Defending Jacob

34

Trial day six.

Father O’Leary was in the audience at the back of the courtroom when the trial resumed next morning.

Laurie, looking gray and depleted, was at her lonely post in the front row of the gallery.

Logiudice, his confidence buoyed by the performances of a series of professional witnesses, moved with a little strut. It is a peculiarity of trials that, though the witness is ostensibly the star, the lawyer who is asking the questions is the only one in the courtroom who is free to move around as he pleases. Good lawyers tend not to move much, since they want the jurors’ eyes to remain on the witness. But Logiudice could not seem to find a comfortable perch as he flitted from the witness stand to the jury box to the prosecution table and various points in between before finally coming to roost at the lectern. I suspect he was on edge about the day’s slate of civilian witnesses, Jacob’s classmates, determined not to let these amateur witnesses run away with his case the way the last ones had.

On the stand was Derek Yoo. Derek who had eaten in our kitchen a thousand times. Who had lounged on our couch watching football games and scattering Doritos on the carpet. Derek who had jumped around the living room playing GameCube and Wii with Jacob. Derek who had blissfully nodded his head for hours, probably stoned, to the pounding bass beat of his iPod while Jacob did the same beside him-the music so loud we could hear it murmuring in his headphones; it was like hearing their thoughts. Now, seeing this same Derek Yoo on the stand, I would happily have skinned him alive, with his limp brush-proof garage-band hair and sleepy slacker expression, who now threatened to send my son to Walpole forever. For the event, Derek wore a tweed sport coat that hung off his narrow shoulders. His shirt collar was too big. Cinched under his tie, it bunched and twisted, and dangled from his skinny neck like a waiting noose.

“How long have you known the defendant, Derek?”

“Since kindergarten, I guess.”

“You went to elementary school together?”

“Yes.”

“Where was that?”

“Mason-Rice in Newton.”

“And you’ve been friendly ever since?”

“Yes.”

“Best friends?”

“I guess so. Sometimes.”

“You’ve been to each other’s houses?”

“Yeah.”

“Hung out together after school and on weekends?”

“Yeah.”

“Have you been in the same homeroom?”

“Sometimes.”

“When was the last time?”

“Not last year. This year Jake is not in school. I guess he has a tutor. So I guess two years ago.”

“But even in years when you weren’t in the same homeroom, you remained close friends?”

“Yeah.”

“So how many years is it that you and the defendant have been close friends?”

“Eight.”

“Eight. And you’re how old?”

“I’m fifteen now.”

“Is it fair to say that, as of the day Ben Rifkin was murdered, April 12, 2007, Jacob Barber was your best friend?”

Derek’s voice went quiet. The thought made him either sad or embarrassed. “Yeah.”

“Okay. Directing your attention to the morning of April 12, 2007, do you remember where you were that morning?”

“In school.”

“About what time did you get to school?”

“Eight-thirty.”

“How did you get to school that day?”

“Walked.”

“Did your route take you through Cold Spring Park?”

“No, I come from the other direction.”

“Okay. When you got to school, where did you go?”

“I stopped at my locker to put my stuff away, then I went to homeroom.”

“And the defendant was not in your homeroom that year, correct?”

“Yes.”

“Did you see him before homeroom that morning?”

“Yeah, I saw him at the lockers.”

“What was he doing?”

“He was just putting his stuff in his locker.”

“Was there anything unusual about his appearance?”

“No.”

“About his clothes?”

“No.”

“Was there anything on his hand?”

“There was a big spot. It looked like blood.”

“Describe the spot.”

“It was just, like, a red spot, like the size of a quarter.”

“Did you ask him about it?”

“Yes. I said, ‘Dude, what did you do to your hand?’ And he was like, ‘Oh, it’s nothing. Just a scratch.’ ”

“Did you see the defendant try to remove the blood?”

“Not right then.”

“Did he deny that the spot on his hand was blood?”

“No.”

“Okay, what happened next?”

“I went off to homeroom.”

“Was Ben Rifkin in your homeroom that year?”

“Yes.”

“But he wasn’t in homeroom that morning.”

“No.”

“Did that seem strange to you?”

“No. I don’t know if I even noticed. I guess I would have figured he was just out sick.”

