Fool Me Twice

CHAPTER 24

“ How long have you known the defendant?” Mark McBain asked.

“ Years,” Abe Socolow said. “Ever since he started practicing law. He was an assistant public defender, and I was an assistant state attorney.”

“ You know him well?”

“ Yes.”

“ Both in and out of court?”

“ Yes.”

“ The two of you speak freely with each other?”

“ I like to think so.”

“ Now, Mr. Socolow, did there come a time when you and the defendant had an occasion to discuss Mr. Cimarron?”

“ Yes. About six months ago, the two men had an altercation in Miami.”

“ Please tell the jury exactly what you said to the defendant and what he said to you.”

Socolow sighed and glanced at me. He didn’t want to be here. He looked as out of place on the witness stand as I did in the client’s chair. We had been adversaries for a long time, but there was always a certain amount of respect. Now he was being asked to tattle. His long, lean frame hunched forward. His complexion was more sallow than usual. He looked as if he hadn’t gotten much sleep last night. Good, that made two of us.

“ Jake…Mr. Lassiter wanted to press charges against Mr. Cimarron for a fight that took place in the home of Josefina Baroso. In fact, Mr. Lassiter swore out an affidavit so that Mr. Cimarron could be arrested for assault and battery. I contacted Mr. Cimarron who said he’d be happy to-”

“ Objection, hearsay!”

“ No!” I tugged at Patterson’s sleeve. “Let him answer.”

“ Why?”

“ Trust me.”

The judge cleared his throat, ah-hem, and looked at us with the same bemusement one might have when watching a dozen clowns tumble out of a car at the circus. “Is there an objection?”

“ Objection withdrawn, Your Honor,” Patterson said, graciously.

“ You may continue, Mr. Socolow,” the judge said.

“ Mr. Cimarron said he’d be happy to return to Miami and face assault charges, or if Mr. Lassiter wanted, the two of them could go another couple of rounds.”

A couple of the jurors looked surprised, and I winked at Patterson.

“ And what did Mr. Lassiter say?”

“ He said, ‘To hell with that. Next time, I’ll just shoot him in the kneecaps.’

Damn, I’d forgotten that.

The lady schoolteacher gasped. The judge shook his head. A reporter for the local fish-wrapper scribbled away in the front row of the gallery. Next to me, Patterson turned, shielding his face from the jury, and gave me a withering look.

“ In the kneecaps,” McBain repeated, as if once weren’t enough.

“ Yes, that’s what he said.”

“ Are you aware of any other verbal threats made by the defendant?”

“ Yes. About two weeks before my conversation, he told Dr. Charles Riggs-”

“ Objection, hearsay.” Patterson rose halfway out of his chair. “In fact, hearsay within hearsay.”

“ Not so,” McBain responded. “Mr. Lassiter is here and can refute the statement if he so wishes. Additionally, he can call the doctor to testify if he denies the statement was made.”

“ You’re both barking up the wrong tree,” the judge said. “Send the jury out for a short break.”

The bailiff escorted the jurors into their little room, and the judge turned to McBain. “I assume your witness is going to testify that the doctor told him Mr. Lassiter threatened Mr. Cimarron.”

“ That’s it, Your Honor. We attempted to serve a subpoena on Dr. Riggs, but he avoided service. In fact, he nearly ran down our process server in his pickup and screamed gibberish at him.”

That wasn’t gibberish. It was Latin, Marcus Ineptus.

“ Mr. Socolow,” the judge said. “Was the defendant present when the doctor told you of his threat?”

“ No, Your Honor. I did repeat the statement to him, however.”

“ And did he respond by denying he made the threat?”

“ No, Your Honor, he did not.”

Patterson was prancing in front of the bench. One of my threats was quite enough for the jury’s ears, and Patterson knew it. Experienced lawyers know what points are worth fighting for, and this was one of them.

“ Your Honor, a man has a right to confront his accusers,” Patterson said, “and when he’s faced with hearsay, he is deprived of that right. This testimony is highly prejudicial, inflammatory, and if I may say so, might well be grounds for reversal if a conviction results.”

Judge Witherspoon narrowed his eyes at my bantamweight lawyer. I’ve never met a judge yet who likes to be reminded of his fallibility. “That’s what we’ve got appellate courts for, Mr. Patterson. Please feel free to appeal me on anything you like.”

“ Your Honor,” McBain began, “the statement is not hearsay…”

“ Yes, it is,” the judge said, “but when it was repeated to the defendant by this witness, who is available for cross-examination, and the defendant did not deny making the statement, it becomes an exception to the hearsay rule as an adoptive admission. Bring in the jury.”

