Lassiter 06 - Fool Me Twice (34 page)

If you are charged with murder and plead not
guilty, you have several choices. You can simply try a reasonable
doubt case. Don’t take the stand, but cross-examine the bejesus out
of the state’s witnesses. Magnify inconsistencies, exaggerate
sloppy police work, and ridicule the prosecution. With some luck,
you might get an acquittal, or at least a hung jury.

Or, if you have evidence the victim attacked
you first, plead self-defense. But that admits you did the killing,
and you’ll be convicted unless you can convince the jury that you
had reasonable ground to believe your life was in danger when you
struck back.

Or, you can bravely confront the state
head-on. Take the stand and swear you didn’t do it, pure and
simple. Well then, jurors might ask, if this rascal didn’t, who
did? In which case, it’s useful to have a straw man. Or woman, as
the case may be.

Which is what H. T. Patterson wanted to talk
about after court. Once the jurors were sent home, promising not to
read the newspaper or chat about the case, oaths broken more
frequently than marital vows, H. T. Patterson bought me a beer at a
local pub not frequented by the chichi Beverly Hills ski crowd. The
place didn’t have a view of the ski slopes, and it didn’t have a
burning fireplace. It sat in a warehouse/office center across Route
82 from the airport and had dim lighting where even accused
murderers could enjoy draft beer in peace. We sat at a round wooden
table scarred with cigarette burns, sipped our brews and ate boiled
peanuts.

“
I want you to watch your
demeanor in court. Don’t be so despondent and dejected, depressed
and discouraged. The jury’s going to conclude you think they’re
going to convict you.”

“
I do.”

“
Well, don’t show it. It’s
a self-fulfilling prophecy. It also makes you look sorry for what
you did. It’s a face for sentencing, not for trial.”

“
Okay, from now on, I’ll
laugh uproariously at every objection.”

“
Don’t be difficult. You
know what I’m talking about.”

“
I know. Never let them see
you sweat.”

“
Right. You ever hear the
story of the two generals watching their forces battle the
enemy?”

“
No, but I have a feeling
I’m going to.”

“
One general is wearing a
bright red cape, and the other asks him why such an outfit on a day
of battle. ‘Because, if I’m wounded, my troops won’t see the blood,
and they’ll fight on.’ The first general thinks about it and calls
to his aide, ‘Fritz, bring my brown trousers.’

That made me laugh, and my laughing made
Patterson beam. “Good, much better. Now, you ready to play some
poker?”

“
Deal.”

There weren’t any cards, of course. It was a
joke that went back to our first case together. Patterson had
cleaned my clock in a civil suit in which I had sued a striptease
joint where my client, a soon-to-be-groom, pulled a groin muscle in
a hot-oil wrestling match with noted stripper Wanda the Whirling
Dervish. It was my client’s bachelor party, and Wanda thought it
would be fun to see how far apart his legs could spread in a hold
called “make a wish.” I don’t remember what damn fool mistake I
made in closing argument, but Patterson came up to me afterward and
said, “Lawyering is playing poker with ideas, and you just drew to
an inside straight, sucker.”

Now he looked at me as a more or less equal.
“How do you like the jury?” Patterson asked.

“
I don’t know. I suppose if
we had six blacks and six Hispanics, all of whom had been
wrongfully arrested and distrusted the cops, I might feel better.
But we’ve got a white bread and mayonnaise crowd. You’d never see
this in Miami. You remember the jury when the judges were tried in
Operation Court Broom?’’

“
Sure do. Ten blacks, one
Hispanic, one Anglo.”

“
Yeah, wouldn’t that be
wonderful?”

“
Miami’s different,”
Patterson said.

“
I know. Exotic and yet so
close to the U.S. of A. I remember I was trying a case during the
Persian Gulf War, and I had a witness flying in from Topeka or
Omaha or somewhere normal. Anyway, he takes a cab from the airport
straight to the courthouse, and when I meet him, he says how great
it is to be in a city where everyone is so patriotic. I figure he’s
mistaken some Santeria ceremony for a marching band, so I ask him
what he means, and he said that in every neighborhood he passed,
people had strung up yellow ribbons for the troops.”

