The Mayor of Lexington Avenue (17 page)

“Thank you, Mr. Yates. I believe you have answered my question. One other thing: Does Rudy in your opinion know the difference between right and wrong?”

“Yes, I believe he does.”

“Thank you. No further questions, Your Honor.”

Tracey had no re-direct. Clay had scored his points but she wasn’t arguing that Rudy did not have the capacity to understand what he was signing.

“Call your next witness, Ms. James.”

Tracey followed Bill Yates with Benny Dragone.

“Detective Brume wanted to take Rudy off the job and over to the station for questioning,” he told Tracey in response to a question. “I told him that I wouldn’t let him speak to Rudy until I talked with his mother.”

“Why did you tell him that?”

“I knew he was looking at Rudy as a suspect in that girl’s murder and I didn’t trust him. I knew Rudy just couldn’t handle himself with a snake like that.”

“Objection.” Clay tried to sound outraged but his opinion of Wes actually coincided with Benny’s.

“Sustained,” Judge Wentwell replied, not waiting for argument. He looked down at Benny. “Mr. Dragone, stick to the facts. We don’t need the derogatory comments.”

“Yes, Your Honor. Sorry.”

But Tracey wasn’t letting it go just yet. “The person you referred to as a snake, Mr. Dragone, who was that?”

“Objection.”

“Overruled. The record needs to be clarified. You may continue with this one question, Ms. James.”

“Thank you, Your Honor. Do you need me to repeat the question, Mr. Dragone?”

“No. The snake I was referring to was Wesley Brume.”

“Thank you, Mr. Dragone. Now, what was Detective Brume’s response when you told him you wouldn’t let him speak to Rudy until you called Rudy’s mother?”

“He threatened me.”

“He threatened you? How did he do that?” Tracey did her best to sound surprised, as if she didn’t know what was coming next.

“He told me he’d get the health department over to my store for an inspection. I knew what he meant.”

Tracey decided to end her questioning there. Leave it up in the air a little. See if Clay had the guts to jump in. “No further questions, Your Honor.”

“Your witness, Mr. Evans.”

“Thank you, Your Honor. Mr. Dragone, to your knowledge did Detective Brume need to ask you for permission to take Rudy in for questioning?”

“No, of course not.”

“So he could have just come into the store, asked Rudy to come with him and left without even saying hello?”

“I guess so.”

“But he was polite enough to talk to you and explain to you what he was about to do?”

“I wouldn’t exactly call it being polite.”

“Whatever, he did explain to you what he was about to do?” The Fourth snapped the question out.

“Yeah, I guess so,” Benny replied, almost reluctantly. It was that noncommittal answer that angered Clay, causing him to go a little too far.

“And you also ‘guessed’ that because Officer Brume mentioned the health department after looking around at your premises that he was somehow making a threat?”

“No, that wasn’t a guess. That was a fact.” Clay had pressed Benny’s button. “I come from Chicago. I know a threat when I hear one. Any fool knows when a cop tells you he wants somethin’ and you refuse, and then he says he’s gonna call the health department—that’s a threat.”

“In your opinion?” It was all Clay could come back with although he bathed the question in sarcasm.

“Yeah,” Benny replied. “In my opinion and a thousand other people if they were asked the same question.” Clay had no place else to go so he just stood there looking at Benny with disdain, hoping he could convince the judge that Benny was an uncooperative piece of shit who insulted lawyers.

“I have no further questions of this witness, Your Honor.”

Tracey called her next witness, another surprise for the Fourth, who was starting to feel like a punch-drunk fighter.

“The defense calls Maria Lopez.” The name did not ring a bell with the Fourth.

“I’m the receptionist at the police department,” Maria told Tracey. She went on to tell the judge that Elena had arrived at the police station at 3:16 p.m. on January 24th. She knew the exact time because Elena had asked her to write it down.

“What happened when Elena—Ms. Kelly—arrived at the station?”

“Nothing. I was told to have her sit and wait.”

“For how long?”

“Maybe twenty minutes. Then Detective Shorter came out to talk to her.”

“Did he come out on his own or did you have to call him?”

