Best Intentions

by Joseph T. Klempner

  A trial - even one where the judge had all but told him to waive a jury - was a roll of the dice, a game of chance you played when all your efforts to resolve a case had failed. Sometimes it was a matter of a prosecutor being unreasonable; more often it was when your own client was too stubborn and too self-destructive to understand that a guilty plea was in his own best interest.

  But neither seemed to be the situation here. Adams knew Jim Hall couldn’t plea-bargain the case; he was in a bind, politically. He’d been burned once on a sex case, and the voters wouldn’t forgive him a second time. As for Justice Wainwright, he, too, was in a tough spot. By refusing to dismiss the case, he was simply covering his own butt. And you could hardly say Stephen Barrow was being unreasonable by going to trial. With custody of his daughter at stake, there was no charge on the books he could plead guilty to, even if Hall had been inclined to offer one.

  So a trial it would be. And Flynt Adams would toss and turn for a while, think about his opening statement, check the clock, plan his direct examination of his client, listen to the furnace turn off and on, rehearse his summation, and finally watch the sky begin to lighten in the east. In between, if he was lucky, he’d catch three hours of sleep.

  Jim Hall slept like a baby.

  For him, the worst thing about Monday morning was that Wainwright would give him a little grief. But when it came right down to it, there’d be nothing the judge could do.

  To Hall, the wonderful thing about the American system of justice was the delicate balance of power built into it. You had a judge and a prosecutor. (You could forget about the defense attorney: He had no power at all in the equation.) The judge got a fancy title that went in front of his name, a special license plate to stick on his car, a nice black robe to wear, an expensive leather chair to lean back in, a great big desk to sit behind, and even a little wooden hammer to bang on it when things got out of hand.

  All the trappings of power.

  But the real power, as Hall and everyone else in the system knew, belonged to the prosecutor. The power to indict or refrain from indicting; the power to plea-bargain or be hard-nosed; the power to fast-track cases or let them languish; and even much of the power to control who went free, who went to prison, and - now that capital punishment had finally been restored - who lived and who died.

  Tomorrow would be a good test of that balance of power. Wainwright could wear his robe, sit in his chair, and bang his hammer on his desk all he wanted. When he was finished doing all that, he’d finally get around to giving Hall exactly what the DA wanted.

  He’d have no other choice.

  When whatever it was that was under the covers said “Hello,” Stephen jumped up as though he’d been catapulted from the bed.

  Police officers, emergency medical technicians, and others whose business it is to respond to serious motor vehicle accidents share a macabre little piece of information unknown to the general public. A pedestrian struck by a moving car tends to be launched - and launched is the operative word here; no other expression accurately describes the phenomenon - an astounding distance. So suddenly does the victim take off, and with such incredible force, that his shoes are invariably left behind on the pavement, in the precise place and position they’d been just prior to the victim’s departure. In fact, for that very reason they’re often used as a reference mark for the point of impact in the ensuing investigation.

  At the moment before he was catapulted upward from the bed, Stephen Barrow hadn’t been wearing shoes. Had he been, they undoubtedly would have been left behind on the floor, one beside the other, right by the edge of his bed.

  He had, however, been wearing a towel.

  Another thing: While Stephen’s vision had still been in the process of accommodating to the semidarkness of the room at the moment of his liftoff, the utterer of the “Hello” had been lying there long enough to be able to observe the event in considerable detail, particularly the dramatic separation of the booster towel. And, seldom at a loss for words, she now summed up her impression.

  “From the look of things,” she said, “that must have been a very hot shower.”

  Stephen, who tended to be more at ease with the written word than the spoken one, could do no better than, “Terry?”

  “Yes?”

  “What are you doing here?”

  “Were you expecting someone else?” she asked.

  “I mean, what are you doing here?”

  “I decided,” she said, “that one way or another, you needed to get a good night’s sleep.”

  “And you think this is going to do it?”

  “Actually,” she said, “I already know this is going to do it.” And, lifting herself up onto one elbow and simultaneously revealing one bare breast, she reached out for him.

