During the direct, Tolletson had placed a diagram of the Patino home on an easel so McGary could refer to it. I approached the diagram, which the jury could see as well.
“Now, Officer, let’s turn to your testimony about what you saw in the bedroom. I believe you testified you saw Mr. Patino lying on the floor here, at the spot where you earlier placed a red D, for defendant. Is that correct?”
“Yes.”
“And you described Mr. Patino as being ‘out of it.’ Were those your words?”
“Yes.”
“Meaning he was not rational.”
“I didn’t say that.”
“That’s what you meant, though, isn’t it?”
“No, I meant he was ‘out of it,’ that’s all.”
He had wandered into the thicket of meaningless distinction, a place jurors don’t like witnesses to go, so I hammered on. “Come now, Officer McGary, what does ‘out of it’ mean if it doesn’t mean irrational?”
“Well, what I mean . . . what I’m saying is he looked like he had just gone through some major deal and was upset.”
“Isn’t part of being upset that you don’t think straight?”
Tolletson stood up to protect his witness. “Your Honor, Officer McGary is not testifying as an expert on mental state.”
“He was expert enough to offer his opinion on direct,” I said. “I should be able to cross-examine.”
After a short pause, Wegland said, “You’ve made your point, Mr. Denney. Move on.”
Be a good little boy, and don’t try to show up this fine, upstanding officer, Mr. Denney. We can’t have that now, can we?
Trying to keep my composure, I said, “At the very least, Officer McGary, my client did not appear normal, did he?”
“Depends.”
“On what, sir?”
“On what you mean by normal. Somebody who has just killed his wife, maybe it’s normal for him to be out of it.”
“I object to that answer, Your Honor, and move to strike.”
“All right,” said the judge reluctantly. “The witness’s last answer will be stricken, and the jury is instructed to disregard it.”
“You say you saw the knife,” I continued. “On the diagram, that’s where you’ve placed a small K, is that correct?”
“Yes.”
“And it was how far from my client?”
“Just about arm’s length.”
“But he wasn’t holding it, was he?”
“No.”
“You never saw it in his hand at any time, did you?”
“No.”
That’s when I asked the question that Benton Tolletson had conveniently ignored during his direct. “Did the police lab find any fingerprints on this knife?”
McGary paused, looked slightly confused, then said, “I don’t know.”
“You don’t know?”
“I haven’t seen the report.”
“Would it surprise you to know there were no fingerprints on that knife?”
“Objection,” said Tolletson.
“Sustained.”
It was good place to stop. The jury would be wondering about the fingerprint issue, and I wanted them to wonder. I said, “No more questions,” and sat down. Tolletson asked a few more questions on redirect, but I added nothing further. Things had gone about as well as could be expected.
My entire strategy was one of basic, reasonable doubt. I had to raise enough red flags in the minds of the jurors to convince them to reject the prosecutor’s case. It was a long, long road, but at least I’d taken a step in the right direction.
CHAPTER TWENTY-NINE
DURING THE LUNCH break, I strategized with Triple C on a park bench in the center of Hinton. We plotted between bites of roast beef sandwiches, courtesy of Trip. I was starting to go over the afternoon schedule when Trip said, “This town gives me the creeping willies, like one of those places in a horror novel where evil things are going on beneath the surface.”
“Where’d that come from?” I asked, agreeing with him more than I cared to admit. The truth was, I’d had a similar feeling from the moment I first got here but dismissed it as nothing more than my own insecurities.
“Just a feeling,” Trip said. “Sort of a Scottish play thing.”
“Huh?”
“You know, the Scottish play.”
I shook my head.
“By Shakespeare. The Scottish play . . .”
“You mean Macbeth?”
“Don’t say it!”
“What is wrong with you?”
Trip put his half-eaten sandwich on his lap, I suppose so he could motion with his hands, which he did, wildly. “You never call it that, man! It’s a theater superstition. See, that play is about witches and spells and all that, and theater folk believe there’s dark forces at work whenever there’s a production of the Scottish play.”
“Oh, come on.”
“No lie! Things happen. Accidents. Actors have died. Look it up.”
Trip was sounding serious, which made the whole thing a lot more disconcerting. I found myself believing that something like that might possibly be true.
“It’s like that here,” Trip continued. “I feel like there’s some stuff going on we don’t see. I felt like that in the courtroom.”
“When?”
“When Tolletson was questioning that cop. There was something going on between ’em.”
“That’s usual for a prosecutor and a policeman.”
“No,” Trip insisted. “Something more.”
“Like?”
“Don’t know.”
“Very helpful. Don’t quit your day job.”
“I don’t have a day job. I work for you.”
I laughed, but it was a short one. A long silence followed.
“What is it?” Trip asked finally.
I shook my head. “I don’t know, exactly. You feel like there’s weird stuff going on in town. I feel like there’s weird stuff going on with me and this case.”
Trip looked at me. “I think I know what that’s about.”
“Yeah?”
“Booze.”
“Oh come on, will you?”
“Just my opinion, as a friend.”
