No Defense

by Rangeley Wallace

  “Sustained.”

  Chip shook his head. His look, like the question he’d just asked, suggested that he couldn’t imagine what would motivate anyone to rely on Dean Reese to indict a man for murder.

  I just hoped Judge McNabb agreed with that assessment, which required him to disregard the horrors revealed earlier that day by the tape.

  “Just one more thing,” Chip said. “Wouldn’t you agree, Mr. Dorr, that there is less intact evidence today than there was in 1963? After all, not only is your witness still dead, but the gun, the shells, the wadding, and the shot are all lost, and fifteen years have elapsed, fifteen years during which memories inevitably have deteriorated.”

  “That’s true.”

  “So it’s fair to say, isn’t it, that this is a much, much weaker case than the one the FBI chose not to pursue in 1963?”

  “Objection,” Junior said. “This witness is not qualified to comment on the strengths or weaknesses of this case. That is Your Honor’s jurisdiction.”

  “And I’m sure His Honor knows well the only correct answer to that question. I have nothing further,” Chip said.

  A few minutes later we were outside the courthouse for the afternoon break. The sudden lunchtime storm had left as quickly as it had come. I’d looked for Mother when we left the courtroom but couldn’t find her, so I followed Daddy and Chip outside to the ledge around the fountain. Since the day of the courthouse dedication, when Jessie had thrown in her penny, hundreds of others had followed, and the bottom of the fountain was half covered with the copper-colored discs.

  For the first time since this mess began, my father looked worried. He pulled a cigar from his shirt pocket, unwrapped it, and then just sat there, too distracted to light it.

  “What do you think?” I asked him.

  “I don’t like it,” he said.

  “What did you write on Chip’s yellow pad after you heard the tape recording?” I asked.

  “I wrote the same thing I’ve been telling all of you this whole time-that Reese was a lying son of a bitch-and I asked Chip if he thought anyone would believe him,” my father said.

  “Do you, Chip?” I asked.

  “I don’t know. I sure hope not, but it’s a hard call to make. At least now maybe you’ll reconsider your position on testifying, Newell,” Chip said hopefully.

  Daddy shook his head.

  Was he telling Chip no, or did I detect the possibility of change, the slightest suggestion that Daddy might finally be fed up with this and be willing to take matters into his own hands and explain away what we’d all just heard?

  If not, maybe tomorrow I’d take a Valium or two before I came to court.

  CHAPTER NINETEEN

  When court reconvened following the afternoon break, Junior called Ray Bartozzi, the FBI firearms identification expert, as a State witness. He was a tall, heavy, middle-aged man with a thick black mustache dotted with gray hair.

  “I’ll stipulate that Mr. Bartozzi is qualified as an expert in firearms identification, Your Honor,” Chip said. “But I move that you not allow his testimony because the gun as well as the shells and shot about which the witness plans to testify are lost in the FBI’s storage facilities. The prosecution’s case seems to rest entirely on dead men and misplaced evidence.”

  “Once again, Mr. Tuckahoe, I must deny your motion,” Judge McNabb said. “Mr. Bartozzi is here and you can cross-examine him about anything he says on direct. There is no jury to worry about and, as in the case of the tape, I will carefully weigh the probative value of the testimony and the impact, if any, of the missing evidence.”

  I was beginning to see that my father’s tactical decision to waive his right to a jury trial had more negative consequences than I’d understood.

  After a few preliminaries, Junior began to question Bartozzi about the case at hand. The witness chewed nervously on his mustache as he listened to each question.

  “Were you ever asked as part of your official duties to examine a Winchester Model 21 Custom shotgun and certain shell casings, wadding, and shot?”

  “Yes, I was.”

  “When?”

  “On August 30, 1963.”

  “Tell us about the circumstances of that examination, please,” Junior said.