  “But you heard what Mr. Adams said,” Stephen reminded her. “People are going to assume we’re-”

  “The hell with people. They already assume we’re sleeping together. So the way I see it, we might as well be.” And she reached out farther until she succeeded in grabbing onto the nearest part of him, not to mention the most prominent.

  No thruster ever reacted more dramatically.

  “People versus Stephen Barrow,” announced Justice Wainwright, who had a habit of calling his own calendar, rather than waiting for his clerk to do it. “I understand that Mr. Barrow has executed a waiver of trial by jury and wants a bench trial. Is that correct, Mr. Adams?”

  “Yes, sir, it is.”

  “Are both sides ready?”

  “The defendant is ready,” said Adams.

  Jim Hall rose slowly from the prosecution table, as though what he was about to say caused him great pain. “The People are not ready,” he said. “We intend to call the child victim as a witness. We believe her testimony is absolutely essential to our case. Unfortunately, we’re advised by Dr. Silverman, the therapist who’s been treating the child, that she’s still much too upset to testify, and won’t be able to for another month.”

  Adams jumped to his feet. “Your honor-”

  Wainwright cut him off with an outstretched hand. “It seems to me, Mr. Hall, that this case is about the nature of a photograph allegedly possessed by the defendant. Perhaps you’d like to give me an offer of proof as to how the child’s testimony will bear on that.”

  “Certainly, your honor. We expect the child to testify to a number of things, including the fact that the defendant deliberately posed her for the pictures, had taken a number of similar pictures of her in the past, punished her when she refused to comply, rewarded her when she agreed to-”

  Flynt Adams was on his feet again, his face red with anger. What Hall had done was to take Adams’s motion papers, the part where Adams had argued that the case had to be dismissed because the prosecution couldn’t prove any of these things. Now Hall was taking every item Adams had listed and saying he could prove them, by calling Penny as a witness, but he just wasn’t ready to do it yet.

  But again, the judge silenced Adams and continued to direct his attention to Hall. “What leads you to believe that she’ll say these things?”

  Hall bent down and huddled with Hank Bournagan before answering. “My associate here tells me he’s been in constant contact with Dr. Silverman. He says she says that the child has told her all these things, at one time or another.”

  “‘He says she says,’” mimicked the judge. “So then why can’t the child come in here and tell me these things today?”

  Again Hall conferred with Bournagan. “According to the doctor, she’s still too, uh, too traumatized.”

  “I’ll give you one week, Mr. Hall, one week. The trial will take place April twenty-fourth, with or without the child. Do I make myself clear?”

  “I’ll do my best, your honor.”

  Flynt Adams never got a word in. Like Hall and Wainwright, he understood all too well that he was nothing but a bit player in this power struggle, a minor character with no speaking lines.

  “Too traumatized?�
�� said Stephen afterward.

  “I know, I know,” said Adams. “That’s all nonsense. But you see what’s really going on here, don’t you? Hall’s trying to get the case away from Wainwright. He figured he could get it knocked over to May, when Justice McGee comes into the part. But Wainwright saw right through it and outfoxed him.”

  “Suppose he does it again next time?” Theresa asked.

  “You heard the judge,” said Adams. “This case is going to start a week from today, with or without the child.”

  But if Flynt Adams did his best to sound certain, neither Stephen Barrow nor Theresa Mulholland walked away fully convinced. They’d seen too much already. Stephen shook his head slowly. “All that sleep for nothing,” he said.

  Theresa shot him a look, letting him know he’d get his later. Or more likely not.

  Tom Grady was hunched over his typewriter in a small cubicle at the office of the Hudson Valley Herald, working on the day’s fifth cup of coffee. Cigarettes he’d lost count of, and had some time ago begun reckoning his consumption of them not in numbers smoked or even packs purchased, but in occasions he was compelled to empty his ashtray.

  “What’s new with the Barrow case?”

