“I could have but I chose to do it myself.”
“Because it was personal.”
“Yes.”
“We’ve already had two of your police officers testify in this case, and I asked each of them if there were any general orders to watch the woods behind Danni Jansen’s house and they said there weren’t. Is it true that you did not put out any general orders to your officers to be especially vigilant of the woods behind Danni Jansen’s house?”
“Yes.”
“And again, that’s because it was personal.”
“Yes.”
“If Felton was after Danni Jansen, why didn’t you just wait for him in her house?”
“I wanted to. She wouldn’t let me. She wanted to catch the son of a bitch as much as I did. Excuse my language, Your Honor.”
The judge didn’t respond.
“So you obviously wanted to get him because of what he did to your family. Why did Danni Jansen want to get him?”
“Objection, Your Honor. He’s asking this witness to speculate about what was in Danni Jansen’s mind.”
“I’ll rephrase the question, Your Honor.”
“Proceed.”
“Did Danni tell you why it was personal for her?”
“Yes.”
“What did she tell you?”
“Objection, hearsay.”
“Your Honor, I anticipate that Danni Jansen will be the State’s next witness.”
“Is that true, Mr. Merton?”
“Yes, Your Honor.”
“I’ll allow it.”
“What did she tell you?” Tom asked again.
Sam was an experienced witness. He knew when Merton objected that he didn’t want him to answer the question. But Sam couldn’t help himself. He wanted the jurors, everybody, to know that Danni wanted Felton almost as bad as he did.
“She was on the task force when he was terrorizing this city. Danni has a daughter. Felton had threatened her daughter in the past. She wanted him apprehended.”
“It was personal with her, too.”
“Yes.”
“So you were patrolling the woods—was that on a daily basis?”
“Yes, several times a day.”
“And Danni Jansen was sitting in her house waiting for Felton to come?”
“Yes.”
“And from the evidence you uncovered, Jack Tobin was living in the woods waiting for Felton?”
“No, he was luring Felton into the woods.”
“I know that’s your opinion and your opinion is based on the telephone calls to Felton’s phone, correct?”
“Yes.”
“But you didn’t listen to those phone conversations?”
“No.”
“In fact, you don’t even know that there were phone conversations, correct?”
“No.”
“And you don’t really know for a fact why the calls were made, correct?”
“I’ve stated my opinion.”
“I understand that, but you don’t know why those calls were made, do you?”
“Not for an absolute fact.”
“And you did find camping equipment, clothes—items that indicated that Mr. Tobin was living in the woods, correct?”
“Yes.”
“Probably waiting for Felton just like you and Ms. Jansen?”
“I don’t know that.”
“Well, you’ve given a lot of opinions already on your direct examination. Isn’t that a logical conclusion—you were waiting for Felton, Danni Jansen was waiting for Felton, and Jack Tobin was waiting for Felton?”
Merton was on his feet. “Objection, Your Honor. He’s badgering the witness. The question was asked and answered.”
“Overruled. Answer the question, Mr. Jeffries.”
“I don’t know.”
“But the evidence—the clothing, the camping equipment—it doesn’t coincide with your theory that Jack Tobin lured Felton into the woods, does it?”
“I don’t understand the question.”
“Let me ask it another way: The physical evidence shows that Tobin was camping in the woods waiting for Felton, not that Tobin was luring Felton into the woods.”
“The camping equipment was all a ruse—all part of Tobin’s plan.”
“That’s your opinion.”
“Yes, it is.”
“Were you armed when you were in the woods?”
“Of course.”
“And did you anticipate that you might have trouble with Felton if you came across him?”
“Yes.”
“And was Danni Jansen armed?”
“Yes.”
“For the same reason?”
“Yes.”
“And was Jack Tobin armed?”
“Yes.”
“For the same reason?”
“No. He wanted to kill Felton. Danni and I are police officers. That’s a big difference.”
“Isn’t Danni Jansen a retired police officer?”
“Yes.”
“She has the status of a private citizen just like Jack Tobin?”
“Yes.”
“So she and Tobin were armed as private citizens, correct?”
“If you say so.”
“I’m not testifying, Chief Jeffries, you are. Please answer the question.”
“Yes.”
“Now, if you, walking in the woods, armed, came across Thomas Felton, maybe a hundred yards away, and you told him to stop, and he turned, and you thought he had a gun and was about to fire, would you shoot?”
“It all depends.”
“On what?”
“If I thought I was in danger for my life, I might be justified—but I’d better be pretty damn sure he had a gun.”
“What if he didn’t?”
“Then I’d be facing discipline.”
“From the police department?”
“From my superiors in the city and possibly the state. All police officers have standards they have to abide by. One of those standards is a use of force matrix. Essentially, you can only use force necessary to counter the force exerted against you.”
“So you would be subject to disciplinary action but not criminal charges?”
“No. Not under the facts that you described.”