“So what happened in homeroom?”

“Nothing. Just the usual: attendance, some announcements, then we went off to class.”

“What was your first class that day?”

“English.”

“Did you go?”

“Yeah.”

“Was the defendant in your English class?”

“Yeah.”

“Did you see him in the classroom that morning?”

“Yes.”

“Did you speak to him?”

“We just said hello, that’s all.”

“Was there anything unusual about the defendant’s manner or anything he said?”

“No, not really.”

“He didn’t seem upset.”

“No.”

“Anything unusual about his appearance?”

“No.”

“No blood on his clothes, nothing like that?”

“Objection.”

“Sustained.”

“Would you describe the defendant’s appearance when you saw him in English class that morning?”

“I think he was just wearing, like, regular clothes: jeans, sneakers, whatever. There was no blood on his clothes, if that’s what you mean.”

“What about on his hands?”

“The spot was gone.”

“He’d washed his hands?”

“I guess.”

“Were there any cuts or scratches on his hands? Any reason he might have been bleeding?”

“Not that I remember. I wasn’t really paying attention. It didn’t matter then.”

“Okay, what happened next?”

“We had English class for like fifteen minutes, then there was an announcement that the school was being put in a lockdown.”

“What is a lockdown?”

“It’s when you have to go back to your homeroom and they take attendance and lock all the doors and keep everyone there.”

“Do you know why the school gets put in a lockdown?”

“Because there’s some kind of danger.”

“What did you think when you heard the school was going into a lockdown?”

“Columbine.”

“You thought somebody was at the school with a gun?”

“Yeah.”

“Did you have any idea who?”

“No.”

“Were you afraid?”

“Yeah, of course. Everybody was.”

“Do you remember how the defendant reacted when the principal announced the lockdown?”

“He didn’t say anything. He just kind of smiled. There wasn’t much time. We just heard it and everybody ran.”

“Did the defendant seem nervous or frightened?”

“No.”

“At the time, did anybody know what the lockdown was about?”

“No.”

“Did anyone connect it to Ben Rifkin?”

“No. I mean, later that morning they told us, but not at the start.”

“What happened next?”

“We just stayed in our homerooms with the doors locked. They came on the intercom and they told us we weren’t in any danger, there were no guns or anything, so the teachers unlocked the door and we just kind of waited there. It was like a drill or something.”

“You had practiced lockdowns before?”

“Yeah.”

“What happened next?”

“We stayed there. They told us to take out our books and read or do homework or whatever. Then they canceled school for the rest of the day and we went home around eleven.”

“Nobody ever questioned you or the other students?”

“Not that day, no.”

“Nobody ever searched the school or the lockers or any of the students?”

“Not that I saw.”

“So when school got out and they finally let you leave the room, what did you see?”

“There were just a lot of parents waiting outside the school to get their kids. All the parents came to the school.”

“When did you see the defendant next?”

“We were texting that afternoon, I guess?”

“By texting, you mean you were exchanging text messages on your cell phones?”

“Yes.”

“What did you talk about?”

“Well, at that point all we knew was that Ben got killed. We didn’t know, like, exactly what happened or anything. So we were just both like, Did you hear anything? What did you hear? What’s going on?”

“And what did the defendant say to you?”

“Well, I was just like, Dude, isn’t that the way you go to school? Did you see anything? And Jake just said no.”

“He said no?”

“That’s right.”

“He didn’t say that he’d seen Ben lying on the ground and he tried to revive him or see if he was okay?”

“No.”

“What else did he say while you were texting?”

“Well, we were just kind of joking because Ben had been kind of picking on Jacob for a while. So we were all like, ‘Couldn’t happen to a nicer guy’ and ‘Your wishes came true’ and stuff like that. I know that sounds really bad now but it was just, like, joking.”

“When you say Ben Rifkin had been picking on Jacob, describe what you mean. What exactly had been going on between those two?”

“Ben was just like, he was in a different group. He was just-I don’t want to say not-nice things about him after what happened and everything-but he was not very nice to Jake or to me, or to anyone in our group.”

“Who is in your group?”

“It was pretty much me, Jake, and this other kid, Dylan.”

