Afraid of the Dark

Chapter Twenty-three

On Friday afternoon, Jack and Neil were back in the Justice Building. Seated between them at the nicked and scratched defense table was Jamal Wakefield, who looked almost boyish in his orange prison jumpsuit. The prosecutorial team sat closer to the empty jury box. Once again, Assistant State Attorney McCue had brought along the lawyer from the National Security Division of the Department of Justice.

“Good morning,” said the judge, and Jack did not take that as a good omen. It was three P.M.

“Good morning,” said the lawyers, no one pointing out his error. It was an unwritten rule in Judge Flint’s courtroom: Suck up or shut up.

Bail hearings were not usually closed to the public, but this hearing was unusual for many reasons, not the least of which was the fact that in Florida there was no guaranteed right to bail in a first degree murder case. The accused could be released only after an Arthur hearing, named for one of the Florida Supreme Court’s most famous decisions of the early 1980s-which, for the record, had absolutely nothing to do with Dudley Moore, Christopher Cross, or getting caught between the moon and New York City. In theory, the burden was on the prosecution to establish that the proof against the accused was evident and the presumption of guilt was great. In State v. Jamal Wakefield-a case tinged with national security concerns-Jack was practical enough to realize that the defense would have to put on evidence to establish a right to pretrial release.

The prosecutor spoke first. “Judge, we have a defendant who was picked up in Somalia after the commission of the murder and is a clear flight risk. This is a frivolous motion and a colossal waste of this court’s time. For purposes of this hearing, the state of Florida relies on the evidence that it’s already presented to the grand jury.”

“Thank you,” the judge said, and his appreciation seemed sincere, as if he were still under the impression that it was morning and that he had an important lunch date. “Mr. Swyteck, the ball is in your court.”

Jack rose. “Your Honor, in due time we’ll explain how Mr. Wakefield ended up in Somalia. But first, the defense will show that the case against Mr. Wakefield is a weak one, and that he should therefore be released on bond pending trial.”

The judge groaned as he rocked back in his tall leather chair. “Let me be up front about this, Counselor. I am not going to allow you to try this case twice. Your client has a right to a speedy trial, where you can present your evidence soon enough.”

“We may need just one witness to call the prosecution’s case in question,” said Jack.

The judge seemed pleased by that announcement. “I’m going to hold you to that, Mr. Swyteck. Proceed.”

“The defense calls Vincent Paulo.”

Jack’s voice carried across the empty seats in the public galley and almost echoed off the rear wall, a bit too loud for a courtroom with no observers. The double doors in the back of the courtroom swung open, and Sergeant Paulo entered. He wore a business suit and tie, his eyes hidden behind a pair of dark sunglasses. In his right hand was a white walking cane. His wife was standing at his left, a strong and beautiful woman, which made it seem all the more tragic that Vince could no longer see her. Vince tucked away the cane and laid his hand in the crook of her right arm. Together they came down the aisle, though it seemed to Jack that Vince could have done it without assistance. In a moment of uncontrollable defense-lawyer cynicism, Jack wondered if the prosecutor had told Vince to bring his wife, make himself look more helpless-and make the judge hate Jack even more for attacking the cop that his client was accused of blinding.

“Do you swear to tell the truth…” said the bailiff, administering the familiar oath.

“I do,” said Vince. He climbed into the witness stand and settled into the chair.

Jack stepped forward and, to his surprise, felt at a decided disadvantage before he’d even started. The key to effective cross-examination-and this was cross, even though technically the defense had called Paulo to the stand-was to control the witness. In the courtroom, control was like any other form of communication: Least important was what you said, more important was how you said it, and most important of all was body language. Out of habit, Jack planted his feet firmly on the courtroom floor, squared his shoulders to the witness, and stood tall, but Vince was unflappable, impervious to the nonverbal cues.

“Good afternoon, Mr. Paulo.”

Vince showed little expression. “Sergeant Paulo,” he said.

“Sergeant,” said Jack. “First, let me say that I regret having to subpoena you to appear in court today. I know-” he started to say, then stopped himself, thinking of their phone conversation. “I can only imagine how difficult this must be.”

