A Time for Mercy

44

When the courtroom was empty, Drew sat alone at the table, twiddling his thumbs under the languid gaze of a crippled bailiff. Moss Junior and Mr. Zack appeared and said it was time for lunch. They led him through a side door, up a rickety set of ancient stairs to a third-floor room that had once housed the county law library. It, too, had seen its better days, and gave the impression that legal research was not a priority in Van Buren County. Shelves of dusty books sat at odd angles, with some leaning precariously, much like the courthouse itself. In an open area there was a card table with two folding chairs. “Over there,” Moss Junior said, pointing, and Drew took a seat. Mr. Zack produced a brown bag and a bottle of water. Drew removed a sandwich wrapped in foil and a bag of chips.

Moss Junior said to Mr. Zack, “He should be safe here. I’ll be downstairs.” He left and they listened as he lumbered down the stairs.

Mr. Zack sat across from Drew and asked, “What do you think of your trial so far?”

Drew shrugged. Jake had lectured him about talking to anyone in a uniform. “Things don’t look so good.”

Mr. Zack grunted and smiled. “You can say that again.”

“What’s weird is how they make Stuart out to be such a nice guy.”

“He was a nice guy.”

“Yeah, to you. It was a different story livin’ with him.”

“You gonna eat?”

“Not hungry.”

“Come on, Drew. You barely touched your breakfast. You gotta eat something.”

“You know, you’ve been sayin’ that ever since I met you.”

Mr. Zack opened his own bag and took a bite from a turkey sandwich.

Drew asked, “You bring any cards?”

“I did.”

“Great. Blackjack?”

“Sure. After you eat.”

“You owe me a buck-thirty, right?”

Two miles away, in downtown Chester, the defense team ate sandwiches in Morris Finley’s conference room. Morris, a busy lawyer himself, was away tending to matters in federal court. He didn’t have the luxury of spending entire days watching another lawyer’s trial. Nor did Harry Rex, whose stressful office was being completely ignored by the only lawyer in his firm, but he wouldn’t miss the Gamble trial for anything. He, Lucien, Portia, Libby, Jake, and Carla ate quickly and went through the State’s case so far. The only surprise had been Noose’s refusal to allow Brazeale to revisit the ghastly crime scene photos.

Ozzie had done a passable job, though he had looked bad trying to cover for the missing paperwork. It was a small win for the defense, but one that would be forgotten soon enough. The fact that county deputies were not exactly thorough with their mundane reports would not be important when the jury debated guilt or innocence.

Overall, the morning had been a huge win for the State, but that was no surprise. The case was simple, straightforward, and had no missing clues. Dyer’s opening was effective and captured the attention of every juror. Taking one name at a time, they talked about all twelve. The first six men were convinced and ready to vote guilty. Joey Kepner had revealed nothing in his facial expressions and body language. The five women did not appear to be any more sympathetic.

Most of their lunch was consumed with Kiera. Dyer had proven that Drew had committed the murder beyond a reasonable doubt. The State didn’t need Kiera as a witness to bolster its case. Her statement to Tatum that Drew shot Stuart was already in evidence.

“But he’s a prosecutor,” Lucien argued. “And as a breed they’re known to pile on. She’s the only person who can testify that she heard the gunshot and heard her brother admit to the shooting. Of course, Drew could admit this himself, but only if he takes the stand. Josie was there but unconscious. If Dyer doesn’t call Kiera to the stand, the jurors will wonder why not? And what about the appeal? What if the Supremes rule that Tatum’s testimony should have been excluded as hearsay? It’ll be a close call, right?”

“Maybe, maybe not,” Jake said.

“Okay, let’s say we win on hearsay. Dyer might be worried about that, and he might be thinking he needs to double down and get the girl to testify to it.”

“Do they really need it?” Libby asked. “Isn’t there an abundance of physical evidence already in the record?”

“It sure feels like it,” Jake said.

Harry Rex said, “Dyer’s a dumbass if he puts her on. Plain and simple. He’s got his case made, why not just rest and wait on the defense?”

Jake said, “He’ll put her on, get her statement, then fight like hell when we start with the abuse.”

“But the abuse is coming in, right?” Libby asked. “There’s no way to keep it out.”

“It’ll be up to Noose,” Jake said. “He has our brief and we’ve argued, convincingly, at least in my opinion, that the abuse is relevant. To keep it out will be reversible error.”

“Are we trying to win the trial or the appeal?” Carla asked.

“Both.”

And so they debated as they ate bad deli sandwiches to ward off hunger.

The state’s next witness was Dr. Ed Majeski, the pathologist hired to perform the autopsy. Dyer led him through the usual list of dry questions to establish his expertise and made much of the fact he had performed, over a thirty-year career, two thousand autopsies, including approximately three hundred involving gunshot wounds. When offered the opportunity to question his credentials, Jake declined and said, “Your Honor, we accept Dr. Majeski’s qualifications.”

