A Time for Mercy

46

Kiera entered the courtroom with a bailiff trailing behind. She walked slowly, looking down to avoid the stares. She wore a simple, drip-dry cotton dress that was tight around the middle. By the time she stopped and faced the court reporter, everyone in the courtroom was staring at her belly. There were whispers in the gallery and several of the jurors glanced around, as if embarrassed for this poor child. She backed into the witness chair and sat gingerly, obviously uncomfortable. She glanced at the jurors as if ashamed, a terrified kid facing an adult’s screwed-up world.

Jake said, “You are Kiera Gamble, sister of the accused, correct?”

“Yes sir.”

“How old are you, Kiera?”

“Fourteen.”

“You are obviously pregnant.”

“Yes sir.”

Jake had played this scene a thousand times, had lost hours of sleep over it, and had argued and debated and dissected it with his wife and his team. He couldn’t blow it. Calmly, he asked, “When is your baby due, Kiera?”

“Late next month.”

“And, Kiera, who is the father of your child?”

As coached, she leaned a bit closer to the mike and said, “Stuart Kofer.”

There were gasps and loud reactions, and almost immediately Earl Kofer yelled, “That’s a damned lie!” He stood and pointed at her and said, “That’s a damned lie, Judge!” Janet Kofer shrieked and buried her face in her hands. Barry Kofer said, loudly, “What a crock of shit!”

“Order! Order!” Noose yelled back angrily. He rapped his gavel as Earl yelled again, “How much more of this shit do we have to take, Judge? It’s a damned lie.”

“Order in the court! We will maintain decorum!” Two uniformed bailiffs were scurrying to Earl on the third row behind the prosecution. He was waving his finger and yelling, “This is not fair, Judge! My boy is dead and they’re lyin’ about him! Lies, lies, lies!”

“Remove that man from the courtroom,” Noose barked into his mike. Cecil Kofer stood next to his father as if ready for a brawl. The first two bailiffs to reach them were seventy years old and already winded, but the third was a rookie who stood six-five, was ripped at two-forty, and held a black belt. He lifted Cecil under a wet armpit while grabbing Earl by the elbow. He dragged them, cussing and twisting, to the aisle where they were met by other bailiffs and deputies and quickly realized the futility of any further resistance. They were shoved to the door, where Earl stopped and turned around and yelled, “I’ll get you for this, Brigance!”

Jake, along with everyone else in the courtroom, watched and listened in stunned silence. Other than Janet Kofer’s sobbing, and the window units, there were no other sounds as the moment passed. Kiera sat in the witness chair and wiped her eyes. Lowell Dyer glared at Jake as if he might throw a punch. The jurors appeared to be overwhelmed.

His Honor quickly regrouped and barked at a bailiff, “Please remove the jury.”

They hurried out of the box as if they had been released for good. As soon as the door closed behind them, Dyer said, “Your Honor, I have a motion, and it should be heard in chambers.”

Noose glared at Jake as if he might disbar him on the spot, then grabbed his gavel and said, “Let’s take a break. Fifteen minutes. Miss Gamble, you may go sit with your mother for a moment.”

The window unit in Noose’s chambers was working nicely and the office was much cooler than the courtroom. The judge flung his robe in a chair, lit his pipe, and stood behind his desk with his arms crossed, obviously upset. He glared at Jake and demanded, “Did you know she was pregnant?”

“Yes I did. So did the district attorney.”

“Lowell?”

Dyer was red-faced and furious, with sweat dripping off his chin. “The State moves for a mistrial, Your Honor.”

“On what grounds?” Jake asked coolly.

“On the grounds that we’ve been ambushed.”

“That won’t fly, Lowell,” Jake said. “You saw her in court yesterday and commented to me that she was pregnant. You knew there were allegations of sexual abuse. Now there’s proof.”

Noose asked, “Jake, did you know Kofer is the father?”

“Yes.”

“And when did you know this?”

