Fool Me Twice

CHAPTER 22

Sheriff’s deputy Clayton Dobson testified that he was the first officer on the scene where he found a woman who identified herself as Josefina Baroso. When he first saw her, she had a blanket covering her. She was disheveled and emotionally distraught. She led him to the body. Two bodies really.

The man who was alive was semiconscious. Kind of moaning, lying on his back in the straw. Yes, sir, I do see him in the courtroom. That’s him sitting right over there, the big fellow in the blue suit.

The victim, one Kit Carson Cimarron. Recognized him, knew this was his ranch. Knew his daddy, too.

Called for homicide and an ambulance. Took a statement from Ms. Baroso who said-

Objection, hearsay.

Sustained.

Secured the scene and turned it over to Detective Racklin when he arrived twenty, maybe twenty-five minutes later.

Homicide Detective Bernie Racklin was perhaps the only male in Pitkin County who didn’t wear cowboy boots. He was short and pudgy, in his mid forties, with a receding hairline. He wore khaki pants, a blue blazer, and scuffed cordovan penny loafers. Racklin looked familiar, but I couldn’t quite place him. He, too, took a statement from Ms. Baroso, who apparently had plenty to say and told the same story every time. Racklin puttered around the barn for several hours, along with a crew of crime scene technicians dusting for prints, shooting photos, swabbing up drops of blood, slipping nails and chips of wood into little evidence bags.

“ What was Ms. Baroso’s condition when you interviewed her?”

“ She was upset and had been crying. She displayed bruises on her ribs she said came from-”

The prosecutor held up a hand. “Just give us your observations, please.”

Thanks, McBain. I appreciate that.

“ She was bruised about the torso. Her face appeared to have been struck as she had the beginning of a black eye. The injuries did not appear to be serious, and she was lucid, alert, and aware of her surroundings.”

With the prosecutor’s assistant displaying a series of photos blown up to poster size, Racklin spent the next hour describing what seemed like a twelve-round championship fight.

“ Photo number one represents what, sir?”

“ This is the loft of the barn. This is where the defendant first attacked the decedent.”

Whoa! He wasn’t there. He was relying on Jo Jo’s statements.

“ Based on the physical evidence, were you able to determine what occurred in the loft?” Brian McBain asked.

“ Yes. The floor is wood. There are scuff marks from the decedent’s cowboy boots consistent with a struggle occurring there. He would have been dragged across the floor…”

Cimarron dragged? With what, a crane?

“…There were no scuff marks from the defendant’s footwear.”

Of course not. I was wearing sneakers. I just hate pseudo-scientific evidence from cops.

“ We inspected the wooden planks that make up the walls of the loft. Close examination revealed the presence of human hair embedded in the rough splinters. The hair matched that of Mr. Cimarron, and scuff marks on the floor near the wall are consistent with Mr. Cimarron having been thrown into the wall with great force.”

He paused a moment while the prosecutor handed him an enlarged photograph showing a cracked wooden plank.

“ Looking at what’s already been marked as state’s exhibit twelve, can you tell us what that photo shows?”

“ Yes, that’s the plank. As you can see, there is a fissure in the area from which we extracted Mr. Cimarron’s hair. That was an area of the plank seventy-seven inches above the floor. Mr. Cimarron was a very tall man, six feet seven, even taller in boots. Further, there was an abrasion on the back of Mr. Cimarron’s head, and indications of a heavy blow, serious enough to cause a concussion.”

Bull! He did more damage to the wall than it did to him. I’m the one who had a concussion. He never even blinked.

“ Based on your investigation and the physical evidence, what did you conclude concerning the activities in the loft, as pictured in photo number one?”

Hey, H.T., do something. Anything.

I squirmed in my seat, and Patterson placed a calming hand on my arm. Damn lawyers!

“ Mr. Cimarron was attacked by the defendant, who though not as large, is quite a physical specimen. He is a former professional football player who is still in good condition, better in fact than Mr. Cimarron…”

That’s for sure. Mr. Cimarron is stone-cold dead.