“
What’d you tell him?”
Patterson asked.

“
The truth. I said those
aren’t yellow ribbons. Those are crime scenes with their perimeters
taped.”

“
A common mistake,”
Patterson agreed.

“
So what do you think of
our jury?”

“
They’re bourgeois and
banal, common and conventional, the worst imaginable collection of
middle-class, mundane white folk this side of 1950s television.
Cimarron was a local lad, and even though he was considered
something of an oddball, he’s become a mythic Western hero in his
death. Our problem is that his halo now shines on Ms. Baroso. When
she accuses you, she speaks for him.”

“
So, what do we do?” I
asked without much enthusiasm.

Patterson drained his beer and patted his
mouth with a paper napkin. “Destroy her, of course.”

“
She’s very smart, H.T.,
and very convincing.”

“
So am I,” my lawyer
said.

I started to order another beer, then
thought better of it. I was working evenings, sketching outlines of
questions, reviewing notes.

“
Now let us assume we
convince the jury Ms. Baroso is lying about your alleged assault,”
Patterson said. “What have we accomplished?”

Lawyers just love rhetorical questions.
“We’ve discredited her. If a witness lies about one material fact,
all the testimony is in doubt.”

“
Including who attacked
whom, and more important . . .”

“
Who killed
Cimarron.”

Patterson smiled at me and
waved at the waitress, holding up one finger and pointing to his
glass, the international symbol for another drink,
s’il vous pla
î
t
. “So you
understand, my large lugubrious friend?”

“
You’re saying we’re not
arguing self-defense. I fought back, okay, and maybe I tried to
kill Cimarron, or maybe I was just fending him off. Who knows? I
certainly don’t. But I didn’t put the nail in his head
...”

“
Go on.”

“
Jo Jo did.”

“
It is a plausible version
of events, is it not? She encouraged you to fight him, provoking
you with the tale of her beating. When you failed to dispatch him,
she expedited the process.”

“
Great theory, H.T. How do
we prove it? I can’t testify that she told me to attack Cimarron.
Hell, she told me not to come to the barn. She tried to stop
me.”

“
Really? And did you pay
attention to her words or to the pain in her voice, to the choking
sobs with which she enticed you?

“
Okay, I get it, but will a
jury believe Jo Jo set me up to kill Cimarron?”

“
Or him to kill
you.”

“
What?”

“
She egged him on, but from
what you said, he resisted. Oh, he was going to do plenty of damage
but stop short of killing you. That’s not what she wanted. She
needed you dead.”

“
Wait, you’re losing me. I
thought she wanted him dead.”

“
Either way, Cimarron would
be out of the picture, wouldn’t he? If you were dead, she could go
back to story number one. Cimarron beat her, you tried to help, he
killed you. He gets convicted of murder. If he’s dead, well that’s
even better, and if Jake has to take a fall, too bad.”

I chewed that over with some boiled peanuts,
then said, “No way a jury will buy it. I don’t even buy it. I mean,
why did she want Cimarron dead or convicted of murder?”

“
How should I know? I’m
just playing poker with the cards dealt to me. You’ve got to figure
the rest out.”

“
But you want me to say Jo
Jo killed him?”

“
As I said before, it’s a
plausible version of events, and the only explanation I have for
her goading first you, then him, into a brawl.”

I sat quietly a moment, trying to think like
a juror and follow the twisted path of our defense, as just
outlined by my lawyer.

Too complex, too weird.

Besides, I couldn’t swear I didn’t fire the
shot, if you’ll pardon the double negative.

Another thing, I didn’t see Jo Jo shoot
anybody.

And finally, if you’re going to accuse
someone else, you better show a motive for the crime. If Jo Jo had
a problem with Cimarron, she didn’t have to kill him or have him
charged with murder. She could have just gone home. After all, she
came to Colorado to be with him.

