Against the Wind

by J. F. Freedman

  “Let’s talk for a moment about the defense you’ve seen put on for your benefit for the past weeks in here. I have to admire it; it’s a great escape act, a Houdini defense. An act of magic, of derring-do and sleight-of-hand. But like any act of magic it’s based on a perception of reality … let me emphasize that, ladies and gentlemen of the jury, perception of reality, not reality itself. They don’t really have a defense, so they try to fake you out. And if you’re not careful, if you’re not diligent in examining the facts of this case, if you’re blinded by the light they’re shining in your eyes, you’re going to mistake the perception for the reality. It’s like that ad that was on television a few years back, about how you can’t tell Imperial margarine from butter, you remember that?”

  Some of the jurors smile; they remember, or think they do.

  “‘You can’t tell the fake from the real thing,’ is what the ad said,” Robertson tells them, smiling himself. “Well, maybe you couldn’t,” he continues, “maybe some people can’t tell margarine from butter, and anyway to most people it probably doesn’t matter much, unless you’ve got a cholesterol problem, and then it could matter a lot. In fact, it could be a matter of life and death. Well, in this case, if you can’t tell the fake from the real, the lies from the truth, it will definitely be a matter of life and death. It will mean Richard Bartless’s murderers and sodomizers will go free, or they will pay for their crimes.”

  He pauses. He’s doing well, I have to give the bastard credit.

  “Here’s how the defense’s shell game works, ladies and gentlemen. They don’t deny that the defendants and Rita Gomez left the bar together. They can’t, because dozens of their own witnesses testified that they did. So what they’re saying is she was too drunk to be credible. But there’s been no evidence produced to that. Yes, she drank that evening. But she was sober enough to speak to them when they were ready to go, to tell them what she wanted, clearly and without hesitation. None of the witnesses said she wasn’t.

  “And she was with them at the murder site on the night of the murder. Again, no one questions that. And they had sex with her. She says she was raped. They said she did it willingly. And to back that claim of theirs up, that of her own free will and without any pressure or threats whatsoever she had sex with all of them, two and three times each, they say she is a prostitute.

  “You know what that is, ladies and gentlemen, that kind of argument? That a prostitute can’t be a victim of rape? It’s a crummy argument is what it is, beneath the dignity of a civilized society. Make no mistake, ladies and gentlemen of the jury, Rita Gomez was brutalized by these men, terrorized by them, threatened with her life if she ever told what happened up there. Please do not, for one second, think otherwise. Do not make the victim the victimizer. Rita Gomez is not on trial here.”

  He turns and points to the accused sitting at our table.

  “They are.”

  He walks over to the evidence table, picks up a folder, the one with the gasoline receipts. He holds the receipt up in front of the jury.

  “Here’s the defense’s case,” he says with unconcealed derision. “A piece of paper with a date stamped on it.” He shakes his head in mock sorrow, then becomes scornful. “If that isn’t the most pathetic defense I’ve ever seen in my life. I mean come on now, ladies and gentlemen. They must think you’ve all been lobotomized. A piece of paper that anyone could have tampered with from a machine in a remote filling station. Who knows how accurate that machine is? For all we know it could have been broken, or the receipt forged, or any number of things. Unless you think machines are infallible. Unless you’ve never had a problem with a gas bill or a water bill or an electric bill.”

  The members of the jury nod and smile, looking at him and each other. I get the message from them that machines are not infallible.

  “And that witness,” Robertson continues. “A kid with stars in his eyes, whose ambition in life is to own a motorcycle and ride with the likes of these.” Dismissing the bikers with a backhanded wave.

