Alibi

by Sydney Bauer

  “You think James will get an easier ride just because his parents are wealthy?” asked Sara.

  “Sure,” said Sean. “Most prisoners report incomes of less than $8,000 a year, and while these bastards are serving time for petty crimes, corporate criminals are getting pats on the back or serving limited sentences in prisons that resemble five star hotels.”

  “That’s not exactly true, Sean,” said Sara. “The last decade has seen a marked increase in accounting and corporate infractions, fraud in health care, government procurement, bankruptcy. And there is no such thing as a luxury prison. They simply don’t exist.”

  Sean looked at Sara then, obviously ready with his argument in rebuke, but considering she was a guest and a girl, David guessed his old-fashioned brother would eventually decide his energies were better spent sparring with the target he had been practicing on for years.

  “For God’s sake, DC,” he said, turning to David just as David knew he would. “The reality is that in America there exist two systems of criminal justice—one for the wealthy, who get kid-glove investigations, lackluster prosecutions, drug treatment, light sentences and easy, if any, prison time; and the other, for the poor, with tough policing, aggressive prosecution, harsh sentences and hard time.

  “My point is that if your client were poor or black, he’d be represented by some goddamned public defender with zero chance of ever seeing the sunlight again.”

  David’s heart was beating double-time, his blood beginning to boil. In fact, if it hadn’t been for the look of concern on his mother’s face, he would have stood up then and there and resorted to the more common form of justice used many a time by the two Cavanaugh boys.

  “You’re right,” said David at last. “Sometimes connected people do get it easy but don’t you see, Sean, that is exactly why my client is in so much trouble. The government, the taxpayers—people like you—are sick and tired of watching the wealthy walk. And that’s why James has found himself the unwitting whipping boy for ambitious assholes like Roger Katz.” David shook his head.

  “The thing is,” he said after a pause, “it doesn’t matter how rich James is. This isn’t about his six-figure bank balance or his Ivy League education, this is about whether he killed a girl or not.

  “He is innocent, Sean. He didn’t do this, and no matter who he is or how much he owns, it is my duty to give him the best defense I possibly can.”

  Sean nodded, perhaps realizing David’s job wasn’t so black and white after all. “This kid lost his future family?” he said.

  “Yes,” answered David.

  “The girl he loved and his unborn son.”

  “Yes.”

  “Then maybe you should hand him back his life so that he might have the chance to start over.”

  And David nodded. “I’ll do my best.”

  69

  In the state of Massachusetts, jurors are chosen from census lists, in a system that is said to be more democratic than selecting from registered voters, as most states do. The system also removes the numerous grounds for exemption from juror service. Even judges and lawyers and government officials exempt in other states are now required to serve. It is generally believed the elimination of these exemptions provides defendants with jury pools comprised of people more representative of the community from which they are drawn. So, in theory, the system is fairer. Prospective jurors are selected at random from the lists of residents supplied to the Office of Jury Commissioner by each of the 351 cities and towns within the state. But whether jurors are qualified to serve is unknown until they respond to the summons.

  In the case of the Matheson trial, close to 450 summonses—a larger number than usual given the high-profile nature of the case—had been dispatched with each individual asked to attend court and begin by filling out a lengthy questionnaire. They were asked about their views on the Ivy League system and the associated opportunities that go with it, on interracial relationships, on the right to life versus abortion issue and what they had heard or read about the case to date. Close to half of these potential jurors would be excused for medical, financial or other personal reasons and others would be eliminated by Judge Isaac Stein who would have the first chance to consider their questionnaires and quiz them individually.

  The first two days would be spent narrowing the pool down to about fifty, and the rest of the week reducing that number to twelve jurors and four alternates—with both the defense and the state allowed three peremptory challenges.

  James Matheson would be present in court throughout the entire process. David would be tag teaming it with Sara and Arthur as he dipped in and out of court to prepare for the following week at trial. Both sides would savor their peremptory strikes and both would work with experienced jury specialists in order to create their “perfect dozen,” a feat that, at least on this cloudy Sunday afternoon, seemed close to impossible.

