Lion Plays Rough (11 page)

“I
know
who the father was.”

“If you'd run a paternity test, and the result came back that my client wasn't the father, that would have changed your investigation, wouldn't it?”

“The girl knew better than anyone who the father was.”

“Precisely. However, sitting here right now, you can't tell us to a medical certainty, can you?”

“She'd only been raped by the one guy.”

“Did you ask her how many guys she'd had sex with?”

Cassidy was up again. “No,” Razlo pronounced with extra emphasis.

The judge motioned Cassidy down impatiently. I shot the jury an indignant glance. Don't glare at me, was the message. I'm asking simple factual questions. I'm not the one making things up under oath.

“So, in fact, you have no idea whether she'd had a boyfriend with whom she'd been having sex, do you?”

“As far as I know, the first time she had sex with anyone was when your client raped her. For the rest of her life, that will always be her first time.”

“You're simply making that up, though, aren't you?”

He didn't answer. He looked like he wanted to hit me, and he probably did. I asked the judge to order Razlo to answer the question I'd asked, and in a bored voice he did, instructing the court reporter to read it back first.

“I don't know for certain whether she'd had sex with anyone else.”

Again I asked the judge to order him to answer the question. Again the judge ordered the question read back. This time Razlo gave in and answered yes, admitting that he'd made up the bit about her losing her virginity to Scarsdale.

“Did you ever send a subpoena for any documents the clinic might have?”

“No need.”

“So you never obtained any evidence that might have existed at the clinic that could help you confirm your guess about the identity of the father?”

“I never sent a subpoena,” he said, fear suddenly making itself visible again. I could see him wondering if she'd put the father's name on some form she filled out. If I could see it, the jury could, too.

“These are records we obtained from the clinic,” I told him. “We sent our own subpoena and got a packet back in the mail, simple as that.” Off to my left I saw Cassidy start to rise, then sit again without speaking. “You've never seen this document before?”

He studied the paper I handed him. “That's correct. I've never seen this.”

“This document is the payment receipt for a procedure on September 10, 2001, at the Foothill Plaza Medical Clinic in Santa Rosa. Correct?”

He agreed.

“The procedure was an abortion, and the patient was Erica Lawler.”

“It says ‘termination of pregnancy.
'
”

“Does that mean something other than an abortion to you?” I waited, then went on. “Now, during your investigation, did you ever determine who paid for this procedure?”

“Like I told you, we never saw these documents. She told me who the father was.”

“Did Erica Lawler have money of her own to pay for this procedure?”

He saw a chance to stick me and with obvious relish he took it, looking directly at the jury. “I don't know what kind of allowance her parents gave her. When I was a kid I got ten bucks a week. But a lot of kids get more these days. Or maybe she had savings bonds, who knows.”

We had to take a long detour then, establishing once again that he hadn't asked her about her allowance, her finances, or whether she had savings bonds, ending with him being forced to admit, once again, that he was making things up.

Finally I got back on track. “Whether she'd paid for the abortion, or how she might have paid for it, wasn't something you were interested in, was it, Detective?”

“No.” He gave the jury a look as if to say, Can you believe this guy?

On their faces I saw disdain, impatience, sympathy, interest. At least a few of them were with me. But only a few.

“So who paid for the abortion, Detective?”

He looked at me stupidly, and I nodded toward the document in front of him. Aloud he read, “Nathan Blair, with a credit card, according to this exhibit. Her uncle.”

In a similar fashion I led him through a few more exhibits, laying them before him like a surgeon setting out his instruments, establishing with each one that he had not seen it, had not requested it, that on the whole he'd done nothing to verify Erica's story. It was starting to go more quickly, Razlo agreeing to what he had no choice but to agree to.

I put the final exhibit in front of him. “Looking at this document, there's a place down at the bottom there where she has to write who brought her to the clinic and who's going to bring her home. Tell me what it says.”

