Fool Me Twice

CHAPTER 21

Summer became fall, and the aspen trees turned their shimmering gold. Football season began, and locals at a basement sports bar saluted the Broncos’ early success, all the while bitching about how they would fold in the playoffs.

Trial was set for the first week of December. Patterson had completed his pretrial discovery and arranged his documents in color-coded files. Unlike Florida, Colorado law did not give us the right to take pretrial depositions, a severe handicap in trying to peck away at a criminal case. Although we didn’t have a chance to cross-examine their witnesses before the trial, we knew what they would say on direct examination. The state gave us their sworn statements and grand jury testimony, and so far, no one, including Josefina Jovita Baroso, had a kind word to say about me.

I was in a daze.

I tried to focus on the trial but felt like I was swimming through Jell-O.

My concentration was off. My nerves were shot. I consumed too much Grolsch, and when that left me without a buzz, I switched to Finlandia straight out of the freezer. Kippis, as they say in Helsinki, which made me think of Eva-Lisa Haavikko, a good woman who died needlessly, but that, too, is another story.

Occasionally, I came up with slightly inebriated ideas for my defense, and I shared them all with H.T. Patterson. Sometimes, just after Jay Leno didn’t put me to sleep, I called Patterson with strategy for impeaching Jo Jo’s testimony. With the two-hour time difference, it was two-thirty a.m. or so in Miami, and I would awaken H.T. from a sound sleep, but he never complained.

“ You interrupted a dream,” he mumbled groggily one early morning.

“ That some day all men will be brothers?” I inquired.

“ No, that Gwendolyn was taking me to her bosom.”

“ Gwendolyn, from Jamaica? Judge Ferguson’s secretary?”

“ One and the same, a woman of charm and grace, intelligence and beauty, righteousness and rectitude.”

“ So what’s she doing with you, Henry Thackery?”

“ She’s not, my felonious friend. It was, after all, a dream.”

Lawyers hate for clients to call them at home. There is always an emergency that, in the client’s mind, cannot wait until morning. By the harsh light of day, the crisis will be shown to have existed solely in the client’s mind. But H. T. Patterson tolerated my late-night calls because he was a friend. And he understood. No, check that. He nearly understood. Until you are asked to rise in the courtroom and identify yourself as the defendant, you cannot understand. Send in the cliches, which are cliches, after all, because they are true: A lawyer is a mouthpiece, a hired gun; have briefcase, will travel; have mouth, will argue; another day, another dollar.

But if you’re the defendant, it is different. It is real, and it is forever. Win, lose, or draw, the lawyer will walk out of the courthouse and enjoy supper with family and friends. The day may end for the defendant with the echo of a steel door clanking shut with absolute finality.

A chill bit through the air. It rained and became colder, and the trees lost their leaves. Snow began to fall. H. T. Patterson had flown up for a pretrial conference with the judge, and Granny asked him to stay for Thanksgiving dinner. Granny cooked a turkey with chestnut stuffing, wild rice with bacon and brandy, and corn pudding. She baked a pumpkin pie and an apple pie, there being a scarcity of mangoes and Key limes in the Rocky Mountains. She prowled through the kitchen of her double-wide, more cantankerous than usual, grumbling about the altitude as she tried to bake honey wheat bread.

“ Yeast rises quicker here than a skeeter draws blood. Ye gods, I’ll never get used to this. Water boils at a lower temperature, so you got to boil longer, increase heat for baking, use more liquids but decrease the baking powder and sweeteners. What a damn fool place.”

The bread turned out to be soggy, and Granny said to hell with it, we could have eggnog with bourbon if we wanted. I told her to skip the first half of the recipe.

After the last slice of pumpkin pie, served hot with vanilla ice cream, and ample quantities of liquid refreshment, my lawyer and I took a walk. Snow flurries whipped around our bare heads as we trudged along a muddy trail that would soon be used for cross-country skiing. In the distance, the snow-covered peak of Mount Sopris rose high above the valley.

“ Jake, you ever represent any lawyers?”

“ Sure, a few.” It is a matter of some pride to be a lawyer’s lawyer.

“ What kind of cases?” Patterson asked.

“ The usual. Divorce, disbarment, money laundering.”

“ How were your clients to work with?”

That made me laugh. “You know lawyers. Always wanting to be in control. Terrible witnesses, either arrogant or condescending, and they always talk too much.”

