Try Try Again (13 page)

DuCasse immediately said “no,” and asked if all three
cameras were inoperable. The lead cameraman said no, only one, but it was
important to have three cameras on, to ensure the entire blah blah, angles blah
blah and so on, these are students you know and need the experience, until
DuCasse cut him off, not an inappropriate metaphor in the circumstances.

“No,” she said again, and “One more complaint about an
equipment problem and there will be no more cameras in the courtroom. Fix it if
you can, or go on with whatever you have that works, but don’t tell me about it
and don’t make any noise or raise one more irrelevant issue or out you go!”

JTJ, who was seated near the cameras, was delighted. She now
had her lead for the evening news report: JUDGE CLAMPS DOWN, another nice
physical metaphor.

The courtroom was called to order and the prosecution
presented its case, taking all of the court’s day. Brent trooped seven eye-witnesses
to the stand, one after another, and asked them in excruciating detail, second
by second, what they saw and heard.

First, Barnes’ staff who had been on the platform with him
testified and then, one by one, those who’d come to hear him and were close
enough to see Dukes fire a weapon. Carefully, he drew out witnesses’ observations.
It was simple: Charley Wayne Dukes had shot, with apparent premeditation and
without any hint of a reason anyone could discern, their very own Congressman,
a man who had a brilliant future ahead of him. Senator, very likely, and then
who knows? Perhaps President! One of Pennsylvania’s own, a local boy
universally beloved, quarterbacked his junior high football team. And there was
more, piled higher and deeper. The jury seemed to take it all in and nod at the
most heart-wrenching parts.

Liv’s crosses established that, although Dukes had drawn and
pointed his gun, and there were gunshots, these witnesses couldn’t testify it
was Charley whose shot had actually hit the Congressman a fatal blow. Most of
these witnesses, in fact, hadn’t been looking at Charley until after at least
the first two shots had been fired.

Liv saw the witnesses had obviously been prepped, leaving
little wiggle room for the defense, and no inconsistent testimony to exploit.
She did make the point with each witness, the entire shooting, from Barnes
extending his hand to Charley turning away, could not have taken more than
about four seconds, perhaps six at most. Are you sure your memory of the event
could possibly be as precise as your testimony indicates? Most of the witnesses
said yes, it could. She was able to throw doubt on the reliability of some of
them, especially because a few seemed confused by the number of shots: two,
three, or four, maybe more. But Liv couldn’t get any of them to suggest what
might have happened, if not the events the prosecution was alleging.

She forced each witness to admit they weren’t actually an
eye-witness to the shooting. “And even if you saw Dukes fire, you don’t know
for a fact that his shots struck Congressman Barnes, much less killed him. Do
you?”

But since Liv had no credible theory of how Barnes could
have been shot by anyone other than Charley, she didn’t feel she’d made much
headway.

Brent was calling his eighth witness when Judge DuCasse
interrupted him. Enough, she said, was enough. And it’s getting late in the day.
All the court was hearing was the same account of events over and over, and the
same cross over and over.

Brent didn’t contest the judge especially forcefully, and he
struck from the witness list all those who’d had been in the crowd that day,
but hadn’t yet testified. Liv did not object.

But he did make the point that it was important to hear from
several other witnesses, especially including Jerry Sullivan, Barnes’ security
man; Scott Gardner, the Grantwood chief of police; and a psychiatrist. The
judge agreed they could be heard, without any special process since they were
already on the witness list. Again, Liv did not object.

First, Nielsen called Dr. Jeremy Lloyd, a Ph.D. + M.D.
psychiatrist (see what a big trial budget can get you, Liv observed). The
psychiatrist testified he had observed the defendant in the course of one day
of normal activities at the jail, e.g., eating, sitting around during
recreation hour, falling into line when ordered to do so, being locked up, etc.

“And did you observe any behavior, that in your professional
opinion, would indicate the defendant was mentally handicapped, as the defense
has averred in their opening statement?”

“No,” the doctor said.

“Or otherwise abnormal?”

“No.”

There were several more questions, circling around the
question of Charley’s ability or inability to think clearly about the crime he
allegedly committed. Then Brent hit the proverbial home run with his final
question: “So are you testifying, Dr. Lloyd, that Charley Dukes had enough
intelligence to understand he shouldn’t kill people?”

Liv’s objection went unheard in the courtroom’s hubbub.

