Try Try Again (12 page)

One Wednesday evening, several of her students asked if they
could attend the trial, cameras rolling. JTJ was annoyed she hadn’t thought of
that, since it sounded like a natural.

“I’ll see what I can do,” she said. Most judges didn’t allow
cameras in their courtrooms, but since Grantwood JC was a college, and
non-profit (= losing taxpayer money), and some of JTJ’s students were
under-privileged and deserved to experience a higher state of privilege, etc,
etc. – in brief, these thoughts led her the next day to ask for a meeting with
Judge Harriet DuCasse, the Duchess herself; and an audience was arranged.

The judge, hearing JTJ’s earnest words, agreed that her students
would be allowed to film the trial of Charley Wayne Dukes, subject to a number
of restrictions, which the judge spelled out. JTJ said she could live with them,
and DuCasse announced she herself would convene the prosecutor and the defense
attorney and broach the issue. She warned that if either attorney objected, she
would deny JTJ’s request. JTJ thanked the judge profusely and backed out of her
chambers as if she were a baroness taking leave of the queen.

Not knowing when the meeting the judge had mentioned would
occur, JTJ made haste to contact both Brent Nielsen and Liv Saunders. For their
separate but equal reasons, each agreed to allow JTJ’s students to film the
trial, provided the judge’s specific terms were agreeable to them.

Taking advantage of having come to the attention of Brent
and Liv, JTJ wangled brief interviews with each but didn’t learn much, because
neither had wanted to tip their hand on trial strategies. They would open up to
her, she hoped, as the trial progressed.

Brent sent her flowers the evening before the trial, and
candy. Liv didn’t. Brent Nielsen was an MCP, JTJ concluded, and one who must be
in search of publicity for some lusted-after higher office. Liv was – who
knows? Worth watching, certainly!

A few days later it became known that an adjunct at the
local junior college had asked Judge DuCasse to allow her students to film the
trial, in the interest of educating future tele-journalists. This was still
called ‘filming’, or ‘taping’ or ‘capturing it on tape’, although neither tape
nor film was used to capture sight or sound or anything else anymore.

DuCasse’s clerk contacted attorneys Nielsen and Saunders,
requiring their presence at two p.m. the next day to discuss recording the
trial.

Liv got the message, and knew Brent would be in favor. He
was known to be after every headline he could get, which wasn’t often,
considering the vast majority of local offenses involved non-headline-producing;
drinking in public, reckless driving, snatching candy bars from the local 7-11,
pissing in alleys, smoking in bars, and groping females who didn’t enjoy it, or
who were under eighteen and it didn’t matter if they enjoyed it or not. And
here was a case he couldn’t lose.

Judge DuCasse, she knew, was much the same. All they had to
do was frown and clear their throats and look Very Responsible, and advancement
was sure to follow.

At two p.m. the next day, the three met in chambers. The
Duchess looked up. “Well?” she asked, staring at them. Liv was tempted to say “black,
no sugar please,” but she didn’t dare.

While Brent made his pitch in favor of filming, Liv considered
what she’d say. She’d always been opposed to televising or filming trials:
circus atmosphere, string ‘em up emotions, jurors think they’re webV stars, and
all that. But this time she raised no objection, hoping the publicity might
surface someone who could give her a lead on ‘Art’.

The judge told Brent he’d have to behave and not showboat
this time: no arm-waving or eye-rolling, no rhetorical or hypothetical questions,
no elevated eyebrows, no snotty gotchas. For once. Brent said “Yes, your honor,”
without hesitation. The judge added she knew Liv would behave, because it was
hard to get theatrics, or any other kind of emotion, out of her anyway. Liv smiled
grimly.

Without objection then, Judge DuCasse ruled, the trial could
be filmed by students from Grantwood Junior College, subject to the conditions
she’d previously set out to JTJ:

.. Cameras must not interfere with the trial in any way, and
there must be no more than three cameras, and three crew members, in the
courtroom at any one time.