“ It would appear that the defendant dragged Mr. Cimarron around the loft. They might have been locked up as wrestlers sometimes do. Then the defendant swung Mr. Cimarron into the wall, where he struck his head with great force. Frankly, I’m surprised it didn’t knock the man unconscious at the time, though it surely stunned him. Then, the two tussled some more. Somehow, the defendant fell through the railing depicted in photo number two and into the stall below, as shown by the third photo.”

“ Are your conclusions consistent with the statements provided by Ms. Baroso?”

Oh brother, talk about getting hearsay in the back door.

I shot a look at Patterson, who hushed me with a whisper. “Stifle yourself, Jake. She’s going to testify anyway. No use making it look like we’re afraid to hear it.”

He had a point, though I could have done without hearing her lies twice.

“ Yes, consistent in every material respect.”

McBain walked his witness through more exhibits and more description of the brutal beating administered to poor, fat, Kiwanis Man of the Year Kit Carson Cimarron by a weight-lifting ex-football-playing flatlander from a godforsaken place where they don’t hardly speak no English.

Detective Racklin testified that the defendant continued his assault upon Cimarron on the ground floor. There was evidence the defendant attempted to impale Mr. Cimarron with a pitchfork, four superficial stab marks in the thigh matching the prongs precisely.

Well, that was close, as close as a nephew of the first degree of consanguinity.

No, there were no usable fingerprints on the pitchfork handle, but that’s not unusual. They could have been smeared, or the pitchfork could have been held in a way not to leave prints.

Mr. Cimarron defended himself with a bullwhip, and subsequent examination of the defendant’s wounds revealed Mr. Cimarron scored some defensive strikes.

Defensive? I’d like to show Detective Racklin some defensive strikes.

So the two behemoths continued to slam each other around, falling into the corncrib, Mr. Cimarron defending himself, as always, and landing some punches, too. They were both physical men, and they did damage to each other.

“ Then what happened?” McBain asked.

“ Apparently, the defendant got hold of the nail gun, and-”

“ Objection!” Patterson was on his feet. “Evidence is not based on what apparently happened.”

“ Sustained.”

“ Let me ask it this way,” McBain said. “When you arrived in the barn, what did you observe concerning Mr. Cimarron.”

“ I observed that he was dead.”

In the gallery, a couple newspaper reporters tittered, but the jurors were ominously serious.

“ Go on,” McBain prodded.

“ He was lying on his left side on the floor. A pool of blood extended from his right ear in a circular pattern surrounding his head. There was a small amount of blood appearing in his right ear in what was clearly an entrance wound, very small. There was a smudge of grease or dirt on the ear itself that could have come from the muzzle of a gun. Examination revealed an exit wound in the skull above the left ear. It was about the size of a quarter. My first impression was that Mr. Cimarron had suffered a gunshot wound to the head at close range.”

“ Did further inspection change your opinion?”

“ Yes. Lying approximately three feet from the body was a nail gun, or stud driver as they’re sometimes called. It had a clip of live ammunition-a plastic strip of. 27-caliber bullets- sticking out the top. That’s how they’re loaded.”

“ What else did you observe in the vicinity of the body?”

“ Approximately eight feet away, in the direction of the exit wound, there was a leather saddle on top a sawhorse. Embedded in the saddle just under the horn was a nail that was bloody at its point and along its shaft. Adhering to the underside of the nail’s head were fragments of bone and skin and what may have been brain tissue.”

One of the jurors, a middle-aged woman schoolteacher, put a lace handkerchief to her mouth. The others sat at rapt attention.

“ From your experience as a homicide detective, what did you then conclude?”

“ Mr. Cimarron had been shot in the right ear at point-blank range by a nail from a stud driver powered by. 27-caliber bullets. The nail exited Mr. Cimarron’s head through the skull just above the left ear and continued until it struck the saddle.”

“ Was this conclusion consistent with Ms. Baroso s statement?”

Cute. Speculation corroborated by hearsay, but H. T. didn‘t want to make a fuss.

“ Yes, it was consistent.”

“ We’ll learn more about the fatal shot both from a tools expert and from the medical examiner,” Prosecutor McBain told his witness, but the statement was intended for the jury.

McBain looked through his notes, made a series of check marks on his legal pad, took a sip of water, and started off in a different direction. “Did there come a time when you had an opportunity to question the defendant?” McBain asked.