Liv’s cross consisted of establishing that observing a day
in jail, where nothing abnormal is found is no proof of normality, since being
in jail was itself abnormal. Liv got Dr. Lloyd to say behavior in jail is not
necessarily an indicator of behavior in any other environment. The witness
smilingly agreed with Liv on all her points, to the accompaniment of Brent’s
scowling face.

Liv had won that battle, but she wasn’t winning the war.

Jerry Sullivan then took the stand, seating himself firmly
in the chair with an attitude of calm unconcern. He was sworn in.

“Now, Mr. Sullivan,” Brent began, you were part of
Congressman Barnes’ security staff?

“That’s right,” said Sullivan, looking imperturbable. “I was
in charge of his security.”

“And how many other officers are there in your security
team?”

“Depends on when and where. I’m the only full-time security.
It’s my job, when I’m hired, to bring in extra help as needed. Mostly off-duty
police, no trouble finding guys who’d like to earn a few extra bucks.”

“And, are you a sworn officer?

“Was,” said Sullivan, preening slightly. “In Scranton. I’ve
been retired three years now. Three and a half.”

Brent asked Sullivan to describe where he was and what he
saw.

“And then,” Brent concluded a few minutes later, “where were
you just prior to and at the time the shots were fired?”

“The Congressman had just descended those rickety steps down
from the platform, Chief Gardner behind him, and then me.”

“Was that the normal process?”

“Well, it really should have been the Chief in front of the
Congressman and me behind, but I guess we didn’t know of any threat, this isn’t
the Secret Service and lots of things get done any way they can, and anyway, I
don’t think that would have made any difference to the outcome in this case
anyway.”

“And you heard the shots?”

“Yes, sir. I did.”

“And,” Brent continued, “you saw the defendant holding a
gun.”

“Yes sir, I did.”

“And then what did you do?”

“I drew my weapon.”

“With the intention of…”

“Firing at the suspect.”

“And did you?”

“Did I what?”

“Fire at the suspect.”

“I was about to take a shot, but the Chief waved me not to.”

“How?”

“With his hand. Downwards. Two-three times.” He
demonstrated.

“Meaning?”

“Meaning don’t shoot. That was about the time he caught a
bullet himself, in the same hand.”

“And why do you suppose the Chief made those motions to
you?”

“Objection!” said Liv, half-rising.

“Sustained.”

“One last question, then. Could you have fired at the
accused without risking innocent lives?”

“I believed I could, sir. I could have done that. I’m a
pretty good marksman. But thinking about it later, I guess there would have
been a risk to civilians, and to Chief Gardner too, since he was right in front
of me. So that’s why he motioned me to stop.”

“So you didn’t fire at all.”

“That’s correct, sir.”

Liv made a perfunctory cross that broke no new ground.

As the prosecution’s last witness, Scott Gardner, Chief of
Police of Grantwood, Pennsylvania, was sworn in. He didn’t look well, and as
the minutes dragged on he looked even worse. Seeing his distress, and the
lateness of the hour, Brent asked the judge if Gardner could be excused for the
day and recalled the next. This time, Liv objected, because the third day of
the trial was the defense’s day, and she didn’t want the jury confused if a
prosecution witness were also called on that same day.

The Duchess overruled Liv’s objection as a matter of law,
but said Gardner was excused and could testify on the fourth day of the trial
instead of now, the second day. The Chief thanked the judge and left, looking
greener by the minute.

The remainder of the second day was devoted to two prosecution
witnesses who had observed Charley Dukes after he had left the rally area.

First, Natalie Jameson testified she’d been knocked down by
a man who’d then taken her Chevy Nova and mercilessly ground the gears and
unrubbered some tire, which hurt her more than having been knocked down. Is the
man who assaulted you here in this courtroom, ma’am? Natalie Jameson stood up
abruptly and pointed a shaking finger at Charley Dukes. “He did it!” she yelled
dramatically.

Liv’s cross, which took little time, established Jameson had
no personal knowledge Dukes had done anything to Ezra Barnes, nor had she been
at the Congressman’s rally.

Jameson was thereupon excused and left the courthouse, she
said to reporters, to buy a birthday present for her son.

Next, a highway patrolman testified he’d heard a BOLO for the
Jameson car, and he and five other officers had set up a three-car roadblock
and had spotted a suspicious car and stopped it, because of the make and model,
and because the front plate was the same number as one reported stolen some forty
minutes earlier.

He’d waved the car to stop, which the car did since there
was no way around the roadblock. Then he apprehended the defendant. Did he try
to escape? Yes he did. Another officer, Private Sowton, shot him in the leg,
and he collapsed. Did the driver of the car you stopped say anything? Yes, sir,
he confessed. Before he was read his rights? Yes, sir, unfortunately, as soon
as we laid hands on him he yelled “I shot him! I shot the politician!” in a
loud voice. We all heard it. And then we Miranda’d him and he confessed again.”

