A Time for Mercy

48

When court was called to order at 2:05, the courtroom was at least ten degrees cooler and much less humid. Judge Noose again invited the attorneys to work without jackets, but they left them on. He looked at Jake and said, “Call your next witness.”

Jake stood and said, “Your Honor, the defense calls Mr. Drew Gamble to the stand.” There was a rustling through the crowd at this unexpected move. Lowell Dyer shot Jake a wary look.

Drew rose and marched to the court reporter, took his oath, and settled into the witness chair. He was startled by the entirely different view of things. Jake had told him this would happen, said it would be shocking at first to see all those adults staring at him. His written instructions read: “Look at me, Drew. Look me in the eyes at all times. Do not look at the jurors. Do not look at your mother or sister. Do not look at the other lawyers, nor the people out there in the audience. Everyone will be looking at you, so ignore them. Look me in the eyes. Don’t smile, don’t frown. Don’t speak too loud, nor too soft. We’ll start with some easy questions and you’ll get comfortable. You’re not in the habit of saying ‘Yes sir’ and ‘No sir,’ but DO IT EVERY TIME when you’re on the stand. Start practicing now with me and the jailers.”

In his cell, late at night, Jake had shown him how to sit and keep his hands still, how to stay six inches from the mike, how to frown at a confusing question, what to do if the judge spoke to him, how to sit passively if the lawyers got into an argument, and how to say, “Sir, I’m sorry, but I don’t understand.” They had practiced for hours.

The easy questions and answers did indeed settle his nerves, but then Drew felt oddly at ease to begin with. For a day and a half he’d sat between his lawyers as witnesses came and went. As Jake had instructed, he watched them carefully. Some were good, others were not. Kiera had been visibly frightened, but her fear had connected with the jurors.

He had learned a lot about testifying just from being there.

No sir, he had never known his father, nor his grandfathers. He did not know any of his uncles or cousins.

Jake asked, “Now, Drew, how many times have you been arrested?”

It was an odd question. Youth court convictions were off-limits. The State certainly couldn’t mention them. But, as with Josie, Jake wanted transparency, especially when it benefitted the defense.

“Twice.”

“How old were you the first time?”

“Twelve.”

“What happened?”

“Well, me and a buddy named Danny Ross stole two bicycles and got caught.”

“Why did you steal bicycles?”

“Because we didn’t have one.”

“Okay, and what happened when you got caught?”

“We went to court and the judge said we were guilty, and we were. So they put me in a juvenile detention center for about four months.”

“And where was this?”

“Over in Arkansas.”

“Where were you living at the time?”

“Well, sir, we were, uh, livin’ in a car.”

“With your mother and sister?”

“Yes sir.” With a quick nod, Jake invited him to continue. Drew said, “My mother didn’t object to me goin’ to the juvenile jail because at least I would get somethin’ to eat.”

Dyer stood and said, “Objection, Your Honor. Relevance. This trial is about capital murder, not a stolen bike.”

“Sustained. Move along, Mr. Brigance.”

“Yes, Your Honor.” But Dyer did not ask for the response to be stricken from the record. The jury heard that the kids were hungry and homeless.

Jake asked, “And what was the second arrest?”

“When I was thirteen I got caught with some pot.”

“Were you trying to sell it?”

“No sir. It wasn’t much.”

“What happened?”

“They sent me back to the same place for three months.”

“Do you use drugs now?”

“No sir.”

“Do you drink alcohol?”

“No sir.”

“Have you been in trouble with the law in the past three years?”

“No sir, other than this.”

“Okay, let’s talk about this.” Jake stepped away from the podium and looked at the jury. If Jake did so, then it was okay for Drew to have a quick look too. At that moment, the jurors were watching Jake.

“When did you first meet Stuart Kofer?”

“The day we moved in. I don’t remember when it was.”

“How did Stuart treat you in the beginning?”

“Well, we sure didn’t feel welcome. It was his house and he had a lot of rules, some he made up on the spot. He had us do a lot of chores. He was never nice to us and we knew right away that he didn’t want us in his house. So we, me and Kiera, tried to stay away from him. He didn’t want us at the table when he was eatin’ so we took our food upstairs, or outside.”

“Where did your mother eat?”

“With him. They argued a lot, though, right from the beginnin’. Mom wanted us to be a real family, you know, do things together. Have supper, go to church, things like that, but Stu couldn’t stand us. He didn’t want us. Nobody has ever wanted us.”

