by Lee Goodman
I flip to the first page of whatever I’m holding. It is the call log from the phone found in Jimmy Mailing’s car after he was killed. The phone was an untraceable, prepaid disposable. I get up and go into my office for my file on Lydia’s murder. I get the printout of texts between Lydia and her lover. The lover’s phone number is 555-1225. The number of whoever called Jimmy Mailing on the evening before his murder was 555-1225.
“Upton, look at this.” I push the printouts in front of him and go to the coffee machine and brew a fresh pot. By the time I’m back with two steaming cups, Upton is upright at the desk studying the printouts.
“Do you realize what this means?” he says.
“It means my sister-in-law’s secret lover, who is a person of extreme interest in the investigation of her murder, is also an associate of Jimmy Mailing’s—maybe the last one to see him alive—and a person of extreme interest in his murder.”
“Why didn’t anybody catch this before?”
It’s a rhetorical question, a place holder while he gets some coffee into his system.
“Three phones,” I say. “Lydia’s, Mailing’s, and the Christmas one.”
“Christmas?”
“Twelve-twenty-five. They are all burners. Prepaid. No owner info. And since the investigation of Lydia’s murder is in the hands of the local cops, and Dunbar’s is the jurisdiction of the Bureau . . .”
“The only place the investigations meet is right here with you,” Upton says.
“We should assume that whoever called Mailing late on the night of his murder was setting up a meeting to kill him.”
“And if the mystery caller is who killed Mailing . . .”
“Maybe he killed Lydia, too,” I say.
“And the shootings have the same MO,” Upton says.
“Single shot to the head.”
“But I thought Henry killed Lydia,” Upton says.
“Of course he did.”
We drink coffee and try to think our way through this. I’m having trouble holding it all in my mind.
“Puddle shark,” I say.
Upton gets up and turns the whiteboard around. It’s double-sided. He writes “Christmas number” and circles it. He writes “Bullet to head” and circles it. He writes “Henry” and “Murdering pedophile” and “Subsurface fixer” and “Lydia’s lover” and circles them all. We draw arrows between the bubbles, we erase them, we move them around. But we can’t make it all make sense.
“Is Henry involved somehow in the Subsurface mess?” Upton says. We ponder. It doesn’t sound right. Henry is about perversion, not money.
“We have to find out who the Christmas number is,” I say. I dial Chip and ask if he can jump in his car and drive to my office. He was on his way home but says he’ll turn around.
“What about those state detectives?” Upton says. “You should call them, too.”
I should call them. That was actually my first thought: I should call Sabin. But I wasn’t sure whether I was calling her because of this new discovery or because I just wanted to call her. I could call Philbin, but with Henry’s trial going on and Philbin and me both being called as witnesses, it isn’t a good idea. I call Sabin.
Chip, Upton, Sabin, and I sit in Upton’s office for over an hour, talking it through, but we don’t come up with much. The only thing we’re certain of is that these two cases, Lydia’s murder and Mailing’s murder, have just become entangled.
CHAPTER 50
In the witness box, I raise my right hand and swear to tell the truth, the whole truth, and nothing but the truth.
Will I?
I assume Monica has called me as a witness because she hopes to make Henry look as human as possible. She wants it known that he was my friend; that he was a good prosecutor (albeit inexperienced). That he cared about his career and displayed empathy for victims, integrity in his work, compassion in his relationships. That despite being initially shy and awkward, he was witty and fun-loving and relaxed once you got to know him. And that he was part of my family.
I remember the weekend at our cabin on the lake. It was after Lydia’s murder. I have in my mind the image of Henry and Barnaby standing in the fading light of evening, throwing stones into the water. I was glad Henry was with us, pleased that he seemed to be recovering and moving forward.
I see the two of them side by side. Henry and Barnaby.
Will I tell the truth?
No. I will say anything to convict that man—to condemn him to hell. To remove him as far as possible from Barnaby, and from Tina and Lizzy and me, and from every other decent person on earth.