“We found out in April that she’s pregnant, and she’s always maintained that it was Kofer. She is prepared to testify that he repeatedly raped her.”

“And you kept this quiet?”

“Who was I supposed to tell? Show me a statute or a rule or procedure that requires me to tell anyone that the sister of my client was being raped by the deceased. You can’t find one. I had no duty to tell anyone.”

“But you kept her in hiding,” Dyer said. “Away from everyone.”

“You asked me twice to make her available to you and I did so, in my office. Once on April the second, then on June the eighth.”

Noose shot a flamethrower into the bowl of his pipe and exhaled a fog of blue smoke. No windows were cracked. The tobacco relaxed him and he said, “I don’t like ambushes, Jake, you know that.”

“Then change the rules. We have unlimited discovery in civil cases and almost none in criminal cases. Ambushes are a way of life, especially by the prosecution.”

“I want a mistrial,” Dyer said again.

“And why?” Jake asked. “You want to come back in three months and do it again? Fine with me. We’ll bring the baby and show it to the jury, defense exhibit number one. The blood test will be exhibit two.”

Dyer’s mouth dropped open; stunned again. He managed to say, “You’re pretty good at hiding witnesses, aren’t you, Jake?”

“You’ve already used that cheap shot. Find some new material.”

“Gentlemen. Let’s talk about how to proceed. We’re all in a bit of a shock, I’m afraid. First the pregnant witness, then the outburst by the family. I’m worried about our jury.”

Dyer said, “Send ’em home, Judge. We’ll try it again later.”

“No mistrial, Mr. Dyer. Motion denied. Mr. Brigance, I assume that you and this witness are about to discuss the matter of sexual abuse.”

“She’s fourteen years old, Your Honor, far too young to consent. He was twenty years older. Sexual relations between them were illegal, nonconsensual, criminal. She is prepared to testify that he repeatedly raped her and then threatened to kill her and her brother, the defendant, if she told anyone. She was too frightened to talk.”

“Can we limit some of this, Judge?” Dyer pleaded.

“How graphic do you plan to get, Mr. Brigance?”

“I have no plans to discuss body parts, Your Honor. Her body speaks for itself. The jurors are smart enough to understand what happened.”

Noose discharged another cloud of blue smoke and watched it swirl toward the ceiling. “This might get ugly.”

“It’s already ugly, Judge. A fourteen-year-old girl was raped repeatedly and impregnated by a brute who took advantage of her situation. We can’t change the facts. It happened, and any effort on your part to limit her testimony will give us plenty of ammo for the appeal. The law is clear, Your Honor.”

“I didn’t ask for a lecture, Mr. Brigance.”

Yeah, well maybe you need one.

A moment passed as Noose chomped on the stem of his pipe while adding to the fog above the table. Finally, he said, “I’m not sure how to gauge that outburst. Never seen anything like it, really. Wonder how it plays with the jury.”

Dyer said, “I see no way it helps us.”

“It doesn’t help either side,” Jake said.

Noose said, “I’ve never had one of my lawyers threatened like that, Jake. I’ll deal with Mr. Kofer after the trial. Let’s proceed.”

No one in chambers wanted to return to the courtroom to hear Kiera’s testimony.

Omar Noose was determined to conduct an efficient and safe trial on his home turf, and he had harangued the sheriff into posting every possible deputy — full-time, part-time, reserve, volunteer — in and around the courthouse. After Earl’s outburst, and threat, even more muscle was present when the lawyers took their places and the jurors filed in.

Kiera returned to the stand, with a tissue, and braced herself.

From the podium, Jake said, “Now, Kiera, you said that Stuart Kofer is the father of your child. So, I have to ask you a series of questions about your sexual relations with him, okay?”

She bit her lip and nodded.

“How many times were you raped by Stuart Kofer?”

