Fool Me Twice

CHAPTER 23

If you are charged with murder and plead not guilty, you have several choices. You can simply try a reasonable doubt case. Don’t take the stand, but cross-examine the bejesus out of the state’s witnesses. Magnify inconsistencies, exaggerate sloppy police work, and ridicule the prosecution. With some luck, you might get an acquittal, or at least a hung jury.

Or, if you have evidence the victim attacked you first, plead self-defense. But that admits you did the killing, and you’ll be convicted unless you can convince the jury that you had reasonable ground to believe your life was in danger when you struck back.

Or, you can bravely confront the state head-on. Take the stand and swear you didn’t do it, pure and simple. Well then, jurors might ask, if this rascal didn’t, who did? In which case, it’s useful to have a straw man. Or woman, as the case may be.

Which is what H. T. Patterson wanted to talk about after court. Once the jurors were sent home, promising not to read the newspaper or chat about the case, oaths broken more frequently than marital vows, H. T. Patterson bought me a beer at a local pub not frequented by the chichi Beverly Hills ski crowd. The place didn’t have a view of the ski slopes, and it didn’t have a burning fireplace. It sat in a warehouse/office center across Route 82 from the airport and had dim lighting where even accused murderers could enjoy draft beer in peace. We sat at a round wooden table scarred with cigarette burns, sipped our brews and ate boiled peanuts.

“ I want you to watch your demeanor in court. Don’t be so despondent and dejected, depressed and discouraged. The jury’s going to conclude you think they’re going to convict you.”

“ I do.”

“ Well, don’t show it. It’s a self-fulfilling prophecy. It also makes you look sorry for what you did. It’s a face for sentencing, not for trial.”

“ Okay, from now on, I’ll laugh uproariously at every objection.”

“ Don’t be difficult. You know what I’m talking about.”

“ I know. Never let them see you sweat.”

“ Right. You ever hear the story of the two generals watching their forces battle the enemy?”

“ No, but I have a feeling I’m going to.”

“ One general is wearing a bright red cape, and the other asks him why such an outfit on a day of battle. ‘Because, if I’m wounded, my troops won’t see the blood, and they’ll fight on.’ The first general thinks about it and calls to his aide, ‘Fritz, bring my brown trousers.’

That made me laugh, and my laughing made Patterson beam. “Good, much better. Now, you ready to play some poker?”

“ Deal.”

There weren’t any cards, of course. It was a joke that went back to our first case together. Patterson had cleaned my clock in a civil suit in which I had sued a striptease joint where my client, a soon-to-be-groom, pulled a groin muscle in a hot-oil wrestling match with noted stripper Wanda the Whirling Dervish. It was my client’s bachelor party, and Wanda thought it would be fun to see how far apart his legs could spread in a hold called “make a wish.” I don’t remember what damn fool mistake I made in closing argument, but Patterson came up to me afterward and said, “Lawyering is playing poker with ideas, and you just drew to an inside straight, sucker.”

Now he looked at me as a more or less equal. “How do you like the jury?” Patterson asked.

“ I don’t know. I suppose if we had six blacks and six Hispanics, all of whom had been wrongfully arrested and distrusted the cops, I might feel better. But we’ve got a white bread and mayonnaise crowd. You’d never see this in Miami. You remember the jury when the judges were tried in Operation Court Broom?’’

“ Sure do. Ten blacks, one Hispanic, one Anglo.”

“ Yeah, wouldn’t that be wonderful?”

“ Miami’s different,” Patterson said.

“ I know. Exotic and yet so close to the U.S. of A. I remember I was trying a case during the Persian Gulf War, and I had a witness flying in from Topeka or Omaha or somewhere normal. Anyway, he takes a cab from the airport straight to the courthouse, and when I meet him, he says how great it is to be in a city where everyone is so patriotic. I figure he’s mistaken some Santeria ceremony for a marching band, so I ask him what he means, and he said that in every neighborhood he passed, people had strung up yellow ribbons for the troops.”

“ What’d you tell him?” Patterson asked.

“ The truth. I said those aren’t yellow ribbons. Those are crime scenes with their perimeters taped.”

“ A common mistake,” Patterson agreed.

“ So what do you think of our jury?”

“ They’re bourgeois and banal, common and conventional, the worst imaginable collection of middle-class, mundane white folk this side of 1950s television. Cimarron was a local lad, and even though he was considered something of an oddball, he’s become a mythic Western hero in his death. Our problem is that his halo now shines on Ms. Baroso. When she accuses you, she speaks for him.”