Vince did not reply, and for Jack the silence was somewhat unnerving.

Jack continued. “I’ve read the sworn affidavit of your testimony that the prosecutor presented to the grand jury. I’ve also listened to the recording of your last words with McKenna Mays on the day she died. I understand that you were a police officer at that time, but just to be clear, you were not on the scene in response to a call for help, were you?”

“No, I was not.”

“I believe you stated in your affidavit that Mr. Mays was out of town, and you went to the Mays residence to check on McKenna.”

“Actually, Mr. Mays told me that he was concerned about-”

“Excuse me, Sergeant. Judge, what Mr. Mays told the witness is inadmissible hearsay.”

The prosecutor rose. “Is that some kind of objection?”

Even without a jury-judges were human, too-Jack couldn’t let the witness testify that McKenna’s father feared Jamal might come around while he was out of town. “Your Honor, what I’d like is simply an answer to my questions.”

“The witness will answer the questions asked,” said the judge, “without mention of what others may have told him.”

“Let me restate it,” said Jack. “You went there to check on McKenna, but not on official business.”

Vince shifted in his chair, and it obviously pained him not to be able to take a shot at Jamal. “Basically, yes.”

“You and McKenna’s father were friends?”

“Yes.”

“How long?”

“At that time, I’d say about seven years.”

“Since McKenna was in elementary school, then?”

“That sounds right.”

“Would you describe your relationship with McKenna as close?”

“She used to call me Uncle Vince, if that answers your question.”

“Would you say that she regarded you as someone she could trust?”

“Of course,” said Vince.

“Someone she could rely on?”

“There was nothing I wouldn’t have done for McKenna.”

“Someone who would tell the truth?”

“Objection,” said the prosecutor, rising.

“Overruled. The witness will answer.”

Vince paused, but Jack didn’t read it as any kind of confusion as to courtroom procedures. It was the question that had given him pause-Vince’s acute awareness that defense lawyers didn’t ask questions without a hidden agenda. “She certainly had no reason to think I was a liar,” said Vince.

“Exactly,” said Jack. “McKenna Mays had no reason to believe that her uncle Vince would lie to her. Correct?”

Again he hesitated, but Jack had left him little wiggle room. “I would say that’s true.”

Jack faced the judge. “With the court’s permission, I would like to play the answering machine recording of McKenna Mays. It’s the key piece of evidence in the state’s case against my client.”

“No objection,” said the prosecutor.

“All right, let’s hear it,” said the judge.

Neil came forward to help the judicial assistant find the CD among the grand jury materials. She marked it, inserted it into the player, and then waited for Jack’s cue.

“Just to set the stage,” said Jack. “Sergeant Paulo, can you tell us exactly where you were at the time of this recording.”

Vince was slow to respond. “I was in her bedroom,” he said, his tone forced, as if it were a struggle not to get emotional.

Jack knew that these were painful memories for him, but seeing his reaction-and knowing that he had no choice but to take him down this road-was almost equally painful for Jack. “Where was McKenna?”

“On the floor,” he said softly. “I knelt at her side, and raised her head up.”

Jack wished he didn’t have to ask the next question. “How was McKenna doing at this point?”

“Not well,” he said, and the words hit Jack sharply, as if Vince had reached inside his tormented self and told Jack, “Up yours for asking.”

“She’d been stabbed?”

“Several times,” Vince said. His voice almost cracked, but he drew a deep breath, and he sounded like a cop again. “She had defensive wounds on her hands, and a large puncture wound to her rib cage that was spewing bloody foam from her lungs. She was also bleeding heavily from a slash across the left side of her neck. Her pulse was weak. When I called her name, her eyes opened, but her body was going cold. I pulled a blanket from the bed and covered her, tore a sheet into bandages and applied them to the wounds. It didn’t do much good.”

“Was that when you dialed nine-one-one?”

“Redialed. I had already called once, and the second time was to find out what was taking so long. Then I noticed that McKenna was trying to say something.”

“So you hung up and dialed your answering machine?”