  “Special Agent Dorr came to the bureau laboratory on August 30, 1963, with two plastic bags of evidence. One contained five shell casings and two pieces of wadding, and the other contained pellets of shot. Dorr also gave me the Winchester gun. He’d marked and tagged everything, and I added my initials to each piece.”

  “Why do you remember these events so clearly?”

  “Because that gun was a beautiful and very expensive shotgun, and because of the circumstances of the murders we were investigating. It was unusual to have so much physical evidence in a civil rights murder.”

  “Were you asked to perform any tests?”

  “Yes. I was requested to examine the shell casings, the shot, and the wadding, and determine, if possible, whether they had been ejected from the Winchester shotgun.”

  “Did the items in the evidence bags and the Winchester shotgun remain in your custody from the time Agent Dorr gave them to you until you performed your examinations on them?”

  “Yes.”

  “What happened to them thereafter?”

  “I sent them to storage when the case was closed. When we tried to locate them over the last months, we couldn’t.”

  “Is it possible they ever will be located?”

  “Possible, but unlikely. We’ve undertaken a very extensive search.”

  “Did you make any notes respecting the tests that you performed on the items given to you by Agent Dorr?”Junior asked.

  “Yes,” Bartozzi said. “I wrote a report, as I always did. Reports were required on every test.”

  “Do you have that report?”

  “Yes.”

  “Is it necessary for you to refer to that report to refresh your memory as to the tests you performed on the shotgun, the shells, the wadding, and the shot Agent Dorr gave you?”

  “Yes, it is.”

  Junior showed the report to Chip and gave it back to Bartozzi.

  “Before we get to the report and the details of the tests, let’s get a few definitions out of the way so everyone can understand your testimony, Mr. Bartozzi. Please define a shotgun shell,” Junior said.

  “It consists of a cartridge case with a brass head and a tube of either plastic or paper, primer-usually center-fire-propellant powder charge, projectiles-usually shot-and wads.”

  “What is shot?”

  “A small spherical mass of round metal, usually made of lead alloyed with other metals. Each shell contains a number of these balls, which are discharged at the same time when fired.”

  “Can you tell us how shotguns are classified?”

  “By gauge. The gauge is the number of spherical balls of pure lead, each exactly fitting the bore, that equal one pound.”

  “And the wads or wadding?”

  “That’s the paper or plastic material that keeps the powder and the shot pellets in position inside the shell.”

  “Is it possible to determine whether a particular shot came from a particular shotgun?”

  “No. Unlike other firearms, a shotgun is a smooth-bored weapon. The shot isn’t marked by the barrel of the gun the way a bullet from a rifle or a handgun is, thus we’re unable to tell what load of shot came from what barrel. We can only tell what number the shot is.”

  “Is it possible, Mr. Bartozzi, to determine whether a particular wadding came from a particular shotgun?”

  “Not usually. We can often determine if the wadding is the same make as that used in a particular gun and we can determine the gauge of the gun from which the wadding came.”

  “What were you were able to conclude from your examination of the wadding given to you by Agent Dorr on August 30,” Junior asked.

  “I determined that the wadding was fired from a twelvegauge shotgun.”<
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  “And what were you able to conclude from your examination of the shot Agent Dorr turned over to you?”

  “I determined that the shot was number-one shot. The loaded shell in the Winchester Model 21 Custom when Agent Dorr gave it to me was number-one shot also.”

  “Is it possible to determine whether a particular shell casing was ejected from a particular firearm?”

  “Yes.”

  “How can this be done?”

  “By comparing the markings on the casing suspected to have been ejected by a particular gun with the markings on a casing that has been ejected in a test-firing from the same gun.”

  “Was that done with the shotgun Agent Dorr gave you?”

  “Yes, it was.”

  “What did you find?”

  “I was able to match the test casings with two of the shell casings given to me by Agent Dorr based on the firing-pin marks on one and the extractor marks on the other.”

  “What are the firing-pin marks?”

  “A firing pin is the pin that strikes the cartridge primer, or cap, in the breech mechanism of a firearm. The tip of the firing pin left the same irregular impression on the test casings as it had on one of the casings Agent Dorr gave me.”