“ So, what do we do?” I asked without much enthusiasm.

Patterson drained his beer and patted his mouth with a paper napkin. “Destroy her, of course.”

“ She’s very smart, H.T., and very convincing.”

“ So am I,” my lawyer said.

I started to order another beer, then thought better of it. I was working evenings, sketching outlines of questions, reviewing notes.

“ Now let us assume we convince the jury Ms. Baroso is lying about your alleged assault,” Patterson said. “What have we accomplished?”

Lawyers just love rhetorical questions. “We’ve discredited her. If a witness lies about one material fact, all the testimony is in doubt.”

“ Including who attacked whom, and more important…”

“ Who killed Cimarron.”

Patterson smiled at me and waved at the waitress, holding up one finger and pointing to his glass, the international symbol for another drink, s’il vous plait. “So you understand, my large lugubrious friend?”

“ You’re saying we’re not arguing self-defense. I fought back, okay, and maybe I tried to kill Cimarron, or maybe I was just fending him off. Who knows? I certainly don’t. But I didn’t put the nail in his head…”

“ Go on.”

“ Jo Jo did.”

“ It is a plausible version of events, is it not? She encouraged you to fight him, provoking you with the tale of her beating. When you failed to dispatch him, she expedited the process.”

“ Great theory, H.T. How do we prove it? I can’t testify that she told me to attack Cimarron. Hell, she told me not to come to the barn. She tried to stop me.”

“ Really? And did you pay attention to her words or to the pain in her voice, to the choking sobs with which she enticed you?

“ Okay, I get it, but will a jury believe Jo Jo set me up to kill Cimarron?”

“ Or him to kill you.”

“ What?”

“ She egged him on, but from what you said, he resisted. Oh, he was going to do plenty of damage but stop short of killing you. That’s not what she wanted. She needed you dead.”

“ Wait, you’re losing me. I thought she wanted him dead.”

“ Either way, Cimarron would be out of the picture, wouldn’t he? If you were dead, she could go back to story number one. Cimarron beat her, you tried to help, he killed you. He gets convicted of murder. If he’s dead, well that’s even better, and if Jake has to take a fall, too bad.”

I chewed that over with some boiled peanuts, then said, “No way a jury will buy it. I don’t even buy it. I mean, why did she want Cimarron dead or convicted of murder?”

“ How should I know? I’m just playing poker with the cards dealt to me. You’ve got to figure the rest out.”

“ But you want me to say Jo Jo killed him?”

“ As I said before, it’s a plausible version of events, and the only explanation I have for her goading first you, then him, into a brawl.”

I sat quietly a moment, trying to think like a juror and follow the twisted path of our defense, as just outlined by my lawyer.

Too complex, too weird.

Besides, I couldn’t swear I didn’t fire the shot, if you’ll pardon the double negative.

Another thing, I didn’t see Jo Jo shoot anybody.

And finally, if you’re going to accuse someone else, you better show a motive for the crime. If Jo Jo had a problem with Cimarron, she didn’t have to kill him or have him charged with murder. She could have just gone home. After all, she came to Colorado to be with him.

Patterson said, “Just so the record is straight, Jake, I am not encouraging you to tell a version of the story that is less than the truth. I am only asking you to search the depths of your subliminal memory, that shadowy territory where light meets darkness, where conscious thought gives way to clouded, obscured vision. Perhaps if you search those dim perimeters of the mind, either by intense concentration or by hypnotic trance, your recollection will be enhanced.”

In other words, H.T. was telling me, I could make it up, but that was my decision entirely.

I thought about it some more, then said, “I can’t do it, old buddy. I can’t do it because that’s not what happened, and I can’t do it because it wouldn’t work anyway.”

Patterson nodded gravely and signaled the waitress for the check. “I understand, Jake, but just out of curiosity, would you do it if that’s not what happened, but it would work?”

On Wednesday morning, a fellow in a cardigan sweater took the stand. He told the jury his name was Don Russo, and he was director of products safety for Toolmaster Inc., a Delaware corporation that was a wholly owned subsidiary of a Japanese conglomerate with factories in Indonesia and Taiwan. Don Russo knew everything you ever wanted to know about the Masterjack Stud Driver 500.

“ That’s our top-of-the-line powder-actuated power-load stud driver, or what you folks might call a nail gun,” he told the jury.

Russo was a pleasant man with clear-rimmed eyeglasses, and he reminded me of the enthusiastic clerk in the hardware store who knows just what grade of sandpaper you need for every imaginable job. Russo usually testified in civil cases where a hapless amateur carpenter put a nail through his hand, trying to cock the gun with his palm over the muzzle and his finger on the trigger.