Dyer then approached the bench, with Jake, and whispered to the judge that the State would like to introduce four photos taken during the autopsy. This was no surprise because Dyer had produced the photos in a pretrial hearing. Noose, as usual, deferred a ruling until that moment. He looked at the photos again, shook his head, and said, away from the mike, “I don’t think so. This jury has seen enough of the blood and gore. The defense’s objection is sustained.”

It was obvious that His Honor was troubled by the crime scene photos and their gruesomeness.

Dyer switched to a rather cartoonish diagram of a generic corpse and put it on the screen. For an hour, Dr. Majeski belabored the obvious. Using far too many medical terms and jargon, he bored the courtroom with testimony that proved, beyond any doubt, that the deceased died of a single bullet wound to the head, one that blew away most of the right side of his skull.

As he droned on, Jake couldn’t help but think of Earl and Janet Kofer, seated not far away, and their pain at hearing such details about their son’s fatal injury. And as always when he thought of the parents, he reminded himself that he was fighting to keep a kid away from the gas chamber. Now was not the time for sympathy.

When Dyer mercifully tendered the witness, Jake jumped to his feet and stepped to the podium. “Dr. Majeski, did you draw a sample of blood from the deceased?”

“Of course. That is standard practice.”

“And did this sample reveal anything significant?”

“Such as?”

“Such as the level of alcohol in his system?”

“It did.”

“Now, for the benefit of the jury, and for me as well, could you please explain how one’s alcohol level is measured.”

“Certainly. The blood alcohol concentration, better known as BAC, is the amount of alcohol in the bloodstream, or in urine, or on one’s breath. It is expressed as the weight of ethanol, or alcohol, in grams, the metric unit, in one hundred milliliters of blood.”

“Let’s keep this simple, Doctor. The legal limit for drunk driving in Mississippi is point-one-zero BAC. What does that mean?”

“Sure, it means point-one-zero grams of alcohol per one hundred milliliters of blood.”

“Okay. Thank you. Now what was Stuart Kofer’s BAC?”

“It was quite significant. Point-three-six grams per hundred.”

“Point-three-six?”

“That’s correct.”

“So, the deceased was three and a half times over the legal limit for driving?”

“Yes sir.”

Juror number four, a white man of fifty-five, glanced at juror number five, a white man of fifty-eight. Juror number eight, a white woman, appeared shocked. Joey Kepner shook his head slightly in disbelief.

“Now, Dr. Majeski, for how long had Mr. Kofer been dead before you drew a sample of his blood?”

“Approximately twelve hours.”

“And, is it possible that during that twelve-hour period the alcohol level could have actually decreased?”

“Unlikely.”

“But it’s possible?”

“That’s unlikely, but no one really knows. It’s rather hard to measure, for obvious reasons.”

“Okay, let’s stick with point-three-six. Did you weigh the body?”

“I did, as always. That’s standard procedure.”

“And how much did he weigh?”

“One hundred and ninety-seven pounds.”

“He was thirty-three years old and weighed one ninety-seven, right?”

“Correct, but his age should not be factored in.”

“Okay, let’s forget his age. For a man his size, and with that much alcohol, how would you describe his ability to operate a vehicle?”

Dyer stood and said, “Objection, Your Honor. This goes beyond the scope of his testimony. I’m not sure this expert is qualified to give such an opinion.”

His Honor looked down at the witness and asked, “Dr. Majeski, are you qualified for this?”

He smiled with arrogance and said, “Yes, I am.”

“Objection overruled. You may answer the question.”

“Well, Mr. Brigance, I certainly wouldn’t want to be in the car with him.”

This drew a few brief smiles from some of the jurors.

“Nor would I, Doctor. Would you describe him as being completely impaired?”

“That would be a non-medical term, but, yes.”

“And what are the other effects of so much alcohol, sir, in non-medical terms?”

“Devastating. Loss of physical coordination. Greatly reduced reflexes. Walking or even standing would require assistance. Slurred or indistinguishable speech. Nausea, vomiting. Disorientation. Severe increases in heart rate. Irregular breathing. Loss of bladder control. Memory loss. Perhaps even unconsciousness.”

Jake flipped a page on his legal pad to allow these frightening effects to rattle around the courtroom. Then he stepped to the defense table and picked up some papers. Slowly, he returned to the podium and said, “Now, Dr. Majeski, you said you’ve performed over two thousand autopsies in your distinguished career.”

“That’s correct.”

“How many of those deaths were caused by alcohol poisoning?”

Dyer stood again and said, “Objection, Your Honor, on the grounds of relevance. We’re not concerned here with the death of anyone else.”

“Mr. Brigance?”

“Your Honor, this is a cross-examination and I’m given wide latitude. The drunkenness of the deceased is certainly relevant.”

“I’ll allow for now but let’s see where it’s going. You may answer the question, Dr. Majeski.”