I sunk lower in my chair, and Patterson slowly returned to the defense table. It was the first time I’d ever seen his shoulders slump in a courtroom. Usually, it’s the lawyer who gives pep talks to the client, but just now Patterson was the one who needed cheering up. We had made a big deal out of trying to keep my statement out of evidence, and the jury knew it. We had lost, so my twelve peers would be keenly interested in what we didn’t want them to hear.

The judge turned to the stenographer, a young woman in a pantsuit and cowboy boots. “Please read back Mr. McBain’s last question.”

The stenographer riffled through her accordion stacks of paper and read “‘Are you aware of any other verbal threats made by the defendant?’

Socolow nodded. “About two weeks before the conversation I earlier related, he had a conversation with Dr. Charles Riggs, retired coroner. I wasn’t there, but Dr. Riggs repeated it to me, saying he was worried about Jake, who was acting strangely. I asked what he meant, and he answered that Jake was enraged with Mr. Cimarron and had threatened to tear his heart out.”

“ Tear his heart out,” McBain echoed, shaking his head, sadly. “Were those his exact words?”

“ I don’t know if they were Mr. Lassiter’s exact words, but they were Dr. Riggs’s words, verbatim.”

“ Did you repeat Dr. Riggs’s statement to the defendant?”

“ Yes, in the same conversation I spoke about earlier.”

“ The one in which the defendant threatened to shoot Mr. Cimarron in the kneecaps?” McBain asked, in case the jurors had forgotten.

“ Yes.”

“ And did the defendant deny threatening to tear out Mr. Cimarron’s heart?”

“ No, he did not.”

“ Did he say he was only joking?”

“ No, he did not.”

“ What did he say?”

“ First, he said something about once punching out a tight end for the Jets and drawing a penalty. Then he said he hated Mr. Cimarron.”

“ I see. So in the course of one conversation, the defendant threatened to shoot Mr. Cimarron in the kneecaps, and when reminded of his earlier threat regarding tearing Mr. Cimarron’s heart out, he concluded by saying he hated the man.”

“ Yes, that’s just about it.”

“ And what did you say to him?”

“ I told him I wanted him to come into the office after the grand jury-”

“ Objection!” Patterson pounded the table so hard, it woke up the bailiff. “Your Honor, this is the subject of our motion in limine.”

The judge called the lawyers to the bench for a sidebar conference. He had already indicated he would prohibit any mention of the indictment against me in Miami for Kyle Hornback’s murder. I couldn’t hear the whispers at the side of the bench, but in a moment the two lawyers, the stenographer, and the judge were back to business.

“ Mr. Socolow,” McBain said, “without telling us the surrounding circumstances, did you give Mr. Lassiter any advice regarding Mr. Cimarron?”

“ Yes. I suppose you’d call it advice. I told him to stay away from Mr. Cimarron.”

“ Anything else?”

“ I advised him not to leave the state because of certain…ah…potential court proceedings in Miami.”

“ Did he follow your advice?”

“ Apparently not.”

“ Thank you, Mr. Socolow. Your witness.”

H. T. Patterson was in a bind. If he brought out the mutual respect Socolow and I shared, it would help polish my tarnished image. It would also show the jury that Socolow, this good, decent state attorney, had concluded his old buddy had sunk so low into depravity he would now testify against him.

Patterson stood at the lectern a respectful distance from the witness stand.

“ Now, Mr. Socolow, you never thought Mr. Lassiter intended to shoot Mr. Cimarron in the kneecaps, did you?”

“ No, sir.”

“ Or tear his heart out?”

“ No, sir.”

“ We all say things in the heat of passion that we don’t mean?”

“ Yes, sir.”

“ Mr. Lassiter was upset at the time of these statements?”

“ He seemed to be.”

“ Was he, in fact, recuperating from injuries inflicted by Mr. Cimarron?”

“ Yes, he was.”

“ A fight in which Mr. Cimarron was the aggressor?”

“ That was Mr. Lassiter’s position. It was not shared by Mr. Cimarron.”

“ And Ms. Baroso?”

“ Mr. Lassiter wanted her to press charges against Mr. Cimarron. She declined. Frankly, I don’t know who did what that night.”

“ But Mr. Lassiter suffered serious injuries?”

“ I believe he broke his hand and had a number of bruises and scrapes, that sort of thing.”

“ You’ve known Jake Lassiter a long time. Have you ever known him to provoke violence?”

Socolow wrinkled his high forehead. He didn’t want to answer. “I’m not sure what you mean. Once, in a trial, he provoked a witness into a fistfight, but it was a ploy, a strategy to show the violent streak of the witness.”

“ They must do things differently down in Miami,” the judge said, and a couple of the jurors smirked.

H. T. Patterson had heard all he wanted on that subject and sat down. “Nothing further.”

“ Redirect?” the judge asked.

McBain stood and buttoned his suit coat. “Are you saying, Mr. Socolow, that you didn’t take Mr. Lassiter’s threats seriously?”

“ No, sir.”