Will I tell the whole truth? Nobody wants the whole truth. The court doesn’t, and Monica definitely doesn’t. Court cases are icebergs: The jury sees only a small tip of facts poking above the surface. Monica will try to elicit a few select truths that she can weave into one big lie that Henry is innocent. She doesn’t want the truth that he date-raped a girl in high school. She doesn’t want the truth that his fiancée had a lover because Henry, as a violent pedophile, had no interest in a normal adult relationship with a committed partner. And Monica definitely won’t want the truth that Henry killed Lydia because she had discovered his secret. Monica will pick and choose the truths she asks for, so maybe I’ll pick and choose the truths I give.
She starts with basic questions: name and address. Then she asks what I do for a living:
MR. DAVIS: I am an assistant U.S. attorney, head of the criminal division.
MS. BRILL: And can you describe for the court your duties in that position?
I give a brief narrative of my job.
MS. BRILL: And did you at some point have occasion to meet the defendant Henry Tatlock?
I say that yes, I did. She leads me through a history of my relationship with Henry and his work at the office. But she moves quickly, and the questions are superficial. Where I expect her to slow down and delve into something that could make him sound human and likable, she just pushes forward, seeming to barely hear my answers.
MS. BRILL: So you’re saying he’d become part of the family?
MR. DAVIS: Yes.
MS. BRILL: And he was engaged to your sister-in-law?
MR. DAVIS: Yes.
MS. BRILL: Are they still engaged? Are they married?
I’m astounded. Lydia’s murder was mentioned briefly by Philbin in his testimony. Now Monica has offered me another wide-open door to talk about the murder. She definitely has a plan, but I have no idea what it could be.
MR. DAVIS: No. Lydia was murdered last July Fourth. She was shot in the head at Rokeby Park. It was nighttime, and the killer made a halfhearted attempt to make it look like sexual assault and robbery. Her killer has not been found.
MS. BRILL: I’m so sorry for this loss that your family experienced, Nick.
MR. DAVIS: Thank you.
MS. BRILL: So tell me, do you believe Henry Tatlock killed Lydia Trevor?
Before answering, I look at Gregory Nations. The question is outrageously objectionable for several reasons. But the answer can only help the prosecution. Of course I think he’s guilty. I know he’s guilty. Gregory Nations makes eye contact with me. He shrugs. So I answer:
MR. DAVIS: Yes. I believe with all my heart that Henry Tatlock killed my sister-in-law.
MS. BRILL: And when did you come to that belief?
MR. DAVIS: When we got the DNA results from Kyle Runion’s remains. That’s when I finally recognized what a monster Henry is. I guess I had a blind spot until then.
MS. BRILL: And that was in late October, wasn’t it?
MR. DAVIS: Yes.
MS. BRILL: And so for almost four months, you held on to the belief that Henry had nothing to do with Lydia’s death?
Gregory finally objects. The question is leading, and my belief isn’t relevant. Judge Ballard sustains the objection.
MS. BRILL: Let’s go in a different direction, Nick. Let’s talk about the investigation into Lydia’s murder. Were you involved in that i
nvestigation?
MR. DAVIS: Not directly, no.
MS. BRILL: But did you follow it?
MR. DAVIS: Of course.
MS. BRILL: And did you meet with investigators to discuss it?
MR. DAVIS: Yes.
MS. BRILL: Can you name them?
MR. DAVIS: Captain Jerome Dorsey and detectives Patrick Philbin and Rachel Sabin, all with the state troopers.
MS. BRILL: And did these officers tell you who their main suspect was?
This is another open door, and again I bolt through.
MR. DAVIS: Because of my relationship with Henry, they were hesitant to be real direct with me. At least Sabin and Dorsey were. But I knew they were looking at Henry.
MS. BRILL: Are you implying that Detective Philbin made no bones about suspecting Henry Tatlock?
MR. DAVIS: Yes. He was direct about it. He knew from the start that Henry had done it, and he was quite open about pursuing Henry.
MS. BRILL: Did you think he was too focused on Henry, and that he wasn’t open to looking for other suspects, and that the real killer was getting further and further beyond reach?