  Grady hadn’t sensed anyone at the entrance of his cubicle. Now he looked up and saw Neil Witt, clipboard in hand.

  “Nothing much,” said Grady. “Put off a week.”

  “You going to have something for the issue?”

  “Like what?” Grady asked. “‘Barrow Trial Adjourned’?”

  “I was thinking more along the lines of human interest,” said Witt. “You know, how the kid’s doing at school-”

  “She’s not in school.”

  “-or at home.”

  Grady said nothing. Kids tended to annoy him under the best of circumstances.

  “Or how Barrow’s so upset at losing her that he’s replaced her with a certain former reporter.”

  Grady leaned back slowly in his chair. “You mean a sorta Carl Coppolino piece?” he asked. Carl Coppolino had been a physician and a murder defendant, what, a quarter of a century ago? He’d been accused of using an exotic poison to kill off not one but two wives. Or maybe a wife and a girlfriend, whatever. He’d hired F. Lee Bailey to represent him, at a time when Bailey was on top of his game. They’d won the first trial, in New Jersey. The second one was down in Florida. Just before it began, some photographer snapped a shot of Coppolino, romping on the beach with his latest girlfriend, a big smile on his face, like he didn’t have a care in the world.

  A Florida jury wiped the smile off his face.

  “Yeah,” said Neil Witt, whose reading at the time had pretty much been confined to the Hardy Boys, but had later studied the Coppolino case at the Cornell School of Journalism in a course about how reporting could shape events. “Sorta like that.”

  Jim Hall assembled his staff in his office that same afternoon. “Okay, folks,” he told them. “Wainwright wants to play hardball with us, we’ll teach him a thing or two. Hank, you take a look at Article Sixty-five of the CPL, see what it takes to have the kid declared a ‘vulnerable witness,’ authorizing the use of closed-circuit TV for her testimony at trial. That oughta take a full week to litigate right there. Meanwhile, Wendy, you draw up a motion to recuse Wainwright on the ground that he’s prejudged the case.”

  “How’m I going to do that?” she asked. “He really hasn’t done anything yet.”

  “You just draw it up in general terms,” Hall told her, “and let me fill in the blanks. And even if we come up a little short, the beauty of it is that by the time we lose the battle, we’ll have won the war. See, you kids gotta learn to keep your eyes on the big picture. So just do as I say, okay? Then sit back, relax, and leave the rest to me. You’ll see how it works.”

  Actually, it wasn’t working all that well, at least as far as Cathy Silverman was concerned. She was making a little headway with the Barrow child, to be sure, but it was awfully slow going. Each time she’d managed to extract some concession or other from the subject, the next thing out of the child’s mouth would be a retraction of some sort, or a qualifier. There was, for example, the time when Silverman had finally gotten Penny to admit that it had been her father who’d posed her for the mooning photograph.

  “So he had you undress,” she said. “Right?”

  Silence. Blanket on lap, as always.

  “Right?”

  “It was bath time.”

  “Okay, it was bath time, and he had you undress.”

  Thumb to mouth.

  “Right?”

  “I guess so.”

  “How often did he do this?”

  “Do what?”

  “Have you undress?”

  “Once a day, I guess.”

  “Good. And did he come into the room when you were undressed?”

  “I guess so. To check on me.”

  “When you were completely undressed?”

  A nod, thumb in mouth.

  “And that one time, when you bent over, and he took your picture. He was there in the room with you, right?”

  “Duh.”

  “What?”

  “Nothing.”

  “Did you like it when he took the picture?”

  A shrug.

  “Did you say anything?”

  “I said, ‘Daddy!’“

  “So you didn’t like it, did you?”

  Silence.

  “Did you?”

  “I guess not.”

  “But he took it anyway.”

  A barely perceptible nod.

  “How did it make you feel?”

  “I don’t know. I remember I laughed.”

  “You were happy it was over?”

  “No. It was funny.”

  “It was funny that he made you bend over naked so he could take your picture?”

  “He didn’t make me. I bended over all by myself.”