  “I’m sorry, guys,” said jury specialist Phyllis Vecchio. “But what I said stands. You have no perfect juror. Your case sucks. When it comes to this jury, the Commonwealth are gonna kick ass. All you can do is try to avoid the selection of their ideal jurist, which . . . is basically anyone with a vagina or a penis.”

  “Jesus, Phyll,” said Arthur. Vecchio was fifty-seven and weighed at least one hundred and ninety pounds. She was a cherry-topped fireball who had been working with Arthur for years, and they were used to her straightforwardness—and the potty mouth that went along with it.

  “I’m sorry, Arthur, but you’re paying me for my opinion so I ain’t gonna shortchange you with a soft sell. Believe it or not, I can think of plenty of better ways to spend my Sunday afternoon than shooting the breeze with you and your fine young friends here in your poorly heated office. So since I am here, and charging you double-time by the way, I figure it would be a disservice to feed you a load of crap.”

  David shook his head, and the big-hearted Phyll, perhaps in an attempt to paint a slightly better picture than she had first portrayed, sat back in her chair and went on.

  “Here’s the thing,” she began. “That fucker Katz will be looking for women—preferably older, from socioeconomic groups on the lower end of the scale. He’s gonna want to appeal to their sense of resentment, their anger at the rich kid with the movie star looks who thinks he can get away with anything—including murder. But men are good too—working-class men who have toiled all their lives to earn a fraction of your client’s school fees. He’ll want men who are fathers and women who are mothers, both of whom will recoil at the brutality of the killing itself.”

  Phyllis took a breath—there was more.

  “Minorities also work for the prosecution, blacks and Lati nos whose chances of attending a university like Deane are somewhere between zero and zip. And Katz won’t say no to young women either—girls who are sick of hot-looking kids like your client who lie about getting laid and have the power to stroke their pussy with one hand and squeeze their pretty little necks with the other.”

  “James is innocent, Phyll,” said a now frustrated David, cringing at Phyll’s analogy.

  “Sure,” said Phyll. “But everyone who’s read a paper or seen the news in the past few months would probably beg to differ.”

  “Shit,” said Sara.

  “I know, honey, it sucks,” said Phyll, taking a Coke from Nora and downing it in one guzzle. “And so in all honesty, all I can suggest is this. Keep ’em young and preferably male—and rich and college educated at that. Go for the good-looking ones over the geeks and save your peremptory strikes for your enemy number one.”

  “For God’s sake, Phyll,” said David. “You have just described enough potential enemies to populate a country, and we only have three bullets in the barrel. How the hell are we supposed to know which potential juror to strike, when your criteria for veto seems to be anyone with two legs?”

  “Easy,” interrupted Phyll, leaning forward in her seat, “because identifying enemy number one is a no-brainer. The minute a potential juror e
xpresses a pro-life opinion, the moment you get a sense that he or she is determined to use this trial to exercise their views on the rights of an unborn child, then, and only then, do you get out that gun and fire.”

  70

  “Mr. Cavanaugh,” boomed Judge Stein from the front of the courtroom, “may I remind you that it is already Wednesday and so far we have only two confirmed members of the jury. You are the ones who agreed to the motion for a speedy trial, Counselor, but at this rate, I fear . . .”

  “One minute, Your Honor,” said David, barely lifting his head out of their huddle. They were determined to savor their three yet to be used peremptory challenges, but this one was tough.

  Her name was Carol Cahill and she was a thirty-two-year-old computer analyst from the South End. She was small and unassuming, her narrow shoulders drooping at such a degree that every few seconds or so, she would tug at the neck of her dark cashmere cardigan as if terrified it would slip to reveal the crisp white shirt underneath. She was nervous and self-conscious and slumped so far down in her seat that she was practically disappearing behind the witness partition before their very eyes.