Dyer was quick to rise and object. He should have remained quiet. “Objection, Your Honor. I object to the word ‘rape,’ which implies a—”

Jake went berserk. He turned to Dyer, took a step, and yelled, “Good God, Lowell! What do you want to call it?! She’s fourteen years old, he was thirty-three.”

“Mr. Brigance,” Noose said.

Jake ignored him and took another step toward Dyer. “You want to use something a bit lighter than ‘rape,’ say ‘sexual attack,’ ‘molestation,’ ‘sexual abuse’?”

“Mr. Brigance.”

“You pick the words, Lowell. The jury’s not stupid. It’s obvious what happened.”

“Mr. Brigance.”

Jake took a deep breath and glared at the judge, as if he might attack him when he was finished with the district attorney.

“You’re out of order, Mr. Brigance.”

Jake said nothing, just kept glaring. His shirt was even wetter, the sleeves rolled up, as if he was ready to start swinging.

“Mr. Dyer?”

Dyer had actually stepped back and was reeling. He cleared his throat and said, “Your Honor, it’s just that I object to the word ‘rape.’ ”

“Objection overruled,” Noose said clearly, loudly, and with no doubt that Mr. Dyer should remain in his seat whenever possible. “Proceed.”

As Jake stepped back to the podium, he glanced at Joey Kepner, number twelve, and saw a contented face.

“Kiera, how many times were you raped by Stuart Kofer?”

“Five.”

“Okay, let’s go back to the first time. Do you remember the date?”

She pulled a small, folded sheet of paper from a pocket and looked at it. It wasn’t necessary because she and Jake, along with Josie, Portia, and Libby, had covered the dates so often that all the details were memorized.

“It was a Saturday, December the twenty-third.”

Jake slowly waved his hand at the jury box and said, “Please tell the jury what happened that day.”

“My mother was workin’ and my brother was at a friend’s house. I was alone upstairs when Stuart came home. I locked my door. I had noticed him starin’ at my legs and I just didn’t trust him. I didn’t like him and he didn’t like us, and, well, things were pretty lousy around the house. I heard him walk up the stairs and then he knocked on the door and rattled the knob. I asked him what he wanted and he said we needed to talk. I said I didn’t want to talk and maybe later. He rattled the doorknob again and told me to unlock the door, said it was his door, his house, and that I had to do what he said. But he was kind of nice for a change, he wasn’t yellin’ or cussin’, and said he wanted to talk about my mother, said he was worried about her. So I unlocked the door and he came in. He was already undressed and was wearin’ nothin’ but his boxer shorts.”

Her voice broke and her eyes watered.

Jake waited patiently. No one was about to rush this testimony. A good cry was always helpful. Carla, Libby, and Portia were locked onto the female jurors, watching every reaction.

Jake said, “I know this is difficult but it’s very important. What happened next?”

“He asked if I’d ever had sex and I said no.”

Dyer reluctantly got to his feet and said, “Objection. Hearsay.”

“Overruled,” Noose snapped.

“He said he wanted to have sex and wanted me to enjoy it with him. I said no. I was terrified and tried to back away from him, but he was very strong. He grabbed me, threw me onto the bed, ripped off my T-shirt and shorts, and he raped me.” She burst into tears as her entire body shook. She shoved the mike away and sobbed with both hands over her mouth.

Half the jurors watched her break down, the other half looked away. Number seven, Mrs. Fife, and number eight, Mrs. Satterfield, were wiping their eyes. Oddly enough, number three, Mr. Kingman, believed by the defense to be one of the staunchest defenders of law and order, glanced at Libby with a curious look, and she caught the unmistakable glow of moisture in his eyes.

After a moment, Jake asked her, “Would you like to take a break?”

The question was rehearsed, as was the answer. A quick “No.” She was a tough girl who had survived a lot and could get through this.

“Now, Kiera, what happened after he was finished?”

“He got up, put on his boxer shorts, and told me to stop cryin’. He said that I’d better get used to it because we were gonna do it all the time, as long as I lived in his house.”

