Try Try Again (14 page)

NIELSEN: Then what did you see?

GARDNER: The deceased he fell back a little and the
defendant he held the gun like he didn’t know what to do next, I guess because
he’d missed a fatal shot twice, and then he fired once or twice again, maybe
more, and the deceased was really hit bad then, and began to slouch forward and
the defendant turned – he still had the gun in his hand – and was running, pushing
his way out of the crowd.

NIELSEN: And then?

GARDNER: And then, I thought about Jerry Sullivan right
behind me, and he was probably pulling his weapon out right then, and I was in
the line of fire and what the hell would I do now? I’d never worked with him
before and as I said, he was right behind me. So I waved my hand like this,
with my hurt hand I mean, [demonstrates] so he wouldn’t fire, not only for my
safety, but there were a lot of people around, y’know? Citizens. Too reckless
to take a shot right then. The killer – the defendant, I mean – he’d turned and
started running, like I said, so he wasn’t an immediate threat. But I thought
we could take him once he was past the crowd, away from any citizens. We could
shoot him down then.

NIELSEN: Just a few more questions, Chief. Related to what
you’ve just testified, did you or anyone else try to stop the defendant while
he was fleeing?

GARDNER: It took me a second to react, and by that time the
assailant had turned and started running away through the crowd, waving his gun
and pushing people out of his way.

I saw one old man – senior citizen I mean – don’t know who
it was – try to wrestle with the defendant, but the defendant just pushed him
away without breaking his run, and kept going. I tried to get my weapon out
with my left hand and finally did that – the defendant was past the crowd and I
thought I might be lucky enough to wing him or something, but by the time I got
ready he was just turning the corner of that building, y’know, the Morton
Building, the one just east of the parking lot, and I was trying to use the
wrong hand anyway, so I couldn’t get one off. And then I turned back and saw
the Congressman had been hit in the chest, not just in the shoulder, and he was
leaning over, falling, with that awful look on his face.

NIELSEN: And how many shots were fired all together? Please
tell the jury, shot by shot.

GARDNER: Ummm. Well, I’m not sure which shot went where or
how many there were, those buildings around the parking lot, y’know, the sound
really bounces around, and sounds like more shots than there were, but the
first shot I knew, that one hit my hand, her [holding up bandaged right hand].
When I was reaching for my weapon.

NIELSEN: So the gunman did some kind of Lone Ranger trick,
shooting the hand that was reaching for the gun?

JUDGE DuCASSE: Careful, Mr. Nielsen.

NIELSEN: Sorry, your honor. Chief Gardner, let’s hold the
matter of the accuracy of that shot in abeyance for now. Now what about the
second shot?

GARDNER: The second shot, you know it might have been the second
or third shot or whatever because everything happened so fast, well, the second
shot hit Congressman Barnes in the shoulder. He staggered back and a spurt of
blood came up from his shoulder and hit him in the face, like I said.

NIELSEN: And what did you deduce from that?

GARDNER: That the Congressman’s wound wouldn’t be fatal, if
he was seen right away by a doctor.

NIELSEN: You thought that at the time?

GARDNER: Yes, sir. I’m a trained police officer. Fifteen
years on…

NIELSEN: Thank you. So what happened to the two bullets –
the two we’ve been discussing so far?

GARDNER: Later that day, we found bullet fragments, and two
chipped areas in the concrete wall behind the speaker’s platform. Those
fragments hadn’t been there before the rally. We’d checked the site all over
very careful.

NIELSEN: So would you say the two bullets, the two first of
no one’s quite sure how many, hit you and the one that hit Congressman Barnes
in the shoulder, were what you would call “through and through” in both cases, not
likely to be fatal?

GARDNER: Yes sir, I would.

NIELSEN: Fine. Thank you. Now let’s move on to that third
shot.

GARDNER: OK, shoot. Ah – sorry.”

NIELSEN: Where did that third shot go?

GARDNER: Well I guess it was the third shot, y’know. Anyway,
I couldn’t tell at first, but I heard the shot and then the deceased staggered
back and fell, and later we confirmed he’d been hit in the chest. That’s when
we went and gave him first aid and there was one or two doctors showed up out
of the crowd, but the Congressman was already dead.