“I had to call him. Ms. Kelly insisted that I call again to let them know she was there.”

“Was she allowed to see her son after that?”

“No.”

“No further questions.”

Clay had no cross.

Tracey kept the pressure on, following Maria Lopez with Elena, who repeated Maria Lopez’s testimony almost verbatim, adding only the substance of her conversation with Del Shorter.

“He told me that my son could be a very valuable witness to them since he worked at the convenience store. I almost believed him but when he continued to talk and finally admitted that he wasn’t going to let me see my son, I knew it had been a stall all along. Detective Shorter flat out lied to me about what was going on.”

Clay couldn’t let that last statement stand. “I move to strike the last sentence, Your Honor. It is opinion testimony.”

“I believe a witness can give an opinion about whether she believes somebody is lying to her or not,” Tracey said.

“I’ll allow it,” the judge ruled. “Motion denied. Any further questions, Ms. James?”

“No, Your Honor.”

“Cross-examination, Mr. Evans?”

Clay wanted to take a shot at Elena, wanted to establish through Rudy’s own mother that he had the capacity to read and write and make decisions. But he already had that testimony from the principal, and it was always dangerous to keep a sympathetic witness on the stand.

“No questions, Your Honor.”

The stage was now set for Harold Victor Fischer. He strode confidently into the courtroom dressed in a dark blue suit, white shirt, red tie—his power outfit. Actually, H.V. didn’t fit the mold very well. He was tall enough but slumped over like a sack of potatoes, soft in the middle and around the shoulders—more like the Marshmallow Man than Superman.

Tracey started building him up right away, having him recite his credentials: Cornell, Penn medical school, and so on. When she was finished, she simply turned H.V. loose. It was on the stand, lending his expertise to the process, that H.V. transformed into a formidable figure.

“Doctor, have you had occasion to visit Rudy?”

“Yes, I met with him for approximately two and a half hours.”

“And have you formed any opinions in this case?”

“Yes.” And off he went. “I not only met with Rudy, I performed a battery of tests including the Wechsler Aptitude Test. I have reviewed his entire medical chart and his school records.

“Rudy’s IQ is seventy-five, which means he is not retarded but is what we call borderline. He has many characteristics of the retarded, including his affect. What do I mean by affect?” Posing his own questions was classic H.V. “I mean that Rudy always had a smile on his face, always greeted—no, greets, even in his present circumstances—the world with open arms. He’s a happy person, very gullible, very naive.

“There have been case studies about retarded children and their inability to make the right decision under similar circumstances—mostly teenagers exposed to the general population of other teenagers. I remember one case in particular. A group of teenagers in Ohio had convinced a retarded student in their class that they were his friends. They took him out to a high bridge and convinced him to jump into the river below. They assured him they were all going to follow. The jump didn’t kill him. He drowned because he couldn’t swim, a fact he hadn’t thought to tell his newfound friends.

“I mention this case study in particular because it is an appropriate analogy. Young Rudy told me during our interview that he liked Detective Brume, that he thought Detective Brume was his friend. A normal person in his circumstances would definitely not share those sentiments. When you befriend an individual like Rudy, he does not have the capacity to refuse to do what you ask. He could not refuse to talk to Detective Brume once Detective Brume became his friend. I think Detective Brume knew this instinctively. From my conversation with Rudy, it became clear that Detective Brume tried to establish a friendship before ever discussing the murder.

“Under those circumstances, Rudy could not refuse to answer his questions.”

H.V. was a veteran of the game. He knew the more he said, the more ammunition he gave to opposing counsel on cross. When he had completed his expert opinion on
the
issue, H.V. simply shut up and waited for the onslaught.

It never came. Clay Evans had no desire to engage in a game of wits with Harold Victor Fischer—one he’d probably lose anyway. He fell back on drilling home a few fundamentals for the judge’s benefit.

“Doctor, can Rudy read and write?”

“Yes.”

“Can he distinguish right from wrong?”

“Yes.”

Clay retrieved the written confession from the clerk who was now holding the evidence. He handed it to H.V.