“Okay. Let’s take Danni Jansen walking in the woods, same circumstances.”
Sam Jeffries had had enough. This lawyer was not going to squeeze him anymore.
“You’re not getting this, Counselor. Danni Jansen was one of the finest homicide detectives this department ever had. This scum, Felton, threatened her daughter and he was out there. Still, she would have apprehended him if she had the chance. She was justified carrying a gun and I would put her in the same category as myself. She would not have shot unless she had to.”
“Which means no criminal charges, correct?” Tom shot the question out quickly. He knew when he had a witness going his way, even though the witness didn’t know it.
“That’s correct.”
Tom had what he needed. Going any further would have been a crap shoot. He’d set the scenario to argue to the jury that if they believed Jack’s version of the facts, his good-faith belief that Felton had a gun, then according to Chief Sam Jeffries, there should be no criminal charges.
“I have no further questions, Your Honor.”
“Great cross,” Jack told him when he sat down.
“We’ll see,” Tom replied. “We’ll see.”
Chapter Sixty-Two
It was one thirty when the judge finally took a lunch break. The testimony of Sam Jeffries had been long and sometimes tedious and the judge rightfully didn’t want to break before it was over. He gave the jurors an extra half hour for lunch, though.
“We’ll reconvene at three,” he told them.
Tom once again stayed in the courtroom with Jack, two old trial lawyers who couldn’t get enough of it, although Jack didn’t particularly like being the defendant. Tom produced two Snickers bars and handed one
to Jack.
“You’re such a thoughtful lawyer,” Jack said. “You think of my sustenance along with everything else.”
“Let’s hope the everything else is as good as this Snickers bar.”
“It is,” Jack said. “Remember, I’m an expert at this.”
Tom ignored the compliment. “So what do you think so far?”
“I think you set the case up exactly as it should be. Merton did an excellent job with Jeffries, but you got what you needed. It’s going to come down to me or him.”
“Yes and no. They are with him all the way. But he’s out there on a limb all by himself and some of his stuff is very weak. The throwing the gun away into a certain portion of the woods is a little far-fetched. It could literally lose them the case if they don’t have anything or anybody to corroborate the theory, and I don’t see how they are going to come up with anything at this late date.”
“Well, they’ve got nobody left except Danni,” Jack said.
“We don’t know that but it’s our best guess. She’s going to corroborate Jeffries’s story about your knocking on her door and your saying you shot Felton. She’s also going to testify about the telephone calls to Felton being from you because she knows your number, but that’s not a big deal since we haven’t denied that. She’s not going to add much if that’s all she’s going to testify to.”
Jack caught the note of sarcasm. “What’s that supposed to mean?”
“I just have a feeling.”
“And what’s your feeling?”
“I think you trust this woman way too much. And I think we’re in for a surprise.”
“You’re right, I do trust her. And I don’t think there will be any surprises.”
“We’ll see,” Tom said. “I hope you’re right about that…”
They were both right about one thing—Danni was the next witness. She wore a black dress as if she were in mourning. Jack tried to catch her eye just to let her know he had no hard feelings about her testifying for the prosecution, but she wouldn’t look at him. Even though he was on trial for his life, and even though she was about to testify against him, Jack still had intense feelings toward her that he could not suppress. Danni swore to tell the truth, took the stand, and answered Robert Merton’s questions in a dull, expressionless voice.
As to the questions, Tom and Jack were right about most of them. Merton took her through Felton’s death scene, and she corroborated everything Sam Jeffries had said. Then he asked her if she knew Jack’s number and she said she did. He had called her on several occasions when they had been on opposite sides of a case. Merton then showed her the calls on Felton’s phone—the one two days before the shooting and the one moments before the shooting. She identified both calls as Jack’s number. Then came the surprise testimony—at least it was a surprise to Tom Wylie. He’d never heard it before.
“Now it’s my understanding that after you and Mr. Tobin returned to the scene where Mr. Felton lay dead and Mr. Tobin told Chief Jeffries that he had shot him, you were both taken to the station for questioning, is that correct?”
“That’s correct.”
“How did you feel as a twenty-year veteran of the force, being taken in for questioning?”
“I felt fine. It was purely routine.”
“Were you and Mr. Tobin separated at the station?”
“Yes.”
“And you were eventually released?”
“Yes, about an hour later.”
“Was Mr. Tobin released with you?”
“No.”
“Did you wait for him?”
“No. I went home.”
“When was the next time you saw him?”
“That evening.”
Merton and his assistant set up the easel and the diagram again.
“Ms. Jansen, a smaller version of this diagram has already been entered into evidence as State’s Exhibit number ten. Do you recognize what’s depicted in this diagram?”
“Yes. It’s my house, my back porch, my backyard, and the woods surrounding my house.”
“Now if you would, I’d like you to come and take this pointer and point out a few things for the jury.”
Danni stepped down from the witness chair and took the pointer as Sam Jeffries had done that morning.
