Against the Wind (30 page)

“Now let’s talk about some of the other things she said. She claims to have been raped, but she never went to the hospital. Even after the police found her, and she told them about what she claims happened, they didn’t take her to the hospital. Maybe there was a reason for that, people. Maybe the charge of rape was a lie, to further incriminate these men. And maybe they knew it was a lie, she and the officers who found her, and they knew that if she was examined the doctor wouldn’t find any evidence of rape and the rest of her story wouldn’t wash then, either, so they all decided she’d claim rape but they’d shy away from testing her. They would have to because the truth wouldn’t back it up. Or maybe,” I go on, “there was some sexual misconduct. And they didn’t want that coming out prematurely, because they wanted to make sure they had time to help her get her story straight; straight the way
they
wanted it. They couldn’t take the chance that she might say the wrong thing, talk to someone in authority too soon, like a doctor. All we know is that she, and they, were out of contact for several days. Highly unusual behavior.”

I pause for just a second to catch my breath, then press on. I’m on a roll and I want to sustain it.

“Rita Gomez, the state’s only eye-witness, claims to have seen a murder take place. But she didn’t tell anyone; she kept it completely to herself. She says she was scared for her life. Then the police come upon her and bang, she spills her guts. What happened to that fear? Yes, I know they promised her protection, but what does that mean? Do you honestly believe, any one of you, that someone so scared, as she claimed to be, would talk that fast and that freely? She wouldn’t; maybe eventually, if they worked on her, really put the screws to her. But according to both her and them they didn’t have to. She started singing as soon as they walked in the door.”

I shake my head. “It doesn’t wash. Put yourself in her shoes. They don’t know that you know anything. It’s pure circumstance that you had a passing acquaintance with Richard Bartless, and these men. You could say you don’t know how he got there, and they’d believe you. They’d have no reason not to. Under those circumstances, as fearful for your life as she says she was, would you talk?” I take one dramatic beat. “We both know the answer. The answer is no.”

I take a moment to let everything I’ve said sink in.

“It’s simple, ladies and gentlemen. Depressing and insulting to our system of justice, but nonetheless simple. She either made her story up, or she was coerced into saying it. In either case, it’s a lie. It didn’t happen; not the way she said.”

I look at the jury, individual faces. Some are looking at me. A few at the defendants. Some at the prosecution table, and a couple are looking past the prosecution table to the detectives who broke the case, Sanchez and Gomez.

I turn and look at them, the detectives. They look back at me. They don’t like me. Good. Maybe the jury will pick up on that and make the connection that what I’m saying has weight, some honesty.

“Think about this,” I say, turning again to the jury. “Those detectives had her in hiding for several days. No one knew where she was, not even a police matron. Now ask yourselves thus: why do you hide someone unless they have something to hide, unless you’re helping them hide it? Unless your story doesn’t wash, unless you have to embellish it. Think about that, ladies and gentlemen. Policemen are supposed to protect and serve. How were they serving her by not allowing her to be examined for rape? How were they serving her by hiding her out, away from anyone who could comfort her? They weren’t protecting and serving her, folks. They weren’t protecting and serving justice, either. They were protecting and serving the prosecution’s case. In fact, they were probably making it.”

I look back at the prosecution’s side again. This is personal now; these guys are going to be out to get me. So be it. They’ve tampered with the truth, I know it; as I’ve said the words, the certainty of this has rung out clear as a bell.

“And what about the coroner’s report?” I go on. “He gave clear times about when the death occurred. Yet they contradict the timetable the state’s star witness drew for you that we’ve followed here today,” I say, pointing to my charts. “Are we supposed to infer that one of the country’s most eminent criminal pathologists miscalculated? Because if we believe Rita Gomez’s testimony, the state’s only eyewitness, we have to. We have to say he goofed. Or we have to believe him and discredit her. The testimony of Rita Gomez and the testimony of Dr. Milton Grade directly contradict each other. We can’t believe them both.