“Could he read and understand this document?” H.V. glanced at the confession. He had seen a copy of it in the documents Tracey had sent him.

“Read it, yes. Understand it, yes. But you’re not getting my point —” Clay cut him off in mid-sentence.

“You’ve answered my question, Doctor. Thank you.”

Tracey couldn’t let it end there. She accepted a redirect.

“What is the point that Mr. Evans is not getting, Doctor?”

“The point is that reading and understanding are not the only questions you have to ask when you consider the issue of ‘consent’ with a person like Rudy.” This was a statement Tracey hadn’t heard from H.V. during their two-hour preparatory meeting the day before. It was new even to H.V., who had just arrived at the thought on the stand. Up to now, Tracey and H.V. had conceded that Rudy had the capacity to understand
and
consent, but they had planned to contend that his affable nature wouldn’t allow him to refuse to talk to someone he considered a friend. Now H.V. was about to change the issue to one of
capacity
itself, and Tracey could see that this would turn out to be a much better argument for the defendant. Apparently Clay Evans could bring a person to new heights even on cross-examination, she thought, trying to conceal a smile.

H.V. continued. “With a retarded person or a borderline retarded person, you must also consider the circumstances under which the confession was made. If a relationship of trust was established between the questioner and the defendant, then in my opinion the defendant would not have the
capacity
to refuse to speak. Therefore, he would not have the
capacity
to consent.”

H.V.’s intellect was in free flow now. He was having a breakthrough right on the stand. Not only was he testifying for money, he was testifying for truth. He truly believed what he was saying and he truly believed he was about to save Rudy’s life. He turned toward the judge and started speaking directly to him.

“Your Honor, if I may be permitted to make an analogy. It’s similar to a will contest where the issue is undue influence. The question is not necessarily whether the elderly person has the ability to make decisions regarding his or her property, it is whether that person has a
diminished capacity
because of his or her age and that fact, combined with the beneficiary being in a position of trust, a
fiduciary
capacity, has robbed the person of the ability to make a
voluntary
decision concerning his or her property.” It was a highly intellectual legal argument made very simple. Tracey was blown away. It was a perfect analogy and she had never thought of it.
What was the logical argument to counter it?

One thing was for certain: The logical counterargument was not floating around in Clay Evans’s brain. He was having a hard enough time just trying to figure out what H.V. was talking about. But Judge Wentwell was going to give him a chance to dive in if he wanted to take it.

“Mr. Evans, since this issue of lack of capacity was more or less raised on redirect, I’m going to give you an opportunity to recross.”
Don’t take it! Don’t take it!
somebody was screaming in Clay’s brain. But Clay had been making terrible decisions his whole life—he wasn’t about to stop now. He decided to counter intelligent discussion with sarcasm and derision.

“Is this a will contest, Doctor?”

“Of course not.”

“Is Rudy an elderly person?”

“No.” It was ugly, almost stupid, but like a blind man walking in a minefield, the Fourth finally stepped on something that made a little noise.

“Is there something here I’m missing? How long did this kid Rudy know Detective Brume?”

“I don’t think they knew each other before the interview.”

“And how long did the interview last?”

“Thirty-eight minutes, according to the reports I’ve seen.”

“And in that thirty-eight minutes, you’re saying they developed a
fiduciary relationship
?”

“In a way, yes.”

“What does that mean, ‘In a way, yes’?” It was an open-ended question, and H.V. didn’t miss the invitation.

“It means that the detective, who clearly had the superior intellect, established a position of trust with Rudy in that interview room. He pretended to be Rudy’s friend. Rudy still believes Detective Brume is his friend. He still believes the detective is trying to help him.”

“Are you saying that Detective Brume lied to Rudy?” The Fourth asked the question with such surprise in his voice Tracey almost started to laugh out loud. H.V. was possibly the only witness who had not attested to the Grunt’s lies.

“Not at all,” H.V. responded. “He just used the situation to his advantage.” Clay took the answer as a concession. He was done but he took a moment to stare at H.V. as he had done with Benny Dragone.

“I have no further questions of this witness,” he finally told the judge, acting as if he had beaten H.V. to within an inch of his life.