Death Row (3 page)

Ben knew the story, having reviewed the officer's statement so many times he could recite it from memory, but he wanted to make sure the jury was with him before he proceeded. "Would you explain that, please?"

"As I drove past the witness, I saw that he was drinking a beer. Out of a can. A Bud Light, to be specific."

"You saw the can?"

"I saw the top part of it. It was wrapped up in a paper bag. Common practice for people drinking in violation of the liquor laws."

"But you could see enough to tell it was an alcoholic beverage?"

"Definitely. And as you know, counselor, you can't walk down the streets carrying an open container with an alcoholic beverage. That's against the law. So I parked my car and ran after him."

"And when you caught up to him, was he in fact carrying a beer?"

"No, not then. He must've ditched it somewhere. Probably saw me coming and tossed it over a fence or down a gutter."

"But you searched him anyway."

"Of course. The man broke the law. Standard procedure."

"Were there any other witnesses to this alleged offense?"

"No, I was working alone."

"Did you ever find the alleged beer can?"

"I can't say that I ever looked. After the search, I had better things to do."

No doubt. Ironically, unlike carrying an open beer can, carrying a concealed weapon was not illegal in Oklahoma, so long as the gun was registered. And since all of the Faulkners were killed by a knife, the gun did not immediately link Goldman to the crime. But the assailant had used a gun to corral and control the family, and Frank Faulkner had a wound on his head that could have been caused by the butt of a gun. It was hardly proof positive, but it was the best piece of physical evidence the prosecution had. If Ben could get Judge Kearns to suppress it, it could dramatically alter the course of the trial.

"Pardon me for saying so, Officer Murphy," Ben continued, "but I'm having a hard time understanding how you could see a man on the street from a distance, while in a moving car, at the end of the day after the sun has begun to set, see only the top part of the can, and still know immediately that it was a beer."

"Chalk it up to experience. I've been on the police force for almost twenty years."

"Which is what inclines me to think that perhaps you followed my client, searched him illegally, then concocted this story about the beer to justify the search."

"Your honor, I protest!" DA Bullock shot to his feet, a look of outrage plastered across his face. "Counsel is desperately trying to create some impropriety where none exists. I find this grossly offensive. And I deeply resent the suggestion that this state's sworn and trusted law enforcement officers might engage in improper practices."

"If that's an objection," Judge Kearns said, "it's sustained." Ben suspected that Kearns, being an African-American in his sixties living in the Southwest, was probably less outraged than Bullock by the suggestion that a law enforcement officer might do something improper.

"Tell me," Ben said, taking a step closer, "how far away from my client were you when you first spotted the beer?"

Murphy shrugged. "About twenty feet. Maybe a little more."

"And you had no problem identifying the can he held as a beer?"

"None at all."

"Fine." Ben reached into the pocket of his suit coat and withdrew a large tape measure. "Twenty feet it is." Good thing they were in the large courtroom. Ben hooked the tape measure to the rail in front of the witness stand and started reeling the tape backward.

Murphy watched, a small crease appearing between his eyebrows. "What's that for?"

"Sorry," Ben said. "I'm the one who gets to ask the questions." He continued pulling the tape backward, taking his own sweet time about it. Let Murphy sweat awhile, Ben thought. Let the jury get interested. They've been sitting in those chairs all day. They must be ready for something a little more lively.

Ben stopped when he was exactly twenty feet away from the stand. He addressed his client. "Ray, would you come here, please? And bring that box on the floor."

Bullock slowly rose. "Your honor, I object. I don't know what Mr. Kincaid is trying to pull-"

"Well, if you'll sit patiently for a minute," Judge Kearns said, interrupting, "you might figure it out."

Ouch. That put Bullock back in his seat in a hurry. Ben positioned Ray at the twenty-foot mark, then turned away from the front of the courtroom and opened the box. He removed a can wrapped up in a paper bag so that only the top showed, then handed it to Ray.