“And was there any coercion of any kind, in the defendant’s
confession?”

“No, sir, none at all.”

Brent continued. “Please tell the court what you found on
the defendant or in the car.”

“Yes, sir, a car key in his pocket that didn’t fit the car
he was driving, and a license plate in front that didn’t match the one in back.”

“Did you find a weapon?”

“No, sir.”

“Did you give the defendant a powder test when you arrived
at the station?”

“Yes, sir.”

“And what did you find?”

“That he’d recently fired a weapon, sir.”

The prosecution rested, and Liv declined to cross-examine.

With a few concluding remarks to the jury, DuCasse adjourned
the court until nine a.m. the next day, the third day of the trial.

During a recess that day, Liv had finally received
call-backs from a clinical psychologist and a MSW in psychology willing to
visit with Charley for an hour that evening, and verify, if they could, Charley
was handicapped by a lack of normal intelligence, had an IQ of perhaps
eighty-five, and his judgment was therefore diminished with respect to planning
and executing a crime (shaky logic, actually) and was therefore not totally, but
partially responsible for his acts. One hour wasn’t long, but then they weren’t
being paid.

She expected that cross-examination would establish having
an eighty-five IQ was fully compatible with responsible decision-making, at
least in ordinary situations of normal life; but these two experts were all she
had that didn’t sound crazy and conspiratorial.

So what was left for the defense? The crazy and the
conspiratorial. But she had no witnesses for that, and no reason to claim
Charley Dukes was mentally capable of joining a conspiracy and executing their
orders.

So she had the thin reed of mental deficiency; it was that
or “defense rests” without having done anything worthy of resting from.

The next morning, the third day of the trial, Liv put on her
show.

She called the two expert witnesses she had cajoled into
serving for no fee – pro bono, just as she was. But some publicity for sure,
she’d told them the night before. Yes, newspapers and webV nationwide will show
you, speak of you in the hushed terms appropriate to the Expert. And they had
agreed to testify.

Yes, they had separately interviewed Charley Dukes, had
spoken with him at some length, had even given him a simple IQ test. Each
testified Charley might have difficulty making the most thoughtful of
decisions.

Brent cross-examined them and quickly shredded their
testimony. And how long did you spend with the defendant? And did you consider
that amount of time sufficient for you to come to an expert diagnosis and
testify to it for the defense? And by the way, let’s talk about those
credentials you claimed when Ms. Saunders was questioning you. University of
what? Degree in education? Ah, “psychology of education.” Can you tell the jury
just what that means? Oh, I see. Now does that have anything to do with
criminal behavior? Only in high school students. OK, I see.

Brent asked each witness if Dukes could have been faking his
IQ test, and Brent’s day was made when the MSW, in all seriousness, responded
Charley didn’t have the mental capacity to fake diminished mental capacity, a
catch-22 that brought audible laughter from a few of the jurors.

No further questions.

Brent was good, she had to give him that. He even got her
“experts” to agree a low IQ was no barrier to “knowing right from wrong,” that
hoary old excuse for a thousand executions.

Liv rested for the defense, subject to cross-examination of Chief
Gardner, whose deferred testimony would be taken the next day.

At the end of the third day of the trial, JTJ’s excited
commentary over the local radio station occupied six minutes between two top-forty
songs. In that brief time she was able to express many ideas, including:

.. Brent Nielsen was both cute and clever. And exciting.

.. Olivia Saunders didn’t seem to have any support from
anywhere, but she was brave.

.. Charley Dukes had been spoken of in terms that, outside a
courtroom, might be grounds for a libel suit.

.. The only tension was not guilt or innocence, but what kind
of sentence the jury would hand out. And,

.. JTJ was on top of the story and understood everything,
and was dedicated to bringing you, her radio and webV audience, the latest news
and commentary from this Central-Pennsylvania-shaking trial.

She also reviewed the days’ filming and congratulated the
student-crews. Yes, she thought, there might be some use for this footage
beyond its stated purpose of educating the Hollywood camera crews of the
future.

Day four of the trial opened to a scene of cold, pouring
rain. Even more than usual, Grantwood’s residents were on edge, annoyed, grim.
“Despondent” was a word usually reserved for recent suicides, but if it had
been in general use, most of the residents of Grantwood, that morning, could
have been described as “despondent.”