.. No journalists would be allowed in the courtroom, even
during recesses, except for the camera technicians themselves. But she allowed JTJ’s
commentary from outside the courtroom, might provide viewers some useful
context. JTJ could also be present in the courtroom as a member of the public;
but one whisper into a mic and out she’d go.

.. No part of the trial would be broadcast until the entire
trial was completed.

“Neither you, Mr. Nielsen,” she concluded, “nor you, Ms.
Saunders, will play to the cameras at any time.” Brent asked how the judge
would determine if he was or was not playing to the cameras at any time. The
judge told him she’d know, and stop being both disingenuous and insolent at the
same time.

Brent and Liv nodded and left, coolly wishing each other
goodbye and good luck and meaning only the first, long may that situation last.

DuCasse’s admin keyed-in a memo listing these conditions and
emailed it to the President of Grantwood Junior College, cc JTJ and every media
outlet in the seventeenth CD. JTJ became the envy of the media throughout
Central Pennsylvania, and the subject of soft feature stories herself, and
occasional viewer salivation.

Liv visited Charley three more times before the trial. He
half-heartedly repeated he acted alone, as if knowing no one believed him any
longer. “But I did it,” he told her, “I shot him. So what does it matter if I
had help?”

Liv returned to her office to consider what kind of deal she
could strike. What would happen if she could convince the jury Charley was a
dupe, a cat’s paw, not really responsible, under the control of a mastermind?

But even as she framed those words, she knew that angle was
hopeless for two reasons. First, if she couldn’t tell a convincing story of
what kind of person or organization might have hired Charley for the job, it
just wouldn’t fly.

Even worse, if she managed to convince the jury he was working
for someone, that would hardly be exculpatory, indeed it would make matters
worse because it would exclude less-criminally-responsible motives. And the
jury would be more apt to ‘throw the book at him’ if they thought he killed a
Congressman for money, than if he had done it for some personal reason. You
kill, you die. Or at least life without parole.

She began to worry about Brent’s evasive reply to her
question about his seeking the death penalty. He was ambitious: a capital
conviction in this state would be big news. But if she could get Charley to
give up the person who hired him, that would be a bargaining chip she could use
to persuade Brent to ask for twenty years, plus or minus, not forty years to
life, and not death. Murder-two at worst, perhaps, not murder-one.

But she’d been pressing that thought on Charley and he
hadn’t budged. Every day she grew more firmly convinced (based on his behavior
and closed-mouthedness) Charley was ordered or paid to assassinate Barnes, and
the price of talking was somehow worse than the price of a long prison sentence.
Otherwise what he did made no sense.

On her final visit before the trial, she told him that if he
would name whoever paid him, she could make a deal with the prosecution so they
would ask the judge to knock off a few years, even though it would probably not
get his conviction down to manslaughter. Perhaps he could get his freedom back
before he died.

“If you tell me more,” she said, “even manslaughter might be
a possibility. If not, you’ll go to prison for at least twenty years, or maybe
life without parole. Or worse.”

But Charley was silent.

Liv went back to her law office and sat, elbows on a blotter
innocent of ink, head in hands. What would happen now? She listed the
probabilities:

.. Charley Dukes would be sentenced to prison for a very
long time and would probably die there, given his age and the brutality of the
place.

.. The identity of the person who had bribed or forced
Charley to kill Ezra Barnes, would never be known.

.. She would lose her job with Holmes & Epperly, and be
unemployed.

The trial of Charley Wayne Dukes for murder opened on a
snowy, windy day in central Pennsylvania: generally depressing, as Liv
reflected. In a selfie-interview as the trial opened, JTJ stated on-air that a
second-degree murder verdict was likely, in the case of the State v. Charley
Wayne Dukes. She predicted that Dukes would make a deal, resulting in a speedy
trial and a verdict that few parties would object to. Some of those who posted
comments online praised this common-sense forecast as if it were already a
fact; others called her ignorant and a disgrace to Central Pennsylvania and she
should just go hang herself. And yet another responded with his own special
recipe for barbequed scrapple.