  “But it was his idea, right?”

  “What was?”

  “Come on, Penny. Why do you always have to make this so hard?”

  “‘Cause you keep confusing me.”

  “It’s a simple question, and I need a simple answer. Then we’ll be finished for today. Whose idea was it? Yours or his?”

  “To take the picture?”

  “I give up. Whatever.”

  “His.”

  “Thank you. Now that wasn’t so hard, was it?” “But it was my idea to-”

  “I said we’re finished.”

  In her write-up of the session, Silverman described how Penny Barrow was still much too upset to come to court. (Hank Bournagan had asked her to be sure to include that fact in each of her reports.) Then she noted the following:

  Wednesday, April 12, 2000

  Subject appears as before, accompanied by her baby blanket, and constantly sucking her thumb. When pressed, subject states that her father would direct her to undress completely, on an average of once a day. Subject further states that her father would constantly enter the room when she was naked, under the guise of “checking on her.”

  Subject spoke reluctantly about the photo her father took of her bending over with her genitals and anus exposed. She said she didn’t like it when her father took the photo and complained to him at the time, but he took it anyway, over her objection. After some hesitation, subject admitted that the entire incident was her father’s idea.

  Tom Grady’s idea was to catch Stephen Barrow and Theresa Mulholland in a compromising position, as the saying went, and document it with a photograph that would reveal the exact nature of their relationship. That oughta knock Theresa off her high horse of concern for Barrow’s rights and the American System of Truth and Justice, and expose the two of them for what they were - a pair of self-absorbed lovers every bit as smug as Carl Coppolino and his floozy had been, romping on the beach like they owned the world.

  The problem, of course, was in the catching.

  Grady didn’t have a car, or a driver’s license, for that matte
r. He’d had both at one time, but three accidents and four DWI arrests had pretty much broken him of the driving habit. As a result, Grady wasn’t in a position to follow either Stephen or Theresa around, hoping to catch them smooching over lunch at the Cottage Restaurant, or holding hands at the bar of Fresca’s Pizzeria. Besides which, Grady was lazy. Unlike his boss, Neil Witt, he was an old-fashioned, seat-of-the-pants reporter. He hadn’t attended the Cornell School of Journalism or even finished college. He didn’t believe in painstaking research, time-consuming investigation, or bothersome fact-checking. All that beating around the bush might be fine for someone else. For Tom Grady, it was nothing but a bunch of crap.

  You wanted a story, you went to the source.

  Which is why, when it came time to catch Stephen and Theresa together, Grady got ahold of Danny LaFontaine, one of the paper’s two staff photographers.

  “Danny, you got your car?”

  “Yeah, I got my car.” Danny always had his car; along with his Leica, it was the reason he’d been hired in the first place. The Herald reimbursed him at the rate of twelve cents a mile. When gas had cost eighty-nine cents a gallon, it had been a pretty good deal; at $1.69, it had lost some of its cachet.

  “Good,” said Grady. “Why don’t you meet me at Poppy’s about eleven-fifteen tonight, okay?”

  “Eleven-fifteen?”

  “Yeah, and make sure your flash is working this time.” Last time out, they’d tried to surprise a group of poachers using floodlights to hunt deer over at the dump. But the poachers heard them drive up and killed the lights, and when Danny tried to catch them in the dark, the flash on his camera misfired. End of story.

  “What are we working on this time?” Danny wanted to know. “Coyotes?”

  “Coppolinos,” said Grady.

  “Say what?”

  Grady didn’t bother explaining. Danny was twenty-two years old.

  They drove in silence up the dirt road from Route 295, the headlights on Danny’s Plymouth surprising raccoons, possum, and a pretty good-sized doe. They left the car on Beacon Hill Road, right before the turnoff to Hilltop Drive, and hiked the last quarter mile. It was mid-April, and spring may have been coming to the rest of the world, but in Columbia County there was still a hard frost underfoot, and as the two men walked, every breath they exhaled hung in the air in front of them, lit up by the moonlight.