Now Russo stood in front of the jury box, holding state’s exhibit nine, a red evidence tag tied around its rubberized handle. “I always advise folks to treat the Masterjack as they would a rifle. Heck, they don’t understand, just because the bullet’s got no projectile, that doesn’t mean it’s not powerful. It’s really much more powerful than small arms ammo of the same caliber.”

We learned how the powder explodes, sending expanding gas against a captive piston, which slams into a pin that shoots a nail out the barrel into what Russo called the working surface, which in this case was K. C. Cimarron’s skull. We learned not to use nails that are too long, because they may fishhook in concrete and come back out at you like a boomerang. We learned the importance of keeping the breech wiped clean and we learned that someone, presumably Mr. Cimarron, had disengaged the safety device which was intended to prevent discharge unless the muzzle was pressed against the working surface. Russo tut-tut-tutted at that and said the gun is perfectly safe unless misused.

“ The stud driver is really for the professional, but every once in a while, we get somebody trying to hang a picture on the wall of his apartment and he ends up nailing his neighbor to the sofa in the next apartment.”

“ In short, Mr. Russo,” McBain asked in summary, “is exhibit nine a deadly weapon?”

“ If used as such, yes.”

“ And the firing of such a gun into the ear of another is an act calculated to cause death?”

Ah yes. The issue of intent.

“ Objection.” Patterson got to his feet. “Invades the province of the jury and not subject to expert opinion.”

Judge Witherspoon seemed to think about it.

“ This witness cannot ascertain the state of mind of my client,” Patterson continued.

“ I don’t believe that’s what the question called for,” the judge said. “Overruled.”

“ Yes, I should think so,” Russo responded. “Anybody who sticks a stud driver in somebody’s ear and pulls the trigger…why, there’s only one thing that can happen, and I guess every red-blooded American boy’s gotta know that.”

The coroner was an Asian-American woman in her forties who was the only trial participant shorter than H. T. Patterson. She approached the witness stand with dainty steps, sat down, and looked the jurors straight in the eye. She wore black flats and a white lab coat that came to her knees. A touch of purple eye shadow was her only makeup.

She took the oath, told us her name was Dr. Ivy Chin, with degrees from Berkeley and Harvard Medical School, internships and a residency at Mass General, plus extensive training in pathology at a variety of big-ticket hospitals. For the past five years, she’d been the chief deputy medical examiner for Pitkin County.

“ Did you have occasion to perform an autopsy on the body of Mr. Kit Carson Cimarron?” McBain asked.

“ Yes.”

Dr. Chin first saw the body in the morgue, cowboy boots hanging over the end of the steel tray. “I observed a major head wound, which I ultimately concluded to be the cause of death. There was what appeared to be an entrance wound in the area of the right ear and an exit wound in the temporal bone just above the left ear. From outward appearances, it had the characteristics of a gunshot to the head.”

“ What did you do then?”

“ I ordered X rays of the head to determine if any projectiles were inside the skull. There were none. With scalpel, I refracted the scalp which was bloody underneath. Then I sawed through the skull front to back and removed the skullcap. I noted lacerations in the dura, both subdural and arachnoid. Additionally, there were multiple hemorrhages and disruption of the brain tissue. Near the exit wound, there were fractures radiating throughout the skull.”

“ At this point what had you concluded?”

“ That a projectile had entered Mr. Cimarron’s right ear and exited the temporal bone of the skull above the left ear.”

“ Then what did you do?”

“ I removed the brain and did the usual.”

Easy for her to say.

“ Yes, Doctor, and what was that?”

“ Well, I examined the brain, of course. It was quite sodden with blood. I weighed it and replaced it in the skull.”

McBain ran through a series of photographs, trying to get Cimarron’s bloody brain on display in front of the jury. Patterson objected, and the judge, bless his heart, sustained on the ground he’d already let in a police photo of Cimarron lying in a pool of blood, and his rule was one gory photograph per trial.

Dr. Chin identified a nail in a little Baggie that the police had given her. It had been removed from a saddle and had been admitted into evidence when the crime scene technician testified. Dr. Chin’s tests revealed the presence of Cimarron’s blood, tiny fragments of his skull, and chunks of his gray matter, though it actually looked tan. She concluded that the nail had, in fact, been the projectile.

“ What did you do next?”

“ I completed an autopsy of the entire body.”

