by Jeanne Winer
“They’d already been arrested. They were going down anyway.”
“Mr. Heller, if you’d been called to testify against Casey, Rab, and Johnny—your three ‘real’ friends—you would have described how they found the evidence that Sam was homosexual?”
“Yeah, so what?”
“You would have testified that the four of you were outraged that Sam was a homosexual and had kept it from you.”
“Yeah.” He stifled a yawn.
“You would have testified that the four of you began talking about having a boot party to kill the traitor.”
“Uh-uh. Not me. Them. I just, you know, stuck around and listened.”
“But you were there and knew what they were planning?”
“Um, I wasn’t sure. I thought maybe they were just gonna fuck him up. You know, hurt him but not kill him.”
“During that first interview with the DA, you said you thought they meant to kill him.”
“Okay, yeah, but I wasn’t like positive.” His forehead was shiny with sweat.
Lee studied him for a moment.
“What if Casey, Rab, and Johnny come in and testify that you actually helped them plan Sam’s murder?”
“That’s a fucking lie! I never said a word. I just listened. The DA believed me.”
“Maybe he shouldn’t have.”
“Objection!” Dan shouted.
“Fine,” Lee said. “I’ll withdraw the remark.” Then turned back to the witness. “So you knew that the three men were going to murder your roommate.”
“That’s what they said. They might have been kidding.”
“But you told the DA you believed them.”
“Okay, yeah, I did.”
Lee was half-turned toward the jurors.
“And even though you believed them, you didn’t call the police?”
“Oh yeah, right. They would have found out and killed me.”
“When you heard what happened, did you call the police then?”
“Jesus, how many times do I have to say it? I was afraid of them. You would have been too.”
Lee was looking straight at the jury now.
“So it wasn’t until you got charged with a felony home-invasion, and were facing up to twelve years in prison, that you were suddenly willing to help the DA bring the perpetrators to justice?”
“Yeah, after they were in jail.”
“Mr. Heller, you had a week to warn your roommate before the murder.”
“Yeah, well, I was mad. He lied to me.”
Lee collected her notes from the podium, then looked up and said, “You could have saved his life.”
“Yeah, well, he lied.” He crossed his arms, tried to look belligerent.
She continued to stare at him.
Finally, the judge spoke.
“Any more questions, Ms. Isaacs?”
“No,” she said. “I’m done.”
Lee figured it would take all of Tuesday, Wednesday, and Thursday for the direct and cross-examination of the three co-defendants, but just in case, she instructed Carla to have Mary Matthews and Ethan Mitchell, the first two defense witnesses available starting Wednesday afternoon. You never wanted the jury, for even a second, to think you were unprepared.
Much of the timing, of course, would depend on how well Dan had prepped his witnesses. If Lee were Dan, she would order each of the co-defendants to admit everything, no matter how bad it sounded: Yes, I have an atrocious criminal history; yes, I agreed to a forty-eight year sentence in exchange for my testimony; yes, I hate homosexuals, Jews, all non-white people, and women who identify as feminists; yes, I planned to kill Sam Donnelly; yes, I helped kick Sam to death; yes, I was drunk but knew what I was doing; yes, after killing Sam, I went to a bar and bragged about it.
And that’s exactly how it went with Casey and then Johnny. Since their arrest almost eight months earlier, both men had continued to shave their heads, anticipating the day they’d be welcomed by the white supremacists in prison. In the meantime, each had added a teardrop tattoo beneath his right eye to signify having killed someone. In their future home, it would lend them gravitas. On direct examination, both men readily acknowledged the crimes they’d committed, the harm they’d caused, their hatred of practically everyone, and their lack of remorse about the murder. In a strange and awful way, they came off as quite believable. Dan had outdone himself.
Lee’s cross-examinations took hours but lacked the power and punch she’d hoped for. Both were “pretty sure” Jeremy had attended the party where they’d planned Sam’s murder, but it didn’t matter since “the kid knew what was gonna happen and was down with it.” During the murder, he’d kicked the victim numerous times, shouted his encouragement, and later acted as the lookout. In the car on the way home, he’d “whooped and yelled with the rest of us.”
