Enemy Combatant

by Ed Gaffney

  “The car that was already on fire when Sheniqua got out of it?” Preston’s question was more to fill up the emptiness than anything else. We all knew that Officer Kenney wasn’t finished telling us what had happened.

  “Yeah. I told Sheniqua that I would try to get her brother, but only if she returned to the grass by the side of the road to wait for help—”

  Varick interrupted. “By the way, Officer, what else was happening around you at this time?”

  Kenney shook his head. “It was chaos,” he answered. “The fuel that had spilled on the road had ignited, and cars all along that stretch were on fire, or exploding. People were abandoning their cars and running away from the tunnel, or off the sides of the road. People were screaming and crying, and the smell…the smell was awful. Burning gasoline, burning cars…”

  “Were you able to get back to Sheniqua’s car?”

  “I was,” the cop answered. “But by now, it was fully ablaze. I didn’t think it was possible that there was anyone alive inside. Flames were coming out of the open back right door that Sheniqua had used to escape, so I went around to the other side, figuring that’s where her little brother might be.

  “There was so much smoke inside the car, I couldn’t tell anything from looking in the window. I tried to open the door, but it was locked. So I drew my service revolver, and smashed it against the window.”

  The hero cop made a noise like a laugh, but there was no humor in it. “Turns out that was a bad mistake, because when I broke the window, I created a draft, and all that did was give the fire more oxygen to work with. There was this roar, and the whole backseat area seemed to erupt into a bigger fire.”

  “Weren’t you concerned that the fire would reach the gas tank and that the car would explode?”

  By now, the tears had stopped falling from Liam Kenney’s eyes. His gaze was clear, his voice strong. At that moment in my life, I had no idea of what he had gone through, so I couldn’t imagine pushing through the emotions as he did to share his story with us. I remember thinking that if I had had to relive that experience in front of a room full of strangers, I would have started crying, and never stopped.

  It’s funny how experiences like Officer Kenney’s change you, though.

  “Yes, I knew, but as soon as I broke through that window, I also knew there was a young boy in that car. I had to get him out.”

  “And did you?”

  “I had to pull my uniform sleeve over my fingers because it was so hot, but I managed to unlock the door and open it. Edwin was unconscious, but by some miracle, the fire hadn’t yet reached his part of the backseat, so he wasn’t burned. I knew I had to move fast, though, because the flames were coming toward him, and I didn’t know when the car’s gas tank would explode. So I decided to get him out of there by grabbing the entire car seat. But I couldn’t get the damned thing unbuckled from the car.” He cleared his throat. “Excuse the language.”

  Someone in the gallery let out a short, nervous laugh. As if the utterance of that mildest of oaths had the slightest impact.

  “What happened next?”

  “I tried to unbuckle him out of the car seat, but my eyes were stinging and watering so bad that I could hardly see anything. And I didn’t have any kids at the time, so I was unfamiliar with the design of the locking mechanism. Long story short, I couldn’t get him out of the car seat.”

  “What did you do?” Preston asked.

  “I felt like I was just about out of time, so I took my penknife out, and I cut through the straps of the car seat, and pulled Edwin out. Like I said, he was unconscious, so I decided to give him mouth-to-mouth as I ran toward the field where I’d left Sheniqua. But just as I was about to blow the first lungful of air into him, the car exploded.

  “The blast knocked me off my feet. But by that time, I was close enough to the edge of the shoulder that luckily I landed on the grass. I was able to hang on to Edwin, but this time, I couldn’t control my fall, so I didn’t land on my back. To protect him, I stuck my elbows out, and tried to use them as kind of shock absorbers. At first, though, when I got off of him, he was still completely out of it. I had no idea even if he was alive.

  “I started CPR right there. By this time, Sheniqua had joined us, and was shouting things like, ‘C’mon, Edwin! You got to breathe. C’mon!’ I wasn’t really paying attention, though. CPR is time-sensitive, and I had no idea whether Edwin had any chance of survival at all. All I knew was that I had to keep trying.