  “Then there’s their other key witness,” he says. “A seventy-eight-year-old woman who remembers what Elvis Presley ate for breakfast in her diner thirty years ago. And the exact day and the exact time the accused showed up at her doorstep. And the exact orders each of them ate, and the exact amount it all cost. Well, I don’t know about you, but I can’t remember all that detail so exactly, and I don’t know if I trust someone who does. Especially if they’re getting on in years, I don’t mean that as a knock at age, someday if I’m lucky I’ll reach that age and I won’t like it if people doubt my every word, but the doctors do tell us memory starts to slide when you get up in years, it becomes selective. And when you’ve lived alone for a long time, as that witness has, you live inside of yourself more, by the nature of things you create a world inside your head, or the loneliness would become unbearable. And maybe you’ll tell someone what they want to hear even if it isn’t exactly the truth, as long as they’ll stay and have another cup of coffee with you.

  “This murder had strong homosexual overtones,” Robertson is telling the jury now. “The defense would have you believe that’s not part of this case. They’re trying to tell you that the hatred and loathing one of the defendants had towards his brother, his only blood kin in the world, because of his homosexuality, is meaningless. That’s an insult: not only to your intelligence, but more importantly to the memory of Richard Bartless, who suffered and died because of one of the defendant’s, the acknowledged ringleader’s, hate and fear of homosexuality.

  “Not only is homosexuality a part of this case,” Robertson says, “it’s the linch-pin. For years Steven Jensen has hated his brother. For years he’s lived with the fear that maybe he, too, is tainted, that maybe it’s in their blood, in their genes. He does everything he can to be as macho as possible. He sleeps with scores of women. He joins a tough motorcycle gang, becomes a leader. He thinks he’s above it, that it can’t touch him. But he’s wrong. Any psychologist will tell you that there’s a lot of latent homosexual feeling in these motorcycle gangs, with their allegiance to their buddies and their utter contempt for women.

  “Do you know what happens to a woman whose boyfriend or husband joins one of these self-styled outlaw motorcycle gangs?” he asks, his voice ringing with fury. “She has to have intercourse with every member of the gang, and when they’re finished with her they urinate on her. I guess to some people that’s macho, that’s manly. Personally, it turns my stomach. It makes me sick.”

  He looks at us with contempt. We’ve got our hands full keeping the bikers from freaking, especially Lone Wolf.

  “If you blow this now,” I remind him for the hundredth time, “it’s automatic Death Row.” My colleagues are saying the same thing to their own clients.

  He’s under control, meaning he isn’t going to go over the table and attack Robertson.

  “I’ll deal with it later,” is all he says. I don’t care to pursue that right now.

  “In any crime, especially a violent crime such as this,” Robertson says, “you have to have motive and opportunity, unless you’re dealing with psychopaths. Well, we may be dealing with psychopaths here, although believe me they know right from wrong and can act on the difference, but we definitely have motive and opportunity. Richard Bartless heard these men trying to hurt Rita Gomez, and he came to help her. It was a brave decision. But to men like these, that doesn’t go. It’s an affront to their so-called masculinity. They’re not going to put up with it. For cold-blooded killers like these, that’s motive enough. Plus they’d had sexual intercourse with her against her will, that could be a felony. They thought they could scare Rita Gomez into silence, but they knew that wouldn’t work with a man, with Richard Bartless. They had to shut him up. That is motive aplenty.

  “And they had the opportunity. It was the dead of night, they could take him up to that mountain without anyone seeing them. And they did.

  “Once they got him up there, all the repressed fear
about their masculinity came to the surface. Maybe he did something that pushed a button, maybe he called them out on their so-called machismo. And they went crazy, they were going to show him. They were going to show him they were so manly they could have a woman and a man, too. And they did. They had intercourse with him, too.

  “After that they had to kill him, because he was a living testament to their shame. So they performed an exorcism on him, they couldn’t just put him out of his misery with a simple gunshot, they had to stab him forty-seven times with a hot knife and they had to cut off his penis, his own manhood, so that even in death he couldn’t threaten them. And then, as an afterthought, to try and throw the police off their trail, they shot him.

