by Mark Gimenez
Beck turned to his left: the jury box was empty—an examining trial was before a judge, not a jury—but the court reporter's chair was also empty. He turned to his right.
"Mavis, where's the court reporter?"
The D.A. stood. "Your Honor, I informed Bernice that her services would not be required today."
"You informed her?"
"Yes, sir. As you know, Judge, this is an informal proceeding, so Judge Stutz and I agreed that there was no need for a transcript of the proceedings."
Beck turned to Mavis: "Call Bernice and get her over here."
"Well, Judge," the D.A. said, "she's out of town today. Said she was taking a long weekend in San Antonio."
Beck again turned to Mavis: "Call Bernice and tell her she's fired. Hire a new court reporter who understands that she works for the judge, not the D.A."
"Judge, if you'd prefer, we can postpone this proceeding until such time as a court reporter is available."
"No, we'll proceed. The code allows me to summarize each witness's testimony."
"Very well, Your Honor."
Beck caught the D.A. winking at Stutz.
"And we'll tape record the proceeding. Mavis, go downstairs and get my tape recorder."
Mavis stood and disappeared behind Beck. The D.A. wasn't winking now.
"Your Honor, the Code of Criminal Procedure doesn't authorize tape recording this proceeding."
"It doesn't prohibit it either. Might be good to have so my summary is accurate."
The D.A. stepped over to the defense table; he, Stutz, Slade, and Quentin McQuade huddled like a football team calling an audible. When Mavis returned, she placed the recorder on the witness stand and hit the RECORD button. When she sat down, Beck nodded at her. Mavis called out: "Cause number forty-three sixty-one, State of Texas versus Slade McQuade. Aggravated assault with hate crime enhancement. Examining trial."
"Gentlemen," Beck said, "please make your appearances."
The D.A. stood. "Niels Eichman, Jr., Gillespie County District Attorney, representing the state."
Stutz stood. "Judge Bruno Stutz, for the defense."
They sat, and Beck said, "This is an examining trial to determine if probable cause exists to refer this matter to the grand jury. We are not here to determine guilt or innocence. Slade McQuade, you have the right to make a statement regarding the charges filed against you, but you cannot be compelled to make any statement. Any statement you do make can be used in evidence against you. Do you understand that?"
Stutz nodded at Slade, who said, "Yes, sir."
"But you must make any such statement prior to the testimony of any witness. Do you wish to make a statement?"
"No, sir."
"Very well. Mr. Eichman, present the state's case."
"Your Honor, the state calls Julio Espinoza."
The Latino boy stood and came forward through the gate in the bar. Walking into the well of the courtroom, he looked like a sacrificial lamb. His brown skin contrasted sharply against his white shirt. He was a slender, handsome boy. Except for the boxer's nose and several freshly-healed scars on his face, he did not exhibit any physical evidence that he had been severely beaten just four weeks before. Mavis swore him in.
"Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?"
Julio answered: "Es."
"Mr. Espinoza," Beck said, "would you please speak up?"
"Es!"
Beck leaned toward Julio and looked at him closely.
"Mr. Espinoza, are your jaws still wired shut?"
"Es!"
Julio opened his lips wide like he was trying to grin; Beck could see wires holding little hooks on each jaw and tiny rubber bands secured to the upper and lower hooks to hold his jaws tightly together. Beck turned to the D.A.
"How is he supposed to testify with his jaws wired shut?"
The D.A. shrugged. "That's why I set the hearing for January, Your Honor. So his jaws would have time to heal."
The D.A. gave Beck a look that said, Now what are you going to do, Judge? Julio reached to his back pocket and pulled out a little notepad and pen; he acted as if he were writing.
"You'll write your testimony?"
"Es."
Mavis tugged on Beck's robe then tapped on the document on his desk. Julio's affidavit. Beck nodded then addressed the court.
"Since the sole purpose of this proceeding is to determine probable cause to refer this case to the grand jury and not to determine guilt or innocence, I will admit Mr. Espinoza's sworn affidavit he signed the night of the alleged assault."