NIELSEN: And there were no fragments from that bullet?

GARDNER: The M.E. told me the bullet had fragmented in the
deceased’s spinal cord after passing through his heart, although enough was
left that we could tell it was the same caliber as the rest of the shots. Those
we found, anyway.

JUDGE DuCASSE [to DEFENSE] Counselor?

SAUNDERS: Not in contention, your honor.

JUDGE DuCASSE: Thank you. Proceed, Mr. Nielsen.

NIELSEN: And the next shot, if there was a next shot?

GARDNER: We never found a bullet. Pretty much, it had to
have been wild or it would of hit something we’d find.

NIELSEN: And that next shot come from where, to the best of
your knowledge?

GARDNER: I figured that shot must have of been the defendant’s,
’cause neither me or Jerry ever fired our weapons.

NIELSEN: And did you immediately begin to conduct an investigation
of the incident, officer?

GARDNER: Chief. Yeah, it’s part of my job. Some
investigators from D.C. and Harrisburg were there too within an hour or two and
they pretty much took over, that is, we worked together on the investigation.
I’d sealed off the site, wouldn’t let anyone come close except a doctor until
the investigators got there – there were two or three doctors in the crowd –
but they said he was dead, like I said before.

NIELSEN: And what did your team of investigators find? How
could the assailant have missed three out of four or perhaps more shots when he
was that close? That is, two of his shots wounded people but only the third hit
a vital place in the victim and the fourth and maybe fifth and so on didn’t hit
anything?

GARDNER: As I said, I saw his left hand shaking and I’d
suppose his right hand would be shaking too, and his aim wouldn’t be so good.

SAUNDERS: Objection.

JUDGE DuCASSE: Sustained.

NIELSEN: Now, did you get a look at the assailant,
especially his face? A good look.

GARDNER: Yes I did.

NIELSEN: And is the assailant in this courtroom today.

GARDNER: Yes he is. He’s the man right over there.
[pointing]

NIELSEN: You’re indicating Charley Wayne Barnes, seated at
the defense table?

GARDNER: Yes, sir. That’s him.

NIELSEN: Thank you, Chief Gardner. You’re a real hero, and
very brave. No more questions.

GARDNER: Thank you. That’s what we’re trained to be.

NIELSEN: Your witness.

[DEFENSE rises]

SAUNDERS: Chief Gardner, isn’t it unusual for a chief to
assign himself to this duty? A routine security detail?

GARDNER: Yes, it is.

SAUNDERS: Can you elaborate?

GARDNER: Ezra Barnes was from our city here, and I’d met him
a few times and liked him. And he was running for the Senate, you know,
statewide not just our little neck of the woods. So it was real important to
get him the best possible security. So that’s why I assigned myself, having
more experience and so on. And Barnes had his own security guy there too, Jerry
Sullivan.

SAUNDERS: Are you sure you’ve identified the right man as
the shooter? Absolutely certain?

GARDNER: Yes, ma’am. That him. I’m sure of it.

SAUNDERS: No further questions.

Day four of the trial continued with closing arguments.
Neither Liv nor Brent said anything new, basically repeating their opening
statements. They did, however, emphasize their views of an appropriate verdict,
and an appropriate punishment, both assuming Charley would be found guilty of –
something.

Brent pushed hard for murder in the first degree, and the
death penalty. Here was a self-confessed killer with no motive that could make
sense, no grievance against a Congressman with an outstanding past and a very
promising future. A wanton act of murder, even of terrorism, obviously planned
well in advance. And the accused had confessed, over and over, and numerous
witnesses saw him fire and so on and so forth.

It was a convincing performance. He turned from the jury and
gave Liv a smirk neither the jury nor The Duchess saw, although two of JTJ’s
cameras picked it up.

Liv stood and walked slowly toward the jury box, giving them
time to put Brent’s statement in the past, giving them time to be ready to hear
her.

She acknowledged Charley Wayne Dukes had confessed to
killing Congressman Barnes. But not the way most confessions were obtained, not
by sweating the defendant and threatening him (Chief Gardner, sitting behind
the prosecution table, frowned deeply at this), but of his own free will, as if
recognizing for the first time what he had done, and how deeply it mattered, both
to the Congressman’s family and to the community, and immediately regretted it.