“ What are you saying?”

“ I didn’t take them literally. I didn’t think he intended to shoot Mr. Cimarron in the kneecaps or tear his heart out.”

“ I suppose not,” McBain said, already easing back into his chair. “I suppose he just intended to shoot a nail through the man’s brain.”

“ Objection,” Patterson yelped.

“ Withdrawn,” McBain said, sitting down.

The judge called for the noon recess, and not a moment too soon. Socolow walked by my table, clasped me on the shoulder, and left without a word. The jurors filed out, then the judge, and then the spectators. The prosecutor and his assistants hitched up their pants and walked out, too.

Patterson and I were alone.

“ H.T., you look a tad peaked.”

“ What?”

“ You look pale.”

“ That’s impossible, I assure you.”

“ Okay, then you look stressed out. Hey, it’s still the top of the first inning. We haven’t been to bat yet.”

He forced a smile, but his eyes were glazed over and distant.

“ H.T., I think you need to drink some lunch.”

“ Demon rum won’t cure what ails me.”

“ Counselor, you’re a little rattled, that’s all.”

He looked at me with sorrow in his eyes. “It’s hell to represent a friend, Jake. It’s so much easier to take a fat fee from a stranger and give it your best shot. You win, you lose, you go on. Hell, we’re not paid to win, right, just to force the state to prove its case. But now, with you, I care. I want to win, but I don’t know how. They’ve got us outflanked on self-defense, and there’s no way to pin this on Jo Jo or anyone else. I lie awake at night trying to come up with theories and I don’t have any. Oh, I can cross-examine until the snow melts, but once the state rests, we’ve got to put on a case, and there isn’t a thought in my head.”

“ Okay, I get it. We need to brainstorm. Just tell me what can I do to help?”

His smile held more sadness than joy. “Fetch me my brown trousers, Fritz.”

Sergeant Kimberly Crawford was assigned to something called the Spousal Abuse Unit. She took the third statement of the night from Josefina Baroso, driving her back to the station after Sheriff s Deputy Clayton Dobson and Detective Bernie Racklin did their work. Defense lawyers love to get prosecution witnesses on the record as many times as possible to ferret out contradictions. We had copies of all three statements, and there wasn’t an inconsistency in the bunch.

Sergeant Crawford took photos of bruises on Jo Jo’s thighs and ribs, and a shot of the face revealed a black eye. Jo Jo looked appropriately distraught, helpless, victimized.

Yes, Ms. Baroso was crying and moaning.

No, not about her injuries. Poor Simmy is dead. Poor Simmy is dead. That’s what she kept repeating, rocking back and forth in a chair down in the station, right here in the basement of the courthouse.

The photos were passed out to the jurors, who appeared more upset with Josefina’s black eye than Cimarron’s gray matter splattered in the straw.

The woman cop was on and off the stand in fifteen minutes, and the judge asked the prosecutor to call his next witness. I thought McBain looked a little too smug when he sang out, “The state calls Josefina Baroso.”

The bailiff hustled into the hallway and called her name. The jurors had been waiting for this. McBain was no dummy. Most prosecutors would have started their case with her. She could tell the story chronologically, and that always makes it easier for the jury. You also want to create a good first impression, and Jo Jo could surely do that. But if you’re clever and subtle, it’s a neat trick to save your star witness. Build the jurors’ interest with hints and clues and let them wonder. Who is this woman who launched a thousand fists? What does she look like? Is she worth dying for?

Even before I saw her, I knew. “Ten to one, she’s wearing black,” I whispered to Patterson. In her own cases, Jo Jo dressed her witnesses for maximum sympathy. Pluck the jurors’ heartstrings with a grieving widow and all the kids. When her witnesses gathered for lunch in the Justice Building cafeteria, it looked like an Italian funeral.

The heavy door swung open, and Josefina Jovita Baroso walked into the courtroom. She wore a flared black wool dress with gold buttons from its high neck to its hem, which stopped halfway down her black, knee-high crushed leather boots. The dress concealed her womanly curves and, combined with the sophisticated look of hair pulled straight back and a light dusting of makeup and lip gloss, spoke volumes of who she was, or rather, who she appeared to be. Her dark eyes were bright and intelligent and avoided mine as she strode on long legs to the witness stand. She nodded to the jurors, looked the clerk in the eye as she took the oath, smoothed her dress, and sat down.

I studied her. Now, here was a total woman. Here was a woman who had been assaulted, who had witnessed a savage crime, and who was ready to do what had to be done to right those wrongs. She was attractive without being seductive. She was purposeful without being pugnacious. She was here, not because she thirsted for vengeance, but because she sought justice. She was, in short, the perfect witness, which was precisely the image she had worked so hard to create.

Jo Jo recited her name, her address, and her profession.

“ So you have the same job I have?” McBain asked.

“ Yes,” she said.