“And what was your group like? What was your reputation in school?”

“We were geeks.” Derek said this without embarrassment or bitterness. Did not bother him. Just the way it was.

“And Ben, what was he like?”

“I don’t know. He was handsome.”

“He was handsome?”

Derek flushed. “I don’t know. He was just in a different group than us.”

“Were you friends with Ben Rifkin?”

“No. I mean, I knew him, like, to say hello, but we weren’t friends.”

“But he never picked on you?”

“I don’t know. He probably called me a fag or whatever. I wouldn’t call it bullying or anything. Somebody calls you a fag, it’s just like, whatever. It was no big deal.”

“Did Ben call other people names?”

“Yes.”

“Like what?”

“I don’t know, fag, geek, slut, bitch, loser, whatever. It was just the way he was, it was kind of the way he talked.”

“To everyone?”

“No, not everyone. Just kids he didn’t like. Kids he didn’t think were cool.”

“Was Jacob cool?”

Shy smile. “No. None of us were.”

“Did Ben like Jacob?”

“No. Definitely not.”

“Why not?”

“Just didn’t.”

“For no reason? Was there some kind of beef between them? Anything specific?”

“No. It was just like, Ben didn’t think Jake was cool. None of us were. He said stuff to all of us.”

“But it was worse for Jacob than for you or Dylan?”

“Yes.”

“Why?”

“I think he just kind of saw that it got to Jake. Like I said, for me, if somebody calls you a fag or a geek or whatever, what can you do? I just kind of didn’t fight back. But Jake got all bent out of shape, so Ben just kept on doing it.”

“Doing what?”

“Calling him names.”

“What names?”

“ ‘Fag’ mostly. Some other things, worse things.”

“What worse things? Go ahead. You can say them.”

“It was mostly about being gay. He would keep asking Jacob whether he’d done different gay stuff. He just kept saying it over and over and over.”

“Saying what?”

Derek took a deep breath. “I don’t know if I can use the words.”

“It’s all right. Go ahead.”

“He’d say, like, ‘Did you suck anyone’s-’ I don’t really want to say it. It was just stuff like that. He just wouldn’t stop.”

“Did anyone at school think Jacob actually was gay?”

“Objection.”

“Overruled.”

“No. I mean, I don’t think so. It’s not like anyone cared anyway. I don’t care.” He looked at Jacob. “I still don’t care.”

“Did Jacob ever say anything to you about being gay, either way?”

“He said he wasn’t.”

“In what context? Why did he say that to you?”

“I was just, like, telling him to ignore Ben. I was like, ‘Hey, Jake, it’s not like you’re gay anyway, so what do you care?’ So he said he wasn’t, and he said it wasn’t about whether he was gay; it was about Ben giving him shit-giving him grief, I mean-and how long was it going to go on before anyone did anything to stop it? He just knew it was wrong and no one was doing anything to stop it.”

“So Jacob was upset about it?”

“Yes.”

“He felt he was being bullied?”

“He was being bullied.”

“Did you ever intervene to try to stop Ben from bullying your friend?”

“No.”

“Why not?”

“Because it wouldn’t have mattered. Ben wouldn’t have listened. It doesn’t work that way.”

“Was the bullying just verbal? Or did it ever become physical?”

“Sometimes Ben would push him or like jostle him as he went by, like knock him with his shoulder. Sometimes he took Jake’s stuff, like stuff from his backpack or his lunch or whatever.”

“Now, the defendant looks like a big kid. How could Ben get away with picking on him?”

“Ben was big too, and he was kind of tougher. And he had more friends. I think we all-like Jake and Dylan and me-we kind of knew we weren’t important kids. I mean, I don’t know, it’s weird. It’s kind of hard to explain. But if it got to be a real fight with Ben, we would have just been cut out.”

“Socially, you mean.”

“Yeah. And then what would school be like if we were just, like, alone?”

“Did Ben do this to other kids too, or just Jacob?”

“Just Jacob.”

“Any idea why?”

“ ’Cause he knew it made Jake mad.”

“You could see it made him mad?”

“Everyone could.”

“Did Jacob get mad a lot?”

“At Ben? Of course.”