  “And then, he coughed. And Sheniqua started screaming, and Edwin kept coughing. And then he started crying. Turns out the little guy was okay.”

  Because of my hearing issues, I can’t be sure, but it seemed to me that at that moment, the entire courtroom exhaled with relief. But as most of us knew, Liam Kenney’s story wasn’t over quite yet.

  Preston Varick helped bring it all home. “Who was driving Sheniqua and Edwin’s car, Officer Kenney?”

  “Her name was Karen Nielson,” he responded. “She was their foster mother.”

  “So Sheniqua and Edwin were not living with their parents?”

  For the first time since he’d taken the stand, the police officer’s expression betrayed anger. “They had been abandoned two years earlier.”

  “Do you happen to know what happened to those children?” Varick asked. “After you rescued them from the fire?”

  “Well, Sheniqua suffered first- and second-degree burns, but she has recovered almost completely. She has a few scars, but she’ll be fine. And Edwin, well, we really don’t know how this happened, but he just had some minor respiratory symptoms as a result of smoke inhalation. He’s completely okay now.”

  “I take it that you’ve stayed in touch with these two children.” The question was obviously and shamelessly intended to set up an answer that would bring the emotional house down. But I didn’t try to stop it. I wanted to hear the answer, too.

  “Oh, yes,” Officer Kenney replied. He finally allowed himself to smile. “I’m in very close touch with Sheniqua and Edwin. And so is my wife. Because ten months ago this Tuesday, we adopted them.”

  When you work in criminal law, you do not get a lot of opportunities to hear stories like Officer Kenney’s. You also do not get many chances to hear a courtroom erupt in spontaneous applause. Sarge jumped to his feet, but Judge Lomax held up his hand. He had everything under control. He waited for a moment, then tapped his gavel gently on the bench. The room quieted down very quickly.

  “I have nothing further, Your Honor,” said the assistant district attorney.

  Judge Lomax turned to me. “Cross-examination?”

  Of course, there was nothing that this witness could do to help my client’s cause. Officer Kenney’s involvement in the Denver Tunnel Bombing had no connection to Juan Gomez in the least. He didn’t know Gomez; he didn’t see the tanker that started the blaze. He didn’t even know the cause of the catastrophe until after he’d been taken to the hospital.

  But just to emphasize that to the jury, I thought it might be good to ask a single question of the witness. I was as impressed and moved by his testimony as anyone, but in reality, it had virtually no bearing on whether Juan Gomez was guilty of anything. And my job, at the very minimum, was to ensure that when the inevitable guilty verdict was rendered, it was done so after the prosecution produced a reasonable amount of evidence to support it.

  So I stood, and said, “Officer Kenney, have you ever had any dealings or involvement whatsoever with the defendant?”

  My goal, of course, was to plant the idea in the jury’s mind that this witness’s testimony really didn’t have anything to do with my client. So that when Preston Varick put his next overwhelmingly sympathetic witness on the stand, the jury might remember that no matter how moving or inspirational that witness was, testimony about the events of May 16 did not connect my client to guilt.

  Because, of course, Officer Liam Kenney had never had any involvement with my client. So the answer to my question had to be n
o.

  And then the witness blinked, looked quickly over at Juan Gomez and then back to me, and said, simply, “Yes.”

  FOURTEEN

  THERE IS A RULE of thumb in litigation—both civil and criminal—that young lawyers-in-training learn in every law school in the land: Never ask a question of a witness to which you do not already know the answer.

  I suppose that, technically, I broke that rule with Officer Kenney. To be fair, I had read his police reports regarding the Denver disaster, and he had never mentioned anything about Juan Gomez. Based on that, I believed that Kenney’s answer to my question had to be no.