“ In a manner of speaking, Mr. McBain. I accompanied you to the hospital the next morning, and we spoke to Mr. Lassiter there.”

Right. I remember the guy now, somewhere in the fog.

“ Tell us what transpired.”

Patterson shot me a look. No lawyer likes surprises, and though I had remembered the prosecutor, I forgot about talking to the cop. Now what the hell did I say? Whatever it was would be admissible as an admission by a party.

“ I told the defendant I remembered him from his pro football days. I recalled a game against the Broncos where he had a couple of sacks and a fumble recovery…”

Great. Five mediocre seasons, and this guy has to remember my best game.

“… so I complimented him on that.”

“ And what did he say?”

“ He sort of spoke in an exaggerated Southern accent and said he always aspired to be mo-bile, a-gile, and hostile, but all he could manage was the last of the three.”

Oh shit.

“ Anything else?”

“ Yes, sir. You informed him of the cause of Mr. Cimarron’s death, and he said…” Racklin made a production of thumbing through his notes. “‘It’s the first time in my life I ever drove a nail straight.’

“ Your witness,” McBain said pleasantly, allowing himself a little smile. If the smile could talk, it would have said, take your best shot, sucker.

H. T. Patterson nodded, as if thanking his adversary for a great favor, and stood to address the witness. “What was my client’s physical condition when you first saw him?”

“ I’m not a doctor.”

“ Oh come now, Detective Racklin. Long before you were a homicide detective, you were a patrolman, were you not?”

“ Yes, sir.”

“ And you testified many times in auto accident cases as to physical condition?”

“ Yes, sir.”

“ And in criminal cases, too?”

“ Yes.”

“ And were my ears deceiving me, or did you this very morning describe Ms. Baroso’s physical condition when asked to do so by the prosecutor?”

“ I suppose I did.”

“ Then why be so reluctant to describe Mr. Lassiter’s condition?”

I just-

“ You just didn’t want to tell the jury that Jake Lassiter was beaten to a pulp by Kit Carson Cimarron.”

“ Objection! Argumentative.”

“ Sustained.” Judge Witherspoon looked at Patterson and instructed him gently, “Please confine your questions to…well, to questions.”

“ Isn’t it true that Mr. Lassiter was beaten to a bloody pulp?”

“ I don’t know if I would characterize it quite that way.”

H. T. Patterson was good. Damn good. As soon as he saw Racklin was defensive, he would pour it on. Trying to hide the obvious when the truth won’t hurt is a common cop mistake. If I attacked Cimarron, it didn’t matter if he ran over me with a steamroller defending himself. So a smart prosecution witness would just shrug and say, yeah, ole Kit got in a few licks. But Racklin was trying too hard to help the prosecution, something that’s almost always a mistake.

“ Well, Detective, how would you characterize a concussion, multiple lacerations and contusions of the torso and all four limbs. How would you characterize bruised ribs, strained ligaments, blackened eyes, blurred vision, a dislocated shoulder, and numerous scars from a bullwhip?”

“ I’d say your client bit off more than he could chew when he jumped K. C. Cimarron.”

Ouch.

“ Really? Did you see Mr. Lassiter do just that? Did you see him jump Mr. Cimarron?”

“ No.”

“ Because you weren’t there.”

“ That’s right.”

“ So your testimony is dependent on what Ms. Baroso told you?

“ That, and from my independent investigation of the scene.”

“ Your in-de-pen-dent in-ves-ti-ga-tion,” Patterson drawled, as if the two-bit words weren’t worth a nickel, “began after you took a statement from Ms. Baroso, did it not?”

“ I don’t follow you,” the detective said.

“ It is not necessary that you do, but I would appreciate it if you would answer the question. Isn’t it true that you first spoke to Ms. Baroso, and after getting her tearful version of the events, you proceeded to in-ves-ti-gate?”

“ Yeah, it’s true. I had to start somewhere, and your client was unconscious.”

“ So he was, having been beaten into that state by Mr. Cimarron, correct?”

“ Yeah, he got hit. I said that.”