Pitch-perfect, thought Jake, and with no objection from Dyer. He wanted to pounce and object to the leading questions, but at the moment the jurors were captivated and would resent the interruption.

“Were you physically abused by Stuart Kofer?”

Drew paused and looked confused. “What do you mean by ‘physically abused’?”

“Did he hit you?”

“Oh, yeah, I got slapped around a few times.”

“Do you remember the first time?”

“Yes sir.”

“What happened?”

“Well, Stu asked me if I wanted to go fishin’, and I really didn’t want to because I didn’t like him and he didn’t like me. But my mom had been buggin’ him to do something with me, you know, like a real father, throw a baseball, go fishin’ or something fun. So he got his boat and we went to the lake. He started drinkin’ beer and that was always a bad sign. We were in the middle of the lake when a big fish hit my hook hard and took off. I was surprised and didn’t grip the rod fast enough, and so the rod and reel disappeared underwater. Stu went crazy. He cussed like a dog and slapped me twice in the face, hard. He was out of his mind, yellin’ and cussin’ and sayin’ that rig cost him over a hundred dollars and I had to pay him back. I thought he might knock me out of the boat. He got so mad he cranked the engine, flew to the ramp, got the boat out, and headed home. He was still cussin’. He had a terrible temper, especially when he was drinkin’.”

Dyer finally stood and said, “Your Honor. Objection. Leading and relevance. I’m not sure what’s happening here, Your Honor, but this is a direct examination and this witness is being allowed to ramble on forever.”

Noose removed his reading glasses and chewed on a stem for a moment. “Agreed, Mr. Dyer, but this testimony is coming in regardless, so let’s allow the witness to testify.”

Jake said, “Thank you, Your Honor. Now, Drew, what happened as you were driving home from the lake?”

“Well, when we got close to the house, he kept lookin’ at me and saw that my left eye was swollen where he’d hit me. So he told me not to tell my mom. He told me to say that I slipped and fell as we were loadin’ the boat.”

Dyer stood and said, “Objection. Hearsay.”

“Overruled. Continue.”

Jake had instructed him to immediately continue when the Judge said “Continue.” Don’t wait on the lawyers. Finish the story.

Drew said, “And then he threatened to kill me.”

“Was that the first time he threatened you?”

“Yes sir. Said he would kill me and Kiera if we ever told Mom.”

“Was he physically abusing Kiera?”

“Well, we know it now, I guess.”

“Okay, Drew, before he died, did you know that Stuart Kofer was sexually assaulting your sister?”

“No sir. She didn’t tell me.”

Jake paused and checked some notes on a legal pad. The courtroom was quiet, but for the window units. The temperature was improving as a layer of clouds moved in to block the sun.

Jake stood beside the podium and asked, “Drew, were you and Kiera afraid of Stuart Kofer?”

“Yes sir.”

“Why?”

“He was a tough guy with a bad temper, a mean drunk, and he had plenty of guns, plus he was a deputy and liked to brag that he could get away with anything, includin’ murder. Then he started beatin’ Mom and things just got so bad...” His voice trailed off and he dropped his head. He was suddenly sobbing and shaking as he fought to keep his composure. A painful moment passed as everyone watched him.

Jake said, “Let’s talk about the night Stuart died.”

Drew took a deep breath, looked at his lawyer, and wiped his cheeks with the back of a sleeve. Because he and Kiera had been so thoroughly prepped, their stories matched perfectly until they reached the critical point when they found their mother unconscious and apparently dead. From then on, they were not thinking clearly and certainly couldn’t remember their exact words and movements. Both were crying and at times hysterical. He remembered moving around the house, looking at Stuart on the bed, looking at Kiera holding Josie on the kitchen floor, listening to her as she begged her to wake up, and waiting at the front window for help to arrive.

And then he heard something. A coughing, snorting sound, and the squeaking of the box spring and the mattress. Stuart was moving back there, and if he got up, as he had done a month earlier, he would fly into another rage and probably kill them all.

“And I went to the bedroom and he was still on the bed.”

“Had he moved?” Jake asked.

“Yes. His right arm was now across his chest. He wasn’t snorin’. I just knew he was about to get up. So I got his gun off the table where he always kept it, and I left the room with it.”

“Why did you take the gun?”

“I don’t know. I guess I was afraid he might use it.”

“What did you do with the gun?”