Stutz stood. "Objection. That would deny my client's right to confront the witness."
"He's sitting right there. Confront. Objection is overruled." Beck turned to Mavis. "Mavis, please read Mr. Espinoza's affidavit into the record."
Stutz said, "Defense withdraws the objection, Your Honor."
Stutz did not want the affidavit read in open court. Beck was about to have Mavis read it anyway, but Grady caught Beck's eye. He tapped his wristwatch and nodded toward the Latino activists. The ticking time bomb. Beck turned to Julio.
"Mr. Espinoza, is your affidavit a true and correct account of the events of the night of September the eighth of this year?"
"Es."
"That's a yes?"
Julio nodded.
"Mr. Espinoza answered in the affirmative. The affidavit of Julio Espinoza is admitted into evidence." He turned to the D.A. "Any questions, Mr. Eichman?"
"No, Your Honor, you handled my case quite well."
"Thank you. Judge Stutz, your witness."
"No questions, Your Honor."
The D.A. called the four deputies who had arrested Slade that night. Each testified that when they had arrived at the theater, Slade had been beating Julio and calling him a wetback and a spic. Stutz did not question the deputies. When the D.A. rested for the state, Stutz stood and called his first and only witness.
"Defense calls Nikki Ernst."
The teenage girl sitting next to Quentin McQuade stood, walked up to the witness stand, and was sworn in by Mavis. She was blonde and blue-eyed and looked every bit the German girl she was. Stutz approached the witness stand.
"Miss Ernst," Stutz said, "how old are you?"
"Eighteen."
"And you're a senior at the high school?"
"Yes, sir."
"Miss Ernst, were you at the movie theater on the night of Saturday, September the eighth of this year?"
"Yes, sir."
"And did you have occasion to speak with Julio Espinoza?"
"Yes, sir, at the snack bar."
"And were you previously acquainted with Mr. Espinoza?"
"Yes, sir. We're both seniors. We have several AP courses together. I thought he was a nice guy."
"And have you changed your mind about that?"
"Yes, sir."
"And when did you change your mind?"
"That night."
"Would you please tell the court what Julio Espinoza did to change your mind?"
She ducked her head as if she were embarrassed.
"He made inappropriate remarks to me … of a sexual nature."
Stutz now had the expression of a grandfather talking to his granddaughter.
"I know this is difficult, Miss Ernst, but please tell the court exactly what Mr. Espinoza said."
"Well, I went up to the counter to get my popcorn and when he handed it to me, he said I looked sexy."
"Sexy? Well, now, Miss Ernst, some girls your age might consider that a compliment, isn't that true?"
"Yes, sir. But there was more."
"More? Please go on, Miss Ernst."
"He said he wanted to, um, have sex with me."
"Are those the words he used?"
"Well, no, sir."
"What words did he use, exactly?"
"He used the F-word."
"Oh, my. The F-word?"
"Yes, sir."
"Please tell t
he judge exactly what Julio said, in his words."
Nikki took a deep breath, as if saying the F-word went against every fiber in her being.
"Julio said, 'I want to fuck you.' "
There was a loud grunt from the audience. Julio was standing in the spectator section, his arms spread and a distressed look on his face. Nikki's eyes dropped to her lap.
"Please sit, Mr. Espinoza."
Felix Delgado pulled Julio to his seat, and Stutz continued with Nikki.
"And did Slade McQuade hear him say that?"
"Yes, sir. Slade had just walked up when Julio said that. I guess Julio didn't see him."
"And Slade got mad?"
"Yes, sir. Very."
"So Mr. Espinoza's statement provoked Slade's actions?"
"Yes, sir."
"No further questions, Your Honor."
Nikki glanced at Slade; he gave her a wink. Beck had listened to thousands of hours of testimony under oath; he knew when a witness had rehearsed. Nikki Ernst had rehearsed.
"Mr. Eichman."
"No questions, Your Honor."
