Defending Jacob

14

Jonathan: “Tell me about the knife.”

Jacob: “What do you want to know?”

“Well, the DA is going to say you bought it because you were being bullied. They’ll say that’s your motive. But you told your folks you bought it for no reason.”

“I didn’t say I bought it for no reason. I said I bought it because I wanted it.”

“Yes, but why did you want it?”

“Why did you want that necktie? Do you have a reason for everything you buy?”

“Jacob, a knife is a little different from a necktie, wouldn’t you say?”

“No. It’s all just stuff. That’s how our society works: you spend all your time making money so you can trade it for stuff, then-”

“Now it’s gone?”

“-then you go out and make more money so you can buy more stuff-”

“Jacob, the knife is gone?”

“Yeah. My dad took it.”

“You have the knife, Andy?”

“No. It’s gone.”

“You got rid of it?”

“It was dangerous. It wasn’t an appropriate knife for a kid to have. It wasn’t a toy. Any father would have-”

“Andy, I’m not accusing you of anything. I’m just trying to confirm what happened.”

“Sorry. Yes, I got rid of it.”

Jonathan nodded but offered no comment. We were sitting at the round oak table in his office, the only room he had that was large enough to accommodate our entire family. The young associate, Ellen, was there too, assiduously scribbling notes. It occurred to me that she was there to witness the conversation in order to protect Jonathan, not to help us. He was creating a record just in case he ever fell out with his clients and there was a dispute about what he had been told.

Laurie watched with her hands folded in her lap. Her composure, once so natural, now required more effort to maintain. She spoke a little less, involved herself a little less in these legal strategy sessions. It was as if she was conserving her energy for the moment-to-moment effort of just holding herself together.

Jacob was sulking. He picked at the surface of the table with a fingernail, his goofy teenage pride wounded by Jonathan’s lack of enthusiasm for his insights into the rudiments of capitalism.

Jonathan petted his short beard, absorbed in his own thoughts. “But you had the knife the day Ben Rifkin was killed?”

“Yes.”

“Did you have it with you in the park that morning?”

“No.”

“Did you have it with you when you left?”

“No.”

“Where was it?”

“In a drawer in my room, same as always.”

“You’re sure?”

“Yeah.”

“So when you left for school, was there anything unusual about the morning?”

“When I left? No.”

“Did you follow your usual route to school? Through the park?”

“Yes.”

“So the spot where Ben was killed was right on the path you normally follow through the park?”

“I guess so. I never really thought about it that way.”

“Before you found the body, did you see or hear anything as you walked through the park?”

“No. I was just walking and then there he was, just lying there.”

“Describe him. How was he lying when you first saw him?”

“He was just lying there. He was, like, lying on his stomach on this, like, little slope, in a bunch of leaves.”

“Dry leaves or wet leaves?”

“Wet.”

“You’re sure?”

“I think.”

“You think? Or you’re guessing?”

“I don’t really remember that part too well.”

“So why did you answer the question?”

“I’m not really sure.”

“From now on, you answer absolutely honestly, okay? If the accurate answer is I don’t remember, then that’s what you say, all right?”

“All right.”

“So you see a body lying on the ground. Was there any blood?”

“I didn’t see any right then.”

“What did you do as you approached the body?”

“I kind of called his name. Like ‘Ben, Ben. You okay?’ Something like that.”

“So you recognized him right away?”

“Yeah.”

“How? I thought he was lying facedown with his head at the bottom of a slope, and you were looking down from above.”

“I guess I just recognized, like, his clothes and, you know, his look.”

“His look?”

“Yeah. Like, his appearance.”

“All you could see was the bottom of Ben’s sneakers.”

“No, I could see more than that. You can just tell, you know?”

“All right, so you find the body and you say ‘Ben, Ben.’ What next?”

“Well, he didn’t answer and he wasn’t moving, so I figured he must be hurt pretty bad, so I kind of went down to him to see if he was okay.”

“Did you call for help?”

“No.”

“Why not? Did you have a cell phone?”

“Yeah.”

“So you find a victim of a bloody murder and you have a phone in your pocket, but it never occurs to you to call nine-one-one?”

Jonathan was careful to ask all his questions in a curious tone, as if he was just trying to figure the whole thing out. It was an interrogation, but not a hostile one. Not obviously hostile.

“Do you know anything about first aid?”

“No, I just figured I should see if he was okay first.”

“Did it occur to you that a crime had occurred?”

“It occurred to me, I guess, but I wasn’t totally sure. It could have been an accident. Like if he just fell or something.”

“Fell on what? Why?”

“Nothing. I’m just saying.”

“So you had no reason to think he just fell?”

“No. You’re twisting things.”

“I’m just trying to understand, Jacob. Why didn’t you call for help? Why didn’t you call your father? He’s a lawyer, he works for the DA-he would have known what to do.”

“It just-I don’t know, I didn’t think of it. It was kind of an emergency. I wasn’t, like, prepared for it. I didn’t know what I was supposed to do.”

“Okay, what happened next?”

“I kind of went down the hill and I got down beside him.”

“Got down on your knees, you mean?”

“I guess so.”

“In the wet leaves?”

“I don’t know. Maybe I stayed standing.”

“You stayed standing. So you were looking down over him, right?”

“No. I don’t really remember. When you say it like that, I think maybe I must have been down on a knee.”

“Derek saw you a few minutes later in school and he did not say anything about your pants being wet or muddy.”

“I guess I must have been standing, then.”