  “You have a choice to make,” Robertson says, his voice dropping, almost to a whisper. “You can disregard all the real evidence, the hard evidence, the expert testimony of one of this country’s foremost forensic pathologists, and the testimony of the only eyewitness to this crime, and let this scum sitting before you walk out of here free men. Or you can examine the evidence carefully and truthfully. And when you do, you will arrive at one and only one conclusion. That they are guilty of murder, and they should be put to death for that. Anything less would be a miscarriage of justice, and a stain on all of humanity. I know that you are going to make the only choice; the only right choice. You are going to find them guilty of murder in the first degree.”

  IT’S AXIOMATIC in a capital case that the longer the jury stays out, the better it is for the defense. The jury has been out three days now. The first day we were all sweating bullets: if the jury had come back then we’d have known all our guys were going to fry.

  They didn’t; nor did they on the second day. When we trooped back into court at the end of day two and Martinez told us to go home, it wasn’t going to happen, not until tomorrow at least, our collective sigh of relief would’ve floated a hot-air balloon clear to Taos.

  Robertson is outwardly stoic; whatever he feels is buried. Moseby sweats visibly, wears his emotions on his sleeve. There’s been dissension in their office. Our spies (secretaries who talk to my ever-loyal Susan) tell us there was a postmortem donnybrook over Robertson’s giving the rebuttal for the state. For the first time in memory Moseby stood up to his boss, calling him a grandstander, a politician who won’t leave a track when he’s gone. For his part Robertson attacked Moseby and his investigators, Gomez and Sanchez, for botching the rape section of their case, to the point where it may have tainted the entire investigation in the eyes of the jury.

  Might be the jury’s picking up their vibe. Juries can do that, they sometimes develop this extra-sensory perception that tells them which side feels better. It can translate into a decision in favor of the confident side. I’ve seen it happen. That’s why no matter how bleak I feel in my gut about a case, I always show a strong front.

  Day three ends the same way. By now several things could be happening in the jury room, none of them comforting to the prosecution, who wants to hang all four of the bikers. It could be the jury’s arguing a lesser verdict, maybe murder two or manslaughter, or they could be thinking a couple guys did it and the others didn’t (for me personally this wouldn’t be good, if one burns it’ll be mine), or in the best-case scenario one or more of the jurors just don’t think the state presented a strong enough case. My dream is all twelve have enough reasonable doubt that they’ll acquit, but you don’t live on dreams in here. All we want is one holdout, not guilty is the optimum but a hung jury works, too.

  MARTINEZ SENDS A MESSAGE to the jury. It’s four o’clock in the afternoon, Thursday, day four. How are you doing, the message reads, are you progressing towards a verdict? We’re coming up on a weekend, if it looks like a deadlock let us know now.

  Our fingers are crossed so tightly the flow of blood is practically stopped. If the foreman replies that they aren’t getting anywhere, Martinez is going to have to declare a hung jury. There won’t be enough champagne in Santa Fe to accommodate our celebration.

  The message comes back that they’re not sure, there are problems, but they’re not ready to give up. They need more time, at least another half-day.

  I want something more definitive than that by lunch break tomorrow, Martinez messages back. Do your best. You have a sworn duty to arrive at a verdict if that is at all possible.

  He’d rather have his nails pulled out than try this case again. So would Robertson. If there’s a second trial the victim’s mother doesn’t happen; Lone Wolf’s brother is probably a memory, too. And they know we’ll hammer the shoddiness of their investigation.

  On her way home Mary Lou stops in a church and lights candles. She isn’t even Catholic.

  “HAVE YOU REACHED a verdict?”

  “We have, your honor.”

  It’s five-fifteen in the afternoon, past normal closing hours. Just before lunch the jury had sent out word that they were finally arriving at a conclusion.

  We were back in the courtroom by then; the lawyers, not the defendants. We took it as a positive sign; if they were thinking of coupling the murder with the rape they now were told conclusively not to. If they did, in fact, it could mean a mistrial. Martinez told them that strongly. That’s all he needs; at the last minute, the jury fucks up on the instructions and the whole shebang goes in the toilet.

