by Don Bullis
―Yes. I remember the officer trying to draw a picture of him because I could see him. Could see his face.‖
―You're talking about the officer drawing a picture while you were in a trance. Is that right?‖
Flossie began crying, quietly. Tears streamed down her cheeks and she dabbed at them with a white handkerchief that contrasted sharply with her dark, sun-tanned face.
―Excuse me. I don't want to upset you, Mrs. Rice.‖
―Then don't ask her any more stupid-assed fucking questions!‖ Max Atkins stood with his hands on the rail separating the spectator section and the lawyer's tables. The sleeves of his western cut white shirt were rolled up to his biceps showing his many tattoos and wellmuscled arms. ―You dig, asshole?!‖
―Who are you?!‖ Judge Ziram was on his feet and leaning on the desk with both hands. ―Who are you?‖ he repeated in a loud and authoritative voice.
Flossie turned around and faced Max and waved her hand and shook her head back and forth negatively.
―I ask again....‖
Wilcoxson stood between Atkins and the bench. ―This is Mr. Max Atkins, your honor. He's an acquaintance of Mrs. Rice.‖
―I won't tolerate it. Mr. Atkins. Is that it? Atkins? You take your seat and if you make another sound, say another word, in this courtroom, I'll hold you in contempt and you'll find yourself in a jail cell until I feel called upon to release you.‖
―Then you tell this son-of-a-bitch to...."
―Mr. Atkins, are you deaf or just stupid? Now sit down, or I'll have the bailiff....‖
―Ok. Ok.‖ Max sat down and put his feet up on the railing.
―Mr. Wilcoxson. Either you admonish this friend of the witness to behave in this courtroom, or I'll hold you responsible. And that includes getting his feet off the railing there and behaving like a civilized person. Clear Mr. Wilcoxson?‖
―Yes, your honor.‖ Wilcoxson turned and leaned across the low rail, his face a yard from Max's. He felt an adrenaline rush for the first time since he‘d stopped being a cop. ―You get out of this courtroom, now, you son-of-a-bitch,‖ he whispered coarsely, ―or I'll see the judge locks you up until the trial's over, and that's a month from now! Move! Before I kick your ass myself!‖ Max took the cigarette from behind his ear and stuck it in his mouth before he turned and stomped loudly to the double doors leading into the hall.
―Proceed, Mr. Pratt,‖ Ziram said as he resumed his seat. ―As I said, Mrs. Rice, I don't mean to upset you, but I need to understand this. You helped make a drawing of the person you saw?‖
―Yes, sir.‖
―Have you ever seen that picture since that time?‖
―No.‖
―Do you know what happened to it?‖
―No.‖
―Are you feeling a little better, ma'am?‖ Flossie nodded. ―Good. Now....‖
―But the first picture I ever identified of him ... I didn't even take anything. I wouldn't even take a drug from the doctor that night because I wanted to be sure I could tell everything that I knew. And tell it the right way.‖
―Well, now, when was this?‖
―The night that my husband was killed.‖
―And....‖
―I seen the picture and I identified it right away.‖
―Who showed you the picture?‖
―That same officer. With the funny name?‖
―Budwister?‖
―Yes.‖
―You're telling me that you identified a photograph of Billy Ray White on the night Bud Rice was killed. Is that correct?‖
―Yes. Well, no. It was the next morning.‖
―Sunday morning? The 19th of November?‖
―Yes. Sunday morning.‖
―And yet on Sunday night you identified Larry Bunting as the man who killed your husband?‖
―No sir. I didn't identify him. I said he was similar.‖
―Your honor,‖ Wilcoxson said, as he stood and buttoned his coat, ―We've been through this before. Besides, Mr. Pratt seems to be crossexamining the witness. I'd say that's a little premature.‖
―One objection at a time, Mr. Wilcoxson. I think you've gone a little afield, Mr. Pratt. Let's get back to the merits of your motion.‖
―Yes your honor.
―When was the last time you saw either Mr. Gold or Dr. McArthur?‖
―I saw them both in Mr. Wilcoxson's office a little while ago.‖
―Are you under hypnosis now?‖
―I don't think so.‖
―You don't know, though, do you?‖
―No. I don't.‖
―Thank you, Mrs. Rice, for you patience here today.‖
―No questions,‖ Wilcoxson said abruptly.