“I don’t need your opinion, as a friend.” I was too sharp with him and wouldn’t have blamed him if he threw his sandwich in my face. He didn’t. I sensed his shoulders hunching a little, and he looked straight ahead, pushing the rest of his lunch into his mouth.
After a minute or so, my anger subsided, and I felt terrible. Trip was maybe the last friend I had on this earth. I pulled myself together enough to say, “Look, I just know one thing.”
Trip waited for me to tell him.
“I’ve got to win this case.”
Trip leaned back slightly, as if to give himself room to look me over. “Man, you can’t put all your eggs in this basket,” he said.
“I am.”
“Because he’s your friend?”
I shook my head. “Really, that doesn’t have anything to do with it. I care about him, sure, but that’s not it.”
“So why?”
“I don’t know. I just have to win this one, that’s all.”
Triple C nodded and put one of his big, strong hands on my shoulder. He gave it a little squeeze and said, “Okay, then. Let’s go win it.”
It’s no wonder I self-destructed on the cross-examination of Daphne Barth. During the afternoon session, I was nervous and jittery. I kept trying to concentrate on what was going on in the courtroom but kept thinking about a bunch of other things, including getting a stiff drink.
Tolletson took his nice-little-old-lady through her story, how she heard a loud voice across the street and called 911. She testified in a calm, grandmotherly fashion, occasionally saying something that drew a sympathetic laugh.
She was, in short, a great witness for the prosecution, which left me with a dilemma.
Trial lawyers will tell you that there are two kinds of witnesses
you have to approach with extreme caution in cross-examination—old folks and children. The jurors side with them and don’t like lawyers getting rough with their questions. Another rule is that if you can’t get something extremely worthwhile out of a witness on cross, it’s best to leave that witness alone.
I should have left Daphne Barth alone.
I didn’t.
“Do you recall,” I asked her as I rose to my feet, a note pad in my hand, “an occasion when I visited your home?”
“Yes, I do,” Daphne Barth answered directly, without fear.
“We spoke about this case, didn’t we?”
“You asked me some questions about it. I’m afraid I wasn’t very helpful.”
“But you do remember, don’t you?”
“Oh, yes.”
So far, so good. I was laying a foundation to retrieve from her some of the information I’d extracted on that earlier visit.
“Now, you testified here today about hearing a voice shouting from across the street, is that right?”
“That’s what I told Mr. Tolletson, yes.”
“And the jury.”
She looked at the jury and nodded. “Yes,” she said. I caught a glimpse of a few jurors’ faces. It was like they were listening to their own mother.
“You have no way of knowing whose voice that was though, do you, Mrs. Barth?”
“It was a man’s voice.”
“Right, but you don’t know whose.”
“How could I know, young man? I just heard the shouting.”
I noticed my right hand shaking slightly. I stuck it in my pocket and tried to assume a casual pose. “Mrs. Barth, do you recall at our meeting that you asked me to speak up?”
Daphne Barth frowned, thought, and shook her head. “No, I’m afraid I don’t.”
“You don’t recall that?”
“I just told you that.”
“I said something to you, and you didn’t hear me clearly, and you asked me to speak up. Do you recall that?”
“I’m sorry, young man, but I don’t. We had a pleasant conversation, and I heard everything you said.”
“Mrs. Barth, don’t you recall that when I came into your house we began discussing—”
“Objection,” Tolletson said. “The witness has told him three times she doesn’t recall any such event.”
“Sustained,” said the judge.
There was nothing I could do. I hadn’t memorialized the conversation with Daphne Barth in writing. She had not signed any statement. If she didn’t remember now, it was like it never happened.
“Well, then,” I said, feeling frustrated, “how is your hearing?” That was a mistake. I was starting to sound like a bully.
“My hearing is just fine, young man!” Mrs. Barth snapped.
“Let’s move on, shall we? Do you recall telling me that the prosecutor’s office had instructed you not to talk to me?”
She paused then and looked toward Benton Tolletson. I did the same. He was looking calmly at his notes. Then she said, “No.”
“Wait a minute. Don’t you remember telling me that Miss Plotzske had given you that instruction?”
“Objection!” Tolletson blasted. “May we approach the bench?”
Adele Wegland waved us up so we could talk to her out of the jury’s earshot. Benton Tolletson’s eyes were ablaze with righteous indignation. “I can’t believe what I just heard, Your Honor. There is no basis at all for that question. He asked it to prejudice this jury.”
I could manage no better response than, “I did not!”
“Keep your voices down,” Judge Wegland said. Like an aggravated school marm, she looked at me and said, “Mr. Denney, do you have any foundation at all for this question?”
“I do, yes,” I said. “The fact is, she told me that Sylvia Plotzske of the district attorney’s office told her not to talk to me.”
“That’s an outrageous falsehood. The witness denies saying that to him. I don’t want him asking that question again because it is just too prejudicial.”
“I agree,” the judge said. “Unless you have some impeachment document of some kind, Mr. Denney, I don’t want you to ask that question again.”
“What is this?” I said, looking back and forth between my adversary and the judge.