“At other things too?”

“Yeah, a little.”

“Tell us about Jacob’s temper.”

“Objection.”

“Overruled.”

“Go ahead, Derek, tell us about the defendant’s temper.”

“He just, like, got really upset about stuff. He kind of stewed about it and he couldn’t let it go. He’d get himself all worked up on the inside and then sometimes he would kind of go off over some little thing. He’d always feel bad afterward and he’d be embarrassed because it was like he was always overreacting, because it was never just about whatever made him go off. It was all the other stuff he’d be thinking about.”

“And you know this how?”

“Because he’d tell me.”

“Did he ever lose his temper with you?”

“No.”

“Did he ever lose his temper in front of you?”

“Yeah, sometimes he could be a little schizo.”

“Objection.”

“Sustained. The jury will ignore that last comment.”

“Derek, would you describe a time you saw the defendant lose his temper?”

“Objection, relevance.”

“Sustained.”

“Derek, would you tell the court what happened when the defendant found a stray dog?”

“Objection, relevance.”

“Sustained. Move on, Mr. Logiudice.”

Logiudice puckered his mouth. He flipped a page of his yellow pad, a page of questions he would set aside. Like a bird rustled from his perch, he began to move nervously around the courtroom again as he asked his questions until, at length, he settled back into his place at the lectern near the jury box.

“For whatever reason, in the days after Ben Rifkin’s murder, you became concerned about your friend Jacob’s role in it?”

“Objection.”

“Overruled.”

“You can answer, Derek.”

“Yes.”

“Was there anything in particular, besides his temper, that made you suspicious of Jacob?”

“Yes. He had a knife. It was like kind of an army knife, like a combat knife. It had this really really sharp blade with all these … teeth. It was a really scary knife.”

“You saw this knife yourself?”

“Yeah. Jake showed it to me. He even brought it to school once.”

“Why did he bring it to school?”

“Objection.”

“Sustained.”

“Did he show you the knife once at school?”

“Yeah, he showed me.”

“Did he say why he was showing it to you?”

“No.”

“Did he tell you why he wanted a knife at all?”

“I think he just thought it was cool.”

“And how did you react when you saw the knife?”

“I was like, ‘Dude, that’s cool.’ ”

“You weren’t bothered by it?”

“No.”

“Concerned?”

“No, not then.”

“Was Ben Rifkin around when Jacob produced the knife that day?”

“No. Nobody knew Jake had the knife. That’s the thing. He was just walking around with it. It was like Jake had this secret.”

“Where did he carry the knife?”

“In his backpack or his pocket.”

“Did he ever show it to anyone else or threaten anyone with it?”

“No.”

“All right, so Jacob had a knife. Was there anything else that made you suspicious of your friend Jacob in the hours and days after Ben Rifkin was murdered?”

“Well, like I said, at the very beginning nobody knew what happened. Then it kind of came out that Ben got killed with a knife in Cold Spring Park, and I just kind of knew.”

“Knew what?”

“Knew-I mean, I felt like he probably did it.”

“Objection.”

“Sustained. The jury will disregard the last answer.”

“How did you know Jacob-”

“Objection.”

“Sustained. Move on, Mr. Logiudice.”

Logiudice pursed his lips, regrouped. “Did Jacob ever talk about a website called the Cutting Room?”

“Yes.”

“Would you tell the jury, what is the Cutting Room?”

“It’s like a porn site, kind of, only it’s just stories and anyone can write stories and post them there.”

“What kind of stories?”

“Like S and M, I guess. I don’t really know. It’s, like, sex and violence.”

“Did Jacob talk about the site often?”

“Yeah. He liked it, I guess. He used to go there a lot.”

“Did you go there?”

Sheepish, blushing. “No. I didn’t like it.”

“Did it bother you that Jacob went there?”

“No. It’s his business.”

“Did Jacob ever show you a story on the Cutting Room that described Ben Rifkin’s murder?”

“Yes.”

“When did Jacob show you this story?”

“Like late April, I think.”

“After the murder?”

“Yeah, a few days after.”

“What did he tell you about it?”

“He just said he had this story he wrote and he posted it on this message board.”

“You mean he posted it online for other people to read?”