“I don’t know. I walked back to the window and waited some more, just kept waitin’ for blue lights or red lights or someone to come help us.”

“Were you familiar with the gun?”

“Yes sir. Stuart took me out in the woods one day for some target practice. We used his service gun, his Glock.”

“How many times did you fire it?”

“Three or four. He had a target on some hay bales. I couldn’t hit it and he laughed at me, called me a sissy, among other things.”

Jake pointed to exhibit number one lying on the table. “Is that the gun, Drew?”

“I think so. Sure looks like it.”

“So, Drew, you were standing at the window, waiting, holding that gun there, and what happened next?”

Staring at Jake, he said, “I remember hearin’ Kiera, and I remember bein’ so scared. I knew he was gettin’ up, comin’ after us, so I went to the bedroom. My hands were shakin’ so bad I could barely hold the gun. And I put it next to his head.”

His voice cracked again and he wiped his eyes.

Jake asked, “Do you remember pulling the trigger, Drew?”

He shook his head. “No, I don’t. I’m not sayin’ I didn’t do it, I’m just sayin’ I don’t remember it. I remember closin’ my eyes, and the gun shakin’ so hard, and I remember the sound.”

“Do you remember putting the gun down?”

“No.”

“Do you remember telling Kiera that you shot Stuart?”

“No.”

“Well, Drew, what do you remember?”

“The next thing was sittin’ in the police car, with handcuffs, flyin’ down the road and wonderin’ what I was doin’ there and where was I goin’.”

“Was Kiera with you in the police car?”

“I don’t remember.”

“No further questions, Your Honor.”

Lowell Dyer had never believed for an instant that he would have the chance to cross-examine the defendant. At every turn in the pretrial, Jake had indicated that Drew would not testify. And, most crafty defense lawyers kept their clients away from the witness stand.

Dyer had spent little time preparing for the moment, and his trepidation was compounded by the fact that both Josie and Kiera had been so thoroughly coached they had actually scored more points than the D.A. during their cross-examinations.

Attacking the witness because of his criminal record wouldn’t work. Drew had already confessed, and, besides, who really cared about a stolen bike and a few ounces of pot?

Attacking anything in the kid’s past would backfire because it was unlikely that a single person on the jury had endured such a harsh childhood.

Dyer glared at the defendant. “Now, Mr. Gamble, when you moved in with Stuart Kofer, you were given your own bedroom, right?”

“Yes sir.”

Nothing about the shaggy-haired kid suggested the title of “Mister” was appropriate. Dyer, though, had to play it tough. Being too familiar would be a sign of weakness. Perhaps using the title might make him seem older.

“And your sister was just across the hall, right?”

“Yes sir.”

“Did you have plenty of food to eat?”

“Yes sir.”

“Did you have hot water for showers and clean towels and such?”

“Yes sir. We did our own laundry.”

“And you were in school every day?”

“Yes sir, almost every day.”

“And in church occasionally?”

“Yes sir.”

“And before you moved in with Stuart Kofer, I believe the family was living in a borrowed camper, is that correct?”

“Yes sir.”

“And from the testimony given by your mother and sister, we know that before the camper you lived in a car, in an orphanage, in foster care, and in a juvenile detention center. Anywhere else?”

What a stupid mistake! Bust him, Drew, Jake wanted to yell.

“Yes sir. We lived under a bridge one time for a couple of months, and there were some homeless shelters.”

“Okay. My point is that the home Stuart Kofer provided was the nicest place you ever lived, right?”

Another mistake. Do it, Drew! “No sir. A couple of the foster homes were nicer, plus you didn’t have to worry about gettin’ slapped around.”

Dyer looked at the bench and pleaded, “Your Honor, would you instruct the witness to respond to the questions without expounding on his answers?”

Jake expected a quick response, but Noose mulled it over. Jake stood and said, “Your Honor, if I may. Counsel described the Kofer home as ‘nice’ without defining what that means. I submit that any home where a kid lives with abuse and the threat of more is anything but ‘nice.’ ”

Noose agreed and said, “Please continue.”

Dyer was too stung to continue. He huddled with D. R. Musgrove and they again tried to find a strategy. He nodded smugly, as if he’d found the perfect line of questioning, and returned to the podium.

“Now, Mr. Gamble, I believe you said that you didn’t like Stuart Kofer and he didn’t like you. Is that correct?”

“Yes sir.”

“Would you say you hated Stuart Kofer?”