The witness shifted his weight but was obviously enjoying the chance to discuss his experience and knowledge. “I’m not sure, exactly, but there have been several.”

“Last year, you did the autopsy for a fraternity boy down in Gulfport. Last name of Cooney. Do you remember that one?”

“I do, yes, very sad.”

Jake glanced at his paperwork. “You concluded that the cause of death was AAP, acute alcohol poisoning, correct?”

“Correct.”

“Do you remember the kid’s BAC?”

“No, I’m sorry.”

“I have your report right here. Would you like to see it?”

“No, just refresh my memory, Mr. Brigance.”

Jake lowered the papers, looked at the jury, and said, “Point-three-three.”

“That sounds accurate,” Dr. Majeski said.

Jake returned to his table, shuffled some papers, withdrew a few, and returned to the podium. “Do you recall an autopsy you performed in August of 1987 on a Meridian fireman named Pellagrini?”

Dyer stood with stretched arms and said, “Your Honor, please. I object to this line of questioning on the grounds of relevance.”

“Overruled. You may answer the question.”

Dyer fell hard into his chair, and his theatrics drew a harsh look from the bench.

Dr. Majeski said, “Yes, I remember that one.”

Jake scanned the top sheet, though all the details were memorized. “Says here he was forty-four years old and weighed one hundred and ninety-two pounds. His body was found in the basement of his home. You concluded that the cause of death was AAP. Does this sound right, Doctor?”

“Yes it does.”

“Do you happen to recall his BAC?”

“Not exactly, no.”

Again, Jake lowered the papers, looked at the jury, and announced, “Point-three-two.” He glanced at Joey Kepner and saw the faint beginnings of a smile.

“Dr. Majeski, is it safe to say that Stuart Kofer was near death from his alcohol consumption?”

Dyer bounced up again and angrily said, “Objection, Your Honor. This calls for an opinion that is far too speculative.”

“It does indeed. Objection sustained.”

After a perfect buildup, Jake was ready for the punch line. He stepped toward his table, stopped, looked at the witness, and asked, “Isn’t it possible, Dr. Majeski, that Stuart Kofer was already dead when he got shot?”

Dyer yelled, “Objection, Your Honor.”

“Sustained. Don’t answer that.”

“Nothing further,” Jake said as he glanced at the spectators. Harry Rex was grinning. On the back row, Lucien beamed at his protégé and could not have been prouder. Most of the jurors appeared to be stunned.

It was almost three and His Honor needed another round of meds. He said, “Let’s take the afternoon recess and get some coffee. I’d like to see the lawyers in chambers.”

Lowell Dyer was still fuming when they gathered around the table. Noose had disrobed and was lining up little bottles of pills as he stretched at his desk. He gulped them down with a cup of water and took a seat at the table. He smiled and said, “Well, gentlemen, with no insanity to fight over, this trial is moving right along. My compliments to both of you.” He looked at the prosecutor and asked, “Who’s your next witness?”

Dyer tried to shrug it off and appear as cool as his opponent. He took a deep breath and said, “I don’t know, Judge. I planned to call Kiera Gamble to the stand, but right now I’m somewhat reluctant. Why? Because we’ll get into the abuse. As I’ve said before, it’s simply not fair to allow these people to testify to matters that I cannot effectively rebut on cross-examination. It’s not fair to allow them to slander Stuart Kofer.”

“Slander?” Jake asked. “Slander implies false testimony, Lowell.”

“But we don’t know what’s false and what’s true.”

“They’ll be under oath,” Noose said.

“True, but they’ll also have every reason to exaggerate the abuse. There is no one to rebut it.”

Jake said, “The facts are the facts, Lowell. We can’t change them. The truth is that these three were living in a nightmare because they were abused and threatened, and the abuse was a major factor in the killing.”

“So it was for retribution?”

“I didn’t say that.”

“Gentlemen. We’ve been discussing this for some time and I have been briefed by both sides. I am persuaded that the case law in this state leans toward the exploration of the reputation of the deceased, especially in a factual setting like this. Therefore, I will allow it, to a point. If I believe that the witnesses are exaggerating, as you say, Mr. Dyer, then you can always object and we’ll revisit the issue. We’ll take it slow. We have plenty of time and there is no hurry.”

“Then the State rests, Your Honor. We’ve proven our case beyond a reasonable doubt. The intoxication of the deceased does not alter the fact that he was murdered by Drew Gamble, whether on duty or not.”

Jake mumbled, “What a ridiculous law.”

“It’s on the books, Jake. We can’t change it.”

“Gentlemen.” Noose grimaced in pain and tried to stretch. “It’s going on four o’clock. I have an appointment with a physical therapist at five-thirty. I’m not whining but my lower lumbar needs some work. It is difficult to sit for more than two or three hours at a time. Let’s dismiss the jury, take an early recess, and reconvene in the morning at nine sharp.”

Jake was pleased. The jurors would go home with Kofer’s blackout drinking fresh on their minds.