“ All in all, tough clients?”

“ The worst, H.T. They confuse their roles. They’re sitting in the second chair, wishing it’s the first.”

“ I see.”

He studied me through a blur of snowflakes. A hardy jogger in shorts and a windbreaker chugged by us.

“ I get it, H.T. You want me to stay out of the way. Hey, don’t worry. I’ll be the perfect client. I won’t sneer at the prosecutor or wink at the stenographer. I won’t chew gum in court or toss paper airplanes at the jury. I’ll write you discreet little notes on my legal pad and sit quietly while the wheels of justice turn ever so slowly.”

A snowflake caught him in the eye and melted into a tear. “You pulling my chain, Jake?”

“ Hell no. You’re the boss. I’ll be the client I always wanted to have.”

The week before trial, the local paper was drumming up so much publicity you’d have thought they were selling tickets. “greed, lust drove lawyer to murder,” one headline read. Another story called Jo Jo the “linchpin of a love triangle that turned deadly.”

Kip read the story aloud to me, then wrinkled his freckled nose. “A triangle doesn’t have a linchpin,” he said. “It has a hypotenuse if it’s a right triangle. It can have an acute angle or an obtuse angle. It can be isosceles or equilateral, but it can’t have a linchpin.”

I decided to give Kip a lesson that had nothing to do with geometry. “Let me tell you something about the news media.”

“ I know, Uncle Jake. They lie through their teeth.”

Amazing, the process of generational osmosis. He’s lying through his teeth was one of Granny’s expressions. We influence our children in so many subtle ways. I made a mental note to never again drink directly from the milk carton, curse moronic drivers, or pee in the shower.

“ Not exactly,” I said, “but the news is often accurate without being truthful.”

“ Whadaya mean?”

“ Reporters rely on what people tell them. A woman claims she was the lover of a president. The story is accurate, because she said it, but where’s the truth? A spokesman for the tobacco industry claims there’s no proven link between smoking and lung cancer. Religious fanatics ignore all science and maintain that the Earth is only six thousand years old. So rule number one, the news is filled with accurate lies.”

“ How come the newspapers print what they know is false?”

“ Our system has faith in citizens’ ability to weigh conflicting evidence and reach the truth.”

“ Just like jurors are supposed to do.”

“ Right, and if newspapers print only what is indisputably true, there’d be nothing to read but yesterday’s box scores.”

“ But in the stories about you, only the prosecutor and the cops are talking.”

“ Prosecutors mouth off to the media to get the jury pool thinking their way before the trial begins. Usually, the defense keeps quiet because you can’t take a public position that may have to change with the ebb and flow of the trial. Most times, you don’t even know if your client will testify until you hear the state’s case.”

“ Are you going to testify?”

“ It’s up to H.T. But if I don’t, there’ll be no one to rebut Jo Jo’s perjury.”

“ There’s me, Uncle Jake.”

“ I’m keeping you out of it. Besides, you’re not exactly impartial, so the prosecutor would cross you on how much you’d like to help your uncle out of a jam and how you’d do anything for me. Besides, you weren’t even in the barn when the real action took place.”

“ I could lie.”

“ Forget it.”

“ Okay, what else?”

“ Rule number two about the news media. The more you know about a subject, the less truthful the story. Most stories are equal parts crude approximations, unfiltered information, rough summaries, and educated guesses, all strung together with random quotes chosen for maximum impact, not substance. If the story is about troop movements in Manchuria, you’re not going to know whether it’s even close. But if you’re a CPA and the story’s about the new tax code, you can pick apart every mistake.”

“ And if the story is about you and Jo Jo and that big cowboy, you know the truth.”

“ That’s a funny thing, Kip. We each see the truth through our own clouded lens. Our perceptions are always skewed. When we’re excited, when our adrenaline is pumping, even more so. Put four people in a room-”

“ Or a barn.”

“ Yeah, and each one will have a different version of what happened.”

“ Like Rashomon,” my nephew said.

The day before jury selection, it snowed two feet. A blizzard so hard and thick and gusty, it closed the ski lifts and the gondola for three hours. The morning of the trial, the redbrick courthouse looked like a Christmas decoration, puffed up with virgin snow, the spruce trees bent low under all that white.