Coaching sociopaths can be difficult, so Dan had kept it simple, advising them to agree with almost everything Lee suggested and to keep on insisting they were telling the truth.
Lee: “Eight months ago, you were facing a charge of first-degree murder?”
Johnny: “Right.”
Lee: “A charge that carried a life sentence without the possibility of parole?”
Johnny: “Right.”
Lee: “Which meant you’d spend the rest of your life in prison?”
Johnny: “Right.”
Lee: “The evidence of your guilt was overwhelming?”
Johnny: “I guess so, yeah.”
Lee: “You guess so? Your DNA was found at the murder scene, Sam’s blood was on the tip of your boot, a snitch heard you planning the murder, and numerous witnesses overheard you bragging about it afterward.”
Johnny: “Okay, yeah, you’re right.”
Lee: “So you really wanted a deal?”
Johnny: “Yeah, I did.”
Lee: “Something less than life in prison?”
Johnny: “Right.”
Lee: “But for a long time, the DA wouldn’t offer you anything?”
Johnny: “Right.”
Lee: “So you waited?”
Johnny: “Yeah, we did.”
Lee: “And eventually the DA offered your lawyer a deal?”
Johnny: “Right.”
Lee: “Second-degree murder with a stipulation to forty-eight years in prison?”
Johnny: “Right.”
Lee: “Which was better than life without parole?”
Johnny: “Uh-huh, yeah.”
Lee: “And so you said yes to the deal?”
Johnny: “We all did, yeah.”
Lee: “And as part of the deal, you agreed to help the DA convict Mr. Matthews?”
Johnny: “Yeah, by telling the truth.”
Lee: “And if you’d refused to help, there would be no deal?”
Johnny: “Right, there would be no deal.”
Lee: “Now, before you got the deal, your lawyer had to give the DA an offer of proof of what you’d say at Mr. Matthews’ trial?”
Johnny: “Yeah, which would be the truth.”
Lee: “And the offer of proof spelled out all the ways you would say that Mr. Matthews was guilty?”
Johnny: “Right, the truth.”
Lee: “And if you’d insisted Mr. Matthews was innocent, there would be no deal?”
Johnny: “Right, but it wouldn’t be true.”
Lee: “And without a deal, you’d end up doing life in prison?”
Johnny: “Right.”
Lee: “So the deal required that you say exactly what your lawyer promised you’d say?”
Johnny: “Right, the truth.”
Lee: “And when the deal papers said you had to be truthful, it meant you had to say what your lawyer promised you’d say?”
Johnny: “Yeah, right, the truth.”
Lee: “Yeah, right, the truth. No further questions.”
She sat down pretending to be satisfied, but wasn’t. She’d cross-examined both witnesses on their extensive criminal history, on the var
ious times they’d lied to victims, probation officers, police, and district attorneys, on their admiration of Nazis and other fascists, on each and every injury found during the victim’s autopsy, and on their complete lack of remorse for what they’d done. She’d been thorough, dogged, and caustic, but somehow hadn’t demolished them. After she was finished, they’d each had enough strength to scuttle away.
It was close to noon on Wednesday and Dan was looking pleased—two co-defendants down and one more waiting in the wings. The witnesses couldn’t have been more despicable, but they’d accomplished what he’d hoped. The jurors hadn’t liked the two men and were certainly skeptical of their motives, but they’d listened to their testimony. As far as Dan was concerned, he’d just put two more bent and rusty nails in the defendant’s coffin.
Lee needed to do better with the final witness, but how? Dramatic accusations only happened on television. In court, they almost always backfired. Lee was an excellent attorney, which meant she never took a major risk unless she had to.
She was still thinking when Dan stood up and said, “The prosecution rests, Your Honor.”
Out in the hallway, Lee caught up to Dan. She’d had to run to catch him.
“Hey,” she said, “what happened to Rab?”
He pretended not to understand.
“Rab?”
“Your last witness against my client? The leader of the pack?”