“Now, would you point out approximately where in the woods Thomas Felton’s body was situated.”
Danni pointed to almost the exact same spot that Sam had pointed to.
“Thank you, Ms. Jansen. Now you said you saw Jack Tobin that evening—and you were referring to the evening of the shooting, correct?”
“Yes.”
“Where did you see him?”
“I was sitting on my back porch, and he came out of the woods and approached my house.”
“Were you surprised?”
“Yes, I was.”
“And did you ask him what he was doing out there?”
“I did.”
“And what did he tell you?”
“He said he was looking for the gun.”
“What gun?”
“Felton’s gun.”
“The gun that Thomas Felton supposedly pointed at him?”
“Yes.”
Danni was still standing in front of the diagram as she testified.
“Now would you show the jury on this diagram where you saw Jack Tobin come out of the woods that evening?”
“Sure.” Danni pointed to the woods to the left of her back porch, the exact spot where Sam Jeffries had testified he believed Jack would have thrown the gun and where he believed Jack would have gone to retrieve the gun.
“Now, Ms. Jansen, were you surprised that Mr. Tobin was looking for Felton’s gun in the woods to the left of your back porch?”
“Yes.”
“And why were you surprised?”
“Because Felton was shot up here.” Danni pointed to the area of the woods directly in front of the back porch—the area she had already pointed out. “If he had a gun on him when Jack shot him, it should be up there. I don’t know why Jack was looking where he was looking.”
“Did you ask him about that?”
“I did. He told me he could not look in the area surrounding the murder scene because there were SWAT team members up there. He said Sam Jeffries had told him nobody would be out there.”
“Now did you see any SWAT team members out there in the area where the body was found at any time that evening?”
“No.”
“And you were sitting on your back porch?”
“That’s correct.”
“Did you subsequently ask Sam Jeffries if he had deployed any SWAT team members at the crime scene that evening?”
“I did.”
“And what was his response?”
“He said he hadn’t.”
“And did you ask Chief Jeffries if he had told Jack Tobin that nobody was going to be out there that evening?”
“Yes.”
“And what was his response?”
“He said he hadn’t. He said Tobin was a suspect. He wouldn’t have given him any information.”
“As a retired homicide detective did that answer make sense to you?”
“Yes.”
“I have no further questions, Your Honor.”
Tom could have objected to the questions about what Chief Jeffries had told Danni because Merton was seeking to elicit hearsay testimony, but Merton could have cured that problem simply by calling Jeffries back to the stand. The much bigger problem was that Danni Jansen had just corroborated Jeffries’s testimony about the State’s biggest hurdle—the fact that Jack had thrown away the gun he was going to plant on Thomas Felton’s person and then had come back to retrieve it after he was released by the Oakville Police Department.
Tom knew he would have to go after her. He was searching his brain for anything he could use to attack her credibility. She had once been involved with Jack; maybe she has some lingering animosity toward him from that relationship.
While he was thinking, Jack leaned over and whispered in his ear.
“Everything she said is true. Don’t cross-examine her.”
Don’t cross-examine her! She just put a rope around your neck. Are you serious? We have to take a piece out of this woman’s hide or this trial is over.
Up until now, Tom had abided by the deal he had struck with Jack. Now he felt he could no longer listen to his client. The man was not thinking rationally. He needed time. He needed an opportunity to talk some sense into Jack. He stood up.
“Your Honor, may we approach?”
It was ten minutes to five. The judge didn’t know for sure what it was about but after twenty years on the bench, he had an idea. “Come on.”
When they reached sidebar, Tom pleaded his case.
“Judge, it’s ten minutes to five. The jury has already had a long day. If I start now, my cross could be very lengthy. If I wait until the morning and digest everything, it probably will be much shorter. At this time, I’m asking for a recess until tomorrow morning.”
The judge looked at Robert Merton. “What says the State?”
Merton knew he had them on the ropes. He didn’t want to let up on anything.
“I think we should finish this witness right now, Your Honor.”
Judge Holbrook was inclined to go along with Merton on this one. He didn’t like adjourning for the day when a witness was still on the stand, especially a major witness. He was about to rule in Merton’s favor when he glanced at the jury box and saw two of the jurors yawning. His first obligation was to make sure they were able to listen to and absorb the evidence. And it had already been a very long day.
“I think the jury is tired,” he said. “We’re going to adjourn until tomorrow morning at nine a.m.”
Tom was relieved. Merton was angry. Jack had no idea what had happened until the judge announced in open court that they were adjourning for the day.
Chapter Sixty-Three
Tom didn’t talk to Jack before he was taken back to his jail cell. Instead, he went looking for Henry.
“I need you to come back with me to the jail. We’ve got to talk some sense into Jack.”
Up to that point, Henry had not been involved much in the trial strategy and he had not been in on Jack and Tom’s conversations during the trial, so he didn’t know with any specificity what Tom was talking about.
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