The atmosphere in the courtroom was quiet. Breathing could
be heard, and it was not happy breathing. Judge DuCasse was late, and fidgeting
had begun to break out. Finally she appeared, said nothing about being late.

She asked Scott Gardner, Chief of Police, City of Grantwood,
Pennsylvania, if he felt well enough to testify, and he said he did, Your
Honor. She reminded him he was still under oath, and nodded to the prosecutor.

Gardner was not quite essential to Brent’s case, but a weak
performance could put his murder-one plans in jeopardy, he thought. So Brent intended
to be very careful when he led Chief Gardner through his testimony.

First, Gardner’s qualifications were established: Chief for four
years, now. Made so many arrests, never run afoul of the town council, stuck to
his assigned budget, commendations at the State level. And then backwards: Two
tours in Iraq, B.S. in military science, no not West Point but the curriculum
was pretty similar, y’know? Attended high school in Grantwood, grew up in Grantwood.
Baptized. Church every Sunday. Dad had been a cop too, a real inspiration:
wounded three times.

The Chief’s utter credibility having been confirmed,
questions began. Brent quickly established that Gardner was on the platform
with the late Congressman that day, proud to stand beside him, had assigned
himself the duty of protecting the candidate. Barnes’ regular security man,
Jerry Sullivan, was there too. They had briefly coordinated before the
Congressman appeared.

The court stenographer documented the following testimony,
which was later reviewed by Brent and Liv and agreed to be essentially correct:

NIELSEN: Officer Gardner, everyone appreciates your courage
and resourcefulness that day, and your valiant bravery in having sustained a
wound in the service of justice.

GARDNER: OK. That’s, Chief Gardner.

NIELSEN: Chief Gardner, I have just a few questions for you.
We’re going to review the events surrounding this crime from your point of view
– a privileged point of view because you were not only close to the victim and
the shooter, but because your training, experience, and expertise makes you a
more reliable witness than the ordinary citizen.

SAUNDERS: Objection!

JUDGE DuCASSE: Overruled.

GARDNER:  Thank you. You’re right. I’m trained to see things
ordinary citizens might miss.

NIELSEN: Where were you standing, Chief Gardner, when
Congressman Barnes – the deceased – was speaking to the crowd?

GARDNER:  Ah, maybe six feet. Pretty close, scanning the crowd
y’know, like I’m s’posed to.

NIELSEN: And were you behind him, or beside him, or where?

GARDNER: To his right and a little back. Maybe halfway
between beside him and in back of him.

NIELSEN: Now, when Congressman Barnes was stepping down from
the platform, where were you and what were you doing then?

GARDNER: I followed him right down the steps, right behind
him. The steps was pretty shaky, but he made it down OK and so did I.

NIELSEN: And where was Mr. Sullivan at that time?

GARDNER: He came right down those steps behind me. I glanced
back and saw him there.

NIELSEN: Now please describe what Congressman Barnes did
when he got to the bottom of the steps, and what you did.

GARDNER: [no response]

NIELSEN: I mean, did he turn and start walking, or stand and
wave, or what?

GARDNER: I guess – I mean, as I remember, he raised his
hands over his head and put them together, you know, like a boxer? And shook
them. Then he turned left. His assistants – I guess they were his assistants,
had formed a line between the deceased and his campaign bus. Kinda like a rope
line, only there weren’t no rope. Then, well, the Congressman’s aide, Maureen
Harman that is, Ms. Harman went down the steps right ahead of him, kind of like
a fullback, y’know? cause she’s kinda big. She was clearing a path back to his
bus. She was pushing on and not looking back, but Barnes stopped to shake hands
and hug people and all that, everyone who came up to him, so I could see it was
gonna take a long time to get him to that bus.

NIELSEN: And then?

GARDNER: Well, he continued on towards the bus, shaking
hands with people on the way, and one or two hugs. Older women, mostly. I guess
he didn’t want to …

NIELSEN: Thank you, officer. Chief. Now where were you in
relation to him right then?

GARDNER: Ah, I was right behind him, maybe five feet,
scanning the crowd y’know, like I’m s’posed to.

NIELSEN: And where was Mr. Sullivan?

GARDNER: He came right down those steps behind me. I glanced
back and saw him there.

NIELSEN:  Being right behind the Congressman, then, you
couldn’t see who or what was in front of him?

GARDNER: No, just Ms. Harman, her behind, I mean him behind
her coupla feet and she was to one side a little so I could see her.

