by Lee Goodman
HENRY: And then what?
WITNESS: He jumped. You know, startled. And he turned to look at me a moment, or several seconds, really, then he just ran.
HENRY: Did you follow?
WITNESS: I tried to, but he’d already scoped out his escape route. He was fast, and he, you know, jumped over stuff and was out of there before I could, you know, um, catch him.
The witness looked down at his hands, embarrassed. He was clearly no match for the wiry and agile defendant. I wondered if he had really given chase. Maybe he’d just watched the defendant run away. The guy was just the night watchman in a federal office building. It’s not the kind of place you’d expect to be called upon for heroics.
HENRY: But you say you got a good look?
WITNESS: Sure. I watched him those few minutes, then I, um, I mean, he turned right around and faced me when I yelled at him. I saw his face, like, full-on.
HENRY: And how was the lighting in the room?
WITNESS: Well, it was night, of course, but there was enough light from different places. It was dim but not dark. I saw him perfectly well.
HENRY: And do you see that man in the courtroom today?
WITNESS: Yes, sir.
HENRY: And would you point him out?
WITNESS: Right there.
The witness pointed directly at the man sitting beside Kendall Vance.
HENRY: You’re sure?
WITNESS: Positive.
Henry turned toward the court reporter and said, “Let the record reflect that the witness has identified the defendant, Jimmy Mailing, as the intruder he saw that night.”
Kendall Vance cleared his throat and stood. “A technical point, Your Honor,” he said. Kendall wasn’t smiling openly, but from his posture and tone of voice, it was clear something had made him very happy, and suddenly I understood why the “defendant” was not in a suit and tie or sitting up, bright-eyed and involved.
Judge Baxter looked over her glasses at Kendall. “Go ahead, Mr. Vance.”
“Yes,” Kendall said, “the record should reflect that the witness has failed to identify the defendant.”
Kendall laid a hand on the shoulder of the man beside him at the counsel table. “This is not Jimmy Mailing but, rather, Derek Sykes. Mr. Sykes is an actor who generously agreed to come along and help me with my case this morning.” Kendall turned and looked into the gallery. “Jimmy, would you please stand.”
Jimmy Mailing, the real defendant, stood up. He had been sitting in a small crowd in the gallery. He was in a suit and tie, impeccably groomed. He had prominent cheekbones, dark hair, and a long chin. Jimmy Mailing and Derek Sykes didn’t really look alike, but they were the same type, with the same elongate faces and the same slender, athletic physique. The most striking difference was that at the moment the imposter looked like a criminal, while the real Jimmy Mailing didn’t.
“There’s the defendant,” Kendall said, pointing at Jimmy, “right here with us in court as required. Apparently, the witness didn’t recognize him.”
CHAPTER 3
There was lots of shouting.
I demanded that Kendall and the imposter and the defendant all be held in contempt.
Kendall demanded an immediate dismissal of the charges against his client because the government’s witness had failed to identify him as the intruder.
I tried to place the imposter under arrest for obstructing justice.
The judge demanded we all just shut up. Then she glowered at Kendall over her glasses and ordered the jury be removed. “We’re in recess for fifteen minutes,” she said.
Judge Baxter is a small and ferocious woman. I don’t always agree with her decisions, but I like her style of judging. She stays out of things as much as possible, and when she can’t stay out, you feel her anger at being dragged in. Unnecessary objections displease her. Foolish advocacy that requires objections displeases her. Lack of punctuality and lack of preparedness displease her. She believes much more strongly in the orderliness of trial law than in the games and antics of trial law. This means she is a prosecutor’s judge, not a defense counsel’s judge.
When Judge Baxter’s predecessor had announced his retirement a few years ago, I was approached about putting my name in for the seat. But I had no interest in being a trial judge (do boys with baseball mitts dream of being the umpire?). No, the U.S. Attorney’s Office was much more appealing to me than the trial court bench. I did, however, want to be an appellate judge. I wanted to write lofty decisions that would stand for years or decades. In fact, I’d been nominated to the Circuit Court of Appeals several years earlier, but gridlock between the administration and Congress had left my nomination stalled. Technically, I’m still a nominee, though I don’t expect much to come of it. Anyhow, I declined to be considered for the District Court judgeship, and Arial Baxter, a respected partner at a local firm, got the nod.