It’s too much for Gregory. He objects again. The question was leading. Monica reponds by asking to have me declared a hostile witness, just as Bauer was. The judge calls Monica and Gregory up to the bench. They talk in whispers.
I’ve never been a witness. I never get to see the courtroom from this perspective. I’m usually sitting at counsel table, or watching from the gallery, or standing addressing the jury. It’s different from here in the front, looking out into the room. It’s what the judge sees (though his view is more elevated).
I look at the jury, but none of them looks directly back at me. Their eyes avoid contact with mine. They might note my proportions, my appearance, my demeanor, but they go no further. To them I’m an exotic, not unlike something at the zoo. To be fair, they’re little more than cattle to me: I see them for their usefulness, their willingness to convict, but I find nothing else of interest in their presence.
I look out into the gallery. It is full. I see reporters, and I see Kyle’s parents with the entourage who came to the earlier hearings about Daryl Devaney. I see Peggy Devaney. Of course she’d be here; she knows full well that Daryl’s fate is inversely linked to Henry’s. I see Arthur Cunningham. I see Lizzy. This surprises me; I don’t know whether she came the past few days, unobtrusively slipping in and out, or if she’s just here today for my testimony. Either way, I feel something unexpected when I notice her in the crowd. I feel relief, as if, in sitting here with the eyes of so many spectators on me, I almost forget I’m not the one being judged. To see her trusting face among all those looks of skepticism and curiosity and contempt (how could I possibly once have been Henry’s friend?) is energizing. I sit straighter. I feel confident in my ability to field whatever Monica hurls my way.
I look around the room—the hardwood doors and wainscoting and decorative molding, the elaborate bench for the judge, the polished rails corralling the spectators apart from us, the impeccable orderliness of it all. I have said that as a prosecutor, I am a gladiator and this is my coliseum. But glimpsing it now as a witness, imagining for a second that I’m the defendant, I can see how crushing it might be. Henry entered in chains before the jury was brought in, and he’ll depart in chains once they leave. Bailiffs stand ready to pounce. The jury is ready to judge, the judge is ready to decree, and the spectators are ready to cheer—to rise up in jubilation at the slaughter. All these bits of splendid formality are props to make it seem legitimate: the robes, the oak rails, the finials, the polish, the hush, the flags, the gavel, and yes (though not visible from here), there are those walls of diplomas and certificates in Gregory’s office, and Monica’s, and the judge’s, and mine—props for creating legitimacy, just like those powdered wigs of old.
Don’t get me wrong, I believe in this. My career has been about promoting the orderly prosecution of crime and about rejecting the anarchy of vigilantism. But sitting here, deprived for once of my elite position in this room, and despite my hatred for him, I can’t help but think of how it all must feel to Henry. How must it feel to be so (deservedly) despised? How might it have felt to Daryl Devaney to be so wrongfully accused?
Something I know from my years as a trial lawyer is that every defendant who has ever sat here feels less guilty than his accusers accuse him of being. Maybe a few really are innocent. But all the rest—the multitudes who’ve actually done something—know in their hearts a million reasons they’re not as vile as we think. They were provoked; they were goaded; they were abused; they were cheated; they had an unscratchable itch, an unquenchable thirst; they bore the scars of violence and abuse and deprivation and subjugation. They were merely leveling the field that, owing to their disability or limitations of intellect or opportunity or poverty or self-esteem, had been tilted against them. They were acting at the behest of their voices or their demons, or maybe they were reacting instinctively to the incessant and inescapable complexity of life. Even the ones who’ve sat here hating themselves for what they’ve done must believe on a subconscious level that if we knew the pain of their own self-loathing, we’d loathe them less.
The oppressive authority of this court, its massive fascistic weight, must taunt them. It is the final card in a rigged game. It is the smooth walls of the arena, which, when the gate is raised to release the lions, turn out to be unscalable.
Is this how Henry feels? Does he feel less guilty than he is? Does he blame his biochemistry, his genes, his scars, his fucked-up childhood? Does he believe that if we only knew what he knows, we’d loathe him less? I look right at him now. If he looked at me, I’d meet his gaze with this question: Do you feel less guilty than you are? But he doesn’t look up.