“All right, standing. So you’re standing over him, looking down at him. What next?”

“Like I said, I kind of rolled him over to check on him.”

“Did you say anything to him first?”

“I don’t think so.”

“You see a classmate lying facedown, unconscious, and you just flip him over without a word?”

“No, I mean maybe I said something, I’m not completely sure.”

“When you were standing over Ben at the bottom of the slope, did you see any evidence of a crime then?”

“No.”

“There was a long smear of blood going all the way down the hill from Ben’s wounds. You didn’t notice it?”

“No. I mean, I was, like, freaking out, you know?”

“Freaking out how? What does that mean, exactly?”

“I don’t know. Just, like, panicking.”

“Panicking why? You said you didn’t know what happened, you did not think there’d been a crime. You thought it might be an accident.”

“I know, but this kid was just lying there. It was just a freaky situation.”

“When Derek saw you just a few minutes later, you weren’t freaking out.”

“No, I was. I just didn’t show it. I was freaking out on the inside.”

“All right. So you’re standing over the body. Ben is already dead. He’s bled out from three wounds in his chest and there’s a trail of blood leading down the hill to the body, but you didn’t see any blood and you didn’t have any idea what happened. And you’re freaking out but only on the inside. What next?”

“It sounds like you don’t believe me.”

“Jacob, let me tell you something: it doesn’t matter if I believe you. I’m your lawyer, not your mom or dad.”

“Yeah, but still. I don’t really appreciate how you’re making it sound. This is my story, okay? And you’re making it sound like I’m lying.”

Laurie, who had not spoken throughout this entire meeting, said, “Please stop, Jonathan. I’m sorry. Just please stop. You’ve made your point.”

Jonathan was brought up short, chastened. “All right, Jacob, your mother’s right. Maybe we’d better stop right here. I don’t mean to upset you. But I want you to think about something. This whole story of yours might have sounded good when you told it in your head, when you were alone in your room. But things tend to sound different under cross-examination. And I promise you, what we’re doing here is a walk in the park next to what Neal Logiudice will do to you if you take the stand. I’m on your side; Logiudice isn’t. I’m also a nice guy; Logiudice-well, he has a job to do. Now, I think what you’re about to tell me is that, faced with this body lying facedown with blood flooding out of three gaping chest wounds, you somehow managed to stick your arm underneath the body so that you could leave a single thumbprint inside Ben’s sweatshirt-yet when you pulled your arm out again there was not a trace of blood on it, so that when you showed up at school a few minutes later no one thought anything was amiss. Now, if you were a juror, what would you think about that story?”

“But it’s true. Not the details-you messed me up on the details. He wasn’t lying, like, totally facedown, and it wasn’t like blood was gushing all over. It just wasn’t like that. That’s just you, you know, playing games. I’m telling the truth.”

“Jacob, I’m sorry I upset you. But I am not playing games.”

“I swear to God, it’s the truth.”

“Okay. I understand.”

“No. You’re calling me a liar.”

Jonathan did not respond. It is, of course, the last resort of a liar to challenge his inquisitor to call him a liar directly. Worse, there was an edge in Jacob’s voice. It might have been the hint of a threat or it might have been a terrified boy near tears.

I said, “Jake, it’s all right. Jonathan has a job to do.”

“I know, but he doesn’t believe me.”

“It’s okay. He’ll be your lawyer whether he believes you or not. Defense lawyers are like that.” I gave Jacob a wink.

“What about my trial? How am I going to get up there?”

“You’re not,” I said. “You’re not going anywhere near that witness stand. You’re going to sit at the defense table and the only reason you’re going to get up is to go home at night.”

Jonathan slipped in, “I think that’s wise.”

“But how will I tell my story?”

“Jacob, I don’t know if you’ve been listening to yourself the last few minutes. You cannot take the stand.”

“Then what’s my defense?”

Jonathan said, “We don’t have to present a defense. We have no burden. The burden is entirely on the prosecution. We’re going to attack their case at every turn, Jacob, until there’s nothing left of it. That’s our defense.”

“Dad?”

I hesitated. “I’m not sure it’s going to be enough, Jonathan. We can’t just throw a few spitballs at Logiudice’s case. He has the thumbprint, he has the witness who puts a knife in Jacob’s hand. We’re going to have to do more. We have to give those jurors something.”

“So what do you suggest I do, Andy?”

“I just think maybe we need to consider presenting a real, affirmative defense.”

“Love to. What do you have in mind? As far as I can see, all the evidence points one way.”

“What about Patz? The jury should at least hear about him. Give them the real killer.”

“The real killer? Oh, my. How do we prove that?”

“We’ll hire a detective to dig into it.”

“Dig into what? Patz? There’s nothing there. When you were in the DA’s office, you had the state police, every local police department, the FBI, CIA, KGB, NASA.”

“We always had less resources than you defense guys imagined.”

“Maybe. But you had more than you have now, and you never found anything. What’s a private detective going to do that a dozen state police detectives couldn’t?”

I had no answer.

“Andy, look, I know you understand that the defense has no burden of proof. You know it, but I’m not entirely sure you believe it. This is how the game is played from the other side. We don’t get to pick our clients, we don’t get to just drop a case if the evidence isn’t there. So this is our case.” He gestured toward the papers in front of him. “We play the cards we’re dealt. We have no choice.”

“Then we have to find some new cards.”

“Where?”

“I don’t know. Up our sleeves.”

“I note,” Jonathan drawled, “that you are wearing a short-sleeve shirt.”