  The problem actually arose as a result of the uncanny powers of recall possessed by Michelle Kenney, Liam’s wife. The day before Officer Kenney left for Phoenix to testify, Michelle finally was able to put her finger on just what had been flitting around at the edges of her memory during the three weeks she had known that her husband was going to take the stand.

  “A story about how we were going to adopt the kids ran in Newsweek,” Officer Kenney explained to Varick on redirect examination. “For the next few weeks, we got tons of cards and letters from people all over the country.” Then the witness reached into his pocket and pulled out a small envelope addressed to the Kenneys, care of the Denver Police Department. The postmark was Phoenix. “One of them was from Juan Gomez.”

  The envelope bore my client’s return address label. The card itself was simple and quite tasteful. On the front was a watercolor painting of a saguaro. The inside was blank, except for a handwritten message in black pen:

  I will never forget the actions you took toward those children.

  And it was signed Juan Abdullah Gomez.

  For those of you not well versed in the Arizona rules governing evidence in criminal trials, statements made by the defendant, whether verbal or written, are always admissible.

  And all prosecutors love them.

  It’s fascinating how even the most innocent-sounding communications get distorted through the lens of criminal accusations. So no matter what an individual says, when it is entered into evidence against him at a trial, inevitably it is viewed, somehow, as damning. Claims of innocence come off as attempts to wrongly deny responsibility. Claims of ignorance come off as disingenuous efforts to mislead authorities.

  And in the case of Juan Gomez, a card expressing admiration and support of the selfless gesture of Liam and Michelle Kenney came off as a twisted threat.

  I objected, of course, but Judge Lomax correctly admitted the card into evidence. My own stupid question on cross-examination had raised the issue—Preston Varick had every right to exploit it.

  In the morning recess, my client took pains to explain himself.

  “I didn’t even think they were gonna get that card,” he said, as the room emptied. “I read that magazine article. I just wanted them to know I thought it was great that they were adopting those two kids. But in here, they made it sound like I was, I don’t know. Some kind of psycho.”

  My line of work has brought me into contact with plenty of people convicted of unutterable horrors. One of my clients murdered his pregnant wife and their three children, and then went to work the next day like nothing had happened. To look at him, you’d never have guessed that he was a killer. But you might have guessed that he was the manager of a local hotel. And you would have been right.

  In my experience, you cannot distinguish people who commit atrocities from accountants or librarians or anybody else just by looking at their faces. So as I studied Juan Gomez after Officer Kenney’s testimony, I wasn’t particularly shaken by his outward appearance of decency. This man seemed to truly believe that he had been wrongly accused—that he was being misjudged. That didn’t mean he was innocent, though.

  But my interest in the card he’d sent was quite practical. “Have you written anything else to the Kenneys? Or to any of the other victims? I know it might not seem like much to you, but anytime the prosecution surprises me, the jury picks up on that. And when they do, they think that you are holding out on me. And that makes you look more guilty.” I left out if you could look more guilty.

  The truth was, Liam Kenney’s testimony was just the beginning. Preston Varick had any number of ways he could go from here. Pretty Cheryl Taylor was one of the four people who miraculously survived the explosion on the commuter bus. Cheryl could testify to the gruesome experience of watching her fellow passengers burst into flame. Or she could explain the challenges she now faced daily since her hands were amputated.

  Tonya Romard could describe the screams she heard over her cell phone when the conversation with her fiancé about their honeymoon plans was interrupted when his little sports car erupted in flames.

  Or James Wu could relate his gallantry as he dragged six people to safety before being overcome by smoke inhalation. And then he could describe his shock at watching three of them die before his eyes, and the post-traumatic stress disorder that has haunted him ever since.

  No matter how many times I emphasized that these witnesses did not begin to establish who was responsible for causing the misery and death that day, the jury was going to want someone to blame. And they were going to look around the courtroom to see who was in the defendant’s chair, and they were going to choose Juan Gomez.

  “No, man. I didn’t know anybody who was in the tunnel. I just wrote that card because of the article.”

  “Well, did you talk to anybody about it? Anybody in Denver?”