Liv wondered who’d been feeding JTJ her broadcast ideas. It
couldn’t be Brent, because she figured he’d be asking for first degree. And she
knew it wasn’t herself. Could it be The Duchess? So much for propriety, and
much more for speedy and efficient trials and a more-probable-now promotion to
the State Supreme Court bench at some future time.

People approaching the courthouse on the first day of the
trial would later speak of a “circus atmosphere,” even though the circus
consisted only of fifty to sixty members of the press milling around and
looking for “insights” as they called them, from other reporters and the
occasional passer-by.

JTJ’s three cameras had been set up in the courtroom earlier,
and the cameramen coached on behavior. Any kind of incident would get them
promptly ejected, with nothing to film but other reporters. The camera crew
even wore blazers and slacks as opposed to their usual photographers’ vests and
jeans, in honor of Her Honor.

The clerk announced the Honorable Harriet DuCasse All Rise,
as if ‘All rise’ were part of her name. All rose.

After being seated and motioning everyone else to sit down
also, Judge DuCasse announced that five days had been set aside for the trial
(as everyone knew by now), owing to a crowded court calendar and the fact that
the defense was, apparently, not contesting the basic facts of the case.
Neither Liv nor Brent objected to this.

Charley was accused of murder in the first degree. Liv
pleaded him guilty of manslaughter, which brought forth a few snickers from
those lucky enough to get seats for the trial. These were quickly extinguished
by the Duchess’ gaze and gavel.

There were the usual routine motions, including move for
dismissal, which was routinely denied, then prospective jury members were
called in and seated.

Voir dire ensued, but only two jurors were dismissed, the
rest being bland enough neither Prosecution nor Defense could find any reason
to challenge them.

Brent’s opening statement took almost two hours. He led the
jury through all the events of that somber day, emphasizing Charley Dukes’
attempts to cast blame on others: the Congressman himself as a supposed drug
buyer, what a shame even a habitual criminal would stoop to such a thing, and
then a terrorist group that turned out to be completely fictitious. Neither of
these stories, he said, had the traditional shred of truth, nor did the story
of the Harrisburg gang and its phone number – which turned out to be the
Greyhound bus station.

There was a dramatic pause, during which Brent sneaked a
smile at one of the cameras and was admonished by Judge DuCasse, who’d been
expecting something just like that from the prosecutor.

Concluding, Brent told the jury he would be asking them to
impose the death penalty. Most of the reporters present had heard rumors he
would, but there were gasps anyway, followed by gavel-gavel-bang-bang.

Yes, he continued, it was highly unusual in this state, but
permitted by law. Lethal injection, painless and humane, of course, nothing
like some of those southwestern states where people were executed at the
slightest provocation and in inhumane ways.

And in Pennsylvania, the decision of life or death was up to
the jury.

Brent spoke at greater length about the death penalty,
without making any additional real points. JTJ, in that evening’s broadcast,
said he was doing an “accustoming,” getting the jury over their shock regarding
a possible death penalty, before proceeding with a foretaste of the
prosecution’s case.

At last he gave his summary of the witnesses and evidence
that would be presented, and underlined the fact the defendant had confessed,
not only to killing a promising, bright young member of Congress in the flower
of his youth, but doing so with premeditation. Yes, ladies and gentlemen of the
jury, etc. etc. and so on until he was finished and sat down.

Olivia Saunders rose slowly from the defense table and
looked at the jury with sorrowful eyes. “You’ve heard what the prosecution
intends to prove, and that’s all very well. The basic facts in this case are
uncontested. However: There may be witnesses, but there is no motive. There is
a defendant, but the prosecution has nothing to say about his mental state,
about his ability to understand the consequences of what he did, or to foresee
them.