“That’s fair, yes sir.”

“Did you want to see him dead?”

“No sir. What I wanted was just to get away from him. I was tired of him beatin’ my mother and slappin’ us around. I was tired of the threats.”

“So when you shot him, you were killing him to protect your mother and sister and yourself, right?”

“No sir. At the time, I knew my mother was dead. It was too late to protect her.”

“Then you shot him out of revenge. For killing your mother. Right?”

“No sir, I don’t remember thinkin’ about revenge. I was too upset at the sight of Mom lying on the floor. I was just afraid that Stuart would get up and come after us, like he did before.”

Come on Dyer, take the bait. Jake was chewing on the tip of a plastic pen.

“Before?” Dyer asked, then caught himself. Never ask a question if you don’t know the answer. “Strike that.”

“Isn’t it true, Mr. Gamble, that you deliberately and intentionally shot Stuart Kofer, with his own gun, one that you were familiar with, because he beat your mother?”

“No sir.”

“Isn’t it true, Mr. Gamble, that you deliberately and intentionally shot and killed Stuart Kofer because he was sexually molesting your sister?”

“No sir.”

“Isn’t it true, Mr. Gamble, that you willfully shot and killed Stuart Kofer because you hated the man and you were hoping that if he were dead, your mother would get to keep his house?”

“No sir.”

“Isn’t it true, Mr. Gamble, that when you leaned down and put the barrel an inch from his head, that at that crucial moment, Stuart Kofer was sound asleep?”

“I don’t know if he was sound asleep. I know he’d been movin’ around because I heard him. I was afraid he would get up and go crazy again. That’s why I did what I did. To protect us.”

“You saw him asleep in his own bed, and you took his own gun and put it an inch from his left temple, and you pulled the trigger, didn’t you, Mr. Gamble?”

“I guess I did. I’m not sayin’ I didn’t. I’m not sure what I was thinkin’ at that moment. I was so scared and I just knew he had killed my mother.”

“But you were wrong, weren’t you? He didn’t kill your mother. She’s sitting right there.” Dyer turned and pointed an angry finger at Josie in the front row.

Drew summoned his own anger and said, “Well, he tried his best to kill her. She was on the floor, unconscious, and as far as we could tell she wasn’t breathin’. She sure looked dead to us, Mr. Dyer.”

“But you were wrong.”

“And he had threatened to kill her many times, and us too. I thought it was the end.”

“Had you ever thought about killing Stuart before?”

“No sir. I’ve never thought about killin’ anybody. I don’t have guns. I don’t get in fights and stuff like that. I just wanted to leave and get away from that house before he hurt us. Livin’ in a car again was better than livin’ with Stuart.”

Another one of Jake’s lines, perfectly delivered.

“So, when you were in prison, you didn’t get into fights?”

“I wasn’t in prison, sir. I was in a juvenile detention facility. Prison is for adults. You should know that.”

Noose leaned down and said, “Please, Mr. Gamble, hold your comments.”

“Yes sir. Sorry, Mr. Dyer.”

“And you never got into fights?”

“Everybody got into fights. Happened all the time.”

Dyer was treading water and slowly drowning. Arguing with a sixteen-year-old was rarely productive, and at the moment Drew was gaining the upper hand. Dyer had been burned by both Josie and Kiera, and he preferred to avoid additional damage with the defendant. He looked at the bench and said, “Nothing further, Your Honor.”

“Mr. Brigance.”

“Nothing, Your Honor.”

“Mr. Gamble, you may step down and return to the defense table. Mr. Brigance, please call your next witness.”

At full volume, Jake announced, “Your Honor, the defense rests.”

Noose flinched and appeared surprised. Harry Rex would later say that Lowell Dyer shot Musgrove a look of bewilderment.

The lawyers met at the bench where His Honor slid the mike away and addressed them in a whisper. “What’s going on, Jake?” he demanded.

Jake shrugged and said, “We’re done. No more witnesses.”

“There are at least a dozen on your witness list.”

“I don’t need them, Judge.”

“It just seems a little abrupt, that’s all. Mr. Dyer? Any rebuttal witnesses?”

“I don’t think so, Judge. If the defense is finished, so are we.”

Noose glanced at his watch and said, “This being a capital case, the jury instructions will take some time and we can’t get in a hurry. I’ll recess now until nine in the morning. Y’all meet me in chambers in fifteen minutes and we’ll hammer out the jury instructions.”