“Ah yes, Rab.” He shrugged. “Well, in our last conversation four hours ago, he said he didn’t feel like testifying.”
“I see. Did he say anything else?”
“Not much.” Dan took off his suit jacket and draped it carefully over his arm. His blue pinstriped shirt, like all his clothes, looked fresh and crisp, as if it had never been worn before. “He said I had plenty of evidence to convict ‘the little faggot,’ so his testimony would only be redundant.”
“Did he actually use the word ‘redundant’?”
“He did. He’s very smart. And scary.”
“That’s what I’ve heard. Did you threaten to revoke his deal?”
“Of course.” Dan ran a hand through his gray, expertly cut hair.
“And how did he respond?”
“He said he didn’t care, that with his propensity for violence, he would probably die in prison, whether he was doing life or forty-eight years. He guessed, however, that I wouldn’t do anything.”
“And will you?” she asked.
“I don’t know. He’s right. I don’t really need him. If necessary, I might call him as a rebuttal witness after your client testifies. Or maybe I’ll just let him be. He’s kind of a creepy dude. So, who’s your first witness? Mary Matthews?”
“I haven’t decided yet.”
“Well, FYI, I saw her husband wandering around the courthouse.”
“Huh, I wasn’t sure he’d make it.”
Shit! What the hell was Leonard doing at the courthouse? Was Mary going to try to wriggle out of testifying? If so, Lee would threaten her with contempt. Would that be enough?
“Lee?” Dan said.
“Oh, I was just thinking about lunch. I’m starving.”
“Tell me about it. My wife and I just started on the Paleo Diet. No more bread and pasta.”
“Bummer,” she said and then looked at her watch. “Well, I’d better go.” She headed down the hallway to search for Leonard and Mary, America’s foremost model parents, her stomach too knotted up to handle lunch anyway.
It took forty minutes to find Leonard and Mary hiding in one of the small attorney-client conference rooms on the first floor. Leonard had been talking to someone on his cell phone but closed it as soon as Lee walked in.
“Hi, folks,” she said, sitting down across from them.
Leonard put his arm around Mary and pulled her close to him.
“My wife won’t be testifying after all.” Like his followers, he was wearing a black suit, but his was obviously expensive. His white hair had been carefully slicked back using some kind of gel.
“She has to. She’s under subpoena.”
“Doesn’t matter,” Leonard said. “I’m claiming spousal privilege to prevent her from testifying against me.”
Mary’s face looked pinched and tired, as if she hadn’t slept. Her hair was uncombed and her pretty blue dress needed ironing.
“I’m sorry, Lee. I wanted to help, but Leonard just won’t let me.”
Lee counted to ten before speaking directly to Mary.
“Okay, so here’s the deal. The spousal privilege doesn’t apply unless Leonard has been charged with a crime. Since throwing a child out of your home for being gay isn’t against the law, he hasn’t been charged with anything. So there’s no way he can legally prevent you from testifying. If you still refuse to cooperate, I’ll ask Judge Samuels to hold you in contempt and to throw you in jail until you change your mind.”
Mary turned to her husband and said, “I don’t want to go to jail, Leonard.”
Leonard glared at Lee.
“She’s lying, Mary. No judge is going to throw an innocent, middle-class white woman in jail.”
“I’m not lying,” Lee said. “If I ask the judge to hold her in contempt, he will. Don’t underestimate me, Leonard. I’ll do everything I can to get your wife to testify. My client’s future depends upon it.”
Mary struggled away from her husband.
“Leonard, please. I told you I had to testify. I don’t want to risk going to jail. I’m just going to tell the truth, that homosexuality is against our religion. We loved him, but we had to throw him out.” She stared at her husband. “Or at least I loved him.”
Lee stood up and said, “We have to go, Mary.”
Mary stood up as well.
“I’m sorry, Leonard.”
“There will be consequences, Mary.”
“Oh, I know,” she said wearily.
On their way upstairs, it took everything Lee had to keep her mouth shut. It wasn’t her job to counsel witnesses to leave their husbands. Peggy had tried numerous times with Mary and failed. When the trial was over, she’d probably never see her baby sister again.