―The Court also thanks you, Mrs. Rice.‖ Judge Ziram said.
―Can I ask something?‖ Flossie said to the judge.
―Certainly.‖
―I don‘t know whether you know it or not, judge, but Bud—my late husband, Mr. Rice—had six or seven hundred dollars in his pocket when he was killed. I‘ve tried to get it back, but I haven‘t been able to. Bud was always good to the State Police, but they don‘t seem to want to give back his money.
Can you do anything about it, judge?‖
―You know anything about that, Mr. Wilcoxson?‖
―No sir. I would have assumed it was returned. No reason for it to be held that I know of.‖
―Would you look into it and see if you can expedite its return.‖
―Yes sir.‖
Flossie sat down on the front bench. Max Atkins returned to the courtroom and sat quietly beside her.
―What's next, gentlemen?‖
―I'd like to call Dr. Sol Gold, your honor,‖ Pratt said, ―but I do believe that you had invoked the rule of exclusion.‖ He nodded his head toward Flossie.
―Mrs. Rice, the Court would appreciate it if you would leave the courtroom.‖
―We'll leave all right,‖ Max said as the two of them stood. ―We'll leave, but if you want any more of us, you'll find us out at Budville. This whole goddamn thing is a bunch of crap!‖
Frank Ziram thought seriously about making an example of Atkins, of firmly establishing that he was in complete control of his courtroom. He let it go, though. He figured Flossie‘d been through enough for one day. Judge Ziram administered the oath to Sol Gold.
Pratt went through the usual identification questions, first, then asked, ―what is your occupation?‖
―Hypnotherapist.‖ Gold looked and played the part. Distinguished gray/black beard, slightly pointed, hair longish but well groomed, wire rimmed eyeglasses, dazzling white shirt and dark blue suit, his demeanor was smug and condescending, best described, Pratt thought, as snotty. The lawyer had done his homework and made three points with his examination of Gold. First he made the hypnotist admit that his professional training was limited; that indeed, little training was required and no ethical standard existed. Second he got Gold to describe hypnosis as the act of creating a state hypersuggestability. Finally, the hypnotist acknowledged that subjects can, and do, lie while in a hypnotic trance.
Dr. Jon McArthur confirmed Gold‘s testimony.
―All right,‖ Judge Ziram said after both witnesses left the room, ―Mr. Pratt, you tell me what all this is supposed to mean, in your opinion, and bear in mind that we‘ve listened to the testimony of your witnesses. Just for brevity's sake.‖
―Your honor, my opinion is basically this: because of the effects of hypnosis on the individual, a person's ability to recall is subjected to the influence of third parties in situations where they are highly susceptible and can be given post-hypnosis suggestions. Because of this, I feel that any testimony such a person would offer would be tainted to the extent that it would be inadmissible.
―I feel that admission of this testimony would set a precedent not accepted before in the courts in accepting hypnotically induced or fortified testimony as being true when the witness cannot from her own knowledge give an oath that the
se facts or events were or were not put into her mind during the hypnotic sessions.‖ Pratt handed the Judge a sheet of paper. ―I've made up a short list of the case law going back to 1897, as well as a couple of scholarly articles on the subject.‖
―Your turn, Mr. Wilcoxson. What does all this mean to you?‖
―Just briefly, your honor. In reply to Mr. Pratt's argument, first of all I'd like to say that there's not a whisker of evidence in the record that Mrs. Rice was ever given any suggestions as to a particular person that she should identify, a description of a particular person or any suggestion to—hypnotic or post-hypnotic—that she would do anything other than accurately recall the events as they happened on the night of November 18th when her husband and Blanche Brown were killed and to accurately describe the person that did the killing.‖
―Your honor,‖ Pratt said. ―Granted, the hypnotist and the psychiatrist both testified that they did not lead the witness. But what else can they testify to? To do otherwise would be to come in here and admit some kind of improper action that might be punishable under a criminal statute, and I am not in any way questioning their integrity. All I'm saying is that as a rule of law, we should exclude any testimony that‘s been subjected to influences over which we have no control.‖
―The only issue,‖ Wilcoxson interjected, ―is what happened at the Budville Trading Post on the night of November 18, 1967, and Flossie Rice stands ready to testify to those facts.‖
―Your honor,‖ Pratt said, ―I would ....‖
―All right, gentlemen. That's the end of the line for these arguments. There's nothing to support your contention, Mr. Pratt, that there was any brainwashing or that Mrs. Rice's memory was constructed rather than revivified. I think that's the right word. We'll let the jury determine her credibility. Your motion to suppress is denied. Anything else, Mr. Pratt?‖
―I think that‘ll do it, your honor.‖
―Good. Now, I've got a couple of housekeeping matters on my list. He‘s been arraigned in District Court. Right?‖
―Yes sir. One of Judge Tackett's last official acts on the District Court Bench.‖
―I take it there's not going to be a motion for a change of venue or anything of that sort? This is your last chance.‖
―No sir,‖ Pratt said.
