s shift in conversational direction, but then she told the young woman about what had happened to Davy Zwaggert, his connection to Roger Tedesco, and how Roger had recently gone missing.
Phyllis nodded. “Sounds just like Roger. Not that I think he’d do anything to this guy—what was his name?—Davy,” she added, even more quickly than normal. “But Roger is a trouble magnet, if you know what I mean. I used to go out with him. He was fun, kind of, in a, I don’t know, never-know-what’s-going-to-happen-next kind of way.”
“When’s the last time you saw Roger?” Vera asked. “This is a homicide investigation. We can’t afford to assume anything.” Phyllis didn’t seem like the kind of person she needed to coddle. Vera could be direct. The young hairdresser was nobody’s fool.
“That’s fine, I totally understand,” Phyllis replied. “We started going out a couple of years ago, and the last time I saw him was the night before he got arrested and thrown in jail for some stupid drug crime. I don’t have a lot of rules about guys, but one of them is that I do not need a boyfriend who gets himself arrested. So after about a week, when I finally found out where he’d disappeared to, I wrote him a letter, telling him we were done.” She rolled her eyes. “Of course, about a month later, I found out he’d been screwing around with this other girl behind my back, anyway.”
“Oh. I’m sorry,” Vera said.
Phyllis took a sip of her iced tea and waved her hand back and forth. “It’s okay. We weren’t that serious, anyway. It was just kind of, I don’t know. Surprising, I guess. That doesn’t usually happen to me. But you go out with those kinds of guys…” She shrugged.
“And you haven’t had any contact with him after that letter?”
“Oh, he wrote me back. This was what—three, four years ago? Anyway, I didn’t bother opening it. I just threw it away. I figured if I wanted the thrill of a cheating boyfriend in jail, I could probably find it on TV somewhere.”
“But that was it? He didn’t write again?
Or call?”
“About a week after the letter, he tried to call collect from the jail, and I didn’t accept the charges. And that was it. I haven’t seen or heard from him since then. I’m sorry about that.” She took a bite of a thin piece of green pepper. She really did seem sad that she couldn’t help.
“I know this must be awkward—” Vera began, but light-speed Phyllis was two steps ahead of her.
“The girl he was cheating on me with—her name was Angela Gannon. I think she lived in Babylon, or North Babylon, somewhere up there. Thank God I didn’t know her. That would have been really awful. It was bad enough as it was.”
Vera wrote the name down. She’d return to the squad, make some calls, see what she could find out, and then drive out there tomorrow. Babylon and North Babylon were too far for her to make today, especially since she had that dinner in town tonight for that ethics thing that the judge was hosting. The lieutenant had suggested that she go, because it would be a chance to meet some people, including a lot of the local prosecutors. She had met one of them the other day, when he’d come to the station to talk to John Morrison. He seemed like a nice guy. He’d offered to buy her a cup of coffee the next time he was in the neighborhood. Maybe he’d be there.
It didn’t matter, though. Vera liked meeting new people. She was really looking forward to it.
“AND WHERE WERE YOU EMPLOYED?”
“I used to be employed,” Babe said. “Now I’m in jail.”
Zack had never worked so hard on a direct examination in his life.
Normally, this was a fairly easy part of the trial. The defendant had a story to tell, and all Zack had to do was facilitate the process with some open-ended questions and get out of the way.
Can you describe what happened that night?
What happened next?
What was going through your mind at the time?
It was true that even the simple direct examinations of defendants required some skill, because when you asked the jackpot question—Did you do it?—you had to do it in a way that was timed and phrased for maximum impact.
But in Babe’s case, everything was hard. Not only was it a major effort to get a straight answer to the simplest question—it took four tries before the jury knew the address of the house Babe was living in at the time he was arrested—but Zack had to put a huge amount of energy into counteracting the overarching impression of guilt and deceit that suffused Babe’s every word and gesture.
It would be funny, if it wasn’t so pathetic.
And important.
Right now, it was late afternoon. Zack wouldn’t finish by the time the judge recessed for the end of the day, but he was going to go for the jackpot anyway, as his last question. So the jury would have Babe’s ringing denial as the last thing they heard from the witness stand before they went home tonight.
But before he asked the big question, he needed Babe to establish that he had an income and that there was no reason for him to rob a convenience store. “In the days and weeks immediately preceding your arrest, where did you work?”
“At Ibis Industries.”
“I see. And where is Ibis Industries?”
“In Laurelton.”
“And what were your duties—what was your job at Ibis Industries?”
“I was a janitor.”
For late in the afternoon, the jury was really paying close attention, which was very important. Babe needed to establish himself as a sympathetic person who would never rob or murder anyone. It had started when the questioning was focused on his relationship with his mother, and on his attitude toward his two prior crimes.
It would continue here, with his sense of responsibility toward his job. There was nothing wrong with being a janitor, especially if you did your job well, and honestly. There were plenty of blue-collar workers on the jury. They could respect a janitor as much as anyone.
