Fool Me Twice

CHAPTER 27

I didn’t have time to shower and change. I rushed to the sheriff s department in the basement of the courthouse and found Detective Racklin at his desk. I told him what I needed. “A dummy?” he asked.

“ Two dummies, like they use in the crash tests.”

“ What for?”

“ Come to court, and you’ll see.”

I barged through the courtroom door carrying a brown paper sack from the City Market, and everyone turned toward me. Why were they looking at me that way? H. T. Patterson stood at the lectern, peering over his shoulder. Jo Jo Baroso was on the witness stand, and the jurors were in their places. The clock said nine-forty.

“ Ah, here you are,” Judge Witherspoon announced from the bench. “I was about to issue a bench warrant, but if you’ll take your seat, Mr. Lassiter, perhaps we can continue. Next question, Mr. Patterson.”

“ No!” I called out, plowing through the gate that separates the spectators from the gladiators.

“ I beg your pardon,” the judge said.

“ I mean, no, Your Honor. Respectfully, may we approach the bench?”

“ We, as in the lawyers and you?”

“ Yes, Your Honor. I’m an attorney duly admitted to the Florida Bar, attorney number 163327. Additionally, I believe I have a constitutional right to be heard in my own defense. I wish to be associated as co-counsel.”

Patterson hustled over and grabbed me just above the elbow. He had a good grip for a little guy. “Jake,” he whispered, “what the hell are you doing?”

“ Trust me.”

“ Trust you? You have straw in your hair, you look like you slept on a park bench…and what’s that on your shoes?”

I looked down. Oops. Never wear wing tips in the morgue or a horse barn.

“ Gentlemen,” the judge called out, a note of irritation creeping into his voice. “Would you please step forward?”

I put my paper sack on the defense table and joined Patterson, McBain, and the stenographer on the side of the bench away from the jury.

“ Your Honor,” I began, “I wish to take over the cross-examination of Ms. Baroso.”

The judge wrinkled his forehead. “Surely you know the old saw about a man representing himself having a fool for a client.”

“ This is different, Your Honor.”

“ Why?”

“ Because there are only two people in this courtroom who know what happened in the barn that night. One is sitting on the witness stand, and the other is me, and I only learned it this morning.”

“ That’s not good enough. The client always knows more than the lawyer about the case. I’ll give you fifteen minutes to consult with Mr. Patterson, then we continue.”

“ No, Your Honor. I have to do it myself. I’m the only one who can.”

The judge studied me a moment, his jaw muscles tightening. “I am cognizant of your right to defend yourself, but I have a duty to protect defendants from themselves.” He seemed to ponder the question of my competence, then sniffed the air, before turning to the clerk. “What is that godawful smell? Would someone ask the bailiff to check on the furnace?”

H. T. Patterson cleared his throat. “For the record, Your Honor, I have no objection to Mr. Lassiter joining as co-counsel, although I do not join in his motion.”

In other words, don’t blame jour lawyer if you screw it up.

“ What about you, Mr. McBain, any objection?” the judge asked.

“ Yes, sir. Yes, indeed. Cheap theatrics and a trick for the appellate court. Mr. Lassiter sees which way the wind is blowing, and he’s trying to build error into the record. He’s going to take over, and when he’s convicted, claim ineffective assistance of counsel. If he loses the appeal, he’s got a federal constitutional claim for habeas corpus. It’s all a ruse, Judge, a slick ploy.”

“ But if I deny the request, that’s an issue for appeal, too,” the judge mused, smiling ruefully.

He thought it over some more, and I remembered one of my first clients in the P.D.’s office. He insisted on representing himself, but he had no legal training, so the judge appointed me to sit as co-counsel and offer advice, none of which was taken. The client was cross-examining a man he supposedly mugged in a dark alley. “How can you identify me when I knocked you cold from behind?” the budding barrister asked.