―Good. Has anyone checked to see if we've got enough jurors coming in to do the job on this case?‖
―I'll check,‖ Wilcoxson said. ―I know the clerk's got quite a few lined up.‖
―I want a qualified panel, ready to work, of at least 48 people.‖
―She has that many, at least,‖ Wilcoxson said.
―Let's see what else. The instructions for the trial will be prepared by the District Attorney. Bring them along on the opening day of the trial. I'll see that defense counsel gets them when he needs to. Make sure you make them fit the case. I don't want anything fancy. You're shooting for ordinary homicide in this case, as I understand it.‖
―The state's going for capital murder,‖ Wilcoxson said smugly.
―That or nothing?‖ Judge Ziram asked.
―That or nothing.‖
―I think,‖ Pratt said, ―I‘ll want an instruction on life in prison, and not just on the death penalty.‖
―That‘s the law, Mr. Pratt. Mr. Wilcoxson, prepare your instructions on that basis and don't forget verdict forms. If counsel for the defendant has any other instructions, have them ready in advance. Let's see what else here.‖ The judge shuffled papers around on his desk. ―We talked about subpoenas but I remind you again. Get them served. I don't want any problems there. Have you had good cooperation on discovery, Mr. Pratt. Did we talk about that?‖
―They've got everything they‘ve asked for, your honor,‖ Wilcoxson said.
―We've had to fight for every scrap of paper, your honor.‖
―Mr. Wilcoxson, see to it Mr. Pratt and his investigator get the entire file. Under the Due Process Clause you‘re required to turn over all material evidence to the defense, including that favorable to the defendant, and there is no good faith exception. Now, on down the road, I don‘t want to hear arguments about what is ‗material‘ and what isn‘t. Give him the file Mr. Wilcoxson. Clear?‖
―Yes sir.‖
―Is a week of trial time adequate?‖
―I think so,‖ Wilcoxson said.
―Mr. Pratt, what do you anticipate in the way of defense other than the alibi witnesses and that sort of thing?‖
―I'm not sure, your honor. We could end up with as many as ten or twelve witnesses. We shouldn't need more than two days. Maybe two and a half.‖
―That's my list, gentlemen. We're adjourned. I'll see you next month, barring my death or a thousand year flood.‖
BOOK FOUR
CHAPTER I
The wind came up and the temperature dropped late on Sunday afternoon and by early Monday morning, March 3, 1969, a thin layer of ice crusted horse and cattle troughs around Los Lunas. Celestino Jaramillo, the custodian who arrived at the Valencia County Court House before sun-up, quickly discovered that the furnace had failed during the night and it was nearly as cold inside as out. The trial of Billy Ray White began at 10:00 a.m.
Spectators sat huddled on cold hardwood courtroom benches wearing coats, hats, and gloves. Judge Ziram entered wearing his robe atop his overcoat. Don Wilcoxson and Parker Pratt were similarly bundled up. Sheriff Jack Elkins and Deputy Lupe Soto, both in leather jackets, escorted Billy Ray White into the room and removed his handcuffs at the defense table. The defendant, wearing only a sports coat as an outer garment, didn‘t appear bothered by the bone chilling cold.
―Sheriff Elkins,‖ Judge Ziram ordered, ―use your authority to get some electric heaters up here, and right away.‖
―Your honor,‖ Wilcoxson said. ―I must protest. The defendant is on trial for murder. One guard is not...."
