“You recall my asking you questions at the preliminary hearing?”
“Yes.”
“We talked about the call you got on the night of March 25. Do you remember that?”
“Yes.”
“I asked you if it was a call about possible domestic disturbance, or possible domestic violence. Do you remember that?”
“Yes.”
“And you weren’t sure, were you?”
“I’m sure now.”
“Are you telling the court your memory is better today than when you testified at the prelim?”
“I’ve had a chance to think about it.”
“Did anyone help you think?”
“I don’t understand.”
I motioned toward Benton Tolletson. “The district attorney, for instance?”
McGary shook his head. “He didn’t help me think.”
“You didn’t go over your testimony with Mr. Tolletson before your appearance this morning?”
“Sure I did.” McGary wasn’t intimidated by my question. Sometimes rookie officers will get the heebie-jeebies when asked that question, thinking that going over testimony is some evil act that will show their bias.
What I wanted was a hint that Tolletson had suggested the change. “Did Mr. Tolletson help you refresh your recollection?”
“Objection,” Tolletson said.
Surprisingly, Judge Wegland said, “Overruled. The witness will answer.”
“No,” said McGary. “I refreshed it myself.”
“Oh? And what memory refresher did you use?”
“I just thought about it, that’s all.” McGary sounded like a kid with cookie crumbs all over his face. They just appeared there, Ma. Honest!
I decided that was a good place to stop. Tolletson had only one more question to ask. “Officer McGary,” he said, “did I at any time suggest to you that you do anything but tell the truth here today?”
“No,” McGary said sitting up straight.
Then came the legal arguments. Since Tolletson had to come up with a justification for the warrantless entry, he argued first.
“Your Honor,” he said, “this case clearly falls under the exigency exception, and we have a case on point, People v. Higgins. Officers responded to a domestic violence report. The court held they had a reasonable belief that domestic violence had happened, and therefore, going into the house to make sure everything was all right was permissible. It’s the same here, Your Honor.”
“Mr. Denney?” Judge Wegland said.
I was caught off guard. Tolletson had just cited a case I’d heard of, but I couldn’t remember the facts of the case. If I didn’t say something in response, I’d lose for sure.
I remembered I’d tossed into my briefcase a copy of a book called Points & Authorities on Searches & Seizures, a handy reference to the law. I fished it out and looked up the summary of the case Tolletson cited.
“Your Honor,” I said, “it appears that in Higgins a woman came to the door looking frightened. It was that observation that made the police suspicious, and that’s why the court held it was an emergency. In the present case, Your Honor, there is no such observation. In fact, there was no answer at the door at all, nothing even to indicate anyone was home.”
I knew I’d done well when Judge Wegland looked back at Tolletson almost rebukingly. And I must say, I enjoyed watching him squirm a little.
“Well,” Tolletson said, “that may be. But there is another difference. We have the open back door. That is an indication that something was amiss. Surely a reasonable officer would want to at least take a look.”
Flipping through the Points & Authorities, I said, “But the entry violated knock-notice provisions, Your Honor. Under the U.S. Supreme Court case of Sabbath, just a knock and a wait of a few seconds before entering was not valid.”
Tolletson was ready. “In Sabbath, Your Honor, the door was closed.”
I could feel the judge looking back and forth at us, like this was a tennis match between Sampras and Agassi. And it was exhilarating to be standing toe to toe with Tolletson and looking for an ace.
I flipped another couple of pages. “But it doesn’t matter if the door is open or closed, Your Honor. The California Supreme Court, in Bradley, ruled that a no-knock entry through an open door violated the Constitution.”
“These are minor distinctions, Your Honor,” Tolletson insisted.
“They are distinctions recognized by both the United States and California Supreme Courts!” I answered. “And I object to the district attorney calling the rights of all people ‘minor.’”
I thought for a moment that Tolletson actually snarled at me, but the judge interrupted. “All right, all right. Anything else?”
“No, Your Honor,” I answered, feeling confident for the first time. I’d done well. If the judge was at all open-minded, there was a slight chance I could actually win this thing.
Benton Tolletson had nothing more to say, and we both sat down. We then watched as Adele Wegland shuffled through papers and thought for about five minutes.
Then she looked up and said, “Motion denied.”
I felt like I’d gotten a Doc Marten to the stomach. Wegland called a recess until 1:30, at which time we would begin selecting a jury.
Howie had been silent, almost motionless, throughout the morning. Now, as I gathered up my papers, Howie said, “We didn’t do too good, did we?”
“No, Howie. We didn’t.”
He didn’t say another word as the deputy led him back to lockup.
CHAPTER TWENTY-SIX
JANET AND FRED asked if they could buy me lunch. I demurred, making some noises about wanting to do some preparation. In reality, I wanted to get a quick drink.
I decided to return to Frisbee’s. Somehow it seemed like my home away from home, or my tavern away from Max’s. Maybe I’d see the pretty waitress again.
I didn’t. This time I got a not-so-friendly waitress with an empty-eyed look I’d begun to notice in a lot of young people. A few sociology types I’d read said this was a new “lost generation.” Maybe I’d join.