Finally, Judge Witherspoon shrugged and said, “Well, I’m going to let you have a go at it, though I wonder if you might show the court some respect by pulling your tie up to your collar before you address the witness.”

I grabbed a yellow pad and a pen just to look official, adjusted my tie, ran a hand over a two-day growth of beard and got as close to the witness stand as I could without asking for permission to get closer.

“ Good morning, Jo Jo,” I said.

“ Good morning, Mr. Lassiter,” she replied.

“ Mr. Lassiter. Yesterday, it was Jake. And a few months ago in Miami, it was mi angel, was it not?”

“ No. That was a long time ago.”

I gave her a little smile. “It must have been before I started stealing, raping, and killing?”

“ I don’t know when your life swerved off its path.”

“ Nor I, yours.”

“ Objection, argumentative!” McBain stayed on his feet. He didn’t want to waste time leaping up for the next objection.

“ Sustained. Mr. Lassiter, you know better than that. I caution you to adhere to the rules of evidence, or you may resume your seat.”

“ Ms. Baroso, or should I say, Mrs. Cimarron?”

“ Either one.”

“ But you obviously prefer Ms. Baroso, correct?”

“ That’s what I go by.”

“ In fact, you never told anyone you were married, isn’t that right?”

She paused, then nodded and said, “That’s right.”

“ Except your brother, Luis, who prefers to be called Louis, and is known affectionately throughout the justice system as Blinky?”

I was smiling at her confidently, and for the first time, her look changed. Just the first hint of apprehension. She knew me well enough to know my sarcasm usually preceded the baiting of a trap. Her look seemed to ask: What does he know?

“ Let me think,” she said.

“ Think? You need to think whether you told your only sibling you were married?”

“ I believe I did tell Luis,” she said, a bit too quickly.

“ So you did tell someone?”

“ Yes, I suppose I did.”

“ Then a moment ago you were mistaken when you said you never told anyone?”

“ I suppose I was.”

“ Ever tell anyone else?”

“ No.”

“ So you never told me, did you?”

After all of that, she had to say no.

“ No,” she said. “I never told you.”

“ Not when you and I were alone in your house in Miami last June?”

“ No.”

“ Not when your husband showed up that night?”

“ No.”

“ And not when you say I attacked you in the barn?”

“ No.”

“ You didn’t say, ‘Jake, please, I’m a married woman, and my husband is in the house over yonder?’ “No.”

“ You didn’t think that information was important?”

“ I didn’t think it would stop you.”

Ouch. I had committed the cardinal sin on cross, one question too many. It was the equivalent of the “why” that will always burn you with a smart, hostile witness. Time to move on.

“ Mrs. Cimarron, what were the terms of your late husband’s will?”

“ Objection,” McBain said, still standing at the prosecution table. “Irrelevant.”

“ He wouldn’t say that if I was the beneficiary,” I told the judge. “Relevant to the issue of who wanted the decedent dead.”

Motive, motive, motive.

“ Overruled, but move it along, Mr. Lassiter.”

“ Simmy left no will,” Jo Jo said. “He died intestate.”

“ So as the surviving spouse, you receive one hundred percent of the estate, free and clear of all federal taxes?”

“ I really don’t know the law in that area.”

“ Oh come now, Mrs. Cimarron, you’re a lawyer.”

“ I’ve spent my entire career prosecuting criminals, not writing wills.”

Gonna wing it now. “But surely you have retained probate counsel and have prepared to file the appropriate papers with the state.”

Her eyes flickered almost imperceptibly. “Yes, I’ve retained a local probate lawyer.”

“ Who explained to you that you were the sole beneficiary and would receive one hundred percent of the estate, free and clear of federal taxes?”

“ I believe it was mentioned.”

“ So the ranch goes to you?”

“ Yes.”

“ And all personal property?”

“ Yes.”

“ And the mining claims, the treasure maps, the artifacts and products of Mr. Cimarron’s years of work?”

“ Yes.”