On the way up, Dyer said, “Objection. Hearsay?”

“Overruled,” Noose said without looking at the prosecutor.

On the way down, he tossed a legal pad that fell off the table and landed on the floor. Noose ignored that too.

Jake nodded at Kiera and she continued, “He asked me if I liked it and I said no. I was cryin’ and shakin’ and I thought, you stupid man, how can you think I’d like it? As he was leavin’, I was still in the bed, under a sheet, and he walked over to me and slapped me in the face, but not too hard. And he said that if I told anyone, then he would kill me and Drew.”

“What happened next?”

“As soon as he left, I went to the bathroom and took a bath. I felt dirty and didn’t want his smell on me. I sat in the tub forever and tried to stop cryin’. I wanted to die, Mr. Brigance. That was the first time in my life that I thought about suicide.”

“Did you tell your mother?”

“No.”

“Why not?”

“I was afraid of him, we all were, and I knew he would hurt me if I told anyone. As it went on and on, I realized that I might be pregnant. I felt bad in the mornings, got sick at school, and I knew that I would have to tell Mom. I was planning on it when Stu got killed.”

“Did you ever tell Drew?”

“No.”

“Why not?”

She shrugged and said, “I was too afraid. And what was he supposed to do? I was scared, Mr. Brigance, and I didn’t know what to do.”

“And so you told no one?”

“No one.”

“When was the next rape?”

She looked at her sheet of paper and said, “A week later, December the thirtieth. It was like the first one, at home, on Saturday, with no one else there. I tried to push him away but he was so strong. He didn’t slap me, but he threatened me again when it was over.”

With a loud gasp, almost a shriek, Janet Kofer launched into another round of crying. Noose pointed to her and spoke to a bailiff, “Please remove that lady from the courtroom.”

Two deputies escorted her to the door. Jake watched the disturbance, and when it was finally over, he looked at his witness. “Kiera, please tell the jury about the third rape.”

Kiera was rattled by the outburst and wiped her cheeks. Take your time, Jake had told her over and over. There is absolutely no rush. It will be a short trial anyway, and no one is in a hurry. She leaned closer to the mike and said, “Well, I had to change things for Saturday, so I asked Drew to stay home with me, and he did. Stuart left. A couple of weeks went by and I managed to stay away from him. Then one afternoon Stuart picked me up from school.” She looked at her notes. “It was Tuesday, January sixteen, and I had to stay late to work on a play, a theater project. He volunteered to get me, in his patrol car, and we stopped for ice cream. It was gettin’ late and, lookin’ back, I think he was just killin’ time until it was dark. We drove home, but he took a side road not far from the church, Good Shepherd, and stopped behind an old country store, one that has been closed for a long time. It was very dark out there, not another light anywhere. He told me to get in the backseat. I had no choice. I begged him not to and I thought about screamin’, but no one would hear me. He left a rear door open, and I remember how cold it was.”

“And he was in uniform?”

“Yes. He took off his gun and just pulled down his pants. I was wearin’ a skirt. He wrapped it around my neck. When we were drivin’ home I couldn’t stop cryin’, so he took his gun and punched it into my ribs, said to stop it, said he would kill me if I breathed a word. Then he laughed and said he wanted me to walk into the house like nothing had ever happened, said he wanted to see how good an actor I was. I went to my room and locked the door. Drew came to check on me.”

As gripping and lurid as her testimony was, Jake knew it would be a mistake to punish the witness and the jury with the details of all five attacks. They had endured enough, and he had plenty of ammo for the rest of the trial. He stepped to the defense table to get some notes, a legal pad for a prop, and glanced at Carla on the third row. With perfect timing, she did a quick slit of the throat with an index finger. Red polish. Cut. Move on.

He returned to the podium and continued. “Kiera, on the night Stuart died, you were home with Drew and your mom, correct?”

“Yes sir.”

Dyer stood and said, “Objection, Your Honor. This is leading.”