“The defense will show the defendant, Charley Wayne Dukes,
is handicapped, mentally deficient. That does not mean you should judge him to
be not guilty. But it does mean the degree of his guilt does not rise to murder
in the first degree or even murder in the second, because Mr. Dukes is
incapable of the kind of premeditation and planning, and awareness of the
consequences of his act, that these verdicts require. His strange behavior when
arrested, alone, is enough to convince you something is deficient in his mental
make-up.”

Liv went on, but she didn’t mention the possibility of a
conspiracy or murder for hire. To do so might give the jury the idea Charley
was indeed capable of planning, cunning, and a serious amount of cold-blooded
premeditation.

She had the beginnings of a good argument, but lacked the
one thing that would nail it: testimony from a mental health professional, who would
have examined Charley with the sure eye of a psychologist, would have assessed
him with statistically infallible tests, and would have found him to be, well,
the word “idiot” wasn’t acceptable anymore, but otherwise might have been a plausible
diagnosis.

The problem was, Liv hadn’t been allowed to spend any of the
firm’s money on expert witnesses of any kind. “Belle” Epperly herself had given
Liv a flat “no,” and an appeal to Marty Holmes brought an even louder “no.” Liv
dared again to raise the possibility of an appeal based on inadequate defense,
and was basically told to leave the room and stand in a corner and never say
that again, to anyone, ever.

After Liv’s defense statement, Judge DuCasse noted the day
was late and the jury had quite a bit to think about before the prosecution
made its case. That said, she adjourned the trial for the day.

As the courtroom was emptying, Liv stepped to the
prosecution table and asked Brent Nielsen if he’d like a beer, or perhaps
something stronger.

“Just social?”

“It’s never just social.”

They pushed past a mob of reporters, no-commenting
frequently. Brent disappeared around a corner and Liv went to a nearby bar
frequented by lawyers, called The Defense Rests, colloquially known to members
of the bar as “The Defense Will Have a Bourbon, Double.”

Liv had a bourbon, double, and waited. After half an hour,
Brent joined her and ordered an IPA. He waited patiently to hear what Liv wanted
and, after two more swallows of whiskey, she began.

“Look, Brent. I don’t want the death penalty here. I think
you’re overreaching, maybe just to be a hero of the people of some kind.”

“Well,” said Brent, “I’ll continue to express my opinion to
the jury and argue for it. But death was never likely anyway. Pennsylvania
hasn’t had more than four executions in the last forty-five years.”

“So you just want the publicity of asking for it.”

“Something like that. But in this case, a popular
Congressman, an unsympathetic defendant, and no apparent motive…Yes, I suppose
perhaps the jury might be so inclined,” said Brent carefully.

Liv offered an insincere smile. “You can head it off by
telling them the prosecution has no interest in the death penalty here – in
fact, the prosecution opposes it. ‘After further review’ and all that.”

“And why would I tell them that?”

“For two reasons,” Liv continued. “First, I’m arguing for
reduced capacity – Charley is, as I’m sure you’ve observed, not very bright.
Borderline mentally deficient.”

“That’s stretching it, Liv. He’s just a little slow.”

“The jury might decide something different. Might decide
he’s not criminally responsible.”

“Doubt it, but that’s their privilege. Anyway, what’s your
second reason?”

Liv paused. Now to approach this? How to tempt Brent with
such a thin reed of hope?

“Because I have something for you; something a lot bigger
than Charley Dukes.”

“Not that ‘he was hired,’ thing again, Liv. You know that
just makes defending him tougher, and the death penalty more inviting.”

“You know,” Liv said, “I’ve thought all along Charley had
been hired to kill Barnes, and I know you think so too, based on our
conversations; you just won’t say it in court.”

“Hey; I’m on your side here,” Brent said. “Murder for hire?
You sure know how to argue against the death penalty! Let’s both tell the jury
that. – But without a who, and a motive, and some evidence there was money on
the table or some comparable persuader, well…” He shrugged.

