“No further questions,” Levin said, leaving Kerry’s case to rest on the shoulders of an eight-year-old boy.
FIVE
That night, Kerry lay awake.
At his request, Judge Weinstein had recessed without calling John Musso. Kerry’s stated reason—an eight-year-old should not suffer two days of testimony—was true. But it was the other reason that stole Kerry’s sleep and shadowed his conscience: the balance between the child’s interests and Kerry’s own.
Even now, he could dismiss the case; perhaps Anthony Musso, intimidated by the courtroom, would leave his wife and son alone. Then the sole humiliation would be Kerry’s, and John would be spared the choice between helping to jail his father and endangering his mother. Remembering Anthony Musso’s eyes, Kerry imagined in his tiredness that he held John’s life in his hands.
Why had he done this? Kerry wondered. Where did the Mussos end and Kerry begin—his own ego and ambition, his own bitter memories, his own childhood wish for a savior? When he looked into John Musso’s face, did he see himself reflected? Or was he better than that—a man who had never wanted this case but knew, from hard experience, that there would be no end to violence unless he ended it?
To be eight, he had said to Bridget Musso, was hard enough without fearing your father, fearing for your mother.
Reaching out, Kerry turned on the bedside lamp. Dim, it cast shadows in the room; he thought first of his own childhood, his father’s footsteps on the stairs, and then of Anthony Musso, standing over Bridget as his face came into the light.
What he had now was instinct—that Anthony Musso, unlike Kerry’s own father, was insane.
Rising, Kerry prepared for court. He had come too far.
* * *
As he took the witness stand, John Musso’s throat twitched.
His father stared at him from the defense table. John would not look at him; his glances at the lawyers, the jury, the seeming vastness of the courtroom, were surreptitious, as if the shafts of sunlight hurt his eyes.
To counteract this, Kerry had placed Bridget on the bench behind him. The primal symbolism—a child choosing between mother and father—seemed to highlight the boy’s frailty. He looked pallid, close to nausea, and his face was a yellowish hue. His feet did not touch the floor.
Careful to keep his father from the boy’s line of sight, Kerry stood close to him.
The first problem, Kerry knew, was whether he could qualify John Musso as competent to testify; the second was to ensure that his testimony—if John had the courage to give it—did not produce a mistrial or an appeal. “Kid witnesses are tricky,” Clayton had told Kerry. “They don’t understand they’re only supposed to testify about what the charges are, not everything they ever saw.” Before trial, Weinstein had precluded any evidence that Anthony Musso beat his wife beyond the night in question. It frustrated Kerry that presenting the truth—that Anthony had beat Bridget for years—could set Anthony free, making his son’s testimony an even greater risk.
Kerry faced the boy, hands in his pockets. “Can you tell Judge Weinstein your name?” he asked.
John swallowed. His voice was slight, reluctant. “John Musso.”
“You know me, right?”
The boy paused, and then his eyes lit on Kerry as if he were his refuge. “You’re Kerry,” he answered.
The simplicity with which he said this had undertones—that Kerry Kilcannon was important to him, perhaps a central figure in his life, surely the reason John was testifying. Feeling the weight of this, Kerry stood next to the boy, speaking softly.
“Do you know why you’re here?” Kerry asked.
When John swallowed again, it racked his body. “I’m here—” John stopped, then started again. “I’m here to say what happened to my mom.”
“Did anyone tell you what to say, John?”
John hesitated, gazing at Kerry as if for clues, then answered, “You did.”
Kerry tensed; for the judge or jury to misinterpret John’s answer could be fatal. “What exactly did I tell you?”
“To tell the truth.” For an instant, Kerry experienced relief, and then John added, “If I did that, you said you’d put my dad in jail.”
Kerry felt his nerves jangle. From the bench, Weinstein gave him a sharp look and then asked John, “Do you know what the truth means, John? Is the truth what Mr. Kilcannon told you to say?”
Taut, Kerry watched the boy turn his fearful gaze to Weinstein. He could not seem to speak.
More sharply, Weinstein asked, “Did Mr. Kilcannon tell you what to say?”