"Sergeant Murphy," Ben announced, "I have re-created the scene just as you described it. The same man, the same distance, another can partially concealed by a paper bag-with just as much showing at the top as you say was visible when you spotted Ray on the street. The only real difference is that the lighting in here is much better than it would have been on the streets at six-thirty in the evening, and you're not in a moving car, so you'll be able to take a much more careful sustained look."

Bullock saw what was coming and did his best to stop it. "Your honor, again I object. This re-creation has not been staged under controlled circumstances-"

"I'll allow it," Kearns replied.

"Furthermore, the jury could be unduly influenced by a test that in no way indicates what happened on the evening of-"

"I'll allow it," Kearns repeated, a bit more forcefully this time. "Mr. Kincaid, you may proceed."

"Thank you, your honor." He returned his attention to the witness. "My question is pretty simple, Sergeant Murphy. What is Ray holding in his hand?"

Murphy sat silently, not saying anything. He made a few furtive glances in the direction of the prosecution table, but Bullock couldn't help him now.

"I'm waiting for an answer, Officer. What is Ray holding?"

Murphy continued to stare at the defendant intently, but he did not respond.

"He's the same distance away from you that he was on the night you searched him, Sergeant. Maybe even closer. Surely if you could tell what he was holding then, you could do so now." Ben paused. "
If
you could tell what he was holding then."

Murphy still did not answer.

"Okay, I'll make it easier for you. Consider it a yes-or-no question. Is he holding a beer? Or any other alcoholic beverage that would give you a legal right to search? Please bring your twenty years of experience to bear and give the jury an answer."

Murphy stood up and continued to stare at the bag in Ray Goldman's hand. Ben could easily imagine the thought process running through his brain. It had to be tempting to take a guess. After all, he had a fifty-fifty chance of getting it right. He could say it was a beer, just like before (and Ben hoped he would, because it was actually a can of Pepsi One). But if Murphy got it wrong, it would be a disaster for the prosecution. Ultimately, he decided to play it safe-and to answer the question honestly.

"I can't tell," he said quietly.

"Excuse me?" Ben said. "What was that?"

"I can't tell."

"Is it a beer? Or just soda pop?"

"I can't tell."

Ben turned toward the jury, a look of amazement on his face. "Officer Murphy, has anything happened to your eyesight between the day of the search and the present day?"

"No."

"Has there been some profound diminution of your mental or physical faculties?"

Murphy pursed his lips. "Not that I'm aware of."

"Is there any reason to believe your powers of perception have been reduced since the time of the search?"

"No."

"No, I thought not." Ben approached the bench. "Your honor, this was an illegal search, without probable cause. I move that the search and all evidence collected as a result be suppressed."

Kearns didn't hesitate. "Done."

"Your honor!" Bullock raced to the front. "This little courtroom prank has no bearing-"

"Don't bother, Mr. Bullock."

"But this witness is an honest, truthful servant of-"

"Mr. Bullock!" Kearns aimed his gavel in the direction of his nose. "Throughout my career as a judge, I have always shown a great deal of respect to the representatives of the district attorney's office. But if you press me on this, that could change." He slammed down his gavel. "Let's take a recess."

For the first time since the trial began, Ben did not have to push his way through a mob of reporters to get out of the courtroom. He assumed they were all huddled around their cell phones, calling in this surprising development.

Ray was on the other side of the hallway, joyously embracing his girlfriend, Carrie. She was a secretary he'd met at the chemical plant where they both worked. Ray was passionately in love-for the first time in his life, he said-and they had been planning to marry. Before this disaster descended upon them. Carrie had been supremely patient throughout the protracted pretrial ordeal-but Ben knew that wouldn't last forever.

Not far away, Ben noticed a teenage girl staring at Ray and Carrie. She had short black hair and was leaning on a cane. Ben didn't have to ask who she was; he'd interviewed her beforehand and had seen her sitting in the courtroom gallery every day since the trial began. She was Erin Faulkner, the girl who'd miraculously managed to escape being chained up in the basement. The only survivor of the Faulkner family.