I entered the old brick building from the Main Street side under a statue of Lady Justice. Inside, all spit and polished was an old steam engine that once ran a saw that cut timbers for the mines. I passed grainy hundred-year-old photos of cowboys, miners, and farmers at work and climbed the stairs to the second floor. The courtroom was a cathedral of dark wood, the jury box on a raised platform, the gallery a series of church pews. On the walls were photos of judges who had presided here, from the days of silver mining to high-tech skiing.

From a window, Main Street looked like the small town of a kid’s toy train set, all decorated with cotton-ball snow and miniature Christmas wreaths. To the south, Aspen Mountain was deep with fresh powder, and under a blinding blue sky, the Monday morning skiers were carving their signatures on the slopes. For some reason, I thought of the shafts and tunnels so far below the snow.

“ All rise!” the bailiff yelled. “The Ninth Judicial District Court, in and for Pitkin County, Colorado, the Honorable Judge Harold T. Witherspoon presiding, is now in session.”

The judge was gray-haired and lean, with cold blue eyes. He sternly read preliminary instructions to the jury pool, whose members sat stiff-backed in the gallery waiting to be called forward.

H. T. Patterson wore cowboy boots below a double-breasted black wool suit. His tight little smile reflected the expression of quiet confidence we use to mask opening-day jitters. I had a fresh haircut that clipped my shaggy hair from over my ears and trimmed it to a half-inch everywhere else. No longer sun-bleached from windsurfing, my hair was darker, and I was paler than I had been since my last winter as a student-athlete in the Appalachian mountains of central Pennsylvania.

I wore a shapeless dark blue suit, a white shirt, and a striped tie. My shirt collar seemed unusually tight. I felt pasty, out of sorts, awkward. That morning, as I was staring at myself in the mirror, my nephew announced his ratings: two stars for my suit, half a star for my haircut, and two thumbs-down to the little white handkerchief I stuck in my suit coat pocket, trying to give off the aura of a small-town banker.

“ Uncle Jake, you look like a major dweeb,” Kip said.

“ It’s a ploy to make the jury think I’m lovable and innocent.”

“ With that haircut, you look worse than Kevin Costner in The Bodyguard, though not as bad as Harrison Ford in Presumed Innocent, when he was on trial for killing Greta Scacchi.”

I thanked him for his support and drove myself to court.

Mark McBain, the prosecutor, started voir dire, asking perfunctory questions about family backgrounds, run-ins with law enforcement, and whether any of the prospective jurors knew any of the principals. No one knew me, but three were excused because they knew Cimarron, another two because they had formed opinions of my guilt based on newspaper accounts and swore they couldn’t shake those opinions. A few others were sent home for various personal reasons, including sick relatives, sick cattle, or just plain sick of lawyers.

I watched the jurors file in and out of the box for most of the day, and for no rational reason, I started hating them. Who were these people to judge me? They didn’t know me. They weren’t there. They can’t know what happened. How would we ever tell them so that they would know?

I felt out of place. Distant. At times, I listened to the jurors’ answers but never heard a word. I felt I was drifting over the courtroom, looking down at the proceedings. Other times, I wasn’t there at all.

Once in a while, H.T. would ask for my opinion of one of the panel, but I just waved him off. Let him decide who to challenge and to seat. I was in no condition to help.

Just after four o’clock, H. T. Patterson nudged me. We had a jury of shopkeepers, ranchers, homemakers, a bartender, a waitress, a woman schoolteacher, a mechanic, and a student. They sat in a raised box of varnished walnut, seven men, five women, ten Anglos, two of Mexican descent. Just before they took their oath, I studied their faces, and they studied mine.

Who was this man, they seemed to ask, and what has he done?

And for a moment, looking back, I didn’t know the answer to either question.

Mark McBain was a nuts-and-bolts prosecutor. Gray suit, gray eyes with, dark pouches underneath, and a little soft through the middle. He had no desire to be governor, senator, or Santa Claus. He had attained all his goals by dogged persistence and hard work. Unlike Abe Socolow, who bled out his guts to win each case and left a piece of himself on the courtroom floor, with McBain, it was all in a day’s work. No flash, no dash. Paint the jury a picture by the numbers. Nothing unnecessary put into evidence, nothing important left out. No pomp, no pageantry, and no nonsense. No ghastly blunders either, just the plain, unembellished, unsentimental facts. A D.A. from the old school.

