Clay was almost shaking by the time Judge Wentwell finished. He wanted to take a bazooka back into the courtroom and blow Wesley Brume to kingdom come. How could he do this to me? How could he not tell me about his encounter with the judge? But that was old news. Now Clay had to make a very important decision, a decision that would definitely affect the outcome of this case.
Seated next to him, Tracey was trying desperately not to smile. Things had definitely just taken a sharp turn for the better. And her best witnesses were yet to come. On the other hand, Clay had no choice but to ask the judge to recuse himself, and she wasn’t so sure she wanted to lose Judge Wentwell.
Seconds passed. The judge waited patiently while Clay thought it through. Judge Wentwell was a law-and-order guy. He would follow the law strictly. He wasn’t about to buy into a new theory of evidence even if he didn’t believe one word that came out of the fat little toad’s mouth. And a new judge might not be so conservative in his or her thinking.
“Judge, I believe this court will be able to separate any personal views in deciding issues of law. I will not ask you to recuse yourself.” Tracey was nonplussed. The judge turned to her.
“Ms. James, do you have anything to say?”
“No, Your Honor. I believe your full disclosure has said it all. Like the prosecutor, I do not believe your personal experience with Officer Brume will affect your decisions in this case.”
I’ll bet you don’t! the Fourth said to himself, hoping he had made the right decision.
Minutes later they were back in the courtroom, Clay standing at the podium.
Judge Wentwell spoke first.
“Mr. Evans, you may proceed.”
“No further questions, Your Honor.” Since the judge knew the Grunt was a big fat liar, there was no point in trying to rehabilitate him. Wes stepped down, not sure where things stood but pretty sure from the look on Clay’s face that he was annoyed about something.
“Call your next witness, Ms. James.”
Tracey had set up the state’s case with the Grunt’s testimony. Now she was going to rip it to shreds.
She started by calling Rudy’s high school principal, Bill Yates, to the stand. After he introduced himself and explained that he’d been Rudy’s principal for all four years, Tracey got right to it.
“Mr. Yates, did Detective Wesley Brume visit you a couple of months ago?”
“Yes.”
“And could you tell the court the reason for the visit?”
“He wanted to find out about Rudy, how he had been as a student.”
“And what did you tell him?”
“I told him that Rudy was a very nice, motivated young man but that he was a little slow. I think his IQ was somewhere around eighty or a little below. We’re a small school. We don’t have special programs for children like that so we did the best we could. After two years we put Rudy in a vocational program. He never received a high school diploma, just an attendance certificate.”
“Did Detective Brume tell you why he was inquiring about Rudy?”
“Yes. He said Rudy might be a suspect in the murder of the young woman in the barrio.”
“And what was your response to that?”
“I told him he must be mistaken. I knew Rudy very well and I did not believe he was capable of anything like that.”
“Did Detective Brume tell you that he was going to bring Rudy in for questioning?”
“Yes.”
“How did you respond to that?”
“I suggested that if he did anything like that he should contact Rudy’s mother or at least make sure he had a lawyer. I told him that Rudy was a very affable person and very naive. He would not know how to protect himself. He would respond to every question the officer asked even if it was not in his best interests to do so.”
“Is there a reason why you told the detective that?”
“Yes. I figured that he wanted to conduct a fair investigation and I thought it was something he needed to know.”
“Thank you, Mr. Yates. I have no further questions.”
Judge Wentwell looked at Clay. “Cross-examination, Mr. Evans?”
“Yes, Your Honor.” Clay was certain this was a witness he could score some points with. He stood up but stayed at the counsel table.
“Mr. Yates, could Rudy read and write?”
“Yes.”
Clay approached the bench and retrieved the consent form Rudy had signed. He handed the document to the principal.
“And in your opinion could he have read this document and understood it?” Principal Yates put his glasses on and read the document.
“Yes, I believe he could.”
“And, even though he was a very affable person, if Detective Brume had presented this document to him before he began his questioning and Rudy had read this document, in your opinion he would have understood that he had the right not to speak to Detective Brume?”
Bill Yates hesitated for a moment. He could see that Clay Evans had backed him into a corner. He didn’t want to hurt Rudy but he had to answer the question honestly.
“Yes. I believe that he would have understood that he had the right to refuse to speak to Officer Brume but —” Clay cut him off before he could go any further.
“Thank you, Mr. Yates. I believe you have answered my question. One other thing: Does Rudy in your opinion know the difference between right and wrong?”
“Yes, I believe he does.”
“Thank you. No further questions, Your Honor.”
Tracey had no re-direct. Clay had scored his points but she wasn’t arguing that Rudy did not have the capacity to understand what he was signing.
“Call your next witness, Ms. James.”
Tracey followed Bill Yates with Benny Dragone.
“Detective Brume wanted to take Rudy off the job and over to the station for questioning,” he told Tracey in response to a question. “I told him that I wouldn’t let him speak to Rudy until I talked with his mother.”
“Why did you tell him that?”
“I knew he was looking at Rudy as a suspect in that girl’s murder and I didn’t trust him. I knew Rudy just couldn’t handle himself with a snake like that.”
