by Webb Hubbell
Marshall looked at me, and I shrugged. As long as I wasn’t the one holding up their delivery to Lucy, it was fine with me.
Marshall said, “I still don’t see the relevance, but since Sam’s deputy is going to contact Janis, I don’t think you need me. Anything else? … If not, the preliminary hearing will begin at ten o’clock.”
We went directly into the courtroom, which was packed and noisy. Helen was already in her place, flanked by Beth and Jeff. Sitting next to Rodney Fitzhugh was my friend Peggy Fortson, the career deputy attorney general in the Criminal Division at main Justice. I reached into my briefcase and pulled out a binder that Beth had prepared the previous day. I walked over to greet Rodney and Peggy and handed the binder to Peggy.
She weighed the binder in her hands. “Is this all?”
“No, but it’s what I’ve got for now. Call me if it piques your interest. By the way, where’s Dub?”
She laughed. “He’s with my staff, trying to stay as far away from the judge as he can. Don’t worry—I’m sure you haven’t seen the last of him.”
Peggy and I had interned at Justice together during law school and had begun our careers there at the same time a year later. She was extremely smart, vivacious, and had an endearing personality. She turned more than a few heads with her long dark hair and Italian good looks. She’d had to overcome lingering sexism in the male-entrenched Justice Department, but her intelligence ultimately trumped the good-old-boy network. Rather than leave to make money, as I had done, she’d chosen Justice as her career, quickly becoming the lawyer whom all politically appointed attorneys turned to for advice and counsel.
I returned to our table and heard “All rise!”
Sam had brought his A game. He began by calmly outlining the basic case against Woody and carefully going through the elements of what he was required to prove for every charge. He was careful not to overstate his case. If anything, Sam understated the evidence. His burden of proof at this stage was much lower than beyond a reasonable doubt, and as yet, the facts were hardly in dispute. He pointed out that Woody and Russell had argued on occasion, and that, after the senatorial election, Russell had made the decision not to bring Woody with him to DC. No explanations, no suppositions, just the facts. Woody and Russell had been overheard arguing Tuesday afternoon in the senator’s local office. This was a fact I hadn’t known but wasn’t surprised to hear. Now he raised his voice.
“Today you will see a video of one of the most cold-blooded, vicious, and senseless crimes in the history of our state. I apologize for its graphic nature,” he said, looking at me. “I had hoped there would be no need to show these images to the court and the national viewing audience, but the defense’s decision to ask for a preliminary hearing necessitates reliving this horrific scene.”
I felt the eyes of the entire courtroom staring. Woody had kept his bearing neutral during Sam’s statement. Now he placed his hands on his forehead and crumpled his upper body to the table.
Sam concluded his opening remarks with, “Many a murderer acts out of passion or revenge, but few purchase a gun on Tuesday, carefully go about their business on Wednesday, and calmly walk up and execute a United States senator on Thursday. Whatever his reason, this is a textbook example of a calculated, premeditated, cold-blooded murder, for which Philip Cole deserves the maximum punishment provided by law, and in this state, that’s death.”
A string of witnesses for the prosecution established that Woody and Russell had argued Tuesday afternoon. No one knew the nature of the argument, but they’d overheard shouts coming from the senator’s office and recalled that Woody had stormed out of the office, slamming doors behind him.
The gun dealer, a Mr. Massie, established that Woody had purchased the gun Tuesday afternoon. He’d shown Woody how to load it and how to use the safety. Woody had paid cash, signed the appropriate forms, and appeared calm.
On cross-examination, he told Micki he never sold guns to suspicious-looking people or to those who seemed anxious, which Woody hadn’t.
FORTUNATELY, IT WAS past noon when the gun dealer completed his testimony, and the court declared recess until one-thirty. I was hopeful that Sam would take the rest of the afternoon presenting his case, buying me the day I needed. We went to the basement, and Woody was brought to the small conference room where we’d met before.
He was beside himself with remorse.