“ Life insurance?”

“ No.”

“ But there is a policy, isn’t there, with two million in death benefits?’’

“ I believe my brother is the beneficiary, just as Simmy was the beneficiary of Luis’s policy.”

“ Ah yes, your brother. Where is he?”

“ Nobody knows.”

“ When did you see him last?”

She studied me a moment before answering. The jurors were watching her, so I risked a little smirk. What does he know? “In June, just before he disappeared.”

“ And you’re sure you haven’t seen him since?”

“ Objection, repetitious as well as irrelevant.” McBain didn’t have the slightest idea where I was going, but he would soon.

“ Your Honor, I’ll tie it up shortly.”

“ All right, overruled.”

“ I’m sure I haven’t seen him,” she answered.

I paused to make a note on my legal pad as if this was testimony of great import, and of course, it was. Then I told the witness to take us through the events that night, and she did it all again, starting with my tearing off her clothes, and ending with my plugging Cimarron.

“ Was anyone else in the barn besides your husband, you, and me?”

“ Yes, the boy, your nephew, but he ran out when the fighting began. I’ve already testified to that.”

“ No one else?”

“ No, Mr. Lassiter. No one else.”

“ My nephew. What did he have with him?”

“ What do you mean?” A look of uncertainty in her eyes.

“ Did he have a video camera?”

She paused a moment. What does he know? “Yes, he did.”

I went to the defense table and pulled opened the paper sack. “This camera?”

“ I don’t know. It could be.”

“ Your Honor, I’ve taken the liberty of asking the bailiff to bring up a video monitor from downstairs. It’s in the corridor and can be brought in now. At this time, I’d ask that this videotape be marked for identification, and then I’d like to ask Mrs. Cimarron some questions about its contents.”

The judge glanced toward the prosecution table. “Counsel?”

“ We object, of course. We’ve had no notice.”

“ It’s impeachment material,” I responded, “and no notice is required.”

At the word “impeachment,” I thought I saw Jo Jo flinch. The judge overruled the objection, the clerk tagged the tape, and the bailiff wheeled in the monitor.

“ Now, Mrs. Cimarron. I’ve cued the tape to what we might call Round Two. Mr. Cimarron and I are struggling on the ground floor. You recall that?”

McBain was on his feet again. “Your Honor, we request that the tape start at the beginning so that the jury gets the full picture.”

“ Denied. You can do it on redirect. I don’t like to fuss with lawyers on cross.”

I was starting to like Judge Witherspoon. He came from the diminishing number of judges who let lawyers try their cases.

“ Mrs. Cimarron, just sit back a moment,” I told her gently. “Let’s close our eyes and listen.”

Jo Jo’s eyes remained open. Wide open.

The television flicked on with the sight of out-of-focus straw. The first sound was the whinny of a horse, then hoof beats.

“ Simmy! Simmy, he raped me! Are you going to let him go?”

I kind of liked that as an opening line. On direct examination, she never mentioned goading him. She had said she tried to stop us from fighting. Out of little inconsistencies does cross-examination grow.

The sound of the bullwhip, a whistle and crack of the leather sharp as a bee sting. The sound of feet shuffling again, close to the microphone, my hand scraping the wall, coming off with the bridle and bit, smashing Cimarron in the mouth, then a gasp and gagging-mine-as he kicked me in the gut.

The jurors strained to listen. If you hadn’t been there, you couldn’t tell who was doing what to whom. That’s okay. At the end, I hoped, it would all be clear. For now, so strange, listening to my own labored breathing, remembering the pain and the fear.

“ Don’t move, lawyer, or I’ll nail you to the barn wall.”

The words stabbed me, even now, recalling the terror.

I heard myself calling out to Jo Jo to tell him the truth. Again, she accused me of raping her and egged him on.

I heard the first whomp, the nail hitting at my feet. Another that buried itself in the wall. The click of the empty gun.