Beck stared at the D.A. "The state is not going to question the defense's only witness?"
"No, Your Honor. Miss Ernst seems credible enough to cast real doubt as to whether probable cause exists here."
The D.A. gave Beck a look that said, Get it? This is the way out. Beck turned to the witness.
"Ms. Ernst, why didn't you mention any of this to the deputies that night?"
"Your Honor," the D.A. said, "may counsel approach?"
Beck waved him up; Stutz followed. When they arrived, Beck put his hand over the microphone.
"Judge," the D.A. whispered, "this is the way out for everyone."
"Not for Julio."
"For the town."
Beck waved them off. Bruno Stutz glared at him.
"Mark my words, Judge, you proceed with this witness and that Mexican boy is going to regret it."
"Sit down." He turned to Nikki: "Ms. Ernst, why didn't you mention this to the deputies that night?"
"I guess I was just so upset."
"Ms. Ernst, have you previously discussed your testimony with Mr. McQuade or Judge Stutz?"
"Slade's dad?"
"Or Slade? Or his lawyer?"
She glanced over at Slade and Stutz.
"Ms. Ernst, don't look at the defendant or his lawyer for an answer."
"Well … we maybe talked some … a little."
"Did anyone suggest to you to testify that Mr. Espinoza provoked Slade?"
"Suggest? Well, I don't know …"
"Ms. Ernst, will you graduate this year?"
"Yes, sir."
"And what are your plans? College?"
"Yes, sir, at UT."
"You've been accepted?"
"Yes, sir. Top ten percent."
"You're in the top ten percent of your class?"
"Yes, sir."
"So you're a smart girl?"
"I guess so."
"What are your career plans?"
"I want to be a doctor."
"A doctor?"
"Yes, sir."
"College then medical school?"
"Yes, sir."
Beck grabbed the Penal Code and thumbed through the pages.
"Ms. Ernst, you're eighteen, correct?"
"Yes, sir."
"So you understand that even though you're still in high school, the law regards you as an adult?"
"Uh … yes, sir."
"Ms. Ernst, do you know what perjury is?"
"Not exactly."
"It's lying under oath in a court proceeding. Like today."
"Oh."
She bit her thumbnail.
"Ms. Ernst, the Penal Code states that a person commits perjury if he or she makes a false statement under oath. And it's aggravated perjury if that false statement is material, which means the testimony will determine the result of the proceeding. Aggravated perjury is a third-degree felony punishable by a prison term of two to ten years. Do you understand that if it is subsequently discovered that you lied about Julio's statements to you that night, you could be charged with perjury?"
"Uh … no, sir … I mean, yes, sir."
She now had both hands in front of her mouth; her teeth were nibbling on her nails so hard Beck could hear the sound.
"And if convicted, you could be sentenced to prison for two to ten years?"
She stopped nibbling and turned to him.
"Prison?"
"Yes, Ms. Ernst. The women's prison in Huntsville."
Her face went ashen. "No one said anything about prison."
"Ms. Ernst, this isn't a game. This isn't about doing what Slade wants you to do. This is about your future. You're a smart girl. Think before you throw your future away by lying to this court. A person convicted of perjury doesn't go to college and medical school. She goes to prison."
Nikki was now staring at Slade. When she turned back to Beck, she had tears in her eyes. And he had her.
"Ms. Ernst, do you know what the word 'retract' means?"
"Yes, sir. To take something back."
"Exactly. The penal code also states that if the witness who made a false statement retracts it and tells the truth before completion of his or her testimony, he or she does not commit the crime of perjury. Do you understand what that means?"
Almost a whisper from Nikki: "If I tell the truth right now, I won't go to prison?"
"Yes, that's exactly what it means. Now, Ms. Ernst, before I dismiss you, is there anything about your testimony that you would like to correct?"
Nikki had gone back to biting her nails. Her hands were in front of her mouth and her head was down, almost as if she were praying. Perhaps she was.
"Ms. Ernst?"