After I’d ordered beer and a hamburger, I took out the Hinton Valley News I’d bought at the courthouse.
I was stunned by what I saw on the front page.
“Disciplined Lawyer Defends Local Killer,” the headline shouted. My throat clenched as I read, in lurid detail, the record of my life as a drunken lawyer. Just about everything was there, as if I’d given a detailed confession myself. Only I hadn’t. The reporter got the information from someone else.
I suspected Tolletson. In fact, I was beginning to suspect Tolletson of being capable of anything, of engaging in almost any tactic in order to win.
My imagination got to work on me. Were the people in the bar looking at me? Were they whispering to one another, giving each other surreptitious jabs with their elbows, nodding toward the sad-sack lawyer at the far table?
My mood darkened to the point where I thought I could give my waitress a run for her money in the angst department.
That’s when I saw Lindsay Patino enter the bar.
At first I was sure it wasn’t her, that it had to be some look-alike. Lindsay in a bar? But then she saw me and came to my table.
“What are you doing here?” I asked.
Her hair was beautiful with the light behind it. “Are you all right?” she asked.
I put my hands out in a gesture of disbelief. “Of course I’m all right. How did you know I was here?”
“May I sit down?”
“Look,” I said, “I’m trying to get my head together for the afternoon.”
She sat down and looked from my eyes to my half-empty beer glass and back up to my eyes. “Why are you doing this, Jake?”
“Doing what?”
“Drinking.”
“I’m having a beer. Who are you, my mother?”
She pretended not to be hurt, but I thought I saw a pained expression flash across her face, then disappear. �
��No,” she said, “but I am concerned.”
“About what?”
“About Howie. About you.”
“I don’t want your concern,” I snapped. “I want to be left alone to do my job.”
“You don’t have to be alone, Jake.”
That was a strange answer, and I was not entirely sure what she meant. Was she offering me her company? Or something else? Regardless, in my mood it sounded patronizing.
“I have work to do. Okay?”
“I saw the story.”
“In the paper?”
She nodded.
“So?”
“I didn’t know, Jake.”
She said it sympathetically, but that was the last thing I wanted. “So now you know. I had a drinking problem, messed up a case. You want to fire me?”
“No—”
“You want to have me put away so I can’t do your brother any harm?”
“Jake, I—”
“What do you want, Lindsay?”
“To help.”
“I don’t need your help.”
“Everyone needs help.”
“I don’t. If I get falling-down drunk and can’t make it to court, then you can help me. Until then I’ll thank you to keep your concerns to yourself.” I was just this side of all-out nasty, leaving in just enough cruel to get her to leave. She didn’t, and for a second I felt a grudging admiration for her. She had some inner strength keeping her seated across from me. But admiration or no, I didn’t want her here. I didn’t want her to see me drinking. I didn’t want her to see me fighting back the darkness.
“I remember one time,” Lindsay said, “when we were kids and I was following you and Howie around, like I did, and it was summer. You guys were going down to the 7-Eleven for a Slurpee, and I wanted one too, but you and Howie tried to get me to buzz off.”
She paused for a moment, maybe to see if I had any recollection. I didn’t, though I did have a general recollection of Lindsay, the little sister, hanging around.
“Well, my mom told Howie he had to take me with him, so I got to go. After we got our Slurpees, we were walking down the street, and we came to this liquor store.”
I remembered the liquor store. It was the little one where my dad usually bought his supply.
“As we were walking by, this man stumbled out. He had a paper sack under his arm, and I remember he had red eyes, the reddest I’d ever seen, and I was scared. I thought he was a vampire or something. And he was dirty. His face was dirty, and he smelled bad. I could smell him even from where I was, which wasn’t that close.”
Slowly, I started to remember.
“And you and Howie were right next to him when he came out, and he said something to you. He said something like, ‘Hiya, kid!’ He said it like he knew you. And then you stopped and said something back to him. Then he said, ‘Tell your old man he owes me money! You hear me? Tell him!’ He yelled this at you. Then he stumbled away, my way, and I got up against the wall to let him pass because I was scared of him.”
Now it came back.
“I went up to you and said, ‘Who was that man?’ I said it because I was so amazed that you knew him, and I’d never seen any man like that before. It was an innocent question, like a little girl would ask. And then you—”
“Screamed at you to get out of there,” I said.
Lindsay nodded. “Or else you’d sock me in the nose.”
“Thanks for the little stroll down memory lane.”
“I’m sorry, Jake, I didn’t mean to upset you.”
“Then why bring it up?”
“Because I felt something then that I’m feeling now. You didn’t just scream at me, Jake. Your face got so red, and your eyes were wild. It was like you were screaming at the world.”
“So that’s what you think I’m doing now?”
“Maybe.”
“Thanks, doctor.”
“May I tell you something?”
“No.”
“I’m going to anyway,” she said, and there was that inner strength again. That’s when I felt myself pulled in two directions at once regarding Lindsay Patino.