“At this point…” He paused and gathered himself. “It looked bad for McKenna. My law enforcement instincts took over. If she was going to tell me what happened, I wanted to have a record of it. I was in no position to take notes and didn’t have a recording device. The idea popped into my head to get it on my answering machine. So that’s what I did.”

Jack gave him a moment, then signaled to the judicial assistant. “Let’s listen,” said Jack.

The assistant hit PLAY, and after brief static, there was noise on the line, probably the sound of Vince holding the phone to McKenna’s lips. Then in a faint voice, the victim spoke:

“Tell me,” she whispered. “Am I dying?”

“No, sweetheart,” said Vince. “You’re gonna be just fine.”

Jack paused the recording.

“That’s the first time you told her she was not going to die-correct, Sergeant?”

Vince seemed momentarily confused, as if he hadn’t expected the question. “Yes,” he said.

“Thank you,” said Jack, and then he glanced back at his client. Jamal was staring at the carpet, his forehead resting on the table’s edge, as if it were all unbearable. The recording resumed.

“Really?” said McKenna.

“Who did this to you?” said Vince.

“Am I going to die?”

“No, McKenna. You’re going to be fine. Who did this?”

Jack paused the recording again. “Sergeant, am I correct that this is the second time you told her she was not going to die?”

“Yes.”

“Thank you,” said Jack, and the recording continued with McKenna’s ever-weakening voice.

“You really think I’m going to be okay?”

“Yes, it’s not your time. I saw much worse than this in Iraq, and they’re all fine. Tell me who did this to you.”

Jack hit PAUSE once more.

“Sergeant Paulo, that makes three times that you told her she was not going to die.”

“Yes.”

“In less than a minute.”

Vince swallowed hard, seeming to sense where this was headed. “I

… yes.”

“And after you gave her those three separate assurances, you asked her, ‘Who did this to you?’ ”

“I believe so.”

“And her answer was ‘Jamal.’ ”

“That’s correct.”

Jack glanced over his shoulder at his client, and their eyes met. Jamal looked scared, terrified, really. Jack wasn’t sure if he looked innocent, but he didn’t look guilty, either. If he had, Jack wouldn’t have found the strength to go on.

He took a step closer to the witness. “Your intention was to make McKenna believe that she was not going to die,” said Jack.

“She was scared. So scared she couldn’t even talk.”

“Scared of dying, right?”

“Yes.”

“So you told her she was not going to die.”

“Right.”

“Three times.”

“Only so she wouldn’t be scared.”

“And your words removed her fear.”

“Objection,” said the prosecutor. “How would the witness know what was in the victim’s head?”

“Your Honor, based on his own perception, Sergeant Paulo just testified that the victim was too scared to talk. I’m entitled to an answer, again based on his own perception: Did his words allay her fears?”

“I strongly object,” said the prosecutor.

The judge frowned with thought. “There’s no jury here. I’ll allow it. The witness may answer.”

Vince considered it, then said, “I’m sure it helped.”

It wasn’t a perfect answer, but this was unpleasant work for Jack, and he had pushed Vince as far as he cared to push.

“Your Honor, at this time…”

His voice halted, and Jack was suddenly at war with himself. Again, he glanced over his shoulder. What if Jamal is guilty?

The question gnawed at his soul, but Jack fought through it, reminding himself that he wouldn’t have come this far if Jamal hadn’t passed a polygraph examination. If McKenna’s own father hadn’t expressed doubts about Jamal’s guilt. If the government hadn’t pushed back so hard against Jamal’s alibi. If the witness who had flown all the way from the Czech Republic to support the alibi hadn’t died so mysteriously at Lincoln Road Mall.

If the message scrawled on Jack’s napkin hadn’t read “Are you afraid of The Dark?”

“At this time,” Jack continued, “the defense moves to exclude the answering machine recording as hearsay.”

The prosecutor was on his feet. “It’s admissible as a dying declaration,” he said, noting one of the oldest exceptions to the hearsay rule.

Jack said, “The premise underlying a dying declaration is that a victim of a violent crime has no reason to lie about the identity of her attacker if she knows that she is about to die. The key concept is that she must know-or at least believe-that death is imminent. The opposite is true here. Sergeant Paulo told her repeatedly that she was not going to die.”