“I told you I wanted to plead guilty, and now I’m sure of it. Why put Mom, Beth, and everyone else through all this again? Even if you know why I wanted to scare Russell—and you don’t really know anything—I still killed him, and all the rest is just bullshit. I bought a gun, and I blew his brains out. Why can’t you let it be?”
Explaining my theory, the plan, or anything else didn’t make much sense now, so I tried to get him on a different tack. “Well, now that we’re here, why don’t you tell me exactly what you found out?”
Woody smiled wanly. “No way, Jack. I told you I wouldn’t help you trash Russell, and what happened today only reinforces my resolve. By the way, they let Lucy’s lawyer see me. I signed the paper releasing the opposition research. At least all that dirt won’t reach the light of day. Lucy’s probably destroyed the files by now.”
I didn’t tell him I had put a stop to all that this morning. I guess you could call it a premonition.
Micki interrupted. “Even if you won’t help Jack, can you help me with details that don’t relate to Russell? I take it that last Tuesday you did argue with Russell. Did the witness accurately portray your mood after your meeting? You stormed out, slamming doors?”
Woody nodded agreeably. Micki’s natural charm must have softened his resistance.
“Then you went to Janis Harold’s office, and right after meeting with her, you bought the gun and ammunition. Was the gun dealer’s account of what happened accurate? Were there any differences from his memory and yours?”
Woody said no.
“Thank you. Now, after you bought the gun, what did you do?”
Hesitating a little, he replied, his voice barely above a whisper. “I went to the bar at the Armitage and had a few drinks. Maybe more than a few. I don’t really remember.”
Micki stayed close to his face, looking him in the eye. “Did anybody see you there? Did you sit at the bar? Did you talk to anybody?”
He seemed oddly confused. “No, I sat where I usually sit, in the corner. There’s this cute waitress—Nicole. I ordered a drink and flirted a little. She’s very sweet and takes good care of me. Brenda Warner came over to my table, and we talked a while. Eventually, I left and went home.”
Micki glanced across the table at me. “Did you drive yourself or take a cab?”
Woody looked sheepish. “I guess I shouldn’t have driven.”
Micki gave him a sweet smile. “That’s okay, you’re not charged with DWI. I’ll give you a pass this time.”
I had to give her credit—she had him talking. I knew when to keep quiet.
Woody told her he had come home, steered clear of Helen, and gone straight to his room, where he sobered up. He told her about using Wednesday to get his affairs in order, spending time with Janis, and coming home with a couple of bottles of wine to drink with his Mom. He declined to talk about Thursday before the shooting and was getting more comfortable refusing to answer Micki. He admitted writing a check to Cheryl. Micki went back over the visit with Brenda, but he had little memory about what they’d talked about. He could tell her what Brenda was wearing, which didn’t surprise me, but the rest was a blur.
Next, Micki tried to get him to be more cooperative with our overall defense effort, using his work against the death penalty to make the argument, but she got nowhere.
“Look,” Woody said, “I’ll go along with Jack for this hearing, but the result won’t change. When I’m bound over for trial, I want you both to get out of my way. I appreciate your effort, but all it does for me is prolong the nightmare. Every night when I try to sleep, the shooting plays over and over i
n my head. Every minute we relive the scene in the courtroom only reinforces my decision.”
It was almost a relief when the guard came to take him away. His resolve to die hung over the room like an ominous cloud. Micki didn’t help my mood when she asked if Brenda had told me that she and Woody had talked Tuesday night, and I had to admit, she hadn’t. Maybe she didn’t think it was important, or perhaps the hotel’s lawyer had advised her not to tell me. I didn’t relish having to ask Brenda about this, but it would have to be done.
I brought up an idea I’d had while Micki was questioning Woody.
She gave me a doubtful look. “You know the first rule of cross is never ask a question if you don’t know the answer, right?”
I pointed out that we weren’t dealing with a jury, that we were merely trying to plant a seed that there might be more to Russell’s shooting than met the eye. I thought it was worth the risk.
“Besides,” I said, “I won’t be asking the question. You will.”