―Tut, Tut, Mr. Wilcoxson. One officer will guard the defendant while the other gets us some heat in here.‖ The judge addressed Elkins who'd started toward the door. ―I want those heaters in here even if you have to go the hardware store and buy them. Get six or eight.‖
―Yes sir.‖
―Your honor,‖ Pratt said. ―The environment here seems cruel and unusual to me. Perhaps you should dismiss the charges against my client and we could all go home, where it‘s nice and warm.‖
―Your concern for our comfort is noted, Mr. Pratt, but I think we'll proceed. Besides, I don't recall a constitutional provision for a warm courtroom. Are we ready for voir dire?‖
―Yes sir,‖ Pratt said. ―But I ask that the Rule of Exclusion be invoked and all witnesses be asked to leave the courtroom.‖
―So ordered.‖
Max and Flossie left the room. Max, wearing a new, and obviously expensive fleece lined buckskin coat, squinted his little eyes hatefully at Judge Ziram and Parker Pratt. Other witnesses, many of them police officers, milled around in the hallway drinking steaming paper cups of coffee sent upstairs from the jail kitchen.
By noon, with eight heaters in place and the temperature twenty degrees warmer, voir dire was complete. Wilcoxson's only questions of prospective jurors had to do with attitudes toward capital punishment. Pratt asked about opinions on the subjects of hypnotism and psychotherapy. Both lawyers seemed anxious to seat jurors. They agreed on one juror from the prospect list for each one they dismissed. A panel of eight women and four men, plus an alternate, took seats in the jury box.
―We're off to a good start, gentlemen,‖ Judge Ziram said. ―We'll break for lunch after which I hope the temperature has reached a civilized level. You gentlemen be ready for opening statements. We're adjourned until one o'clock.‖
Opening remarks by Pratt and Wilcoxson were nothing out of the ordinary. Each attorney assured the jury he‘d prove his case beyond a shadow of reasonable doubt. Pratt acknowledged the crime, a foul and brutal affair that took the lives of two innocent people. Witnesses, he declaimed, would prove Billy Ray White was in East St. Loui
s, Illinois on November 18, 1967. Sadness, he concluded, resided in the fact that the real killer remained free. Wilcoxson declared that an eyewitness saw the killer—Billy Ray White—in Budville on November 18, 1967 only seconds after he shot down, slaughtered, two decent, revered and respected, citizens of Valencia County. He asserted that all evidence in the case pointed the cold, objective, finger of guilt unerringly at the defendant, and no one else on God‘s good earth.
Pratt provided new clothing so Billy Ray could dress well for the trial. The defendant wore a tan sports coat over a green cotton turtleneck shirt and light colored slacks. His hair, neatly trimmed and carefully combed, and his goatee gone, gave him a clean-cut, almost wholesome appearance. Billy Ray smiled frequently but nervously while he maintained regular, steady, eye contact with the 13 jurors, Wilcoxson and Judge Ziram.
The heaters did their work. The cold edge disappeared and the courtroom warmed enough that many spectators removed their outer coats. Judge Ziram took off his topcoat and gloves. The state's first witness, police officer Troy McGee, took the stand wearing his black State Police leather jacket. He kept his hands in his jacket pockets except when he removed the right one and raised it to swear not to lie. McGee responded to Wilcoxson's first series of questions as if reading from his original report.
―Now, Officer McGee. How would you, in your own words, describe the scene you encountered at the Budville Trading Post on the date in question?‖
The officer responded in the way Wilcoxson had instructed. ―Well sir, there was blood everywhere, a great big puddle right by Bud's head and blood all over his clothes and Flossie‘s too. Mrs. Rice. She had blood all over her, and her clothes. It looked like they'd been splattered with blood, you know, like you'd get splattered with mud from a puddle. And they was more blood, a big puddle of it, where Miss Brown's body laid and smear marks where she was drug across the floor and her clothes was all bloody and splattered too. They was blood everywhere, and the stink of it, too.‖
―Your honor,‖ Pratt said as he got slowly to his feet, ―defense will stipulate that Bud Rice and Blanche Brown were brutally murdered, shot to death, on the evening of November 18th in 1967. I don't see any reason to dwell on the gory details. Our purpose is to examine the facts in this case in a cool, logical way; unmoved by hot passions implanted in the jury from the very beginning of the trial.‖