I find Lizzy in the crowd again. How wonderful it is to see her here.
The sidebar ends. I have been declared a hostile witness. Monica can ask me leading questions and, if she chooses, try to impeach anything I tell her.
She goes to the lectern and flips through her notes. “Back to where we were,” she says. “Mr. Davis, did you originally feel that in his investigation of Lydia Trevor’s murder, Detective Philbin was overly focused on Henry Tatlock as a suspect?”
I’d love to deny this, but I think I expressed that view to many people early in the investigation, including Lizzy.
“Yes,” I say. “I thought he should broaden his investigation.”
MS. BRILL: To the best of your knowledge, did Detective Philbin ever broaden his investigation?
MR. DAVIS: Not until we came up with Smeltzer.
MS. BRILL: Oh, right, let’s talk about that.
She leads me through an explanation of the Smeltzer diversion. Then she circles back around:
MS. BRILL: It was you who came up with the Smeltzer theory. Is that right?
MR. DAVIS: For the most part, yes.
MS. BRILL: And it’s your testimony that until Smeltzer, Detective Philbin was focused exclusively on Henry as the perpetrator?
MR. DAVIS: Yes. I guess so.
MS. BRILL: And you tried to get him to look elsewhere?
MR. DAVIS: Yes.
MS. BRILL: Without success?
MR. DAVIS: Not until Smeltzer.
MS. BRILL: You’ve testified, Mr. Davis, that until the results of the DNA analysis in the Kyle Runion case, you continued to believe Henry was innocent of Lydia Trevor’s murder. Is that right?
MR. DAVIS: Yes.
MS. BRILL: So is it fair to say that you, a federal prosecutor, didn’t feel there was compelling evidence against Henry for Lydia’s murder?
MR. DAVIS: Yes, as far as I was aware.
MS. BRILL: And as far as you knew, all the evidence was either vague suspicion or merely circumstantial?
MR. DAVIS: Many convictions are made on circumstantial evidence.
MS. BRILL: Yes, I’m glad you mentioned that.
Monica puts aside the legal pad she is using and picks up another. She flips
through and finds the place she wants.
MS. BRILL: To the best of your knowledge, has Henry Tatlock been charged with Lydia Trevor’s murder?
MR. DAVIS: No. I mean yes. Yes and no.
I describe how, after the DNA results came back in the Runion case, Gregory charged Henry with Lydia’s murder.
MS. BRILL: And can you tell us why Mr. Nations picked that moment to charge my client?
This elicits an explosive objection from Gregory Nations. Gregory and Monica and the judge talk openly for a minute, then they talk in sidebar, and then Judge Ballard allows Monica to lead me through a lengthy controlled explanation of how it appeared to me that Gregory charged Henry in Lydia’s murder because it would keep Henry detained in jail while the DNA results were authenticated and while Gregory got his ducks in a row for charging Henry in Kyle’s murder.
Monica continues:
MS. BRILL: And to the best of your knowledge, how was the case against Henry for Lydia’s murder resolved?
MR. DAVIS: It was dismissed by the state.
MS. BRILL: By which you mean the DA, Gregory Nations himself, dismissed the charges.
MR. DAVIS: Yes.
MS. BRILL: And is it fair to say the charges were dismissed for insufficient evidence?
Gregory objects again.
I still can’t figure out what Monica is doing. Obviously, she wants the jury to see how flawed the case is against Henry for Lydia’s murder. But no amount of weakening that case can make up for the damage of the jury knowing about the murder to begin with. Monica could have kept the whole thing from them if she wanted to.
And all the stuff about Philbin: Maybe he was going off half-cocked. Maybe he was responding too much to his hunch and not enough to any real evidence. This would all be relevant if Henry were being tried for Lydia’s murder, but bringing it up in this trial seems nonsensical. I’m willing to bet, though, that Monica knows exactly what she’s doing. It makes me uneasy.