John’s throat twitched again. In a slight voice, almost inaudible, he said, “Kerry told me to say what happened.”
Moving between Weinstein and the boy, Kerry faced the judge, holding up one hand to intercede. Reluctant, Weinstein nodded. Turning to John, Kerry asked, “You know what happens to people who lie, don’t you, John? You told me about that.”
Emphatically, John nodded. “Telling lies is a sin against God. Jesus punishes liars.”
Turning to Weinstein, Kerry raised his eyebrows. Satisfied, the judge nodded. “Go ahead, Mr. Kilcannon.”
The jury, Kerry saw, was watching intently, for the next few questions could decide the case. Facing John, Kerry asked quietly, “Do you remember the night your mom was hurt?”
For the first time, John sneaked a look at his father. Glancing at the defendant, Kerry imagined the fright Anthony could induce in this boy by the simple, but inhuman, act of never seeming to blink. Kerry could only wait, wondering if the child would collapse. Behind Kerry, Bridget watched her son with parted lips, and then the boy looked up at her.
“I thought my mommy was dead,” he answered, and Kerry heard the fear, the helplessness, that the boy must have felt. The same fear Kerry had felt for his own mother.
“So you called 911,” Kerry said.
“Yes.”
“Do you knowhow your mommy got hurt?”
John’s shoulders curled in, and he looked away; Kerry recognized the posture of a boy who had learned that his position was hopeless, that speech was dangerous, that trust was hurtful.
“John,” Kerry asked, “did you understand my question?”
John turned to him; in his flickering eyes, Kerry saw him weigh all his experience of life against his experience, much briefer, of Kerry Kilcannon. “I was in my room,” he said.
Kerry drew a breath. “And what happened?”
John closed his eyes. “He was shouting—”
“Who?”
Eyes still shut, John’s face worked. “My dad.”
The jury was rapt now; whatever John might tell them, there could be no doubt of his fear. Gary Levin watched him intently, eyes narrowed.
“Did you stay in your room?” Kerry asked.
The boy nodded. “I pulled the covers over my head.”
Kerry froze; the answer was a surprise, and if it held, his case was over. He struggled for a question. “Then how did you know your mommy was hurt?”
The boy stared at his folded hands and then looked sideways at his mother, as if to see if she was still there. “I heard Mommy screaming.”
Kerry walked to the witness stand; laying one hand on its arm, he stood next to John, a friend, so that the jury could see their faces. Softly, he asked, “Were you afraid for her?”
The boy’s eyes opened slowly. “Yes.”
“What did you do?”
John folded his arms, seeming to shiver. “I got out of bed.”
“Where did you go?”
“The living room. But no one was there.”
“Then what happened?”
The boy swallowed again, then started coughing so violently that his body was racked and spittle came to his lips. Kerry went to him, bracing both of John’s shoulders until the coughing subsided. Gently, he wiped the boy’s mouth with a tissue. “Are you all right, John?”
Opening, John’s eyes were pools of fear and, beneath this, pleading. Kerry felt wretched.<
br />
“Would you like a recess?” Weinstein asked.
Kerry looked into the boy’s face. John Musso wanted to leave, Kerry suddenly knew, but once he did, he might never return. “No,” Kerry said coolly. “I have only a few more questions.”
John blinked; he was not fine, this said, and Kerry was forcing him to stay here. “When you went to the living room,” Kerry asked, “did youhear anything?”
Kerry gazed into the boy’s eyes, demanding an answer. John swallowed again, then murmured, “They were in the bathroom.”
“What did you do?”
The boy licked his lips, still looking at Kerry. “I went there.”
“Did you see your mommy?”
Slowly, John nodded, gaze suddenly downcast in mortification. “She was on the potty, crying.”
“Was your dad there?”
The boy’s eyes closed again. “Yes.”
“And what did he do?”
John looked at his mother. Across the courtroom, tears welled in her eyes. The boy gazed at her, then glanced briefly at his father. He spoke to the floor. “My dad hit her.”
Kerry exhaled again. “What happened to your mom?”
John looked up at his mother again. “She fell off the potty.”