“There is one thing in both of their testimonies, however, that I do have to question. The so-called ‘hot knives’ theory. You’ve all seen the horrendous photos of the victim when he was taken to the morgue and examined by Dr. Grade. His body was in awful shape. Yet Dr. Grade testified that he was killed with a hot knife, which, by the way, has never turned up. It’s a very bizarre theory, the prosecution hasn’t brought forth any witnesses to corroborate it, except Rita Gomez, who we’ve proven to be a liar. And I have to say, with all due respect to Dr. Grade, that it’s mighty coincidental that he and she allegedly arrived at this ‘hot knives’ story independently of each other. Too coincidental for me to believe. For you, too, I think.

“And then there’s Steven Jensen’s brother. My heart goes out to him. He’s lived in torment his entire life. His brother abandoned him, and his personal sexual lifestyle is abhorrent to him. So he comes here and tells you that Steven Jensen so hates gays that he’ll kill one, practically on sight.

“Well,” I say to the jury. “If that really is the case, then why hasn’t Steven Jensen laid waste to hundreds of homosexuals over the years? I’m sure he’s encountered some, we all have. So what? It’s completely irrelevant, as irrelevant as James Angelus’s testimony. He didn’t come here to tell you his brother has homicidal feelings towards homosexuals.” My voice is starting to rise, I’m mad and indignant and I want them to know it, I want them to know I’m calling the prosecution on this bullshit. “He came here because the state paid him. Ten thousand dollars. And on top of that, they tried to hide it, because they knew it was dirty and underhanded. It was sleazy, like the rest of their case. James Angelus came here because they’re trying to buy the case, just like the way they brought in the victim’s mother. They must be pretty desperate to resort to such shoddy tactics.”

I take a breath.

“Let me tell you the real truth here. The real truth is my client didn’t commit this murder. Neither did his friends. There was a killing, all right. But they didn’t do it. No one knows who did it. And that’s the problem, because the state has to pin this on someone. They have to throw some red meat to the lions. So they pick on four men who, I will be the first to admit, are not choirboys. And they were with this girl on the night the victim died. And from that the prosecution decided that they did it, and came up with a story to fit the crime.”

I walk in front of the jury now, slowly, looking each one in the eye.

“The state has one witness—a witness who has perjured herself on the stand, right here in front of you. They have no physical evidence, because that knife was never found. Neither was the gun that shot him. On the other hand the defense has presented dozens of witnesses, every one more credible than Rita Gomez, who I must remind you again is not only a convicted prostitute and public drunk, but also a demonstrated liar.

“There’s yet another thing that has to be said about these defendants. Would whoever did in fact kill the victim have been so stupid as to leave a witness behind? After he had already committed a murder he could be executed for? Of course not. He’d already murdered one person. It’s not going to help him to spare another life; on the contrary, it would be ludicrous to leave a witness behind. And that’s precisely why these men
couldn’t
have done what they’ve been accused of. They may be mean, folks, they may be tough, but they’re not stupid. The real killer wouldn’t be taking any prisoners. The simple reason these men didn’t kill Rita Gomez is because they hadn’t killed Richard Bartless.

“So … why are we here today? To judge the innocence or guilt of my client and the others. The defense doesn’t have to prove their innocence, yet we have. We have presented you with concrete physical evidence that proves these men couldn’t have done it. The prosecution by law has to prove their guilt, but they have not; not at all, not one iota.

“It’s a heavy burden to be a jury in a murder case. You’re going to decide whether someone is guilty or not, and if they might live or die. And if you’re going to decide that they’re guilty, you have to really know it. You have to know it in your heart and your gut, and you have to know it from the evidence, the facts. You have to know it beyond a reasonable doubt.

“Ladies and gentlemen of the jury. Do not judge my client on who he is or what he’s done in his past. That’s not the issue here. You must judge him solely on this case, the facts of this case. And when you do you will arrive at one and only one conclusion: that he is not guilty, and that he should walk out of this courtroom a free man.”

“
GOOD MORNING,
ladies and gentlemen. My name is John Robertson. I am the District Attorney for Santa Fe County.”

He stands at the edge of the prosecution’s table in his number-one three-piece suit, his Phi Beta Kappa key dangling prominently. He smiles at the jury, a confident, friendly smile. The smile of the righteous, the man with the goods on his side.