A prosecutor is a stolid carpenter who patiently hammers his wood into place as he builds a house, one board at a time. A defense lawyer is a nihilistic vandal who finds the support beam and pulls down the house before it’s complete. Or if you want to get high falutin’ about it, imagine prosecutors and defense lawyers as great painters. The former would be Winslow Homer realists, the latter Man Ray cubists.

At the moment, Mark McBain was leaning on the balustraded railing of the jury box, beginning his opening statement by methodically telling what he expected to prove. “Imagine a trial as a book and opening statement as the table of contents.”

He droned on in a monotone, unfolding his case, witness by witness, using the time-honored phrase, “The evidence will show…”

He talked about my past with Ms. Baroso, my decade-long involvement with her brother, the convicted felon, my position in her brother’s company which I systematically looted of funds advanced by Mr. Cimarron, the decedent. He told the jurors that they would hear from the medical examiner, the investigating detective, an expert on power tools, and from Ms. Baroso herself, the sole eyewitness to the murder. “Ms. Baroso is the only one who can tell us exactly what happened that night. She has no ax to grind. She is a professional woman of impeccable background and credibility, a woman embarrassed by her brother and…”

He turned toward me, all twelve jurors following his gaze.

“…embarrassed by her past involvement with this criminal lawyer from Miami.”

He made “criminal lawyer” sound redundant, and the way he said “Miami” left the impression of Sodom-by-the-Sea.

“ I am not going to steal these witnesses’ thunder,” McBain continued. “You will hear the testimony from each of them, and when you do, I am convinced that you will determine that the state has met its burden of proving beyond and to the exclusion of every reasonable doubt that the defendant is guilty of murder in the second degree.”

H. T. Patterson smiled, rocked back and forth in his cowboy boots, and told the jurors that it was an honor to stand before them, the people who can put an end to a grave injustice that has befallen his client. He reminded them of their promise this very morning that they would wait until all the evidence was in before reaching any conclusions. He told them that the state’s burden to prove guilt beyond a reasonable doubt was the highest standard of proof known to our system of jurisprudence. Without his nose growing a millimeter, he told the jury that my character was unblemished, and a string of witnesses from Florida, including football coaches, judges, and lawyers would attest to that.

Moving close to the rail, Patterson raised his voice a notch. “Ms. Baroso’s testimony is subject to cross-examination, and it is on cross-examination that you will judge whether the evidence meets this burden of proof. It is not true that she is the only eyewitness. No, Ladies and Gentlemen, Mr. Lassiter was an eyewitness, also, and you shall hear from him. I submit that you will find Ms. Baroso’s story to be ambiguous and improbable, dubious and doubtful, and when you do, the state’s case will fall. It will fall like a house of cards. It will collapse like-”

“ Objection, Your Honor.” McBain slowly got to his feet. It was the quietest objection I’d ever heard.

“ Sustained,” the judge said. “I don’t know how they do it in Mia-muh, but up here, we save closing argument till the evidence is in.”

Patterson thanked the judge with a gracious smile as if he had imparted the wisdom of the Holy Grail. Patterson summed up with the usual platitudes about our by-golly best system of justice in the world. He thanked the jurors in advance for their rapt attention, though two were already looking out the window, and another was catnapping. Then he sat down, and Judge Witherspoon gave the jurors a little speech about not reading the newspapers or discussing the case among themselves.

I leaned over to my lawyer. “H.T., what’s going on? You promised I’d testify. Isn’t it a little early to-”

“ Already decided. You have to.”

“ Okay, but then, why no mention of self-defense? If I’m going to testify, it’s my only way out.”

“ Self-defense admits you killed Cimarron.”

“ Of course it does!” My whisper was a little too loud, and one of the jurors looked over, just as the judge explained he would work them nine-to-six and get them out of here by the end of the week. “Jo Jo will testify I put the stud gun to Cimarron’s head and pulled the trigger.”

“ But you can’t remember that?”

“ Not exactly, no. I mean, I remember pulling the trigger, but I didn’t think it went off.”

“ And Ms. Baroso lied to you about Cimarron beating her?”

“ Yes.”

“ Then lied to Mr. Cimarron about your having assaulted her?”

“ Of course.”

“ And lied to the police about who attacked whom?” I threw up my hands in disgust. “Yes. She fooled me. She fooled Cimarron, and she fooled the police.”

“ Don’t look so glum, Jake,” H. T. Patterson said. “She hasn’t fooled me.”