by Ed Gaffney
Now they were sitting in a small conference room, about five minutes before the trial was supposed to start up again. Zack and Terry had just come up from visiting with their client in the basement holding cell.
“Sorry we couldn’t get here before now,” Zack said as they pulled up chairs on the other side of the table. Terry was dressed in a sharp-looking dark suit, with a white shirt and a yellow tie with dark blue stripes. Zack looked a little disheveled. His light blue tie was already loosened, and his gray, pin-striped suit just didn’t look quite as crisp as Terry’s. “Did you finally find Tedesco?”
“Not exactly,” Anthony responded. “But we did find his girlfriend. Sort of. I guess the most important thing, though, is that we might have found an alibi for Babe.”
Terry took a deep breath and closed his eyes. “I’ll go check the barn door.”
Zack was more upbeat. “Really? Maybe we’ll be able to voir dire you, and get a continuance—”
“Zack, uh, not to be a downer or anything,” Terry said. “But I’m not sure how the whole post-confession alibi thing plays out.”
“Me, neither,” Zack said, “but I still want to hear about it.” He turned to Anthony. “What did you find out?”
Anthony looked quickly at Maria and then began to speak. “I don’t really think you can use this,” he said, “but anyway, here it is. As far as I can tell, Babe’s alibi would be that he couldn’t have robbed and murdered that convenience store clerk that night because while that was happening, he was on the other side of town, shooting Davy Zwaggert.”
TERRY WAS MENTALLY DESIGNING HIS CLIENT’S new business cards: Babe Gardiner—Village Idiot, One-Man Crime Wave.
It was less depressing than paying full attention to what the private investigator was saying.
Even so, he couldn’t stop himself from listening.
According to Angela Gannon, she was Davy Zwaggert’s girlfriend when he got arrested, and she first heard about Roger Tedesco and Babe when she visited Davy in prison.
Babe, Roger, and Davy were cell mates for a while at MCI–Bayview, and the three had formed a kind of bond. So when Roger got out of jail, he looked up Babe and, through him, got a job at Ibis Industries. And when Davy got his release, he called Roger, supposedly to celebrate his new freedom. Naturally, Roger invited Babe along.
But Davy wasn’t really about celebrating. He was about Angela Gannon. Because although Angela was Davy’s girlfriend when he went into prison, by the time he got out of prison, she was Roger’s girlfriend.
And that didn’t sit well with Davy.
Angela had written to Davy to inform him of the bad—for him—news, and then visited him in prison a month later, just to be sure that they all could still be friends. She thought she had handled it perfectly, and that everything was totally okay. And maybe it was, while Davy was in jail, not drinking, and not really able to do anything about it anyway.
Anthony continued his story. After Davy was released, and after he allowed himself to get drunk enough to unlock whatever emotional clamp he had put on himself, the feelings that emerged were—surprise—rage and betrayal.
The night Davy got together with Angela, Roger, and Babe, the four of them met at a bar in North Babylon and started drinking. But then they decided that it was such a nice night they’d pick up a case of beer and some raspberry vodka, and head to Glass Lake to hang out.
When Roger pulled to the side of the private road that led to the lake, and parked, Davy decided that the first thing he had to do was pee. So he jumped out of the car and went into the woods behind a tree.
A moment later, Roger decided to join him.
But before Roger made it into the woods, Davy emerged, pointing a gun at Roger and loudly accusing him of stealing his girlfriend while he was incarcerated.
Babe decided that what this situation needed was another drunken moron, so he jumped out of the car and ran toward them, just as Roger and Davy began to wrestle.
Angela watched with horror as the three stooges struggled with each other and the laws of physics. Then she heard a muffled pop, and before she knew it, Babe was running back to the car, while Roger stood frozen to his spot with the gun in his hand as Davy collapsed to the ground at his feet.
“I shot Davy! I shot Davy!” shouted Babe as he scrambled into the passenger seat. “Oh my God! I shot Davy!”