  “What are the extractor marks?”

  “The extractor is that part of the weapon that removes the shell casing from the chamber after the weapon has been fired. The spring-loaded extractor is forced over the rim of the casing at the instant the shell is loaded into the chamber, leaving distinctive markings. The extractor marks on one of the casings Agent Dorr gave me matched the extractor marks on the test casing.”

  “As a result of your comparison of the shell casings given to you by Agent Dorr with the casings that you obtained by testfiring the shotgun given to you by Agent Dorr, were you able to form any opinion as to whether the casings were ejected by the Winchester shotgun?” Junior asked.

  “Yes, I was,” Bartozzi answered.

  “What is that opinion?”

  “Two of the casings Agent Dorr turned over to me were ejected from the Winchester Model21 Custom shotgun.”

  “Thank you, Mr. Bartozzi. No further questions,” Junior said.

  Chip stood up next to the defense table. He looked down at his yellow pad and read for a moment, then he picked up one of his pencils and held each end with his fingers.

  “Weren’t there five shell casings in the evidence bag Mr. Dorr gave you?” Chip asked.

  “Yes,” Bartozzi said.

  “You’ve told us that you believe that two of those five came from the Winchester?”

  “That’s correct.”

  “What, if anything, were you able to determine about the other three?”

  “Only that they were not fired from the Winchester Model 21 Custom shotgun.”

  “What kind of gun did the other three casings come from?”

  “A shotgun. I don’t know what kind.”

  “Isn’t it possible to perform tests on shotgun shells to identify the manufacturer and the type of weapon that ejected them?”

  “Yes.”

  “As a firearms identification expert, don’t you regularly determine from shell casings alone the type of weapon that ejected them?”

  “Yes.”

  “And why do you do that?”

  “Because if we don’t have the gun suspected of being involved in a crime--which is often the case-if we just have the shell casing, then we need to find out what kind of gun it came from.”

  “Those tests are essential tools of law-enforcement investigation, right?”

  “Yes.”

  “Without them you would be greatly hindered m your work?”

  “Definitely.”

  “In this case were any tests performed on the other three casings, any tests whatsoever from which you would be able to reach any conclusions as to the gauge of the gun involved, the manufacturer of the gun, or any other identifying characteristic?” Chip asked.

  “No.”

  “Why not, Mr. Bartozzi?”

  “My assignment was to see if any of the shell casings, the wadding, or the shot came from the Winchester. After I’d made those matches, I had to work on some other more pressing cases. Then when I went back to the three casings you’ve asked about, I was told not to do the tests, just to pack it all up and send everything to storage, that the case had been closed.”

  “So you never found out anything about three of the five casings, except that they didn’t come from the Winchester?”

  “That’s right.”

  “Couldn’t the wadding, which you did test, have been shot from almost any twelve-gauge shotgun?”

  “That’s right.”

  “And the shot could have been shot out of any shotgun that holds number-one shot?”

  “True.”

  “Now then, Mr. Bartozzi, it’s possible those three shell casings you didn’t bother to test also came from a twelve-gauge shotgun, isn’t it?”

  “Sure.”

  “In fact, you don’t know-do you?-whether the wadding and the shot you tested came from the same shotgun as those unidentified shells?”

  “No, I don’t.”

  “Couldn’t the wadding, the shot, and the unidentified shell casings all have come from the same gun, a shotgun other than the Winchester?” Chip asked.

  “Yes.”

  “You have not testified, have you, that the Winchester Model 21 Custom was used to kill Jimmy Turnbow and Leon Johnson?”

  “No, I haven’t.”

  “You couldn’t testify to that, could you?”

  “No, I couldn’t. I testified that it could have been the murder weapon.”

  “Could have been? Isn’t that the same as maybe or perhaps? In fact, isn’t it just as likely that some other twelve-gauge gun-the same gun that ejected those three unidentified cartridges, the wadding, and the shot-was the murder weapon?”