The judge returned and gaveled us back to order. “Here’s what’s going to happen,” she announced. “I want briefs on my desk first thing Friday morning. The issues I want briefed are these: First, whether any action by either of the parties violates either the law or the procedural rules of this court. Second, whether the defendant’s motion for dismissal is warranted. And third, whether this jury is now tainted. Then we’ll convene at, let’s say, four-thirty on Friday afternoon.”
That was July 3. The murder was on July 4.
I spent the morning of the fourth at my office, writing the assigned brief. Henry had planned to write it, since it was technically his case, but I was so angry about the whole thing that I wanted to do it myself. Besides, I didn’t quite trust him to get it right. I wanted to pepper it with plenty of outrage, expressed in my best legalese, against Kendall Vance. With any luck, I could get Kendall’s scheming ass suspended from practice in the Federal District Court.
I didn’t mind being at the office that morning. I like it when I’m the only one there. I worked with my office window cranked open as far as it would go, which was only about two inches. It was a beautiful summer day. Already you could see and hear the city getting into its holiday mood. Hundreds of baskets planted with flowers of red and white and blue hung from lampposts in the downtown section.
As I worked, the sounds of the day slipped into the office through the narrow opening. Traffic sounds seemed happier than usual. Car horns blared not with anger but with jubilation. Kids were busy with firecrackers, and I kept thinking of war correspondents on the evening news, giving their reports via satellite from conflict regions: pop, pop, pop. You hear gunfire in the background as the reporter recounts the action: “. . . spokesman for the rebel leaders” . . . pop pop . . . “says there can be no negotiations until these conditions are met” . . . pop pop . . .
When I got home around two in the afternoon, Barnaby exploded out the door and into my arms. Tina was rummaging in the fridge. “I thought you were going to be back at noon,” she said.
“Sorry, babe, I was in the zone.”
She handed me a list. “Here’s what I need you to pick up.”
“At the store? On the Fourth?”
“Hmm. I guess you’re right,” she said. “I’ll serve saltines instead. And I think I have some mayonnaise I can spread on them. Won’t that be nice?”
I took Barnaby to the store with me for a quick shop (brats, chicken, watermelon, ice cream). Then home.
In the kitchen I started slathering barbecue sauce on the chicken. Tina came in. “Did you finish your memo?” she asked.
“I’ve got a draft. It needs polish.”
She chuckled. “You’ve got to admire Kendall. Risky tactic, but creative.”
“No, I goddamn don’t have to admire him. It corrupts the process and—”
“Oh, lighten up,” she said. “Personally, I can’t think of a better way to show the jury how flaky eyewitness identifications can be.”
I started to answer but thought better of it. Tina had worked in my office as an assistant U.S. attorney for several years bef
ore resigning and going into appellate criminal defense. I hadn’t thought it would be a problem, having a prosecutor and defense counsel in the same marriage. But as her heart and soul got increasingly wrapped up in her role as an advocate for the “wrongly” accused, the rift in our philosophies widened.
My cell rang. It was Lizzy, my daughter.
“Dad,” Lizzy said, “Ethan and I aren’t coming to the barbecue.”
“You sure?” I said, making no effort to keep the hurt out of my voice. “I bought some vegetarian sausage.”
“You’re sweet,” she said, “but we’ve got other stuff going on. We’ll meet you at the park tonight. Okay?”
“Barnaby will be disappointed,” I said, but too late. She was gone.
Ethan was Lizzy’s new boyfriend. They met when they were arrested together for criminal trespass at one of the Occupy sites.
A minute later, Flora called. “Hello, Nickie,” she said. “I’m afraid Chip and I won’t make it this afternoon.”
Flora is my ex-wife and Lizzy’s mom. Chip is her FBI-agent husband. He and I are buddies, our friendship predating his relationship with Flora. “Kind of last-minute, Flora,” I said.