It’s a calculated risk, his closing for the prosecution. I’m sure he weighed the pros and cons and decided that at worst it was a toss-up. On the down side there’s lack of familiarity: the jury’s gotten to know Moseby, he’s comfortable with them as an old shoe, there might be unconscious resentment against Robertson for coming in at the eleventh hour and stealing his thunder. On the other hand, Robertson has been in and out, they all know who he is. And he’s the boss, it’s his ultimate responsibility, the buck stops with him. What he’s trying to tell the jury is this case is so important I have to do this last scene myself, I can’t leave this most essential part of it to anyone else, not even my most trusted and competent associate. I was elected to this job and I have to give you our best. Please forgive any aspersions this may cast on brother Moseby here; there are none intended. But I, and only I, am accountable here.

He does say this, in a less obvious and self-serving fashion. Of course, what the egotistical bastard’s really saying is I’m a politician, I’m on a career ladder and this is an important rung, this is the most important and visible case we’re going to have in New Mexico this year, certainly in my jurisdiction, and I’ll be damned if I’m going to let some civil-service underling steal the thunder; senate seats and governorships are built on summations like the one I’m about to give. I want the television coverage. I’m the cherry on the sundae.

“What you have before you is simple,” Robertson says. He’s standing in front of the jury, solid as a rock. I admire his delivery. If I’m Jack Nicholson, he’s Charlton Heston, a little square maybe, a touch behind the times, but you know where he stands, he’ll never scare you.

“You have to make a choice,” he continues. “You have to decide who to believe, the state’s witnesses or those of the defense. On one hand you have an eye-witness who both sides, prosecution and defense, have already agreed was at the site of this murder, with the accused, on the night it happened; and the expert testimony of one of this country’s foremost forensic pathologists, both of whom told the same story about how the victim, Richard Bartless, died, completely independently of each other. Neither of these people, nor any of the other witnesses we have brought forth, have anything to gain by their testimony. On the contrary, they have a lot to lose. Rita Gomez could lose her life. These men on trial before you are not, to use the defense’s own terminology, a bunch of choirboys. They’re part of a nation-wide ring of self-styled outlaws and criminals. Their friends both in their own gang of motorcycle outlaws and in other, similar gangs, have sworn revenge on anyone who testifies against them. Rita Gomez is going to be a marked woman the rest of her life, whether these four men are found guilty or not. Rita Gomez was, and still is, a very frightened young woman. But she could not remain silent in the face of such a heinous act.

“Dr. Milton Grade’s qualifications don’t have to be elaborated on here by me; you all know how expert and unbiased he is. He told you unequivocally what happened that night up on that mountain. He arrived at his conclusions from knowledge and experience, years of it. And it completely matched the story Rita Gomez told the police and the grand jury and you. Neither one of them knows the other, neither one of them has to this day met the other. And yet they both are telling you the same thing: that Richard Bartless was abducted by the four men on trial here, kidnapped against his will, taken up to the mountains north of here, brutally sexually assaulted, and murdered. Without remorse.

“Let’s talk for a moment about the defense you’ve seen put on for your benefit for the past weeks in here. I have to admire it; it’s a great escape act, a Houdini defense. An act of magic, of derring-do and sleight-of-hand. But like any act of magic it’s based on a
perception
of reality … let me emphasize that, ladies and gentlemen of the jury, perception of reality, not reality itself. They don’t really have a defense, so they try to fake you out. And if you’re not careful, if you’re not diligent in examining the facts of this case, if you’re blinded by the light they’re shining in your eyes, you’re going to mistake the
perception
for the reality. It’s like that ad that was on television a few years back, about how you can’t tell Imperial margarine from butter, you remember that?”

Some of the jurors smile; they remember, or think they do.

“‘You can’t tell the fake from the real thing,’ is what the ad said,” Robertson tells them, smiling himself. “Well, maybe you couldn’t,” he continues, “maybe some people can’t tell margarine from butter, and anyway to most people it probably doesn’t matter much, unless you’ve got a cholesterol problem, and then it could matter a lot. In fact, it could be a matter of life and death. Well, in this case, if you can’t tell the fake from the real, the lies from the truth, it will definitely be a matter of life and death. It will mean Richard Bartless’s murderers and sodomizers will go free, or they will pay for their crimes.”