“Objection.” Clay tried to sound outraged but his opinion of Wes actually coincided with Benny’s.
“Sustained,” Judge Wentwell replied, not waiting for argument. He looked down at Benny. “Mr. Dragone, stick to the facts. We don’t need the derogatory comments.”
“Yes, Your Honor. Sorry.”
But Tracey wasn’t letting it go just yet. “The person you referred to as a snake, Mr. Dragone, who was that?”
“Objection.”
“Overruled. The record needs to be clarified. You may continue with this one question, Ms. James.”
“Thank you, Your Honor. Do you need me to repeat the question, Mr. Dragone?”
“No. The snake I was referring to was Wesley Brume.”
“Thank you, Mr. Dragone. Now, what was Detective Brume’s response when you told him you wouldn’t let him speak to Rudy until you called Rudy’s mother?”
“He threatened me.”
“He threatened you? How did he do that?” Tracey did her best to sound surprised, as if she didn’t know what was coming next.
“He told me he’d get the health department over to my store for an inspection. I knew what he meant.”
Tracey decided to end her questioning there. Leave it up in the air a little. See if Clay had the guts to jump in. “No further questions, Your Honor.”
“Your witness, Mr. Evans.”
“Thank you, Your Honor. Mr. Dragone, to your knowledge did Detective Brume need to ask you for permission to take Rudy in for questioning?”
“No, of course not.”
“So he could have just come into the store, asked Rudy to come with him and left without even saying hello?”
“I guess so.”
“But he was polite enough to talk to you and explain to you what he
was about to do?”
“I wouldn’t exactly call it being polite.”
“Whatever, he did explain to you what he was about to do?” The Fourth snapped the question out.
“Yeah, I guess so,” Benny replied, almost reluctantly. It was that noncommittal answer that angered Clay, causing him to go a little too far.
“And you also ‘guessed’ that because Officer Brume mentioned the health department after looking around at your premises that he was somehow making a threat?”
“No, that wasn’t a guess. That was a fact.” Clay had pressed Benny’s button. “I come from Chicago. I know a threat when I hear one. Any fool knows when a cop tells you he wants somethin’ and you refuse, and then he says he’s gonna call the health department—that’s a threat.”
“In your opinion?” It was all Clay could come back with although he bathed the question in sarcasm.
“Yeah,” Benny replied. “In my opinion and a thousand other people if they were asked the same question.” Clay had no place else to go so he just stood there looking at Benny with disdain, hoping he could convince the judge that Benny was an uncooperative piece of shit who insulted lawyers.
“I have no further questions of this witness, Your Honor.”
Tracey called her next witness, another surprise for the Fourth, who was starting to feel like a punch-drunk fighter.
“The defense calls Maria Lopez.” The name did not ring a bell with the Fourth.
“I’m the receptionist at the police department,” Maria told Tracey. She went on to tell the judge that Elena had arrived at the police station at 3:16 p.m. on January 24th. She knew the exact time because Elena had asked her to write it down.
“What happened when Elena—Ms. Kelly—arrived at the station?”
“Nothing. I was told to have her sit and wait.”
“For how long?”
“Maybe twenty minutes. Then Detective Shorter came out to talk to her.”
“Did he come out on his own or did you have to call him?”
“I had to call him. Ms. Kelly insisted that I call again to let them know she was there.”
“Was she allowed to see her son after that?”
“No.”
“No further questions.”
Clay had no cross.
Tracey kept the pressure on, following Maria Lopez with Elena, who repeated Maria Lopez’s testimony almost verbatim, adding only the substance of her conversation with Del Shorter.
“He told me that my son could be a very valuable witness to them since he worked at the convenience store. I almost believed him but when he continued to talk and finally admitted that he wasn’t going to let me see my son, I knew it had been a stall all along. Detective Shorter flat out lied to me about what was going on.”
Clay couldn’t let that last statement stand. “I move to strike the last sentence, Your Honor. It is opinion testimony.”
“I believe a witness can give an opinion about whether she believes somebody is lying to her or not,” Tracey said.
“I’ll allow it,” the judge ruled. “Motion denied. Any further questions, Ms. James?”
“No, Your Honor.”
“Cross-examination, Mr. Evans?”
Clay wanted to take a shot at Elena, wanted to establish through Rudy’s own mother that he had the capacity to read and write and make decisions. But he already had that testimony from the principal, and it was always dangerous to keep a sympathetic witness on the stand.
“No questions, Your Honor.”
The stage was now set for Harold Victor Fischer. He strode confidently into the courtroom dressed in a dark blue suit, white shirt, red tie—his power outfit. Actually, H.V. didn’t fit the mold very well. He was tall enough but slumped over like a sack of potatoes, soft in the middle and around the shoulders—more like the Marshmallow Man than Superman.
Tracey started building him up right away, having him recite his credentials: Cornell, Penn medical school, and so on. When she was finished, she simply turned H.V. loose. It was on the stand, lending his expertise to the process, that H.V. transformed into a formidable figure.