“And I’m so awfully sorry. But we’ll see you at the park tonight. We’re coming with Lizzy and her friend. Oh, and I think he’s such a great guy—Ethan—don’t you?”
“Haven’t met him yet, Flo.”
“Oh, well, tonight, then, Nickie. See you soon.”
Tina’s sister, Lydia, arrived at about two-thirty. Barnaby rushed into her arms as exuberantly as he had into mine a half hour earlier. She carried Barnaby out into the yard, and the two of them settled into the sandbox, where she buried coins and had him hunt for them. After ten minutes of this, she came back into the kitchen, gave me a kiss on the lips, then held my hand, swinging it in hers while we talked.
“I brought a salad,” she said, “ except the store was out of organic spinach, so I just used Boston lettuce, which is almost as good, don’t you think? And daikon, and endive, all organic, and some dill . . . oh, God, I can’t stand that music . . .”
Lydia walked into the living room to turn off the stereo. I’d had an old George Winston CD playing. Lydia is the only person I’ve ever met who hates having music on in the house. She says it gums up her thinking. She was five years younger than Tina and had always been the black sheep of the family. She had some kind of learning disability, barely made it through high school, dropped out of college, joined a charismatic church of some ill-defined pantheistic belief, and supported herself first as a baker and then as a bookkeeper. Politically, she swung from the ditsy left to the dour right, apparently bringing unbridled verve to whichever camp she was in. She worked for the state legislature briefly in the legislative clerk’s office. Now she was working for the state tourism office, producing ebullient pamphlets about the state’s natural and historic attractions. Tina and Lydia were very close as children but became alienated during Lydia’s tumultuous years. Now they were together again.
After Barnaby was born, Lydia started spending more and more time at our house. She was one of the family. I liked having her around. I liked her energy. It was a nice counterbalance to Tina’s sober-minded reserve.
Lydia had a steady boyfriend now, and they’d just become officially engaged. I liked the guy, though I thought he was kind of plain vanilla, while Lydia was surprising and exotic.
As Lydia and I stood in the kitchen talking, we heard the front door open, and a moment later, Henry Tatlock, assistant U.S. attorney, walked into the kitchen. Lydia squealed, put her arms around him, and they had a long soulful kiss.
Yes, Henry and Lydia. He was the love of her life, she said: her hero, her savior, her husband-to-be.
We grilled the chicken and brats and corn and ate outside on the picnic table. There was too much food, so I dropped a big chicken breast onto the ground for our dog, ZZ, who snatched it up like a frog zapping a dragonfly. Barnaby named the dog himself. We’d gotten him, a bouncy Australian cattle dog pup, when Barn was two years old. He wanted to name the dog after his big sister, but in his toddler’s pronunciation, “Lizzy” always came out “ZZ,” and it stuck.
I went into the kitchen for more beers. On my way back, I stopped in the doorway and just watched the four of them—Tina, Lydia, Barnaby, and Henry. Barn had fallen asleep in his chair. Tina and Lydia were sitting with their backs toward me. They both had long auburn hair in ponytails, and both of them were wearing sundresses. They were slender, dark-shouldered, scrubbed women, and in the curve of their necks and the tapering of waist and erectness of posture and tilt of head as they lifted forks to their mouths, you could see they were intelligent and radiated warmth. And if I hadn’t known them but was merely seeing them for the first time—eating and laughing together—I’d have recognized that they were sisters, and I probably would have envisioned getting to know them and perhaps falling in love with one of them. I picked up my phone and snapped a picture.
Across from them, facing me, sat Henry. Lydia first brought Henry over for dinner half a year earlier. I remember thinking how like her it was to not even see the disfigurement but just the man. We liked him right away. Tina and I talked about what a relief it would be if Lydia settled down with this stable and intelligent lawyer who might be able to calm the chaotic waters of her life.