Patterson’s voice grew louder. “And thereupon, having been told what supposedly happened by Ms. Baroso, you began to in-ves-ti-gate, or shall we say, you began to gather evidence that would corroborate and confirm, exculpate and exonerate this attractive young woman from any and all suspicion?”

“ The lady was never under suspicion.”

“ What!” thundered Patterson, as if the answer was the biggest shock since the Jets beat the Colts in Super Bowl III. “You never even considered that Mr. Cimarron had been dispatched into the hereafter by…the lady?”

Racklin sighed with exasperation. His look to the jury said these fucking lawyers are a pain in the ass. “Ms. Baroso identified herself as an assistant state attorney in Miami, and then-”

“ Did she show you her badge and ID?”

“ Yes, as a matter of fact, she did.”

“ So here is one dead body on the floor and another man lying unconscious with multiple injuries, and once you learn that the third person on the premises is a fellow law enforcement official, you immediately conclude she is a mere witness and not a suspect, correct?”

A good question on cross-examination must be answered yes or no. And if the cross-examiner is really sharp, the question asks whether the witness has stopped beating his wife. If Racklin answered yes and admitted that he immediately concluded Jo Jo was free of suspicion, H.T. made his point: It was a hasty call by the cops. If Racklin answered no, then he knew the next question would be: When did you conclude she wasn’t a suspect? And on and on.

“ I’ve been doing this a while, and I concluded she was not a suspect. I considered her a witness. She seemed credible and-”

“ She seemed credible! I suppose Jeffrey Dahmer seemed like a good prom date.”

“ Objection!” Now McBain was on his feet. “Counsel keeps arguing with the witness.”

“ I withdraw the question,” Patterson said, graciously.

“ What question?” McBain muttered under his breath.

Ramrod straight, pulling himself up to his full five feet six inches, cowboy boots included, H. T. Patterson strutted to the clerk’s table and picked up the report compiled by the crime scene technicians.

“ Now, Detective Racklin, you have testified that Mr. Cimarron died of a nail wound to the head…”

“ No, I didn’t. I said I observed a head wound. I believe the deputy medical examiner will testify as to cause of death. That’s how we do it up here.”

Oooh. Racklin was no dummy. He was telling the jury to keep an eye on this slick-talking stranger.

“ Yes, thank you so much for that clarification. Did you observe any nails other than the one you described as having been embedded in the saddle?”

“ I believe the technicians came up with some in the corncrib. It’s in their report. You’ll have to ask them.”

“ I see.” Patterson came back to the defense table and was thumbing through his notes. You like to conclude cross-examination with a bang, but H.T. seemed to be out of bullets, or nails, as the case may be. Just then, one of Charlie Riggs’s old lectures popped into my head. Something about the four manners of death. Natural, accidental, homicide, and suicide. I wrote a single word with a question mark on a yellow pad and slipped it to Patterson.

My bantam rooster of a lawyer nodded and turned his attention to the witness stand. “Detective, when did you conclude the death was a homicide?”

“ Upon being shown the body by Deputy Dobson who responded to the call.”

“ Prior to taking Ms. Baroso’s statement.”

He thought about it a moment. “Actually, Deputy Dobson was telling me what the lady said, as he led me to the body.”

“ So you knew Ms. Baroso’s version of events even as you looked upon the body for the first time?”

“ That’s what I just said, yes.”

“ And you concluded it was a homicide.”

Racklin smiled a crooked smile. “It didn’t look like a heart attack or a fall down the stairs.”

“ Or a suicide?”

That stopped him a second.

“ Did it look like a suicide?” Patterson asked. “Yes or no?”

A perfect question. It’s fun to watch someone good at his work, whether it’s Marino finding the open receiver or Perlman plucking the right string.

“ No, not exactly,” Racklin said quietly.

“ So you never contemplated the possibility of suicide?”

Another problem for the detective. If he did contemplate the possibility, when and why did he rule it out? If he didn’t contemplate it, why not?

Racklin tried to hedge his bets. “Not in any great detail,” he answered, but the look on his face said he’d never even considered it.

“ In what detail did you contemplate the possibility?”

“ I can’t recall.”

“ Isn’t it true you never considered the possibility of suicide?”