41
AFTER THE LUNCH break, as soon as the judge was seated, Micki rose to her feet. “Your Honor, Mr. Massie is still in the witness room. May I ask him a few more questions?”
Marshall looked at Sam, who shrugged. Massie returned to the stand, and the clerk reminded him that he was still under oath. Micki smiled pleasantly.
“Mr. Massie, during the recess, I realized I forgot to ask you a question. After Mr. Cole purchased the weapon, did anyone come into the store to ask you about Mr. Cole’s purchase?”
Massie answered, “Yes, after the shooting, I called the police and they came pretty quickly. I told them my story, and they took my records.” He also reminded Micki that our investigator had interviewed him as well.
“No, I’m sure the police and our people interviewed you, but did anyone else?”
Massie looked confused, then a light bulb seemed to go off. “Oh, you’re asking about the ATF?”
Micki encouraged him to explain.
“Two guys from the Alcohol, Tobacco, and Firearms Bureau came by the day after Mr. Cole bought the gun.”
Now Micki had everyone’s attention. “Can you describe what happened?”
“Two guys in suits came into my store Wednesday morning, said they were with the ATF, flashed their badges real quick-like, and said they were doing a random audit. They wanted to look at my sales records for the day before. It’d been a slow day, so it was easy to produce the receipts and records. They asked me specifically about the sale to Mr. Cole, took copies of the paperwork, and left.”
In a series of short questions, Micki got him to give a vague description of the two guys. He didn’t remember much. It was the first random audit he’d ever experienced. Hadn’t seen the guys before or since.
As Massie left the courtroom Micki whispered, “You’re not only good, you’re lucky.”
My turn to smile.
“Ms. Lawrence, that was all very interesting,” said Marshall, “but I’m not sure what it has to do with this hearing.”
Micki was ready. “Your Honor, I find it interesting that people claiming to be with the federal government were already investigating the purchase of the alleged murder weapon the day before it was allegedly fired.”
This created a hum. I knew it would bother Marshall’s logical brain. Hell, it bothered mine. I could tell it bothered Sam too, probably because he’d been caught off-guard. The carefully prepared testimony of his witness had gone off script.
His deputy went off script as well. “Your Honor, must we hear ‘allegedly this’ and ‘allegedly that?’ Is defense counsel really going to put us through these word games?”
Micki almost jumped up to engage, but thought better of it. The question had been addressed to Marshall.
“I believe that defense counsel made it perfectly clear to the prosecution and to this court that they intend to hold the prosecution to strict proof. At this stage of the proceeding, I find Ms. Lawrence’s reference to a gun that has yet to be introduced in evidence as ‘alleged’ to be appropriate language. I suggest the prosecution leave the conduct of counsel to me.”
The deputy sat down heavily, and Sam got the prosecution back on track by calling several state troopers to describe what they had seen the morning of the shooting. Each was more descriptive than the last. They all expressed regret at not stopping Woody. They’d all protected Russell when he was governor, and they were used to Woody giving Russell last minute changes to his remarks. They’d seen nothing unusual in Woody’s mannerisms, his clothing, or where he was standing. Nothing, that is, except the shooting itself.
Micki and I had made a conscious decision not to cross-examine any of them until we came to the trooper who actually wrested the gun away from Woody. Despite the testimony being repetitious, it was riveting. Each trooper described how Woody’s gun was first pulled from his coat pocket and then “jammed” against Russell’s head. Their accounts of the gun’s blast, the blood, and the mayhem that occurred afterward was gruesome.
At long last, Sam instructed the bailiff to play the video of the shooting. A large screen had been set up in the courtroom so everyone, including the judge and the gallery, could see. Afterward, he asked the testifying officer the magic question—the one that gets photos or videos introduced into evidence: “Is this video a true and accurate representation of what happened that day?”
The officer said it was, and without objection from the defense, it was admitted into evidence.
To rub salt in the wound, Sam had the bailiff play the video again, this time in slow motion. He asked the officer to walk through what was happening right before the shooting.