It turned out Henry had just passed the bar exam and was clerking for a state court judge, but he hadn’t been able to land a job after his clerkship ended. If Henry and Lydia had been married or engaged when he applied for his job in the U.S. Attorney’s Office, I probably couldn’t have hired him. Nepotism. And maybe if things had been better between Tina and me, I wouldn’t have hired him. It wasn’t because I didn’t like him or that I thought him unqualified, it was just that I might have been wary of having my brother-in-law working for me. But when Lydia first introduced me to this new guy she was dating, I had already felt some ominous oscillations in the status quo of my marriage (which I attributed to the emotional impact of Tina’s lumpectomy). So I was especially eager to please Tina and to do anything I could to make her see me as an indulgent and valuable husband.
At my suggestion, Henry had dropped off his résumé at my office.
I went back out to the picnic table. Henry was laughing, retelling the story of Kendall Vance’s switcheroo. He was hamming it up. I handed the beers around and joined in the telling, feeding him lines but keeping him in the spotlight, making it his story.
Henry and Lydia left. Henry said he wanted to read over my draft of the memo for Judge Baxter. Lydia said she had a few errands she needed to do. We would meet at the park later. I carried the sleeping Barnaby to his bed. The longer he slept in the afternoon, the less cranky he’d be during the concert and fireworks.
CHAPTER 4
Rokeby Park lies at the southern end of town paralleling the river. The land was ceded to the city a century ago by one of the big mill families, but it remained undeveloped woodlands until twenty years ago, when a public interest group discovered that a huge chunk of money had been left in trust for the city to develop the park “for the enjoyment of all.” The money was long gone. A lawsuit followed, and the resulting consent decree created a system of trails, recreational areas, groomed woodlands, and an outdoor amphitheater.
In my years as a prosecutor, I’ve read the name Rokeby Park in scores of police reports and investigative summaries. In different epochs of the city’s tortured economic history, the park has seen homeless camps, gang wars, meth and heroin shooting galleries, and a thriving economy of drugs and prostitution. It has hosted the predictable continuum of bodies discovered under leaves or in shallow graves, sexual assaults, muggings, abductions, and suicides. How many times have I driven by one of the entrances at night and noticed the vehicle barriers removed, and seen, from deep inside the woods, the evening mist beautifully illuminated by the strobing of blue and red police lights?
But that’s just a prosecutor’s view of things: Ex
terminators probably see writhing populations of vermin where others see homes and parks and schools. Maybe prosecutors (and cops) are the same: We see the disease and the rot.
In reality, Rokeby is much more than a breeding site of social pestilence. The park is home to tai chi at noon, to joggers, to Rollerbladers, bird-watchers, picnickers, love-addled couples strolling hand in hand, kindergarten field trips, stargazers, botanizers, dog walkers, Frisbee golfers, and philosophers.
Tina and Barnaby and I spread our blanket on the grass of the amphitheater amid scores of other families. ZZ was on his leash and ecstatically trying to entangle himself with every other dog we saw. The orchestra was tuning up, creating that lovely mishmash of orphaned notes weaving themselves into ephemeral compositions. Firecrackers and cherry bombs went off in the woods, pop, pop, pop, and poor ZZ started trembling.
“I don’t know if he’ll make it through the fireworks,” Tina said.
I pulled ZZ onto my lap and cradled him. Barnaby hugged him. “It’s okay, ZZ,” he said, “I’m here.”
Pop. Pop.
We were expecting a big group, but so far it was just the three of us. Henry had called to say he was still working on the memo and he’d meet us after the concert began. I didn’t know where Lydia was.
Pop.
ZZ trembled.
Flora called me on my cell. “We’re just parking,” she said. “We’ll be along soon. Tell me how we can find you guys.”
“Green plaid blanket,” I said, “right near the statue. Is Lizzy with you?”
“Lizzy? No, isn’t she there yet? She drove with Ethan. They should be there by now.”
I hung up with Flora and called Lizzy.
“Concert’s about to begin,” I said when she answered.
“Okay. We’re actually here already. But it’s so crowded in the amphitheater. We’re out walking in the woods. We’ll head back now, okay?”