Roger, ever the brains of the operation, assessed the situation: three ex-cons, two parolees, and one dead body. He decided the prudent course of action was to use some old rope he had in the trunk of the car, tie a big rock to Davy’s body, and dump it into the lake with the gun.
Then he told Babe and Angela never to talk to anyone about what happened, drove Babe to his car, dropped Angela off, and disappeared, never to be heard from again.
A court officer poked his head into the conference room. “Judge will be on the bench in one minute,” he said.
LOUIS LOVELL DIDN’T BLAME THE DEFENDANT’S attorney Zack Wilson. If he’d been in Wilson’s shoes, he probably would have asked, too.
Right after Wilson had met with the defendant in the lockup, he’d come over to Louis and asked him if he’d consider accepting a guilty plea to the robbery, with a recommended sentence of twenty years, in exchange for dropping the murder charge.
But Louis couldn’t possibly accept that deal. It wasn’t about the “Case Closed” program, or his boss, or anything other than the fact that it just flew in the face of common sense.
Yesterday, the defendant had gotten on the stand and admitted to the robbery. His entire testimony was bizarre—it was hard to believe almost anything that the man said—but even though the body language was wildly contradictory, the words came out straightforward.
And if Gardiner robbed the clerk, he had to have killed the clerk. And there was no way that Louis could let him off on that murder. If he committed murder, he needed to be held responsible for it.
Louis knew that there was a chance that he’d suffer for the decision. If some miracle arose, and Gardiner was found innocent, he’d surely be fired. But he was okay with that.
He wasn’t okay with letting someone get away with murder.
“Court!” shouted one of the court officers, as the judge took the bench.
TERRY WAS HAVING A HARD TIME SITTING STILL while Judge Park asked the jury whether they saw or heard anything in the news about the case last night. It wouldn’t matter. Babe was done.
Trust this blockhead to hide the truth from them so successfully that even when they finally uncovered an alibi, it was too late to use it. What were they going to say? “Uh, ladies and gentlemen of the jury. You know how our client said he did the crime? He was lying when he said that. What he really meant to say was that he didn’t do that crime, because he was busy doing another one.”
There was a topic for one of Judge Baumgartner’s ethics conferences. What do you do when you can get your guy off on crime #1 by implicating him in crime #2?
It was one thing to fight a losing battle. It was another one entirely to fight for somebody who was determined to lose.
Zack got up and headed for the podium, to continue whatever it was they were doing. This was going to be hard to bear. He looked down, and his attention was drawn to Babe’s legal folder. Some of the papers were spilling onto the table, and Terry reached over to straighten them.
He pulled the entire folder over in front of him and began to read what Babe had scrawled in the margin of some case out of the Hawaii Supreme Court.
These weren’t the kinds of doodles that Terry had seen Babe making before—lame drawings of dogs, planets, and rocket ships. These were words.
Coherent, important words.
Holy shit.
And then he was on his feet, tapping Zack on the shoulder, just as Babe said, with about the least amount of conviction Terry had ever seen in a witness, “I understand that. I ain’t lying. I robbed him.”
TWENTY-SIX
[Sidebar conference.]
&nb
sp; ATTORNEY WILSON: At this point, Your Honor, I’d like to move that the court declare this to be a hostile witness, so that I may propound leading questions.
THE COURT: I’m sorry. Did you say that the defendant was a hostile witness?
ATTORNEY WILSON: Yes, Your Honor. I suspect that the defendant is not being honest in his testimony. But unfortunately, I cannot be sure, and so I cannot invoke the ethical guideline by which I would simply cease asking the defendant questions, and let him testify in the narrative. Judge, I just don’t know what’s going on up there. He pleaded not guilty, and then testified that he committed the crime he is charged with. By definition, the defendant has aligned himself with the Commonwealth and made himself an adverse, hostile witness. I merely seek permission at this time to ask him leading questions.
THE COURT: Forgive me, Mr. Lovell. I have never heard of anything like this, and I’m a little at a loss. What is the Commonwealth’s position?