“Did she get up?”
“Yes.”
“And then what happened?”
In the long pause that followed, the boy closed his eyes again; the jury leaned forward; his mother, tear-streaked, bowed her head in the attitude of prayer. Kerry felt the sweat on his forehead, a hollowness in his stomach. When at last John spoke, it was in a dull monotone, to Kerry.
“My dad grabbed Mommy’s hair and smashed her face into the sink.”
* * *
Slowly, deliberately, Gary Levin walked toward John. His line of approach forced the boy, if he looked at the lawyer, to see Anthony Musso behind him.
“You don’t have to look at him,” Kerry had said. “Look at me, or your mom. All you have to do is tell the truth.”
Hands folded, John gazed at Kerry, the man to whom he had just given his trust and, more than that, his loyalty. “Your mommy drinks whiskey,” Levin asked, “doesn’t she?”
John shook his head. In a tone of faint pride, he said, “Mommy doesn’t drink anymore.”
“But she used to.”
“Yes.”
Pausing, Levin adopted a tone of kindly inquiry. “Sometimes your mommy hurt herself.”
The boy paused. Tense, Kerry felt time stop; this was a process he could not control, and fearful that John could not absorb too much coaching or subtlety, he had not warned him of what he should not say. How could he ask this boy to tell the truth, he had said to Clayton, as long as it wasonly the truth that Kerry needed? Whatever else the boy had seen and heard, Kerry must hope, would remain locked inside him.
John folded his hands. “Mommy has epilepsy,” he said with a certain dignity. “The fits make her fall down.”
“And that’s how your mommy hurts herself, isn’t it? Falling.”
Behind Levin, Anthony Musso stared at his son with what seemed, to Kerry, a chilling admixture of hatred, command, and indifference to the boy’s ordeal. Seeing his father, John looked away, his voice anxious. “Sometimes.”
“And when you called 911, you just told them your mommy might be dead.”
John swallowed. “I don’t remember.”
“But isn’t that all you said when the police came?”
John shook his head, confused, unable to answer.
Levin moved forward now, voice and manner kindly. “John,” he said in a tone of understanding, “you like Mr. Kilcannon, don’t you?”
Looking at Kerry, the boy nodded. “Yes.”
“And you want him to be proud of you.”
The boy looked from Kerry to Bridget. “Mom, too.”
Levin smiled. “They’d want you to tell the truth, right? That’s all that Mr. Kilcannon wants.”
The boy nodded. The seduction was beginning to work, Kerry saw; caught in a rhythm of answers, Levin’s seeming approval, John had his eyes on the lawyer now.
“So,” Levin said, “isn’t it the truth that you met with Mr. Kilcannon and found out it would please him if you said your dad hurt your mom?”
For a long time, John hesitated, and then he said, “I wanted to help him.”
Levin nodded. “So you did, John. By telling him your dad pushed your mom into the sink. But you don’t reallyknow what happened, do you?”
John folded his arms again. “I dotoo know.”
His voice was stubborn, angry. Edgy, Kerry felt himself begin to rise.
Almost pityingly, Levin said, “Your mommy drinks, doesn’t she? And then she hurts herself.”
John straightened in his chair, looking at the lawyer with a sudden rage that startled Kerry. “Daddy hurts her. He hurts her all the time—”
“Your Honor,”Levin called out, but now John Musso had turned to the jury, voice piping and insistent. “He punches her in the face and in her stomach—”
In the jury box, Kerry saw the black woman shudder.
“Your Honor,” Levin said at once, “I move for a mistrial.”
* * *
They sat in Weinstein’s airy chambers—the judge, Kerry, Levin, and a court reporter.
“The testimony’s prejudicial,” Levin insisted. “The charge is whether my client is responsible for a single incident—the only oneever reported to the police. Suddenly he’s this brute who routinely uses his wife as a punching bag. There’s no way he gets a fair trial.”
Weinstein turned to Kerry. “I agree with Mr. Levin—there’s a problem here. Why go on and risk getting reversed on appeal?”