Whether they would respect Babe, of course, was entirely another thing.
“How long were you working as a janitor before you were arrested?”
“I worked that whole day.”
There was a moment of silence, then Terry exhaled forcefully. Every once in a while, Babe dropped such a stunningly stupid answer on them all that the entire courtroom froze for a second or two. These Babe moments were coming frequently enough that Zack was now prepared—he made sure that his face remained neutral, and maybe even a little apologetic. Then he started again.
“No. I’m sorry. I meant, um, I know. I’ll ask it this way. When did you begin—” Zack smiled, and stopped once more. He almost messed up again. But that was okay. The jury was with him. Three of them were smiling, too. “Sorry. What month and year did you begin your employment at Ibis Industries?”
“April 2002.”
“Great. And focusing on the days and weeks immediately before you were arrested for this robbery, were you working full time?”
“What do you mean by full time?”
Terry groaned softly.
“Let me ask another question. During the weeks immediately prior to your arrest, did you work a set number of hours per week?”
“Yes.”
Zack waited, and then realized that Babe had finished his answer.
“And how many hours per week was that?”
“Thirty-five.”
Zack turned the page in his notebook that summarized Babe’s employment records. He worked thirty-five hours per week, and was paid eleven dollars and sixty cents per hour.
“And what was your hourly wage at that time?”
“Three hundred sixteen dollars and sixty-eight cents.”
Zack blinked, but then looked down, and thank goodness for the notebook, because if Zack had tried to process that answer without it, he wouldn’t have had any idea what to do.
“Is that the amount of money that you would take home each week in your paycheck?”
“Yes.”
“Great.” Zack took a moment, so his point would sink in. “So your take-home pay each week was a little more than three hundred sixteen dollars.”
“And sixty-eight cents.”
Zack turned a page in the notebook. “And how much was the rent for you and your mother?”
“We pay nine hundred dollars per month.”
“I see. And who—did your mother also work, during the time before you were arrested?”
“Yes. She had a job at the mall.”
“Do you know what her weekly take-home pay was?”
“Ten dollars an hour.”
A small part of Zack wanted to laugh out loud. It was like Babe had the gift of misunderstanding.
“And how many hours per week did she work, approximately, during the time before you were arrested?”
“About twenty-five or thirty, depending. Christmastime she worked a lot of overtime.”
Zack nodded, and turned a page in his book, more to stall than for any other reason. Christmastime? Normally, it was dangerous for any witness to start volunteering information beyond the scope of the question. If Babe suddenly started talking about Christmastime, or whatever else was zinging around inside that mysterious head of his, there was no telling what damage he might start doing.
But there wasn’t much else to ask, at least today. It was as good a time as any to finish up with the jackpot question.
They had gone over this with Babe several times. The way the facts of the case lined up, the focus had to be on the robbery. If the jury didn’t believe that Babe committed the robbery, it was extremely unlikely that they’d believe he committed the murder. It just didn’t make any sense.
So Zack would ask two jackpot questions. First the robbery, and then the murder.
The important thing was to set it up right and make sure that Babe nailed the answer. He didn’t want to oversell it to the jury. They knew the stakes, and by now, they knew Zack. Too much drama, and he’d sound like he was a phony. He wasn’t, and it would be stupid to come across like one now.
“It’s getting lat
e, Babe, so I’d like to ask you just two more very important questions before we break for the day. First, did you, on March 19, 2004, enter the Nite & Day Convenience Store and rob Steve Hirsch at knifepoint?”
Babe had known that the question was coming, but as Zack was asking it, he still managed to look like he was just about to jump through the roof. He looked down, he looked up, he looked down again, he inhaled, closed his eyes, and then opened them and looked from side to side. Finally, he swallowed and said, “I did rob him, but I didn’t kill him. I absolutely did not kill him. I did rob him, though. At the store. That was me.”
There was no question that what immediately followed was the biggest Babe moment of them all. For what seemed like minutes, the entire courtroom stood dead still, as Babe’s words hung there, almost incomprehensible, yet ultimately quite clear, and entirely damning.
And then, from behind Zack’s left shoulder, the solitary voice of Terry broke the silence. “You have got to be shitting me.”
TWENTY-FOUR
THE COURT: What is your name?
THE DEFENDANT: Um. My real name is Rufus, but I nicknamed myself Babe.
THE COURT: What is your last name?
THE DEFENDANT: Gardiner.
THE COURT: Thank you. And how old are you?
THE DEFENDANT: Thirty.
THE COURT: How far did you get in school, Mr. Gardiner?
THE DEFENDANT: Uh, I’m not sure what you mean.
THE COURT: For example, did you graduate from high school?
THE DEFENDANT: No. I went to high school, though.
THE COURT: I see. Did you finish ninth grade?
THE DEFENDANT: Yes. And I finished tenth grade, too.
THE COURT: Good. Did you finish eleventh grade?