“Yeah.”

“And did you read the story?”

“Yes.”

“How did you find it?”

“Jacob sent me a link.”

“How? Email? Facebook?”

“Facebook? No! Anyone could have seen it. I think it was email. So I went to the site and I read it.”

“And what did you think of the story when you read it the first time?”

“I don’t know. I thought it was weird that he wrote it, but it was kind of interesting, I guess. Jacob was always a really good writer.”

“Did he write other stories like this one?”

“No, not exactly. He wrote some that were, like-”

“Objection.”

“Sustained. Next question.”

Logiudice produced a document, laser-printed, thick with text on both sides. He laid it on the witness stand in front of Derek.

“Is that the story the defendant told you he wrote?”

“Yes.”

“Is that printout an accurate record of the story precisely as you read it that day?”

“Yeah, I guess.”

“Move the document be admitted in evidence.”

“The document is admitted and marked Commonwealth’s Exhibit… Mary?”

“Twenty-six.”

“Commonwealth’s exhibit twenty-six.”

“How do you know for sure that the defendant wrote this story?”

“Why would he say it if it wasn’t true?”

“And what was it about the story that made you so concerned about Jacob and the Rifkin murder?”

“It was just, like, a total description, every little detail. He described the knife, the stabs in the chest, the whole thing. Even the character, the kid that got stabbed-in the story Jake calls him ‘Brent Mallis,’ but it’s obviously Ben Rifkin. Anyone who knew Ben would know. It wasn’t like totally fiction. It was just obvious.”

“Do you and your friends sometimes exchange messages on Facebook?”

“Sure.”

“And three days after Ben Rifkin was murdered, on April 15, 2007, did you post a message on Facebook saying, ‘Jake, everyone knows you did it. You have a knife. I’ve seen it.’ ”

“Yes.”

“Why did you post that message?”

“I just didn’t want to be the only one who knew about the knife. It was like, I didn’t want to be alone knowing that.”

“When you posted that message on Facebook accusing your friend of the murder, did he ever respond?”

“I wasn’t really accusing him. It was just something I wanted to say.”

“Did the defendant respond in any way?”

“I’m not sure what you mean. I mean, he posted on Facebook, but not really responding to that.”

“Well, did he ever deny that he murdered Ben Rifkin?”

“No.”

“After you published your accusation on Facebook in front of his whole class?”

“I didn’t publish it. I just put it on Facebook.”

“Did he ever deny the accusation?”

“No.”

“Did you ever accuse him directly, to his face?”

“No.”

“Before you saw that story on the Cutting Room, did you ever report your suspicions about Jacob to the police?”

“Not exactly.”

“Why not?”

“Because I wasn’t totally sure. Plus, the cop in charge of the case was Jacob’s dad.”

“And what did you think when you realized that it was Jacob’s dad who was running the case?”

“Ob- jec — tion.” Jonathan’s voice was disgusted.

“Sustained.”

“Derek, one last question. It was you that sought out the police to share this information, isn’t that right? Nobody had to come ask you?”

“That’s right.”

“You felt you had to turn in your own best friend?”

“Yeah.”

“No further questions.”

Jonathan stood up. He seemed for all the world to be unfazed by what he had just heard. And he would conduct a gallant cross, I knew. But something had obviously changed in the courtroom. The atmosphere was electric. It was as if we had all just decided something. You could read it in the faces of the jurors and Judge French, you could hear it in the supreme quiet of the crowd: Jacob was not going to walk out of that courtroom, not out the front door anyway. The excitement was a mix of relief-everyone’s doubts were resolved at last, about whether Jacob did it and whether he would get away with it-and palpable eagerness for revenge. The rest of the trial would be only details, formalities, tying up loose ends. Even my friend Ernie the court officer looked at Jacob with a wary eye, assessing how he would react to the handcuffs. But Jonathan seemed not to notice the drop in air pressure. He moved to the lectern and slipped on the half-glasses he wore on a chain around his neck and began to take it apart piece by piece.

“These things you’ve told us about, they bothered you, but not so much that you broke off your friendship with Jacob?”

“No.”

“In fact, you two continued to be friends for days and even weeks after the murder, isn’t that right?”