“ Damn. Josefina, there’s a full clip over by the sawhorse.”

I stopped the tape. “Let’s pause here for a moment. Did you reload the stud gun?”

She thought about it before answering. Surely, she knew there would be more sounds of the nails thunking into wood. “Yes, I believe I did.”

“ Once or more than once.”

“ Just once.”

“ With a clip of ten bullets? I believe Mr. Russo testified each clip had ten, 27-caliber bullets.”

“ Yes, that’s right.”

“ And after you reloaded, Mr. Cimarron continued to fire nails at me, didn’t he?”

“ Not at you, near you. He just wanted to frighten you, to teach you a lesson. You wanted to kill him, and you did.”

“ How did I manage to get the stud gun away from him?”

She didn’t want to answer. Get her off the script, she isn’t ready. “It’s all so confusing now, and listening to this, hearing his voice, it’s all so very upsetting.” Tears welled in her eyes.

“ Your Honor,” McBain said. “It might be a propitious time for a recess.”

“ No, Your Honor! It’s a propitious time for the prosecutor to coach the witness.”

McBain puffed out his chest. “I resent that, Mr. Lassiter. We don’t insult lawyers like that in Pitkin County.”

“ In Miami,” I told him, “that’d be considered a compliment.”

“ All right, you two, that’s enough.” Judge Witherspoon was pointing at me and glaring at McBain, an evenhanded way of getting order, sort of like throwing a flag for unsportsmanlike conduct on both teams. “I don’t like to interrupt the flow of a lawyer’s cross-examination. Let’s proceed.”

“ Now, Mrs. Cimarron, so that the jury is clear on this issue, you only loaded one clip into the stud gun?”

“ Yes, I just said that.”

“ Did Mr. Cimarron ever reload?”

“ No.”

“ Did I?”

“ No.”

“ Okay, I’m going to start the tape again, and this time, let’s count. Each time we hear a nail shot, I’m going to keep track right here.” I positioned a blackboard in front of the jury, grabbed a piece of chalk, and nodded to Patterson, who hit the play button.

“ Bang,” said the voice of Kit Carson Cimarron. The jury looked puzzled, but I remembered his taunt, pretending to shoot me while pointing at my heart.

Whomp, a pause, and whomp again. I put two vertical lines on the chalkboard, and on the tape, the sound of the corn crashing onto me. A moment passed. Indistinguishable sounds. I heard myself grunt. Cimarron had dragged me out of the corncrib and was sitting on my chest. He jammed the stud gun along my neck, and I felt a chill now, remembering…

Whomp. A nail pinned my sweatshirt to the floor.

“ Maybe the lawyer needs a haircut.” Another shot skimming my head. Another I remembered just below my crotch, and I winced now with the sound of it. Now, I had four vertical lines and a diagonal one crossing them.

Another shot by my kneecap, one by my foot, one alongside each temple, as he outlined me, like the silhouette of a body at a homicide scene. Then one last nail between the fingers of my hand. Five more lines. I stopped the tape.

“ How many shots is that?”

“ I counted ten.”

“ Ah, our numbers coincide. I guess the gun is out of bullets, is it not?”

She knew where I was going. “You must have reloaded.”

“ I must have? A moment ago, you said I didn’t. You told this jury that no one reloaded.”

“ I must have been wrong.”

“ Let’s see what else you were wrong about. Now who was shooting at whom in the little exchange we just heard?”

Again, she sensed where this would lead. “Simmy was shooting, but you must have gotten the gun away and…”

“ And what?”

“ I don’t remember.”

“ Well, maybe this will refresh your recollection.”

I nodded to Patterson who started the tape.

Cimarron called out to Jo Jo to bring the branding iron.

“ Simmy, why not just finish it?” she said, and in the jury box, no one moved.

Cimarron told her he wanted me to suffer, “but I’ve never killed a man, and I won’t start now.”