“I don’t know all you’re going through,” she said, “and I’ve been through some things I don’t think you’d believe. But Jake, I got pulled through by the same things AA talks about. I had to admit I was powerless, and that––”
A rock-solid wall shot up in my mind. “That’s enough.”
“I want you to know—”
“I don’t care.”
“I do.”
My eyes must have told her I was through. She got up and walked out, and as she did, I felt like the last light of day had just disappeared.
I have a fatalistic attitude toward juries. Some lawyers say that jury selection is the most important part of a trial. Others—a minority, I should add—pretty much go with the cards they’re dealt. That’s me. All I hope to do is get rid of any obvious bad eggs with my peremptory challenges, then move on.
It took us just three hours to seat a jury. I only used three challenges. The first was against an older woman whose daughter was a waitress—too much identity with the victim.
My second peremptory was used against a fireman whom I bumped for no reason other than that he looked too much like Benton Tolletson.
The third juror I got rid of was a deacon at a Presbyterian church. Why? Because Clarence Darrow once wrote an essay on jury selection and explained that he always bumped Presbyterians. I wasn’t about to argue with Clarence Darrow.
Adele Wegland seemed pleased. We had a jury in very short order, and the trial itself could start tomorrow morning. In addition to being tough on the defendant, she would be viewed as running an efficient and orderly court. I could feel the choke chain growing tighter around my throat.
As I was packing to leave the courtroom, Benton Tolletson strode over to me. The man never strolled. He seemed to march wherever he went. “Last chance for a deal,” he said. “Once the jury is sitting in that box, I’m going all the way.”
What happened next was my own sorry fault. I admit that. But I was ragged. I was tired from the day in court, drowsy from three beers at lunch, and drained from my little visit with Lindsay Patino. My motion to suppress evidence had been summarily denied, and I was facing the prospect of a trial that was going to be nearly impossible to win.
In other words, the rational thing was for me to grab whatever scraps Benton Tolletson was tossing out to me and go home.
I did not, however, take them.
Instead, I looked at the man who still reminded me of my father, an officer of the court whom I had a sneaking suspicion was not all open and aboveboard, and I said, “Benton, you can take your offer and stick it where the lights of Hinton never shine.”
He reacted like he’d been slapped. Red blotches appeared on his cheeks like emerging land masses from receding ocean waters. I could almost hear the snapping of synapses in his brain as he searched for a response. Then it came. “I’m going to drag you through the dirt, Denney,” he said. “I’m going to make you bleed.”
CHAPTER TWENTY-SEVEN
AT 9:15 ON Tuesday morning, Judge Adele Wegland turned to the twelve jurors and two alternates seated in the box and said, “Good morning, ladies and gentlemen.”
“Good morning,” they answered like kids in an elementary school classroom.
“You have been selected and sworn in as jurors in the case of the People of the State of California v. Howard Patino. I want to start by thanking all of you for accepting your duties as jurors. This is what people used to call a civic responsibility, and I, for one, still feel that way.”
Bully for you, I thought as I sat at counsel table. A judge who still believes in responsibility. I glanced back at the gallery. Janet and Fred Patino were seated there. Lindsay was not.
Triple C was seated on one side of Howie and I was seated on the other. Howie was looking down at the table. Triple C did not look like himself. He was wearing a coat and tie.
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“This is a criminal case. The defendant has been charged with murder in the first degree. I’ll be telling you later on about what that means and what the law is that applies here. But it is your duty, and yours alone, to decide what the facts are. That’s not my job, and it’s not the job of the lawyers. It’s yours. That’s one of the cornerstones of our judicial system.
“Now, it’s my job to see that this trial runs smoothly. I’ll be called upon by the lawyers from time to time to make a legal judgment. I will also need to make judgments about time and scheduling and about the all-important lunch break.”
The judge paused like a comedian, and the jury, as if on cue, delivered polite laughter. I wondered how many times Judge Wegland had used that line.
“I’ll do my best in that regard. But when I make a ruling on an objection, or when the lawyers come up for what we call a side bar, you are not to speculate about the reasons. Don’t draw any conclusions because I sustain or overrule an objection or yell at the lawyers.”
The jury laughed again. Wegland knew how to play to the crowd.
“Let me tell you a little bit about the trial process. First of all, each attorney has the opportunity to address you with what is called an opening statement. That is their chance to give you an overview of what they believe the evidence will show after the trial is through. It’s important for you to remember that nothing the lawyers say to you is itself evidence, and you are not to take it as such. You are to judge the facts solely on what is admitted by me into evidence.
“After the opening statements, witnesses will be called to the stand, where they will testify under oath. There will be an opportunity for cross-examination of any witness. Exhibits and documents may be offered into evidence as well. The important thing is that you all keep an open mind about this case until all of the evidence has been presented, the lawyers have given you their closing arguments, and I have instructed you on the law. Do not form any final opinions about this case until you go into the jury room together and begin your deliberations.”
Inside, I laughed. Most jurors form strong opinions well before entering the jury room. Everyone knows this, including the judges who admonish them.
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