“Doctor, have you had occasion to visit Rudy?”
“Yes, I met with him for approximately two and a half hours.”
“And have you formed any opinions in this case?”
“Yes.” And off he went. “I not only met with Rudy, I performed a battery of tests including the Wechsler Aptitude Test. I have reviewed his entire medical chart and his school records.
“Rudy’s IQ is seventy-five, which means he is not retarded but is what we call borderline. He has many characteristics of the retarded, including his affect. What do I mean by affect?” Posing his own questions was classic H.V. “I mean that Rudy always had a smile on his face, always greeted—no, greets, even in his present circumstances—the world with open arms. He’s a happy person, very gullible, very naive.
“There have been case studies about retarded children and their inability to make the right decision under similar circumstances—mostly teenagers exposed to the general population of other teenagers. I remember one case in particular. A group of teenagers in Ohio had convinced a retarded student in their class that they were his friends. They took him out to a high bridge and convinced him to jump into the river below. They assured him they were all going to follow. The jump didn’t kill him. He drowned because he couldn’t swim, a fact he hadn’t thought to tell his newfound friends.
“I mention this case study in particular because it is an appropriate analogy. Young Rudy told me during our interview that he liked Detective Brume, that he thought Detective Brume was his friend. A normal person in his circumstances would definitely not share those sentiments. When you befriend an individual like Rudy, he does not have the capacity to refuse to do what you ask. He could not refuse to talk to Detective Brume once Detective Brume became his friend. I think Detective Brume knew this instinctively. From my conversation with Rudy, it became clear that Detective Brume tried to establish a friendship before ever discussing the murder.
“Under those circumstances, Rudy could not refuse to answer his questions.”
H.V. was a veteran of the game. He knew the more he said, the more ammunition he gave to opposing counsel on cross. When he had completed his expert opinion on the issue, H.V. simply shut up and waited for the onslaught.
It never came. Clay Evans had no desire to engage in a game of wits with Harold Victor Fischer—one he’d probably lose anyway. He fell back on drilling home a few fundamentals for the judge’s benefit.
“Doctor, can Rudy read and write?”
“Yes.”
“Can he distinguish right from wrong?”
“Yes.”
Clay retrieved the written confession from the clerk who was now holding the evidence. He handed it to H.V.
“Could he read and understand this document?” H.V. glanced at the confession. He had seen a copy of it in the documents Tracey had sent him.
“Read it, yes. Understand it, yes. But you’re not getting my point —” Clay cut him off in mid-sentence.
“You’ve answered my question, Doctor. Thank you.”
Tracey couldn’t let it end there. She accepted a redirect.
“What is the point that Mr. Evans is not getting, Doctor?”
“The point is that reading and understanding are not the only questions you have to ask when you consider the issue of ‘consent’ with a person like Rudy.” This was a statement Tracey hadn’t heard from H.V. during their two-hour preparatory meeting the day before. It was new even to H.V., who had just arrived at the thought on the stand. Up to now, Tracey and H.V. had conceded that Rudy had the capacity to understand and consent, but they had planned to contend that his affable nature wouldn’t allow him to refuse to talk to someone he considered a friend. Now H.V. was about to change the issue to one of capacity itself, and Tracey could see that this would turn out to be a much better argument for the defendant. Apparently Clay Evans could br
ing a person to new heights even on cross-examination, she thought, trying to conceal a smile.
H.V. continued. “With a retarded person or a borderline retarded person, you must also consider the circumstances under which the confession was made. If a relationship of trust was established between the questioner and the defendant, then in my opinion the defendant would not have the capacity to refuse to speak. Therefore, he would not have the capacity to consent.”
H.V.’s intellect was in free flow now. He was having a breakthrough right on the stand. Not only was he testifying for money, he was testifying for truth. He truly believed what he was saying and he truly believed he was about to save Rudy’s life. He turned toward the judge and started speaking directly to him.
“Your Honor, if I may be permitted to make an analogy. It’s similar to a will contest where the issue is undue influence. The question is not necessarily whether the elderly person has the ability to make decisions regarding his or her property, it is whether that person has a diminished capacity because of his or her age and that fact, combined with the beneficiary being in a position of trust, a fiduciary capacity, has robbed the person of the ability to make a voluntary decision concerning his or her property.” It was a highly intellectual legal argument made very simple. Tracey was blown away. It was a perfect analogy and she had never thought of it. What was the logical argument to counter it?
One thing was for certain: The logical counterargument was not floating around in Clay Evans’s brain. He was having a hard enough time just trying to figure out what H.V. was talking about. But Judge Wentwell was going to give him a chance to dive in if he wanted to take it.
“Mr. Evans, since this issue of lack of capacity was more or less raised on redirect, I’m going to give you an opportunity to recross.” Don’t take it! Don’t take it! somebody was screaming in Clay’s brain. But Clay had been making terrible decisions his whole life—he wasn’t about to stop now. He decided to counter intelligent discussion with sarcasm and derision.
The Mayor of Lexington Avenue Page 13