“ If he lives and starts talking,” she said, “it’ll just complicate things. Keep it clean and simple.”

There was the sound of grunting and great, husky breaths. My hand had found the stud gun, and we were grappling for it. I remembered lying there on my back, his weight pinning me down, my raising the gun.

Click.

Again I stopped the tape.

“ What was that?”

“ You tried to shoot him.”

“ Right. But there were no bullets. So what happened?”

“ As I said before, you must have reloaded, then shot him.”

“ Now, on direct exam, you testified that immediately prior to firing the fatal shot, I was fighting with Mr. Cimarron?”

“ Yes.”

“ We were both on the floor, with Mr. Cimarron pinning me down?”

“ Yes.”

“ So, how did I manage to shoot Mr. Cimarron? Did I ask him to get off me and wait a moment while I walked to the sawhorse, calmly found a new clip, inserted it, found another nail, loaded it, then asked Mr. Cimarron to please put his ear up to the muzzle so I could shoot him at point-blank range?”

“ I don’t know. I was under great stress and frightened. I just know you shot him.”

“ Was I conscious at the time I allegedly shot him?”

“ Of course.”

“ And did Mr. Cimarron strike me after he was hit?”

Her eyes darted from me to the jury. “Of course not. He died instantly.”

“ You heard the testimony of Sheriff’s Deputy Dobson that I was unconscious when he arrived.”

“ Yes.”

“ What rendered me unconscious after I supposedly shot Mr. Cimarron?”

No answer.

“ Isn’t it true, Mrs. Cimarron, that the click we heard on the tape came when your husband and I were struggling for control of the stud gun, and immediately thereafter, he hit me with such force that my head bounced off the barn floor, knocking me unconscious?”

“ No. You shot him before you passed out.”

“ How! With an empty gun?”

“ I don’t know how. I can’t be expected to remember every detail.” She turned to the jury. “You can’t know what it was like, seeing your husband butchered. You can’t get everything straight.”

“ Well, let’s see if we can re-create what it was like.” I walked to the defense table and whispered a request to Patterson. In the back row of the spectators’ gallery, I saw Detective Racklin. Patterson got up and headed into the corridor, returning a moment later with the bailiff and two life-size dummies. I placed one on its back and struggled with the other to get it sitting on the first one’s chest.

“ Now, Mrs. Cimarron, do these dummies accurately represent the situation with your husband pinning me to the floor?”

“ Yes, I suppose.”

I got the stud gun from the evidence table and removed the clip. Then I put in on the floor next to the two dummies.

“ And your testimony is that somehow, from that position, I put a nail through his ear, though you don’t recall my reloading the stud gun?”

“ It happened. You shot him. Only you know how.”

“ Now where were you standing in relation to the two of us?”

She pointed to my left.

“ Please answer audibly,” the judge told her, his voice seeming to startle her.

“ Close, maybe five yards away.”

I stepped back several steps. “Here?”

“ Yes.”

“ And where was the sawhorse with the clips of bullets and the nails?”

She pointed to the end of the clerk’s table. One step from where I stood.

It would work. I knew it now. The timing was perfect.

I picked up a nail and a plastic clip from the evidence table and placed them where she indicated. “Okay, let’s back up the tape a few seconds, start it again and see what happens. And Mrs. Cimarron, if you’ll bear with me, for purpose of this demonstration, please pretend I’m you.” The jurors’ eyes never left me. They expected magic, and I intended to deliver. I nodded to Patterson who hit the rewind button, then the play.

Again Jo Jo told Cimarron to keep it clean and simple. Again the sound of our grappling, then the click and the clunk of my head against the floor. One-thousand-one. I picked up the wooden plank from the evidence table, one-thousand-two, came up from behind the Cimarron dummy and swung at the back of its head.

Thud. The plank hit home and the dummy toppled forward onto the Lassiter dummy. A millisecond later on the tape, one-thousand-three, thud.