Patterson said, “Just so the record is
straight, Jake, I am not encouraging you to tell a version of the
story that is less than the truth. I am only asking you to search
the depths of your subliminal memory, that shadowy territory where
light meets darkness, where conscious thought gives way to clouded,
obscured vision. Perhaps if you search those dim perimeters of the
mind, either by intense concentration or by hypnotic trance, your
recollection will be enhanced.”

In other words, H.T. was telling me, I could
make it up, but that was my decision entirely.

I thought about it some more, then said, “I
can’t do it, old buddy. I can’t do it because that’s not what
happened, and I can’t do it because it wouldn’t work anyway.”

Patterson nodded gravely and signaled the
waitress for the check. “I understand, Jake, but just out of
curiosity, would you do it if that’s not what happened, but it
would work?”

***

On Wednesday morning, a fellow in a cardigan
sweater took the stand. He told the jury his name was Don Russo,
and he was director of products safety for Toolmaster Inc., a
Delaware corporation that was a wholly owned subsidiary of a
Japanese conglomerate with factories in Indonesia and Taiwan. Don
Russo knew everything you ever wanted to know about the Masterjack
Stud Driver 500.

“
That’s our top-of-the-line
powder-actuated power-load stud driver, or what you folks might
call a nail gun,” he told the jury.

Russo was a pleasant man with clear-rimmed
eyeglasses, and he reminded me of the enthusiastic clerk in the
hardware store who knows just what grade of sandpaper you need for
every imaginable job. Russo usually testified in civil cases where
a hapless amateur carpenter put a nail through his hand, trying to
cock the gun with his palm over the muzzle and his finger on the
trigger.

Now Russo stood in front of the jury box,
holding state’s exhibit nine, a red evidence tag tied around its
rubberized handle. “I always advise folks to treat the Masterjack
as they would a rifle. Heck, they don’t understand, just because
the bullet’s got no projectile, that doesn’t mean it’s not
powerful. It’s really much more powerful than small arms ammo of
the same caliber.”

We learned how the powder explodes, sending
expanding gas against a captive piston, which slams into a pin that
shoots a nail out the barrel into what Russo called the working
surface, which in this case was K. C. Cimarron’s skull. We learned
not to use nails that are too long, because they may fishhook in
concrete and come back out at you like a boomerang. We learned the
importance of keeping the breech wiped clean and we learned that
someone, presumably Mr. Cimarron, had disengaged the safety device
which was intended to prevent discharge unless the muzzle was
pressed against the working surface. Russo tut-tut-tutted at that
and said the gun is perfectly safe unless misused.

“
The stud driver is really
for the professional, but every once in a while, we get somebody
trying to hang a picture on the wall of his apartment and he ends
up nailing his neighbor to the sofa in the next
apartment.”

“
In short, Mr. Russo,”
McBain asked in summary, “is exhibit nine a deadly
weapon?”

“
If used as such,
yes.”

“
And the firing of such a
gun into the ear of another is an act calculated to cause
death?”

Ah yes. The issue of intent.

“
Objection.” Patterson got
to his feet. “Invades the province of the jury and not subject to
expert opinion.”

Judge Witherspoon seemed to think about
it.

“
This witness cannot
ascertain the state of mind of my client,” Patterson
continued.

“
I don’t believe that’s
what the question called for,” the judge said.
“Overruled.”

“
Yes, I should think so,”
Russo responded. “Anybody who sticks a stud driver in somebody’s
ear and pulls the trigger…why, there’s only one thing that can
happen, and I guess every red-blooded American boy’s gotta know
that.”

***

The coroner was an Asian-American woman in
her forties who was the only trial participant shorter than H. T.
Patterson. She approached the witness stand with dainty steps, sat
down, and looked the jurors straight in the eye. She wore black
flats and a white lab coat that came to her knees. A touch of
purple eye shadow was her only makeup.