“To put her at ease,” said the prosecutor.

“Precisely my point,” said Jack. “Sergeant Paulo testified that the victim was so scared that she couldn’t even speak. After he told her three times that she was not going to die, she was able to name her attacker. Clearly, she did not believe her death was imminent-or even likely.”

The judge seemed troubled. The prosecutor was clearly worried.

“Judge, we-” said the prosecutor, but the judge cut him off.

“Hold it, Mr. McCue. I’m thinking.”

Jack glanced at Neil, who looked almost as surprised as Jack. This was a long shot that had played out much better than either of them had anticipated.

The judge asked, “What is left of the government’s case against Mr. Wakefield if this recording is excluded?”

“Virtually nothing,” said Jack.

“That’s not true,” said the prosecutor.

The judge asked, “Is there any physical evidence linking the defendant to the commission of the crime?”

“None,” said Jack.

“It burned in the fire,” said the prosecutor.

“It never existed,” said Jack. “My client was in a detention facility in the Czech Republic at the time of the crime.”

The Justice Department lawyer was suddenly yanking at the prosecutor’s sleeve, and the two of them huddled into an intense exchange of whispers. The judge leaned back in his chair until he was staring up at the ceiling tiles, retreating even deeper into thought.

“Judge, we’d like a recess,” said the prosecutor.

“I’m in the middle of my examination,” said Jack.

The judge ignored the exchange between the lawyers, rocking in his chair and thinking aloud. “If I rule this recording inadmissible,” he said, “I would imagine the defense will be filing a motion to dismiss the indictment.”

“That would be correct,” said Jack.

That sent the prosecution scrambling. “Judge-”

“Quiet, Mr. McCue.”

“Judge,” said the prosecutor, “I have an announcement. The state of Florida withdraws its objection to the release of Mr. Wakefield on bond.”

The judge seemed poised to rebuke him for the sudden change of position, but he quickly appreciated that his own butt was off the hook. Throwing out McKenna’s dying declaration would have been front-page news-and letting accused murders go free was generally not a career-enhancing move for an elected state court judge.

“That certainly changes things,” said the judge.

Smart move, thought Jack. The government was better off letting Jamal out of jail on pretrial release than digging in its heels and losing the entire case at a bail hearing.

“We would ask for release on the prisoner’s own recognizance,” said Jack.

“Bail should be set at one million dollars,” said the prosecutor. “And Mr. Wakefield should be required to wear a GPS tracking bracelet.”

“A tracking device seems like a reasonable request in a case of first degree murder,” said the judge. “But a million dollars? Really now. Anything further from the defense?”

Jack knew when to cut and run. “No, Your Honor.”

“Bail is set at seventy-five thousand dollars,” said the judge. “The prisoner is to be released on the condition that he remain in Miami-Dade County and wear an ankle bracelet at all times. The witness is dismissed. We’re adjourned.”

With a bang of the gavel and bailiff’s announcement-“All rise!”-the judge started toward his chambers.

Jack looked at Vince. He was frozen in his chair, as if he were reliving McKenna’s funeral, so distraught that the bailiff’s command to rise probably hadn’t even registered. As Jack started back toward the defense table, Alicia caught his eye. She was on the other side of the rail in the first row of public seating behind the prosecution. Her stare was deadly. She moved to the defense side of the courtroom, came to the rail, and practically leaned over, leaving just a few feet between her and Jack.

“Shame on you,” she said.

Jack could find no response. It wasn’t the foulmouthed vitriol he might have gotten from other cops or their wives, but that only made it worse.

“Shame on you,” she said, and it was even worse the second time. She walked to the center of the rail, pushed through the low swinging gate, and went to her husband on the stand.

Neil laid his hand on Jack’s shoulder. “That was a great piece of lawyering, my friend. I’m proud of you.”

The words were lost on Jack. His client attempted to shake his hand in gratitude, but Jack’s gaze was fixed on the witness stand. Vince was still in a state of shock, his wife trying to console him.

At that moment, Jack hated his job.