“This is a court of law,” Judge Wegland said, “and it will be conducted as such. Now go back to your places.”
Like a rebuked dog, tail tucked between legs, I shuffled back to my spot. And I started getting the same feeling Triple C had told me about, a sensation that things were going on beneath the surface, that I was bobbing on a dark ocean with my head barely above water.
I was angry, and that’s a bad thing for a trial lawyer to be. When you’re angry, you lose some control. The jury knows it too. But I found myself not caring.
“Your memory of our meeting,” I said, “seems to be a little foggy. Is that right?”
“I don’t know what you mean by foggy, young man. I’m still pretty sharp for my years.”
“Do you recall us speaking about your late husband?”
“Oh, yes, I do. My Oscar. Married fifty-seven years. He was a rancher.”
“Thank you, yes. So you remember that at least.”
“I do, yes.”
“But you somehow don’t remember other parts of our conversation.”
With a disgusted huff, Daphne Barth said, “Young man, I remember what I remember. That’s what I’m telling everybody here. Now if that’s not good enough for you, I don’t know what is.”
This drew some laughs from the gallery and a couple of jurors too.
“Well then, let me ask you this,” I said quickly. “You told me you heard a thumping noise at your house, didn’t you?”
“Objection,” said Tolletson. “Vague as to when.”
“Sustained.”
I ran my fingers through my hair. “First, do you recall telling me about a thumping noise?”
“I believe I do, yes.”
“You told me that on an unspecified night, fairly close to the events in this case, you heard this noise. Is that right?”
“Oh, yes.”
“And you said it was like someone pounding on your door.”
“It was like that, but I can’t be sure.”
“You were sure when you talked to me.”
“Objection. Argumentative.”
“Sustained.”
My face flushed, so I turned my back to the jury. I pretended to think. In reality, I was trying to calm myself down. It didn’t work. “Are you hiding something from us, Mrs. Barth?”
I shouldn’t have asked that. It was accusative, and there was no basis for the accusation, except in my own mind. The question certainly wasn’t going to help me with the jury. And I suppose that’s why Benton Tolletson didn’t object. He knew how bad I was looking.
“That’s awful!” Daphne Barth said, like a grandmother accused of stealing candy from her own grandchild. “I would never!”
I was in deep and should have cut my losses. But I was running on some strange autopilot, as if I’d turned over control of my brain to someone else, someone without any training in civility, trial tactics, or just plain common sense. I turned and looked at Benton Tolletson, letting the jury see me look at him, and said, “Oh, wouldn’t you?”
That got the prosecutor to his feet again. “Objection!” he shouted.
Adele Wegland wasted no time. “Court will be in recess,” she said. “I’ll see counsel in chambers.”
Things could not have ended any worse if Benton Tolletson had written the scene himself. Here is what the jury saw: a desperate defense lawyer piling on a nice old lady, refusing to let up on her, finally ending with an insinuation so low that the judge had to call a halt to the proceedings and summon the lawyer to her chambers to give him a sharp, legal spanking.
Which is exactly what I got.
“You are this close to being held in contempt,” Judge Wegland said, even before she clo
sed the door to her office. “I don’t care to try your case for you, and if you want to go down in flames, that’s your business. But I will not tolerate questions that have no basis except to cast unwarranted aspersions on the People’s representative or this court.”
Tolletson stood smugly to the side, no doubt enjoying every moment. He kept silent, waiting to see if I would hang myself. I didn’t let him down.
A defense attorney in his right mind would have apologized and tried to recover. He would have taken anything the judge had to say, considered it with all due respect, and moved on. He would have put the interests of his client ahead of his own pride.
Naturally, I did nothing of the kind. “I don’t have to explain my strategy to you or anyone else,” I said. “Least of all with His Holiness over there.”
Tolletson stiffened slightly, then relaxed, content I’m sure to let me keep wrapping the rope around my own neck.
“I won’t have that kind of offensive wordplay in my courtroom,” Wegland snapped.
“Is the First Amendment suspended in your courtroom?”
“Mr. Denney, I’ve had just about enough of you.”
“Fine. Then appoint me counsel, and let’s go at it. Let’s go back on the record and have a full on contempt proceeding. I don’t care.”
“I think that’s it, Mr. Denney,” said the judge. “You just don’t care. You’re a lawyer who has a client on trial for murder, and you don’t give a rip about him or yourself. I could hold you in contempt, but you’re beneath contempt.”
At that moment I had no argument to offer. She was right. If we had been on the twelfth floor of a courthouse in some large city, I might have seriously considered walking to a window and stepping out.
Tolletson broke the silence. “Perhaps we should give Mr. Denney the option of withdrawing from the case. Under the code of ethics, if mental incapacity renders him unfit to represent his client, he should move to be released from the case. That would be the honorable thing to do.”
An incredible sense of déjà vu took over. I’d had this conversation before, this set of circumstances. Even the voice was oddly familiar, like my father’s voice from the distant past.
“I’m not withdrawing from anything,” I said. “I’m taking this to the jury.”
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