“ Any other abnormalities?”

“ Some coronary atherosclerosis, but that’s not what killed him.”

“ And what did kill Mr. Cimarron, Dr. Chin?”

“ A three-inch steel nail fired from a power tool directly into and through Mr. Cimarron’s brain.”

“ This nail?” McBain asked, holding up state’s exhibit seventeen.

“ It would certainly appear so.”

“ To a reasonable medical certainty?”

“ Yes, in my opinion, to a reasonable medical certainty.”

Patterson was brief. There was little to be gained, and it doesn’t do you any good to get whacked twice.

“ Dr. Chin, other than what you have described, were there any other injuries to the head?”

She put on a pair of glasses that dangled from a chain around her neck and took a moment to review the autopsy report.

“ On the back of the skull, there was swelling that was evidence of trauma with a blunt object.”

“ Based on your examination, can you tell us what caused that trauma?”

“ An object made of wood. We removed several splinters that were embedded in Mr. Cimarron’s hair and scalp.”

“ Can you tell us the severity of the blow?”

“ Not precisely.”

“ Well, can you tell us whether the blow was severe enough to fracture Mr. Cimarron’s skull?”

“ The skull fracture I described radiated from the site of the exit wound and was caused by the projectile. The blow to the back of the head did not cause it.”

“ Would the blow to the back of the head have been sufficient to render Mr. Cimarron unconscious?”

Dr. Chin closed her eyes and thought about it. “It could have, but that is not to say that it did.”

“ I understand,” Patterson said, nodding.

I was glad someone did.

“ Anything further?” Judge Witherspoon asked. “The jury looks hungry.”

Me too. Autopsies do that to a guy.

Patterson allowed as how he was finished. McBain had no redirect examination, and everybody gathered up their coats, scarves, and gloves and left for the lunch recess.

Edie Laquer was thirty-eight, suntanned, and athletic. She worked as an assistant vice president at Southern Federal in downtown Miami. Her job this week was to fly to Houston on

Continental, change planes, fly to Denver, take a commuter flight to Aspen, get a cab to the Little Nell Hotel at the foot of Aspen Mountain and check into a four-hundred-dollar-a-night room. The next day, she had eggs and a bagel at sunrise, rode the lift to the top of the mountain and skied until noon, then changed clothes, walked down Spring Street, past Le Tub, a bicycle shop, Wienerstube German restaurant, past Hyman Avenue and Hopkins to Main Street, where she turned left and continued two blocks to the courthouse. Edie Laquer carried a thin file of documents to the second floor, where she spent approximately ninety seconds on the witness stand authenticating my banking records. Whatever the glories of our justice system, efficiency is not among them.

Judge Witherspoon admitted the records into evidence, so the jurors would have documents showing that seventy-five thousand dollars was deposited into my account. When I testified, you could be sure the prosecutor would have a few questions about the transaction.

Edie Laquer left the courthouse, and the wheels of justice continued to turn. Housekeeping is what lawyers call it. The official seal of the secretary of state of Florida was emblazoned on the certificate of incorporation of Rocky Mountain Treasures, Inc. The shareholders’ agreement also came into evidence, as well as the prospectus, and various books and records.

As a case builds, you get the drift of where the state is going. The prosecutor was taking no chances on the issue of motive. It wasn’t just the lust for Cimarron’s woman that drove this brutal man. It was greed for Cimarron’s money, too. Already, I was imagining McBain’s cross-examination.

So, Mr. Lassiter, correct me if I’m wrong, but didn’t you embezzle seventy-Jive thousand dollars from Mr. Cimarron’s company and thereafter stalk Ms. Baroso to Colorado where she was visiting him, trespass on his property at night, sexually assault Ms. Baroso, then viciously attack Mr. Cimarron, finally killing him by shooting a steel nail through his brain?

Yes, it’s true! All of it! And not only that, I also picked protected wildflowers on state-owned lands.

My mind does that in trial sometimes, takes flight on winged journeys. Now, everything seemed so ludicrous it would be funny if it weren’t so damn real. What had happened? A few months ago, I was a moderately successful trial lawyer doing his best in an imperfect world. Now, I was caught up in…what did Patterson call it last night? A Kafkaesque tragedy.

Right. One of the few books I read in law school that wasn’t filled with legal citations and jurisprudential mumbo jumbo was The Trial. To this day, I can remember the first line. “Someone must have been telling lies about Joseph K., for without having done anything wrong, he was arrested one fine morning.”

Hey, Joseph K., this is Jacob L.

Me too.