Charley Dukes had mental problems, she continued, had diminished
responsibility, knew what he was doing but couldn’t think it through, couldn’t
know, in advance, what a terrible thing he was going to do and had done. The
various stories he gave to the police were the result of confusion. They are
evidence of incapacity, of mental disturbance. We know that because these
stories were unbelievable, nothing the defendant could have carefully plotted
out in advance. And even these stories were not meant to absolve him. No, he
confessed immediately and never recanted.

“But what had he confessed to? A killing. But a killing is
not always murder, and in this case, where the defendant is partially mentally
incapacitated, justice can be best served by finding the defendant guilty of
manslaughter. He will then be confined to one of the State prisons. You should
note the defendant, although having a criminal record, was never convicted, or
even accused, of a crime of violence before. Let’s save murder verdicts for the
cold-blooded killer, the killer with one death after another on his record, the
husband who kills his wife, the bank robber who shoots the teller. Not this man.
Thank you.”

Liv returned to the defense table. She hadn’t been
convincing, but in these circumstances, she thought, no one could have been. She
looked at Charley. He didn’t seem to be paying attention. He was sweating. She
tried to say something comforting to him but Charley didn’t look at her. He
might not, she thought, even have heard her.

Judge DuCasse announced that the jury’s deliberation might
last long enough to warrant an overnight recess, therefore she was instead
postponing it until the next day. Unless there were last-minute motions, then,
day five would consist solely of her charge to the jury, the jury’s
deliberation and its verdict, and the sentence if there was to be a sentence.

With that, she adjourned court for the day.

Charley refused to speak with anyone on his way back to the
county jail. He sat down on the bunk in his cell and went over and over what
Chief Gardner had testified. He hadn’t fired. Neither had Barnes’ security man
Jerry Sullivan because there was a dense crowd, and Gardner’s gun hand was
wounded, anyway.

Charley’s first nervous shot had missed Barnes, hit
Gardner’s raised hand. His second, better aimed, had hit Barnes in the
shoulder. And then there was that third shot, the one that had killed Barnes,
the shot he was pretty sure George had made.

Yes, Charley thought, he hadn’t killed the politician. But
he had intended to and tried to, so he deserved to go to prison for a long
time. That’s what George wanted, and he and George had a deal: hands off
Charley’s daughter and grandson, and Charley would take the rap.

But George had tried to kill him. He knew that now. That was
the fourth shot. Charley had told the police he’d fired “two-three shots, maybe
more,” and that way he’d covered for George, the one who made the third shot.
Charley would take the rap for that.

He’d assumed Sullivan or Gardner had shot at him when he was
running to escape, pushing through and past the crowd, almost at the corner of
that building. But, as he’d found out that morning, it wasn’t that way. Both
Sullivan and Gardner said they had never shot at Charley or anywhere else that
day. That was why he’d startled, gaped, almost stood up when he learned neither
the security man nor the cop had shot at him.

But he realized he could never say anything about this revelation.
It was George. It must have been George. George had planned to waste him all
along. That son of a bitch.

He should tell his lawyer. Or the prosecutor. But then he
remembered Darlene and the kid. Screwed one way or another. How stupid he’d
been! Maybe those psychologists were right. Now he couldn’t say anything, give
any hint. His lawyer had noticed him startle and start to get up, she had given
him a firm but comforting smile. But then after adjournment, she hadn’t said
anything about that startle, so she must have forgotten.

Charley turned over in his bunk and had the worst night of
his life. So far.

Day five of the trial was over in six hours. Judge DuCasse
read a set of instructions, citing four possible verdicts:

.. Guilty of murder in the first degree, with capital
punishment

.. Guilty of murder in the first degree, without capital
punishment

.. Guilty of murder in the second degree

.. Guilty of manslaughter.

.. Not guilty

She informed the jury each of verdicts two, three, and four
would involve long prison sentences, although of varying lengths. She would
decide on the most appropriate sentence considering the verdict and the
circumstances.