Ben assumed she was less than delighted about the elimination of key evidence against the man accused of sadistically killing her entire family. But the look in her eyes at that moment, as she gazed at Ray, puzzled him. Was she suppressing the bitterness and hatred she must feel toward him? Ben scrutinized her face more carefully. There was definitely something going on in her head. But what was it?

She turned and, all at once, their eyes locked. Ben felt an icy twinge at his spine. He quickly averted his eyes and, without even thinking about it, wrapped his arms around himself. Defending murder cases was one thing. But this he did not need.

"Sudden chill?"

To his relief, Ben saw his legal assistant, Christina McCall, standing beside him. She was wearing purple-tinted glasses, a waist-length jacket with a fake fur collar, a short, psychedelic orange skirt, and high hip boots.

"Just in from the Sonny and Cher concert?" Ben asked.

"No. Just in from the clerk's office, where they're all abuzz about how you knocked Bullock's feet out from under him."

"I did my best."

"You did better than that. One good cross and-voila! The prosecution case is dead in the water."

"I never make predictions. It isn't over till it's over."

"So true. And so originally put, too." She gave him a gentle jab on the shoulder. "Way to go, slugger. You hit a home run."

Ben shivered. "I always love your sports analogies."

She fluffed her long strawberry-blonde hair back over her shoulder. "So who does the prosecution have left?"

"Only the complainant. Erin Faulkner."

"Tough witness to cross. But she didn't really see much, did she? How much damage can she do?"

"I don't know," Ben said, and reluctantly he let his eyes return to the fifteen-year-old girl who would now walk with a cane for the rest of her life. "I just don't know."

"We're winning, right?" Ray said as he reclaimed his chair at the defense table beside Ben. He kissed Carrie again, squeezed her hand, then let her return to her own seat in the gallery.

Ben wouldn't play. "I never make predictions."

"I respect that." He paused. "But we
are
winning, aren't we?"

"Ray-"

"Carrie thinks we're winning. I realize she's not impartial. But she thinks you tore the prosecutor's heart right out of his chest."

Ben tried to resist the mental image. "The last witness went... very well for us. I agree. But anything can happen. Juries are unpredictable."

Ray faced the front of the courtroom. "You're right. Of course you are. That's fine." He glanced almost impishly at Ben out of the corners of his eyes. "But we are winning. Aren't we?"

Ben gave him a small smile. "I hope so."

Packed as it was, the entire courtroom fell silent as Erin Faulkner hobbled to the witness stand. Ben knew her left leg had been so severely damaged in the assault that for months she had not been able to walk at all, and even now could only do so with supreme effort. Her struggle to cross the courtroom underscored the inherent drama that her presence, and her testimony, would lend the proceedings.

Slowly, painfully, she led the jury through her first-person account of the night of horror. She told them how she and her mother and siblings had returned home to find a brute in a ski mask torturing her father. How he had held them all at gunpoint, had beaten and abused and cut them, one after the other. How she had watched helplessly as her family was brutalized. And finally, how he had broken her leg and knocked her out.

The account of her time locked in the basement was perhaps even more riveting. The story of a fifteen-year-old girl, naked, disoriented, suffering from a broken leg, nonetheless mustering the presence of mind and the courage to break her own thumb in order to escape was a resounding testament to the indomitability of the human spirit. Ben knew she was making a profound impression on the jury.

At last she reached the end of the tale, how she fought her way out of the cellar and up the stairs only to be greeted by a bloody tableau worse than anything Edgar Allan Poe ever dreamed about: her entire family dead, butchered-with their eyes cut out of their skulls.

"After the police arrived," she said, in a quiet but steady voice, "they called the ambulance. I passed out soon after that and didn't wake up until three days later in the hospital."

"I see." With a solemn expression, DA Bullock closed his trial notebook. "Miss Faulkner, I know this will be painful for you, but I am required by the court to ask. Do you have any knowledge regarding the identity of the man who invaded your home? Who killed your parents and your six siblings?"