“ I can’t recall spending time considering it. Like I said, it didn’t look much like a suicide.”

“ Did you fail to consider the possibility because it didn’t look like a suicide or because you immediately accepted Ms. Baroso’s version of events?”

Racklin’s pause said he was trying to figure out the ramifications of each possible answer. “Both, I suppose.”

“ But you have testified previously that the wound initially appeared to have been caused by a gunshot fired at point-blank range, correct?”

“ Yes.”

“ You have witnessed many such wounds, have you not?”

“ Some.”

“ Some? Let’s see, in your years as a homicide detective, first in Denver and then here, how many such gunshot wounds have you investigated, confining ourselves to those gunshots fired at point-blank range into the temple or ear?”

“ I m not sure.”

“ Five, fifty, a hundred, a thousand?”

“ I’m not sure. More than five, less than fifty. Say nine or ten.”

“ And in those dozen gunshot wounds, how many were homicides and how many were suicides?”

He paused and gave the impression of honestly trying to remember. “One was Russian roulette. I suppose that was an accident. Maybe two were gang killings. The rest were suicides, as I recall.”

“ But you never considered that possibility here because you immediately accepted as true Josefina Baroso’s version of events, isn’t that correct?”

Trapped. He’d already said it. Not that we could prove Cimarron killed himself. But there were two living people in that barn, and it damn sure helps a reasonable doubt case if the cops were too quick to grab one of them.

“ Yes, that’s right,” the detective said, just wanting to end the agony.

H. T. Patterson told the judge he had nothing further and gave the witness back to the prosecutor, who didn’t want him. Judge Witherspoon allowed as how it seemed like a good time for lunch, and no one disagreed.

By the middle of the afternoon, half the jury was dozing or looked as if they wanted to. Two crime scene technicians and a lab worker identified little bags filled with odds and ends, none of which you’d want in your refrigerator. The blood, skin, bone, and brain matter belonged to K. C. Cimarron. Fingerprints on the stud gun were smudged, and the handle may have been wiped with a cloth, but there were still latents on the barrel identified as belonging to Cimarron and me. A partial of a third person’s print was picked up there, too.

“ Do you have any idea who this final fingerprint comes from?” McBain asked on direct examination.

The prints guy, a bookworm type with a laboratory pallor, looked at the jury as he was doubtless instructed and said, right on cue. “All I can say is that it isn’t from Mr. Cimarron, Mr. Lassiter…” He paused for effect, “or Miss Baroso.”

McBain smiled at Patterson, and just in case anybody missed the point, he repeated it. “Not Ms. Baroso’s prints?”

“ No, sir.”

The other technician, a dark-haired woman in her thirties, testified about picking up the stud gun and delivering it to a Douglas Clifton who would perform certain tests on it. This was just chain-of-custody material, so the gun could be admitted into evidence. When she picked up the gun from the barn floor, or in her words, when she “secured the apparent weapon,” there was no nail in the barrel, but there was a plastic clip with nine. 27-caliber bullets remaining in the gun.

The nail pulled from the saddle was three inches long, made of carbon steel, and fit perfectly into the gun. The head of the nail contained a small amount of gunpowder residue in addition to the gunk from Cimarron’s skull. Actually, she didn’t say “gunk.” She called it brain tissue, and the schoolteacher juror with the lace handkerchief squeezed her eyes shut.

It was a few minutes before six o’clock, and all the technical talk was over, so the judge sent the jury home with the usual admonition against forming opinions or discussing the case with the neighbors, and added the friendly advice about driving carefully with all the tourists in town.

As he stuffed his files into cardboard boxes for the night, H. T. Patterson asked me, “Can I buy you a drink?”

“ Is the law an ass?”

We walked out of the stuffy, overheated courthouse and into the bracing air of dusk in the Rocky Mountains. Snowflakes whirled in a crisp breeze, and a three-quarter moon hung low over Smuggler Mountain. Cars crunched through a new snowfall on Main Street, and exhausted, happy skiers headed back to their hotels, condos, and chalets. I was struck by the utter beauty of the coming night, but at the same time, was overcome by a profound, nameless melancholy, a sense of approaching doom, and an unshakable conviction that I was powerless to affect my own destiny.