ASSISTANT DISTRICT ATTORNEY LOVELL: Your Honor, the Commonwealth’s interest is in a full disclosure of the truth….
(Commonwealth v. Gardiner, Volume VI, Pages 53–54)
ZACK TRULY ADMIRED LOUIS LOVELL. THE GUY really walked his talk.
It would have been easy for him to object to this crazy business, and Judge Park probably would have sustained the objection and forbidden him from asking Babe leading questions. Who had ever heard of the defense attorney treating his own client in a criminal trial as a hostile, adverse witness?
But then again, who had ever seen Babe Gardiner in a trial?
To protect himself, Lovell had reserved the right to raise an objection if it seemed to him that Zack’s questions were being used to distort the truth. That was totally understandable, of course.
Although it was going to take some doing to know when the truth was being distorted and when it wasn’t, with Babe on the stand.
Zack stood at the podium, with some of Babe’s legal file open before him. Terry was sifting through the rest of it to see if there was anything else in there that they could use.
Zack began by picking up Babe’s legal folder. “Mr. Gardiner, do you know what I am holding in my hand?”
Babe was bewildered for a second, and then as the folder cleared the top of the podium, recognition crossed his face. This was the battered manila folder with BABE in gigantic handwritten lettering across both its front and its back that he had been carting around to every trial appearance and every meeting with his lawyers he’d had since the beginning of the case. “Yeah,” he said. “That’s my legal folder.”
“And do you sometimes make drawings on some of the papers in your legal folder?”
Babe nodded. “Yes.”
“Little doodles, right, of things like animals, and geometric shapes, and things like that?”
“Uh-huh.”
“And sometimes, do you write things in your folder? Like words, and sentences?”
Babe looked off to the side, and then down. Something wasn’t right, but he couldn’t quite put his finger on it. “Uh, yeah. Sometimes.”
“Great. Now, can you tell me whether, throughout the course of this trial, you were and you are still being threatened by someone in prison by the name or the nickname of ‘Rock’?”
AS TERRY WATCHED HIS CLIENT’S EXPRESSION, HE knew what everyone in the court knew.
No matter what Babe said in response to Zack’s question, the real answer was “Yes.”
“No.”
“Oh,” Zack said with a puzzled look. Then he picked up one of the pieces of paper from the folder, held it up, made a big show of reading something in the margin, and then asked, “But you wrote in the margin of one of the pages in your folder, ‘Rock says I’m guilty, or Mom is dead,’ didn’t you?”
The jury was absolutely fascinated. The cute schoolteacher was staring with her mouth open. Sweet grandma one and sweet grandma two were mirror images of each other, heads back, shocked, mesmerized. Every single person on that jury knew that Babe had written it. Regardless of what he said.
“No. I didn’t write that. What are you talking about?”
By now, Babe’s body language was so chaotic that it was absolutely certain that he was lying through his teeth. He was breathing rapidly, shifting his eyes left, right, down, every which way but directly at Zack. Everything he said in response to Zack’s questions was going to be reinterpreted, one hundred eighty degrees, by the jury.
“Well, I’m talking about whether you are being pressured to accept guilt for these crimes by someone named Rock, who has threatened to hurt your mother if you don’t. Is that what is happening?”
“No. That is not what is happening. Not at all.” Babe was starting to stammer. “Rock n-never threatened me. He n-never did.”
If there had been any doubt in the jury’s mind that Babe was being threatened, it was gone now.
“I see,” said Zack quietly. He held up another piece of paper. “So the words ‘No way out must save Mom.’ Did you write that?”
“N-no. I didn’t write that. I didn’t write anything like that.”
Zack nodded, all seriousness. “Okay, Babe. Let’s shift gears for a minute. Can you tell me who Davy Zwaggert is?”
That one really shook him.
He looked away, he ran his hand through his stringy hair, he sniffed, and then he blinked. He looked like he was about to cry. When he answered, his voice was shaky. “No. I can’t.”