“Yes.”

“Isn’t it true that you even went to Jacob’s house after the murder?”

“Yes.”

“So it’s fair to say that you weren’t too sure at the time that Jacob really was the murderer?”

“Yeah, that’s right.”

“Because you wouldn’t want to remain friends with a murderer, of course?”

“No, I guess not.”

“Even after you posted that message on Facebook where you accused Jacob of the murder, you still remained friends with him? You still remained in contact, still hung around?”

“Yes.”

“Were you ever afraid of Jacob?”

“No.”

“Did he ever threaten or intimidate you in any way? Or lose his temper at you?”

“No.”

“Isn’t it true that it was your parents who told you you couldn’t stay with friends with Jacob, that you never decided to stop being friends with Jacob?”

“Kind of.”

Jonathan backed off, sensing Derek beginning to hedge, and he moved to a new topic. “The day of the murder, you said you saw Jacob before school and again in English class right after school started?”

“Yes.”

“But there was no indication that he had been involved in any kind of struggle?”

“No.”

“No blood?”

“Just the little spot on his hand.”

“No scratches, no torn clothes, nothing like that? No mud?”

“No.”

“In fact, it never even occurred to you, looking at Jacob in English class that morning, that he might have been involved in anything on the way to school?”

“No.”

“When you later came to the conclusion that Jacob might have committed the murder, as you’ve suggested here, did you take that into account? That after a bloody, fatal knife attack, Jacob somehow emerged without a drop of blood on him, without so much as a scratch? Did you think about that, Derek?”

“Kind of.”

“Kind of?”

“Yes.”

“You said Ben Rifkin was a bigger kid than Jacob, bigger and tougher?”

“Yes.”

“But still Jacob came out of this struggle without a mark on him?”

Derek did not answer.

“Now, you said something about Jacob grinning when the lockdown was announced. Did other kids grin? Is it natural enough for a kid to grin when there’s excitement, when you’re nervous?”

“Probably.”

“It’s just something kids do sometimes.”

“I guess.”

“Now, the knife you saw, Jacob’s knife. Just to be clear, you have no idea whether that was the knife that was used in the murder?”

“No.”

“And Jacob never said anything to you about intending to use the knife on Ben Rifkin, because of the bullying?”

“Intending? No, he didn’t say that.”

“And when he showed the knife to you, it never occurred to you that he planned to kill Ben Rifkin? Because if it did, you would have done something about it, right?”

“I guess.”

“So, as far as you knew, Jacob never had a plan to kill Ben Rifkin?”

“A plan? No.”

“Never talked about when or how he was going to kill Ben Rifkin?”

“No.”

“Then, later, he just sent you the story?”

“Yeah.”

“He sent you a link by email, you said?”

“Yes.”

“Did you save that email?”

“No.”

“Why not?”

“It didn’t seem smart. I mean, for Jake-from Jacob’s point of view.”

“So you deleted the email because you were protecting him?”

“I guess.”

“Can you tell me, of all the details in that story, was there anything that was new to you, anything you didn’t already know either from the Web or from news stories or from other kids talking?”

“No, not really.”

“The knife, the park, the three stab wounds-that was all well known by then, wasn’t it?”

“Yes.”

“Hardly a confession, then, is it?”

“I don’t know.”

“And did he say in the email that he’d written the story? Or just found it?”

“I don’t remember exactly what the email said. I think it was just, like, ‘Dude, check this out’ or something like that.”

“But you’re sure Jacob told you he wrote the story, not that he just read it?”

“Pretty sure.”

“ Pretty sure?”

“Pretty sure, yeah.”

Jonathan went on in this way for some time, doing what he could, shaving away and shaving away at Derek Yoo’s testimony, scoring what points he could. Who knows what the jurors were really making of it. All I can tell you is that the half dozen jurors who were furiously taking notes during Derek’s direct testimony had put down their pens now. Some were no longer even looking at him; they had dropped their eyes to their laps. Maybe Jonathan had won the day and they had decided to discount Derek’s testimony entirely. But it did not seem that way. It seemed like I had been fooling myself, and for the first time I began to imagine in realistic terms what it would be like when Jacob was in Concord prison.