With irritation, Noose said, “Sure, it’s leading, Mr. Dyer, but it’s going into the record anyway. Overruled. Please continue, Ms. Gamble.”

“Well, we were home, waitin’ as usual. He was out, late, and the situation had become much worse. Drew and I were beggin’ Mom to leave before somebody got hurt, and I had made the decision to tell her I thought something was wrong with my body, that I might be pregnant, but I was still afraid because of him and because there was no place for us to go. We were trapped. If she had known about the rapes and all she would, well, I’m not sure what she would have done. But I was still afraid of him. So, anyway, long after midnight we saw the headlights. Drew and I were huddled together on my bed with the door jammed for protection. We heard him come in, Mom was waiting in the kitchen, and they got into a fight. We heard her get slapped and she yelled and he cussed her, and it was just awful.” More tears, another brief delay as the witness fought to control herself.

She wiped her eyes and moved closer to the mike.

“Did Stuart go upstairs?” Jake asked.

“He did. Suddenly everything was quiet down there and we heard him on the stairs, staggerin’, fallin’. Obviously drunk. He was stompin’ up the stairs, callin’ my name, sort of singing it like an idiot. He rattled the doors, yelled for us to open them. We were so afraid.” Her voice cracked and she cried some more.

The terror she and Drew felt at that moment was now palpable in the courtroom. Watching that poor girl cry and wipe her face and try to be strong after all she had endured was heartbreaking.

Jake asked, “Kiera, would you like to take a break?”

She shook her head, no. Let’s get it over with.

Once Stuart backed away and went down the stairs, she and Drew knew something terrible had happened to their mother. Otherwise, she would have fought him on the stairway. They waited in the dark, curled up together, both crying, as the minutes passed. Drew went down first, then Kiera, who sat on the kitchen floor with their mother and tried to revive her. Drew called 911. He was moving around the house but Kiera did not know what he was doing. Then he closed the bedroom door, and she heard the shot. When he came out she asked him what he did, though she knew. Drew said, “I shot him.”

Jake listened carefully and occasionally glanced at his notes, but he managed to steal looks at the jurors. They were not watching him. Every eye was on the witness. “Now, Kiera, when you came down the stairs and found your mother, were you still worried about Stuart?”

She bit her lip, nodded, “Yes sir. We didn’t know what he was doing. Once we saw Mom on the floor, we figured he’d kill us too.”

Jake took a deep breath, smiled at her, and said, “Thank you, Kiera. Your Honor, the defense tenders the witness.” He sat down and loosened his collar. It, along with the rest of his shirt, was soaked with sweat.

Lowell Dyer approached the podium with trepidation. He couldn’t attack such a vulnerable and wounded girl. She had the jury’s complete sympathy and any unkind word from the prosecutor would only play in her favor. He began a disastrous cross with “Ms. Gamble, you keep looking at some notes you have there. May I ask about them?”

“Sure.” She pulled the folded sheet of paper from under her leg. “Just my notes about the five rapes.”

Jake could not suppress a grin. He had laid the trap and Dyer was blindly walking into it.

“And when did you make these notes?”

“I’ve worked on them for some time. I went back through some calendars and made sure I had the dates right.”

“And who asked you to do this?”

“Jake.”

“Has Jake told you what to say here on the witness stand?”

She was ready. “We’ve gone through my testimony, yes sir.”

“Has he coached you on how to testify?”

Jake stood and said, “Objection, Your Honor. Every good lawyer prepares his witnesses. What’s the point, Mr. Dyer?”

“Mr. Dyer?”

“I’m just probing, Your Honor. It is a cross-examination and I’m allowed some latitude here.”

“If relevant, Your Honor,” Jake said.

“Overruled. Continue.”

Dyer asked, “Could I see your notes there, Ms. Gamble?”

Written materials used for reference by witnesses were fair game, and the instant Dyer saw her glance at her notes he knew he would get them. In a moment, though, he would wish he had ignored them.