I had to admit that Sam’s performance was extraordinary, especially with so little time for preparation. He didn’t stop with the shooting. He showed Russell dead on the floor, blood oozing from what was left of his brain. He questioned the trooper repeatedly about the struggle for the gun. The trooper said he believed Woody was trying to hold onto the gun in order to kill others.
Sam sat down, looking grim. You could have heard a pin drop. You’d have to be made of crocodile hide not to sense the hostility. I scanned the gallery without seeing a soul who had any sympathy for Woody, except maybe Helen and Beth. After that scene, I wasn’t even sure about Maggie or Micki.
Marshall called for a recess. People fled the courtroom in droves to get some fresh air. Micki and I tried to breathe normally. Woody wouldn’t look at me. Peggy was nowhere to be seen. Only Rodney remained, looking green around the gills.
Maggie leaned across the table. “I know you’re loyal to your friend, but what a horrible thing …”
Sam’s presentation with the video had hit me hard as well. The slow motion and the repetition were devastating. The horror experienced by everyone present that day was palpable. How could I overcome what I’d just seen? The only positive was, I felt much more certain that what I’d thought I’d seen in the video was really there. What it meant was another matter.
Fortunately, Woody was returned to the holding area during the recess. I was relieved not to have to face him. I had to remind myself that I had a plan: Now wasn’t the time to give up.
My folks were about the only people left in the courtroom. I took a deep breath and said in a voice they could all hear, “Okay—we’ve taken their best punch. Let’s be ready to get back in the ring.” They all looked at me like I was crazy. “Let’s leave this witness alone. I’ll take the next one.” No responses, so I quietly told them what I planned to do.
When court resumed, Micki stated that we had no questions for the previous witness.
Sam rose, calling Trooper McSherry to the stand. The trooper was tall and intimidating. He’d been part of Russell’s security detail and had been closest in proximity to the senator on the day of the shooting. Sam moved him quickly through the lead-up to the shooting, but didn’t dwell on the details. McSherry described how he’d thrown Woody to the ground and that they’d wrestled briefly before he was able to pry away the gun. Woody
wasn’t strong enough to put up much of a struggle.
Sam introduced a series of still pictures of Woody on the ground, the gun, and Russell. Sam took McSherry through identifying the gun. He had him compare the records of the gun Woody had bought on Tuesday against the gun the trooper had taken from Woody and asked if they were identical. They were. He asked the trooper how many rounds were left in the gun, and the trooper answered five. Only one bullet had been fired.
Sam said, “Your Honor, we ask that the gun the trooper has identified be marked and admitted as People’s Exhibit 13—the murder weapon.”
I stood. “Your Honor, we have no objection to the gun coming in as an exhibit but do object to it being called ‘the murder weapon.’ It’s People’s Exhibit 13.”
Sam threw his hands up in mock surrender. “Okay, alleged murder weapon.”
I came right back. “No, it’s simply Exhibit 13.”
Marshall stepped in. “All right, you two. Exhibit 13 is admitted into evidence. Let’s move on.”
Nobody got it yet, but they would soon.
Sam turned to McSherry. “Officer, is there any doubt in your mind that Exhibit 13 is the same weapon that is shown in the video beside the head of Senator Robinson?”
McSherry shook his head. “No, sir—no doubt.”
“And is there any doubt in your mind that Exhibit 13 was the gun used to murder the senator?”
Again McSherry responded with, “No doubt.”
“Pass the witness.”
I felt charged up, but I didn’t want to appear to be in any hurry, so I measured my steps and paused before speaking.
“Trooper McSherry, did you know the defendant before the day of the shooting?”
Following that question, I took the trooper through a series of questions designed to establish that Woody was more than just a “hanger-on” around Russell’s office. The trooper was happy to confirm that Woody and then-Governor Robinson had conferred with each other all the time. They had argued in front of troopers or office staff on many an occasion, but never before had their arguments gone beyond raised voices. I also established that, during the year Russell was running for the Senate, Woody was the candidate’s constant companion. The trooper admitted that his security detail met with Woody often to go over Russell’s schedule and fine-tune security details. At least I was debunking the media myth that Woody was a “nut job.”