  “Everybody was talking about it. You know. At work and stuff. But that was all here, in Phoenix. Of course I talked about it with my wife and my son.” He paused. “That was before they left.” Isabelle and Ernesto Gomez had fled the country shortly after Juan’s arrest. He hadn’t heard from them in months.

  “My sister, she lives in Colorado Springs, you know. I talked to her about it on the phone a few times.”

  Colorado Springs was only forty-five minutes outside of Denver. “Did your sister know any of the victims?”

  Gomez shifted in his seat. “No. Her boss was on the road when it happened, so he got stuck in all the traffic that day. And one of the ladies my sister works with at the library knew one of the people who died. But my sister didn’t know any of the victims.”

  Sarge came past the table on his way back to his station. “Coupla minutes,” he warned.

  The noise from the gallery was increasing as people came back to their seats. I don’t know why I turned around at that moment, but as I did, my attention was drawn to a man in dark clothing leaning against the far wall. Just before I was able to get a good look at his face, he turned away, and walked toward the exit at the back of the courtroom.

  As he did, he passed Trooper Landry, who smiled broadly at me. I couldn’t tell whether he was sending me a friendly—albeit disingenuous—salutation, or whether his expression was more malevolent. What was the etiquette for across-the-room, nonverbal greetings to crooked cops who have bugged you illegally?

  I tried to smile back. I was not sure, however, that I achieved the desired expression. I was banking on the belief that Landry would chalk up any facial misfire not to my complete distrust of the man, but instead to the fact that I was already getting my tail rather sensationally kicked in this trial, and we hadn’t even made it to lunch on the first day.

  My attention was jolted back to business when Sarge announced that court was in session, and we learned that the next witness was the chief investigator for the Colorado State Police, Captain Oswald Francona.

  Captain Francona was not a particularly large man, but he carried himself with authority. He had thick, dark, curly hair, which was beginning to turn gray, and a small scar on the left side of his chin.

  Preston spent the rest of the morning and the first part of the afternoon establishing Francona’s qualifications for the work he had been assigned to do in connection with the tunnel bombing. He had been through the police academy, and had taken an impressive number of courses in ballistics, in dem
olition and munitions, and in counterterrorism, as well as the departmental tests required to rise through the ranks from trooper all the way up to captain.

  By the time his introduction to the jury was complete, there was no question in anyone’s mind that this was a dedicated, highly trained law enforcement professional, well equipped to oversee the staggering investigation necessary in Denver.

  It wasn’t until late in the afternoon that his testimony began to address the specifics of what he’d found at the crime scene.

  “Because of the number of victims requiring rescue or recovery, the fires and the resulting heat, smoke, and noxious fumes, etcetera, we were not actually able to get into the tunnel to begin our investigation until late on the seventeenth, over twenty-four hours after the initial explosion.”

  “Did you find the source of the fire?”

  Varick was working from a large, three-ringed binder. His goal, apparently, was to follow up the emotional testimony of that morning with a more scientific, fact-based presentation.

  At first blush, it seemed that by shifting away from the effect of the blast on the people in and around the tunnel, Varick might be squandering the momentum that had been generated by the heroic story of Officer Kenney. But as the testimony began to play out, I saw that it made some sense. The jury needed to catch its breath. Varick knew that there would be plenty of tales of heartbreak and valor to come. He was just pacing it so the jury could endure them.

  “Yes,” the captain answered. “Fire inspectors discovered that a tanker truck containing—”

  “Objection.” I don’t know whether Preston was expecting me to interrupt his witness. But he should have been. Whatever Oswald Francona was about to say was information told to him by others. A classic example of hearsay.

  And while I was perfectly happy to allow Officer Kenney some leeway in telling his story, none of which directly affected my client, the cause of this catastrophe was what was ultimately going to be vitally important to Juan Gomez. I couldn’t let the prosecution get away with presenting that part of their case without following the rules.