“I’ve been to the bar where Charley hung out, you know, the
Stirrup.”

”Yeah. The FBI told me about the bar, and that you were seen
there. They didn’t find out anything except  Charley used to drink with a guy
named Art that nobody can find.”

“I’ll bet the FBI didn’t buy the locals drinks – or drink
with them – like I did.”

Brent laughed. ”No, I guess they didn’t drink on duty. And
you found evidence – that everybody was too drunk to lie? Or maybe you were too
drunk to remember what they said? Or bought some great testimony for a jigger
of Old Grandpappy?” He was enjoying himself, now, Liv thought. On a roll. And
he was being cruel, almost accusing her of being a drunkard.

“Some evidence, yes.” Liv tried to stay calm. “You know what
I’m telling you is true. You just want a fast murder conviction, wham bam thank
you judge and jury and it’s over.”

Brent perked up. “Yes, that’s about it. And when are you
going to disclose this ‘evidence’ of a conspiracy? How about now? By now
everyone knows all about Charley’s dumb stories, the drugs and the Arabs and
all that, and the more he talked the more fantastic it got. So, do you have
something new? Another new story we can all laugh at?”

Liv looked down at the table. “No,” she said slowly,
“nothing I can present to a jury. Yet.”

There was a moment of silence as both sipped their drinks. Liv
sat back and looked at Brent. “Wouldn’t you like to have ‘Art’ to try in
court?” she said.

“Accessory before?”

“More than that. Art was directly responsible for the
murder. I think.”

Brent sighed and rolled his eyes, finally allowed that
behavior after a day of watching himself on orders of The Duchess. “C’mon, Liv.
Even if we find this Art, how can we prove anything? A bunch of drunks and
whores in a bar? And they never heard any conversations anyway, according to
what you’ve told me.”

Liv felt herself becoming annoyed. She almost said “Those
drunks and whores are my friends,” but thought better of it.

Brent paused, then said “Look; sure I’d like to prosecute ‘Art’,
if he exists, but that would be later, if at all. It’s not going to slow me
down in the Dukes trial. If the jury imposes the death penalty, then you’ll
just have to get more out of Charley before he gets the needle. Execution could
take years, you know, and I don’t care if it does; I’ll have my conviction.”

“Could be just months,” Liv rejoined, “with so little
precedent, who knows what could happen?”

A few minutes of silence ensued.

Brent’s phone rang and he had a whispered conversation. He
looked up. “A reporter,” he said. “I need to leave.”

Liv said goodbye and went home, couldn’t sleep.

Brent left for his interview. He smiled at the thought of
JTJ; by reputation she was just as ambitious as he was. Maybe more so. They
should get on well.

Immediately after the first day of the trial was adjourned, JTJ
and her crew had found an unoccupied room in the courthouse and viewed the
day’s camera “tapes.”

Per the judge’s rules, nothing could be broadcast until the
entire trial was over, but she could comment on the air. What was there to say?
Mostly background, set the stage for anyone who hadn’t been following the
preparations for the trial in the news. But that was approximately nobody in
this town where there hadn’t been a murder in sixteen years, and the first
murder here, ever, where the victim hadn’t deserved his fate.

It was seven o’clock by this time. JTJ pulled her phone out
of her purse and called Brent, hoping he would be available to talk that
evening. He agreed to be available before she had a chance to ask him. When?
How about now?

The interview produced nothing she could call breaking news,
just a reiteration of what Brent had said in his opening statement. But the
interview was broadcast nonetheless, with JTJ’s astute and incisive commentary.
At least the webV station would bill it as astute and incisive, without much
consideration of what those two words could possibly mean.

As Brent left the meeting he realized he had found JTJ
attractive. Was it mutual? Certainly, Brent felt. Who could resist?

Day Two of the trial began with a request to the judge, since
the camera crew was having technical problems, could the day’s session be
postponed until these problems could be solved, or as the lead cameraman put
it, “rectified”?