  “Lose her,” said Phyllis who had agreed to spend the week with them playing the contentious game of jury chess.

  “No,” argued Sara. “She is as close to good as we are going to get. She’s smart, single, college educated. She comes from a wealthy family and she is not a right-to-lifer. She admitted to having an abortion in her youth, for God’s sake. I mean, I know she is nervous, but using one of our strikes against her—come on!”

  “Sara,” said Phyll, who had a master’s degree in psychology, “listen to what you just described—a smart, rich-as-all-hell, independent woman with a fancy college degree. On paper she looks great. But now ask yourself why she is like she is? Why is this seemingly fortunate soul perched before us like a fragile little bird, a mere shadow defeated by everything life has been kind enough to serve her up for breakfast.

  “She regrets it, Sara, each and every day of her pathetic little life. She sees herself as a murderer. She killed her own unborn kid and will never recover.” Phyll took a breath. “So, you guys do what you want. It’s your goddamned funeral, or more to the point, your client’s. But I swear, you keep this one in and you’ll regret it. She cannot save her own child but she can certainly punish your client for taking somebody else’s. She is a guilty verdict waiting to happen, troops. I’d stake my life on it.”

  David looked at Arthur and Sara who nodded in agreement. “We move to strike juror number thirty-six, Your Honor, for reasons of emotional distress,” said David at last.

  Stein looked at them over his glasses. Katz practically did backflips at the prosecution’s table across the aisle.

  “Thank you for your time, Ms. Cahill,” said the judge at last. “You are free to go.”

  And with that Carol Cahill took flight from that witness box faster than David could blink. Like a woman running for her life—or the little that was left of it.

  It was snowing. Temperatures had dipped into the low thirties with forecasters predicting accumulations of up to eight inches in Greater Boston by the time the storm was expected to move out to sea sometime late tonight.

  David, Joe and Sara sat looking out the window from the warmth of the high-rise apartment. The thick wet flurries whipping against the glass, the large flakes appearing like a sea of oversized stars as they caught the reflection of the city lights and made their zigzag journey to the busy streets below.

  “It’s beautiful,” said Sara, moving the stacks of case file papers to the side of the coffee table so that she might lean back into David’s arms and lift her feet onto the freshly cleared space.

  “Sure it looks nice,” said Joe. “Until it gets so bad you need your own helicopter to get from A to B.”

  “This gonna get worse?” asked David.

  “Not in the near future. The bureau predicts clear skies tomorrow but the commissioner sent out a memo today saying the next two weeks are looking pretty nasty. The uniforms were already going over their state of emergency protocols—which means no parking along designated major arteries, hospital closures, school closures and all the chaos that goes with it.

  “A few winters ago, on Christmas Eve,” Joe went on, placing his feet on the coffee table as well, “I attended a case where a five-year-old kid got into his daddy’s snow-covered car and decided to play cops and robbers. He put the key in the ignition and ran the car for a coupla hours. But since the exhaust was buried under two foot of snow, he managed to poison himself with the carbon monoxide and . . .”

  “Oh God,” said Sara.

  “Merry Christmas,” said David.

  “And a Happy New Year,” said Joe.

  They were depressed. There was no other word for it. Seven of the jury had been confirmed—four women and three men—and five of the seven were married with kids, and all three of the men were working-class.

  They still intended to target H. Edgar Simpson, but they knew the evidence against him was weak. Worse still, they had no idea as to the nature of Katz’s ace in the hole, which, if as good as the Kat seemed to think, could well blow them out of the water before they had a chance to point the finger at anyone—let alone the witness who delivered the case to the Commonwealth, hook, line and sinker.

  The papers before them, including the horrific photographs of a deceased Jessica Nagoshi, were like graphic reminders of their impending defeat, taunting them with what they could see, and more to the point what they couldn’t—what had to be there, but wasn’t; what they knew, but could not prove.