She held them up, as if to offer them to the prosecutor, who asked, “Your Honor, may I approach the witness?”

“Sure.”

He took a single sheet of paper and unfolded it. Jake let the mystery of its contents hang in the air for a few seconds, then jumped to his feet. “If it pleases the Court, we’ll be happy to stipulate and admit Kiera’s notes into evidence. We even have copies here for the jurors to look at.” He waved some papers.

The notes, written in her own hand and in her own words, were Libby’s idea. She had seen the ruse before in a rape case in Missouri. At the direction of the defense lawyer, the victim had prepared little reminders to help her through the ordeal of testifying. A hard-charging D.A. had demanded to see her notes, and it had been a fatal mistake.

Kiera’s written accounts of the five rapes were far more graphic than her testimony. She wrote of the pain, fear, her body, his, the horror, blood, and the ever-increasing thoughts of suicide. They were numbered, Rapes 1 through 5.

Once Dyer held the sheet of paper, and glanced at its contents, he realized his blunder. He handed it back, quickly, and said, “Thank you, Ms. Gamble.”

Jake, still standing, said, “Hang on, Judge. At this point the jury has the right to know about the notes. The State has put them into question.”

Dyer said, “The State has the right to be curious, Judge. This is a cross-examination.”

Jake said, “Of course it is. Your Honor, Mr. Dyer went after the notes because he was fishing and trying to prove that this witness has been coached by me and told how to testify. He thought he had caught us when he saw the notes. Now, though, he’s backing down. The notes are in play, Your Honor, and the jury has the right to see them.”

“I’m inclined to agree, Mr. Dyer. You asked to see them. It doesn’t seem fair to keep them away from the jury.”

“I disagree, Your Honor,” Dyer said in desperation, but could offer no reason.

Jake, still waving copies, said, “I submit the notes into evidence, Your Honor. Let’s not keep this from the jury.”

“Enough, Mr. Brigance. Just wait your turn.”

After the fourth rape, Kiera had written: “I’m getting used to the pain, it goes away after a couple of days. But I haven’t had a period in two months and I’m often dizzy in the morning. If I’m pregnant he’ll kill me. And probably Mom and Drew too. It’s better if I die. I read a story about a teenager who cut her wrists with razor blades. That’s what I’ll do. Where to find them?”

Reeling, Lowell Dyer asked for a moment to confer with Musgrove. They whispered, both shaking their heads as if they had no earthly idea what to do next. Dyer had to do something, though, in order to discredit a sympathetic witness, and salvage a disastrous cross, and somehow save his case. He managed to nod at Musgrove, as if one of the two had hit the nail on the head. He stepped to the podium and gave her another drippy smile.

“Now, Ms. Gamble, you say you were sexually assaulted by Mr. Kofer on a number of occasions.”

“No sir. I said I was raped by Stuart Kofer,” she said with ice. Another response scripted by Libby and Portia.

“But you never told anyone?”

“No sir. There was no one to tell.”

“You were enduring these terrible attacks, yet you never sought help?”

“From who?”

“What about law enforcement? The police?”

Jake’s heart froze at the question. He was stunned by it, but prepared, as was his witness. With perfect timing and diction, Kiera looked at Dyer and said, “Sir, I was being raped by the police.”

Dyer’s shoulders sagged as his mouth dropped open and he searched for a snappy retort. None arrived, nothing but warm air rushing over a parched tongue. He was suddenly mortified at the prospect of serving up another fat pitch that might land in the upper deck with the others. So he simply smiled and thanked her, as if she had really helped him, and retreated as fast as any prosecutor could possibly scurry away to the safety of his chair.

Noose said, “It’s almost noon. Let’s take a long lunch break and give the AC time to catch up. It’s already a bit cooler in here, I think. Jurors, I ask that you all go home for lunch and we’ll reconvene at two sharp. The usual precautions are still in order — do not discuss this case with anyone. We are in recess.”