  “That’s really impossible to answer. I wasn’t there.”

  “Of course you weren’t. That’s all I have, Your Honor.”

  Chip sat down and wrapped a rubber band around his pile of pencils. He turned toward me and smiled slightly.

  CHAPTER TWENTY

  The first witness called by Junior on the second day of the trial was Sheriff Bevins Carter. Bev was in his forties but looked younger. He was slightly pudgy, with skin as smooth and clear as a child’s. Most of the time he looked slightly bemused. He took his time walking down the aisle toward the witness stand, physically demonstrating his reluctance to testify against Daddy. Even I understood, though, that he had to do it.

  “Were you on duty the night of August 27, 1963?” Junior asked Bev following the name, address, and occupation questions.

  “Yes,” Bev said.

  “Do you recall the events of that evening?”

  “It was a right busy night. We had a brawl at that bar used to be over where Clyde’s Bar is now. About ten men were throwing each other around the parking lot, and one of them had a knife. I was there awhile, and after that I was at the scene of the murders of Jimmy Turnbow and Leon Johnson.”

  “Was anyone from the sheriff’s office with you at the bar brawl?”

  “Two other deputies, Joey Lardner and Doyle Foley.”

  “Was the defendant, then-sheriff Hagerdorn, at the bar brawl?”

  “No.”

  “Why not?”

  “I couldn’t reach him on the radio. I tried.”

  “About what time were you at the bar?”

  “Eight or eight-thirty, for an hour or so.”

  “When you left there, where did you go?”

  “Out Old Highway 49 to where the boys’ car had crashed into a tree.”

  “Why did you go there?”

  “The dispatcher radioed me.”

  “Did you see the defendant while you were there, Sheriff Carter?” Junior asked.

  “Yes,” Bev answered. “Mayor Hagerdorn arrived shortly after I did.”

  “What, if anything, did
he say?”

  “After he looked around, he told me to search for any evidence I could find, shells and the like, and he went to call the coroner to come take a look. He also told me to call an ambulance for the bodies. He was very disturbed.”

  “Did you ever meet Agent George Dorr of the FBI?” Junior asked.

  “Yes.”

  “When was that?”

  “In August 1963. August 30.”

  “Could you describe the occasion of your meeting?”

  “He came by the sheriff’s office two times that day. He and another agent had come to town to investigate the murders of Turnbow and Johnson. They came by the office to meet with Newell-Mayor Hagerdorn. I was there. That was when we gave the agents the shells, wadding, and shot we’d collected at the scene of the murders. Later they came by when Mayor Hagerdorn wasn’t there.”

  “Can you describe what happened at the second meeting?”

  “The agents had a shotgun with them. They asked if I’d ever seen it.”

  “Had you?”

  “Yes.”

  “Please describe the gun.”

  “It was a Winchester Model21 Custom shotgun.”

  “When had you seen it before that day?”

  “Hundreds of times.”

  “Whose gun was it?”

  “Newell Hagerdorn’s.”

  “Did you tell Agent Dorr that the gun belonged to the defendant?”

  “Yes.”

  “No further questions,” Junior said. He walked back to his chair and sat down.

  “Mr. Tuckahoe, any cross?” Judge McNabb asked.

  “Thank you, Your Honor,” Chip said, standing up.

  “Mr. Carter, when the agents brought the Winchester to the sheriff’s office and asked you to identify it, were you surprised to see it?”

  “Yes and no,” Bev said.

  “Please explain.”

  “Two days before, Mayor Hagerdorn, then the sheriff, had told me the gun was missing. We looked in the sheriff’s car and all over the office for the shotgun but couldn’t find it. He was pretty upset that it was missing. It was one of his favorite guns. I was surprised the FBI had it, and I didn’t understand why they wouldn’t give it to me. I still don’t understand all this, why he was indicted, how anyone could think he murdered those boys.”