  The note came out at ten to five: they’re ready.

  The defendants are brought up from the holding cells. They sit at the table with us. Robertson, Moseby, the prosecution sits at their table. Behind them, the victim’s mother and the cops, Sanchez and Gomez. Lone Wolf’s brother is not among us. Neither, of course, is Rita Gomez, or any of the other witnesses.

  It’s packed in here. A crush of media, overflowing into the corridors outside. I can barely breathe; that’s true for everyone at our table.

  I glance over at Robertson. He feels my look, turns with one of his own. Four lives and my partnership are on the line here for me; a chance to grab the gold ring for him.

  “Would you please pass the verdicts up,” Martinez instructs the foreman.

  The jury foreman passes the verdict sheets to the bailiff, who carries them to the bench. Martinez looks at each of them slowly. He looks at the defendants. I can’t get a read. He studies them again, nods, hands them back to the bailiff who takes them to the clerk of the court.

  “The clerk will read the verdicts,” Martinez announces, his eyes on us.

  The clerk rises.

  “In the case of the state versus Steven Jensen,” he says solemnly, “we find the defendant guilty of murder in the first degree.”

  A roar goes up. Robertson and Moseby hug. Martinez gavels for quiet.

  “Silence!” he yells. He’s pissing into the wind.

  Lone Wolf slumps. I put a comforting arm around his shoulder.

  “I didn’t do it, man.”

  “I know,” I say. It’s hollow reassurance.

  “In the case of the state versus Richard Paterno, we find the defendant guilty of murder in the first degree.”

  Now it’s Roach’s turn to collapse. I can’t believe what I’m hearing, it’s like an explosion in my ears.

  “In the case of the state versus Roy Hicks, we find the defendant guilty of murder in the first degree.”

  Dutchboy. Twenty-two years old. He looks at the others, bewildered. How did I get here, is this real or am I dreaming?

  And finally Goose, the old graybeard. Guilty. He breaks down, the only one with even a hint of tears.

  “Oh man. This ain’t happening.”

  I’m numb. The jury believed that fucking bimbo. Four men that I know, that I know, are innocent, have just been sentenced to die.

  THE JURY RECONVENES a week later for the death-penalty phase, which is a formality. I knew that going in—if I didn’t get them off clean, they’d fry. The jury wastes no time. There is nothing redeeming about these men. They are not in any way part of civilized society, and have to be removed from it in the most extreme way possible. They
are to be incarcerated until such time as they will be put to death by lethal injection.

  The bikers are cuffed, placed in leg irons, led out. I’ve already told them we’ll appeal; it’s automatic in a death-penalty case. If it goes all the way to the Supreme Court they’ll be on Death Row for seven years, maybe longer.

  “No hard feelings, I hope,” Robertson says. He’s come over, extended his hand.

  I don’t take it.

  “They’re innocent, goddam it.” This is heart-breaking.

  He doesn’t see it that way; he’s quietly elated.

  “The jury said otherwise. That’s how it works.”

  “They were framed.”

  “You’re pissing against the wind, Will.”

  “Someday I’m going to prove it,” I argue hotly. Fuck civility.

  “They were guilty, Will,” he says calmly. He’s won; he can afford to be civil. “They were guilty before they ever stepped into the courtroom. And everybody knew it except you.”

  “The old ‘we’re gonna give ’em a fair trial and then we’re gonna hang ’em.’” It tastes bitter in my mouth; and true. “You neglected to tell me that part when you called me into this; kind of an important oversight, wouldn’t you say?”

  He won’t rise to the bait.

  “I thought frontier justice was history, John.”

  “Sometimes it’s the only way,” he says, as he turns his back to me and walks out.

  The courtroom empties. I don’t want to leave; there’s nothing good out there for me. There’s nothing good in here, either. I’m paralyzed in my own emotions.

  Finally, only Mary Lou and I remain. She half-hugs, half-leans against me.