  David lifted his arm from around Sara’s shoulder and leaned forward to pick up one of the shots—a close-up of Jessica’s face and neck, her skin gray, her lips blue, her neck extended at an ungodly angle, circled by the marks of an unidentified monster.

  “This is Katz’s ticket right here,” he said holding up the macabre image. “I can tell you exactly what he is going to do. He is going to blow up a shot of a smiling, healthy Jessica and juxtapose it with this,” he said, shaking the gruesome portrait in his hand. “The thing is,” he went on, “I look at this and I want to kill the bastard who did this too.”

  Sara put her hand on his back, and Joe nodded.

  “If Simpson or Nagoshi did this, David,” said Joe, “I promise you that Frank and I won’t stop until we find the evidence against them.”

  “I know,” said David, still mesmerized by the photograph. “But I . . .”

  And then he saw it. Just like that. It was there, or rather it wasn’t. He picked up another shot taken from behind, in a desperate need to confirm what he thought he saw. How could he have been so stupid? How could he have missed it?

  “Jesus!” he said at last.

  “What is it?” asked Sara, leaning forward to look at the images in David’s hand.

  “Can you stand up, Sara?” he said as he pointed to the middle of the room. “And can you put your hair up? And turn around. Thanks.”

  “Ah . . . okay,” she said, grabbing an elastic band from the table to twist up her hair before moving around the coffee table and turning her back on David to face Joe.

  “Don’t move,” he said before running to the kitchen and rifling through the top shelf of the narrow refrigerator. He moved to the sink beyond Sara and Joe’s line of vision before returning to the living room, his hands out before him.

  David’s next move took Sara by surprise. He moved forward, quickly, and grabbed her long narrow neck with his large hands. “Ouch,” said Sara.

  “Sorry, but I . . .” David removed his hands, the purple grape juice he had poured all over them, leaving their mark on Sara’s neck. He asked Sara to turn around to face him while Joe moved to the side table to switch on a lamp before jumping over the coffee table and standing next to David.

  “Shit,” said Joe as David held the images of Jessica Nagoshi up next to Sara’s face.

  “What?” said an obviously frustrated Sara, not able to s
ee what was now so clear to the other two in the room.

  “I can explain . . . it’s just . . . can you turn around?” said David. “Slowly.”

  And she did—as David looked at Joe.

  “Matheson didn’t do it,” said Joe.

  “It is a physical impossibility,” said David.

  “Does this mean we can prove our client is innocent?” asked Sara.

  And then David smiled. “Beyond all reasonable doubt.”

  71

  “No,” said Boston City Medical Examiner Gustav Svenson. Gus was a man of few words and David knew he would reject his first question outright.

  “Wait, Gus. Hear me out.”

  “Yes,” said the blond, six-foot-four Swede. “But before I hear, I repeat what I said many weeks ago when you ask me the same question.”

  David nodded, knowing he had to play this Gus’ way.

  “I refer you to Journal of Forensic Sciences, Volume 51, Issue 2, dated March 2006, pages 381 to 385,” Svenson began. “Using techniques adopted from forensic odontology, a study was conducted that tested whether researchers could match the correct hands to fingermarks left on the neck of a simulated strangulation victim.

  “Blue paint was applied to the fingers of twenty-one men, who then grasped the neck of a dummy and applied pressure similar to that necessary to achieve strangulation. The dummy’s neck was constructed so that it had same compliance and consistency as a human neck with human skin.”

  David turned his hands in a circular motion, willing Gus to speed it up.

  “When fingers pressed into latex-like material, an imprint remained. The blue paint on the fingers of participants preserved the prints. The imprints on the dummy’s neck and participants’ hands were photographed, and all images were uploaded on a computer, sorted by imprints and hands.”

  “Okay, Gus,” said David, now shaking his head as he took a seat on Gus’ white laboratory stool. “You told me this two months ago, when I asked if we could lift prints from the girl’s neck. But now I am asking something different. Now I want to know if . . .”