She finally raised her head and glanced at Slade. She shook her head. Then she turned to Beck.
"Yes, sir, I would like to correct something."
"And what is that?"
"Julio, he didn't say any of that stuff to me. He's a good guy. We're friends." She looked at Julio in the audience. "Or we were. But Slade, he's insanely jealous. At first I liked that, but then it became … kinda scary, you know?"
"You bitch!"
Nikki recoiled in the witness chair; her hands flew up as if to block a blow. Slade was standing at the defendant's table.
"Mr. McQuade—sit down!"
Slade glared at Beck, but when Grady stepped to the defendant's table, Slade sat down. Beck turned back to Nikki.
"Ms. Ernst, what do you mean, Slade's jealousy became scary?"
"Uh, nothing."
"Look at me, Ms. Ernst."
The girl turned in the witness chair until she was directly facing Beck. He rolled his chair as close to her as the bench would allow; he leaned over. They were no more than three feet apart. He wanted her to focus only on him.
"How long have you and Slade been dating?"
"Almost a year."
"Has he ever hit you?"
"Oh, no, sir. He would never hit me."
"Did you ever see him hit anyone else, other students?"
"He hits walls."
"Walls?"
"Unh-huh. He punches holes in walls, when he's in a bad mood."
"Does Slade have bad moods often?"
"Oh … you know … sometimes."
"Did Slade beat up Julio because he's Latino?"
"Oh, no, Judge, Slade's not like that. His heroes are black athletes."
"Did you hear Slade call Julio a wetback and a spic that night?"
"Yes, sir, but that's what everyone calls them."
"At school?"
"In town."
"So Slade beat up Julio for no reason at all?"
"It wasn't his fault."
"Julio's?"
"Slade's."
"Ms. Ernst, Julio suffered a broken nose, a concussion, two teeth were knocked out, three broken ribs, and a broken jaw—his jaws are still wired shut. He couldn't even testify today. Whose fault would th
at be then?"
"Well, I meant …"
"You meant what?"
She shrugged.
"Ms. Ernst, did Slade beat up Julio?"
"Yes, sir."
"So it was his fault?"
"Well, yes, but …"
"But what?"
"He …"
"What, Ms. Ernst? I need to know or I'm going to revoke bond and put Slade in jail—today!"
She suddenly appeared panicked. "Jail? You can't do that! He's got a game tonight! A district game!"
"Football games don't matter in a court of law, Ms. Ernst."
"But, Judge, it wasn't his fault! He can't control himself when he's cycling!"
" 'Cycling'?"
The D.A. was on his feet: "Judge, I, uh, I think Ms. Ernst is becoming frazzled. Perhaps she needs a break."
"Hush." Back to Nikki: "Ms. Ernst, what do you mean 'cycling'?"
Nikki's face was stricken; her eyes were pleading to Slade for help and her teeth were chewing on her nails again; half her fingers appeared to be in her mouth. Quentin McQuade was jabbing at Stutz from his seat on the first row. Stutz stood.
"Your Honor, you're harassing my witness. Certainly you've gotten the testimony you need for the purpose of this proceeding."
Beck ignored Stutz.
"Ms. Ernst, look at me."
She turned back to Beck; she was crying.
"Ms. Ernst, what do you mean by 'cycling'?"
Her head was down; she whispered: "When he's juiced."
"Juiced? You mean steroids?"
She nodded.
"Was Slade on steroids that night?"
She nodded again.
"Please answer aloud."
"Yes."
"How do you know?"
"Because I stuck him."
"You injected him?"
She nodded. "He's afraid of needles. He used to get other guys at those Austin gyms to inject him, but since I'm going to be a doctor—"
"Where did you inject him?"
"At his house."
"No, where on his body?"
"His butt."
"So he was in a steroid cycle that night?"
She nodded. "He cycles every month … like a girl's period, I tell him. That way his body doesn't become dependent on the steroids, otherwise his testicles will shrink up to the size of a pea. At least that's what he said."