Kerry paused, gathering his thoughts. “Let Mr. Levin appeal, Your Honor, if he thinks that flies. But a mistrial?I didn’t ask John the question, although John’s answer shouldn’t surprise anyone—especially Anthony Musso’s lawyer.” Pausing, Kerry turned to Levin. “Mr. Levin pushed and pushed an eight-year-old boy—”
“Youput him there,” Levin shot back, red-faced. “It’s up to you to tell him what the rules are.”
That this might be true only made Kerry angrier, more impassioned. “Your Honor,” he said to Weinstein, “Mr. Levin effectively called this boy a liar, a pawn in my vendetta against his dad. The boy fought back with the only weapon he had—the truth. The defense got what it deserved.” He lowered his voice. “What itdoesn’t deserve is a mistrial. This boy has seen enough and suffered enough. To put him through all this again would be an act of cruelty.”
Slowly, Weinstein nodded, and then spoke with what, to Kerry, was surprising compassion. “I agree with Mr. Kilcannon. The testimony wasn’t his doing, and it’s painful to watch this boy. If he has to come back here again, it’ll be because the court of appeals says so, not me.” He turned to Levin. “Mr. Levin, I’m instructing the jury to disregard all testimony about any other alleged acts of domestic violence. Motion denied.”
Levin frowned. “For the record, Your Honor, if Mr. Musso is found guilty, I’m taking this to the court of appeals.”
Weinstein shrugged. “That’s what it’s there for,” he said, and the conference was over.
On the way out, Kerry put his hand on Levin’s shoulder. “Why don’t you put Musso on the stand, Gary. Have him explain why he stepped over his wife’s body on the way to the local bar, leaving his eight-year-old son there, afraid she’s dead. That’ll fix everything.”
Levin flushed, clearly angry. He stalked back to the courtroom without answering.
In the clearest possible terms, Judge Weinstein instructed the jury to disregard John Musso’s answer. But Kerry knew that they could not; the damage was there, in the transcript of the trial, a ticking time bomb. To spare the Mussos further agony, he would have to win twice—here and on appeal.
Resuming his cross-examination, Levin was cautious. “Isn’t it the truth, John, that you never told anyone that your dad beat your mom until after you met with
Mr. Kilcannon?”
Swallowing, John looked at Kerry. With a small nod, Kerry gave his permission.
“Yes,” John said.
“And you’ve met with Mr. Kilcannon a lot.”
“Yes.”
“And gone over your story, again and again, to make sure you get it right.”
“Yes.”
Levin put his hands on his hips. “Mr. Kilcannon made a promise, you said? That if you helped him, your dad would go to jail?”
A glance at Kerry, a nervous bob of the head. “He promised me.”
“And that’s what your mom says she wants too. Your dad in jail.”
Suddenly John Musso looked exhausted; the question went to the choice he had made and, because of this, shamed him. “Yes,” he answered in the voice of a guilty child or, perhaps, a liar.
Levin, Kerry saw, had gained back a little ground. As if sensing this, the lawyer said, “No more questions.”
Kerry stood, irresolute. With luck, he could repair the last few minutes. Looking back at him, John Musso’s eyes pleaded for relief.
Gently, Kerry said, “Thank you, John. It’s over,” and the case for the prosecution was done.
SIX
From the first words of his closing statement, Kerry felt off balance, defensive.
Gary Levin had not called Anthony Musso to the stand; it deprived Kerry of his aggressive edge, the chance to show Musso for what Kerry knew him to be. At once, Kerry sensed that Levin would makehim the issue, resting his hopes on the assertion that Kerry had fabricated the case and, if Kerry won, using John Musso’s blurted accusation as grounds for appeal. For that, Kerry blamed himself; suddenly the trial seemed far too much about him—hispassion,his mistakes.
Now, facing the jury, Kerry tried to be the calm professional, marshaling the evidence: that John Musso’s story buttressed Bridget’s, that Anthony Musso—as confirmed by the police—had not called 911. “All I ask,” Kerry concluded, “is that you find Anthony Musso to be whathe knew he was when he fled that apartment—guilty of a brutal crime against a defenseless woman, witnessed by a helpless child.”
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