Bonding with the witness, telling the jury: If you like me, you’ll like her.

McBain had her run through the life and times of Jo Jo Baroso, beginning with her family fleeing Castro’s Communist island when she was still an infant. Her father lost everything in Cuba and never adjusted to life in the States. He turned to liquor and gambling and eventually left her mother who raised a son and daughter by herself. She met the defendant while she was still in college, and he was a pro football player.

Yes, she became romantically involved with the defendant. “I was so young then,” Jo Jo said, almost shyly.

Making me sound like a cradle robber.

“ How did the relationship end?” McBain asked.

“ Rather badly,” she said. “I always pushed Jake to be better, to make something of himself.

True, true.

“ He went to law school, and I like to think I had something to do with that…”

Okay already, you saved me from a life of selling insurance.

“ But I always believed in public service. I wanted to repay this country for what it gave me, a home, freedom…”

Arroz con pollo in every pot. Talk about laying it on thick.

“ And I don’t think Jake could relate to that. He had so much, and everything came so easy to him.”

Wait one gosh-darned second. I’m the one without a daddy or mommy.

“ I wanted him to do something meaningful with his life, but he preferred hanging around with swindlers and con men, including, I am sorry to say, my brother, Luis, or Louis, as he preferred to call himself. They hatched schemes together, and Jake would defend him when things went bad. I was just devastated that my brother and my…my lover were involved in activities that ran counter to everything I believed in, so I cut myself off from both of them. It was the hardest thing I ever had to do.”

“ You terminated the relationship with the defendant?”

“ Yes, I dropped him.”

Hey, who dropped whom?

“ Did you lose touch with the defendant?”

“ Yes, for several years. Oh, I’d see him in the Justice Building once in a while, walking some three-time loser out of court, but we no longer had a relationship. Then, I ran into him when he was defending my brother in a fraud case. After the trial, I learned how they ingratiated themselves into Simmy’s…Mr. Cimarron’s venture.”

“ You’re talking about Rocky Mountain Treasures, Inc.?”

“ Yes. It was Simmy’s dream. Buried treasure. I know it sounds foolish, but it was part of his love of the old West. He knew most of the legends were just that, but he believed some were true, and he wanted to explore. He had studied the old maps and diaries, and he would talk about it for hours. It was my brother’s idea to raise money through a public sale of stock. Unfortunately, he and Jake embezzled money from the cash Simmy put up.”

“ Objection!” Patterson thundered. “There’s been no predicate laid for such a conclusion. The testimony is prejudicial and inflammatory and should be stricken.”

“ Sustained. The jury will disregard the last remark of the witness.”

Sure. Just try.

“ What did Mr. Cimarron tell you concerning the stock sale and Mr. Lassiter’s involvement?”

“ Objection, hearsay!”

“ Not at all, Your Honor,” McBain replied. “It’s not coming in for the truth of the statement. Perhaps Mr. Cimarron was wrong about Mr. Lassiter. It doesn’t matter. The statement is coming in to show what Mr. Cimarron believed, and once that belief was communicated to Mr. Lassiter, it is relevant to the issue of Mr. Lassiter’s intent to commit the homicide.”

“ Respectfully, Your Honor,” Patterson said, “Mr. Cimarron’s state of mind is not at issue here. It doesn’t matter what he-”

“ Overruled. I’ll give the state some leeway here.”

“ Simmy said that Jake stole seventy-five thousand dollars from him, but even worse, he helped my brother in the stock scam. They defrauded investors and threatened the existence of the company.”

“ Were you present at a conversation between Mr. Cimarron and Mr. Lassiter to that effect?”

“ Yes. Last June, in my house in Miami.”

If that was a “conversation,” Ah versus Frazier was a tea party.

“ And what transpired?”

“ Simmy and Jake exchanged words…”

To say nothing of fists.

“ Simmy accused Jake of stealing. Jake hit Simmy, but Simmy is…that is, was…quite large and very strong. He got the best of Jake that time.”

Her voice cracked on the last words, and her eyes teared.

Judge Witherspoon was looking at his watch, and McBain was thumbing through his notes. It was a few minutes before six and had been a long day, at least for me.

“ Perhaps this would be a good place to recess,” the judge said. “Your witness can resume at nine in the morning.”

“ Just one more question, Your Honor.”

A lawyer promising to ask only one question is like a kid promising to eat only one jelly bean.

The judge nodded, and McBain came closer to the witness stand. “Ms. Baroso, I seem to have quite forgotten to ask something. What was your relationship with the deceased?”

Her voice was as soft as a fluttering snowflake. “He was my hus

…”

That’s funny. For a second, I thought she said ole Kit was her…

“ Please keep your voice up for the jury, ma’am.”

“ Kit Carson Cimarron was my husband,” she said, in a strong, proud voice. “I am his widow.”