Then a grunt that had to be from Cimarron on tape, because the dummy didn’t say a word.

One-thousand-four.

I dropped the plank, took two steps to the clerk’s table, one-thousand-five, picked up the clip and a nail, one-thousand-six, walked back to the dummies, picked up the stud gun, one-thousand-seven , calmly inserted the clip and the nail.

One-thousand-eight.

The Cimarron dummy’s head was leaning, chin down, on the Lassiter dummy’s chest. I leaned over and jammed the muzzle of the stud gun into its ear.

One-thousand-nine. I pulled the trigger.

Whomp. The sound shuddered through the courtroom.

Whomp. More muffled perhaps, but the same sound on tape.

The nail tore through the dummy’s head, traveled on an upward path, and embedded in the wall of the courtroom just below a photograph of an 1890s judge with full chin whiskers.

“ Mr. Lassiter!” The judge rose from his chair. I stifled him with a “shusssh.”

The tape was still running.

The only sound in the courtroom was sand trickling onto the floor from what had been the dummy’s plastic skull. “Shit.”

Who said that? The jurors were confused. No one in the courtroom had said a word.

“ Shit,” again on the tape. It was Jo Jo, and the jurors knew it. They looked at her. Not accusing. Not yet. Just intense curiosity. Shit is fine if you’ve hit your thumb with a hammer, but it isn’t the most eloquent lament for a lover slain. She sounded exasperated. Not angry, not mournful.

“ That’s not the way it was supposed to go,” she said.

Now the jurors looked at each other. Who was she talking to?

“ No.” It was a male voice, and it hadn’t been heard on the tape before. “ No, seguro que no. Jeez, I hate violence.”

“ For a while,” Jo Jo said, “I couldn’t decide which way it would go. I thought Jake could handle him. I mean, either way, it would work, though this way is better.”

“ Much better,” the man said. “Besides, Jake’s not a killer. He doesn’t have it in him.”

“ Funny, that’s what he said about you.”

“ Yeah, and he thought you were too good for him.”

“ Jake’s always been a lousy judge of character,” Jo Jo said, and they both laughed.

I nodded, and Patterson stopped the tape.

“ Mrs. Cimarron, who was that man?” I asked.

She didn’t answer. Her eyes were closed, and she rocked slowly back and forth.

“ If you wish,” I suggested, “we could run voiceprints on the tape and compare them with your brother’s early radio commercials for the gold bullion business.”

Still no answer.

“ Or we could ask Abe Socolow to fax your brother’s fingerprints up here and draw a comparison to the unidentified latent on the gun barrel.”

She was sobbing now.

“ Isn’t it true that the man in the barn was your brother, Louis Baroso, and that the two of you conspired to murder your husband and did, in fact, kill him?”

She didn’t answer.

“ Which one of you killed him?” I asked.

“ I didn’t kill Simmy,” she said through trembling lips.

“ Even though he beat you?”

Again, she didn’t answer.

“ What you told me in the barn was true, wasn’t it? He had beaten you.”

Her head slumped forward.

McBain was on his feet. “Your Honor. Perhaps…”

“ Sit down,” the judge commanded.

“ He began hitting me just after we married,” she said. “That’s why I left him. So many times, he begged me to come back. So many times I thought I could change him. He could be so wonderful, but he could be someone else, too, someone violent and evil.”

“ You could have divorced him.”

“ He would have killed me. He threatened to, and he boasted that no jury in Pitkin Country would convict him. He let me move away, but he wanted me back. That’s why he came to Miami in June. I just couldn’t go back to that. Jake, you saw what he did to me…”

“ You thought I’d kill him, didn’t you? You thought I’d kill him because he broke my hand and beat you up?”

Silence except for her sobs.

“ You set me up to kill him, and when I didn’t or couldn’t, you and your brother finished the job.”

“ Luis was right. You don’t have it in you to kill a man.”

“ He was right about something else, too. I’m a lousy judge of character.”