“How about Roger Tedesco?”
Babe started to weep. “Why are you doing this to me? I told you I robbed the convenience store. And you know what else? I killed him, too. I killed that man after I robbed him.”
If anyone else had been asking the questions, he might have come off like some kind of sadistic monster, goading his own client into the tearful admission of guilt of an unforgivable felony. But not Zack. There was nothing pleasurable about this for him. He was just a man committed to taking the only course he knew that would lead them all to the truth, no matter how difficult. Because he knew what the jury was seeing and hearing. And he knew that whatever Babe was saying, the jury was hearing the opposite.
“So your testimony is that on March 19, at 11:45 in the evening, you went into the Nite & Day Convenience Store with a knife, intending to rob it?”
“That’s right, I did,” Babe sniffed defiantly, and completely untruthfully.
“And then you robbed the store of approximately one hundred dollars, is that correct?”
“Yes, that’s correct. Exactly correct. Approximately one hundred dollars.” Still no eye contact.
“And where did that money go?” Zack asked. “What happened to the money that you stole?”
Babe hadn’t thought that far ahead, and the question clearly stumped him. His next lie sounded worse than all of the others. “I don’t remember,” he said, wiping his eyes.
“I see,” said Zack, nodding respectfully. “But you do remember that after the robbery, you killed the convenience store clerk, is that correct?”
It took a minute for Babe to process that one. He didn’t want to get tricked again. He cleared his throat, and once again, in a manner that no one on earth would ever believe, admitted to murder.
It was incredible. By now, several members of the jury, including sweet grandma two and the teacher, actually looked like they might start to cry, too. The truck driver with the hearing aid looked over at the thin black man, met his eyes, and they shared a smile.
Despite everything he had done to try to hide the truth and to sabotage himself, Babe Gardiner was about to be found innocent.
There was a movement to Terry’s left, which was annoying, because he wanted to keep looking at the faces of the jurors. But he couldn’t ignore it, and he turned to see one of the court officers handing an envelope to Sean, who opened it and showed it to Terry.
And then everything went straight to hell.
THE JUDGE CALLED THE MORNING RECESS, AND before Zack even had a chance to sit down, he felt Terry’s hand on his s
houlder and heard him say, in a low voice, “Zack, you’ve got to look at this right away.”
Zack turned to face his friend, who was holding a letter and a photo.
“This can’t be right,” Terry said, his hand literally shaking as he held the picture of the police detective that had questioned Babe a month ago. “Jesus Christ, Zack, I was with her last night. They must have taken her after I left her. What the fuck is going on? What are we going to do?”
The picture was a Polaroid of Vera with a copy of today’s Boston Globe in front of her. She was bound and gagged, and had been beaten badly—she had a swollen eye and her hair was matted with blood. It wasn’t clear whether she was conscious or even alive.
What was worse was the letter. It had obviously come off a computer printer.
Attorney Wilson and Attorney Tallach
Make sure the jury finds your client Babe Gardiner guilty, or else the woman dies.
I’m watching the trial on TV, so I’ll know if you try anything. If they stop TV coverage of the trial, or if the judge stops the trial for any reason, she dies.
Even if the judge recesses for a long time, she dies. I’ve been watching, and I know when he takes breaks. If there’s any change in his schedule, she dies.
It’s on you.
Zack’s brain began to race. He had an ethical obligation to protect the rights of his client. There was no way he could throw a trial, or even try to throw one.
But if he didn’t, that police detective would be killed.
And even if he wanted to, how in the world was he going to be sure he’d lose? Incredibly, right now, things looked pretty good for Babe.
From behind him, a court officer shouted, “Court! All rise! Court is in session!” and Judge Park took the bench.
He grabbed Terry and whispered frantically into his ear.
THEY WERE SCREWED.
Holy motherfucking shit. They were so completely and royally screwed.
The A.D.A.—Lovell—was cross-examining Babe, but the case was over, and he knew it.