NIELSEN: But the defendant wasn’t in front of the
Congressman, was he?

GARDNER: At that point? I hadn’t noticed him then.

NIELSEN: All right. And then what?

GARDNER: Mr. Barnes continued on through the crowd, very
slowly y’know. About three or four people had shook the deceased’s hand, and
he’d hugged a couple of old – I mean mature – women. That’s about the time I
first spotted Mr. Dukes.

NIELSEN:  The defendant.

GARDNER: Yes, right. Then the next person waiting for Mr.
Barnes to shake his hand was the defendant. Not that he was the defendant at
the time, a’course, but he would be…

NIELSEN:  You can skip that aspect, Chief.

GARDNER: Sure. Well, he was a little ahead of the deceased
and off to the side, so I got a good look at him, saw he was the next
handshake.

NIELSEN: What did you observe then?

GARDNER: A man – the defendant - came toward the deceased
from the side and stretched out his left hand. I thought that was funny,
funny-odd I mean, maybe he was a cripple or something – disabled we’re supposed
to say now, I guess, and couldn’t use his right hand. The hand I could see, the
left hand that is, was shaking pretty bad.  I thought then, he looked like an
ordinary guy. Like a mill-worker or a warehouseman or something. But he looked
real nervous, and so I got alerted.

And then the deceased, he reached out to shake the man’s – the
defendant’s – hand and I could see, having a side view of the deceased, he was
a little confused about how to shake hands with a man who didn’t have the use
of his right hand, who was handicapped I mean, or disabled rather, or something.
Maybe he’d lost the use of his right hand in some accident in that mill or in
the warehouse, maybe a shipping carton dropped on him or over in Iraq since he
was about my age, or somethin’ else.

But the deceased went ahead anyway and reached out with his
right hand toward the other man’s - the defendant’s – left hand, and then the
man – the defendant - pulled his right hand out of his pocket and there was a
gun – he was holding a gun – it was shaking - and he pointed it at the
deceased.

NIELSEN: Now just about how far was the Congressman from
this outstretched hand, and how far were you from it, and did you have a clear
view of the man?

GARDNER: Yeah. The deceased was just a coupla feet from the
defendant, reaching out to him. I was maybe twelve feet away from the deceased,
to the side, so I was about fifteen feet away from him, at an angle.

NIELSEN: By “him” you mean the man who had his left hand
out.

GARDNER: That’s right.

NIELSEN: And then what?

GARDNER: That guy… [nodding toward the defense table] …

NIELSEN: Do you mean the defendant, Charley Wayne Dukes?

GARDNER: Yes, sir. I do.

NIELSEN: Please go on, Chief Gardner.

GARDNER: Well, I was standing behind the deceased and the
defendant there, he was off to one side, at an angle. So I could see him real
well. That guy, I mean, the defendant. He pulled a gun out of his jacket pocket
with his right hand and shot the deceased.

SAUNDERS: Objection.

JUDGE DuCASSE: Sustained. Strike that last item.

GARDNER: OK, shot in the direction of where the deceased
was, it seemed to me that’s where the gun was pointed. And then I saw the
defendant pull his left hand back towards him and pull his right hand out of a
pocket and he had a gun and started shooting.

NIELSEN: And what did you think then?

GARDNER: Well I thought,
oh shit
! That was about what
I was thinking. And then I thought I must of done a crappy job protecting the
deceased – and then saw the man pull the trigger again. Yes, I really saw that,
you usually don’t actually see that kind of thing, and I had my hand in the air
like I was gesturing him to stop and the gun jerked up and I felt this awful
pain in my right hand and I knew I’d been shot, and in about three seconds
there would be more awful pain, and y’know I’m right handed and I wear my
weapon on that side and so I was just SOL helpless, couldn’t help the deceased
at all, he would be deceased right after that, but at least that shot that hit
my hand hadn’t hit the Congressman.

But then the man – the defendant – he shot again and the
deceased’s shoulder jerked back, and he – the deceased I mean – had blood on
him and spurting up into his face and he just had his mouth open like he was
surprised, which I guess he sure to hell was.

NIELSEN: Go on, please.

GARDNER: Then the deceased staggered a little, I could see
blood coming up from his shirt and I thought;
that SOB has shot the Congressman
I was supposed to be protecting.
 Then I was reaching for my gun but
couldn’t pull it out, having been shot in the hand, I mean. I heard more shots
– things were confusing and people had started screaming and I’d been hit,
y’know? So I went for the assailant although I couldn’t use my right hand
anymore and couldn’t draw my weapon.