Carla was pacing back and forth in front of the courtroom. When she saw the two of them, she looked at Lee, who glanced briefly at the ceiling. Carla nodded her understanding.
“Well there you are,” Carla said, taking Mary’s arm. “I’ve been trying to contact you for hours. I’m so glad you got here in time.” She made a motion for Lee to go inside. “We’ll be fine until you call us.”
As soon as Mary took the stand, Leonard entered the courtroom and stood in the doorway, making sure his wife could see him. After a couple of minutes, he finally sat down in the back row. Lee kept her questions short and to the point. At first, Mary spoke in a monotone, but eventually sat up straighter and answered the questions with feeling. Occasionally, she glanced toward the defense table, her face suffused with so much longing and regret, it was hard to watch. Jeremy, at least, was spared from seeing it. He was long gone, making love with Sam on a beach somewhere, or maybe sampling cookies at a popular bakery on Castro Street that Mark and Bobby raved about.
When Lee asked about Jeremy’s upbringing, Mary said it was strict but loving.
Then Lee asked her to describe her son, hoping she wouldn’t cry.
“He was a beautiful, gentle boy,” Mary answered. “He never got in fights, was never disrespectful. He was kind and funny. He wasn’t prejudiced against gays, but he didn’t want to be one. He just was.” She looked down for a moment and then up again, defiant. “I-I loved him very much. I still do.”
When Lee asked her to describe the day they threw him out, she winced and then recounted how she and Leonard found their son kissing another boy, her husband’s reaction, and then what happened afterward.
“Was that the last interaction you had with your son?” Lee finally asked.
Mary nodded, a tear rolling down her cheek.
“Yes.” She sounded tired and defeated. “I know
he had to go, but—but why so fast?” She was obviously addressing her husband, who was now walking out of the courtroom.
“Thank you,” Lee said quickly. “No further questions.”
Dan stood up and shrugged.
“Nothing from the People,” he said, hoping to convey that the witness’ testimony wasn’t important enough to be subjected to prosecutorial questioning.
Lee guessed he wouldn’t cross-examine any of her witnesses unless it was absolutely necessary.
After Mary left the courtroom, Lee checked to see how Jeremy was doing.
“You okay?”
“Not really,” he admitted. “I wasn’t even sure she’d come.”
“Someday it’s not going to hurt so much.” She put a tentative hand on his shoulder.
“Are you sure?”
“No,” Lee said. “I’m not.”
The next two witnesses for the defense were Ethan Mitchell and Peggy O’Neill. Lee took her time with both of them, figuring Dan wouldn’t question either one of them. Ethan testified about Jeremy’s childhood, his non-violent character, his lack of prejudice and, finally, about the night he was thrown out of his home and took a bus to Denver. Ethan did so well that a number of jurors uncrossed their arms and looked a bit more receptive, which was all Lee could hope for. In a case like this, it was brick by brick till she’d constructed something credible and sturdy enough to be considered a reasonable doubt.
When Peggy first took the stand, Lee asked her to describe the Matthews household. For the next ten minutes, the witness painted a vivid picture of a family ruled by an autocratic father who had become increasingly irrational and controlling, especially concerning matters of religion.
“My sister is obviously under his thumb,” Peggy concluded, “and I fear she’ll never leave him.”
As soon as Lee asked about her nephew, Peggy’s demeanor softened. She vouched for Jeremy’s non-violent character and his acceptance of different kinds of people.
“Unlike his father, he’s never been hateful or bigoted.”
When Lee asked about the night Jeremy came to see her, Peggy described a boy who was shivering with cold and emotionally devastated.
“He couldn’t even make eye-contact.”
At the end of her testimony, she said, “I didn’t call the police because he wasn’t missing. He’d been thrown out and didn’t want to go back home. In hindsight, I should have called them anyway. The truth is, I kept hoping he’d come to his senses and live with me.” She turned to the jury. “If you acquit him, he’s going to stay with me and finish school in Boulder.”