“
‘My friend Nate.
'
”

“That would be her uncle, Nathan Blair. You don't think it's odd that she wrote ‘my friend' rather than ‘my uncle' in that blank?”

He looked bored. “You'd have to ask her.”

“You didn't ask her, though, did you?”

“Same answer as the others. She told me in graphic detail how your client raped her during a sleepover with his daughter. After I heard that, I didn't need to ask any questions about the uncle or anyone else.”

“You didn't ask her uncle Nate, for instance, why he took his thirteen-year-old niece, this child, to get an abortion without informing her parents what she was doing, trying to hide from them the fact that she'd ever been pregnant?”

“No. I didn't ask him that.”

“And you didn't ask him why he paid for that abortion with his own money when he was unemployed and supposedly so broke that he had to live with his sister and brother-in-law, spending his time as nanny to their teenage daughter.”

“No.”

“And in fact you couldn't have asked him that because you didn't know that he'd paid, did you? Because you didn't get the records from the abortion clinic.”

“Asked and answered,” Mooney droned from his seat without rising.

“And you didn't ask her why she'd put on the form where she's supposed to identify the person who drove her there, the person who's going to drive her home and make sure she's safe, why she called her uncle Nate ‘her friend.' You didn't ask her that, did you, Detective?”

“Even if I'd known that, I don't see how it's important.”

“Did you ask her what feelings she had for her uncle?”

“No,” he said with distaste.

“Did you ask her if she was in love with Nathan Blair?”

“It's not my job to make stuff up. I look at the evidence, the facts.”

“Ah.” I began gathering the exhibits together. “Some of the facts, you mean.” I put them on the clerk's table. “Nothing further.”

The judge ordered court adjourned until morning, giving Mooney the evening to decide whether to redirect Razlo or call Nate Blair to the stand.

~ ~ ~

Around seven that evening, while I was going over my notes for my deferred opening, the phone rang. I glanced at the caller ID. It was Debra Walker, a woman whose son Jeremy, my client, had been shot to death the previous summer. I'd been avoiding her calls all week, but knew she'd keep dialing my number until I picked up or called her back. “This is Leo.”

“I was beginning to think that phone of yours was broke.”

“It's the person who's supposed to answer it that's the problem.”

“But this time you picked up.”

“I know what a determined woman you are.”

She sighed heavily into the phone. “Tamara, she still asks for Jeremy every morning. It's gotten now like she knows the answer beforehand, but every day she asks.”

Jeremy and I had met as visitors at the rehab center where Teddy was staying, relearning how to talk, walk, feed himself. His wife, Tamara, was also a patient; around the same time Teddy got shot in the head, a virus had attacked her brain. When Jeremy needed a lawyer for a marijuana arrest I got the case thrown out. A year and a half ago, while Tamara and Teddy were still in the rehab center, Jeremy had been shot walking to work at the post office.

“I haven't forgotten. It's just that there's nothing I can do about it.”

“We'll see. I got a favor to ask, but I don't want to ask it over the phone. If you're going to turn me down, I want you to do it to my face.”

I was sure I knew what the favor would be, to help her find her son's killer. “I can't meet you this week. I'm in trial. Next week my schedule should be more open. Why don't you call during business hours and make an appointment, and I'll be happy to see you here in the office.”

“Nah, I don't want that. Better you and Teddy come for Sunday dinner. Got to fill the table just to feel like myself, even if I'm too old to be cooking for a crowd every week. And this way we can kill two birds with one stone. I know your brother won't object to putting a smile on Tamara's face.”

The virus that had ravaged her daughter-in-law's ability to form memories had left her beauty hauntingly intact.

“Mrs. Walker, whatever it is, I don't think I can't help you.”

“You be here for dinner and we'll see.”

Chapter 16

On Friday morning the prosecution rested without either redirecting Razlo or calling Erica back to the stand. I was surprised by this decision but not overly so. Mooney thus far had declined to engage my theory of the case, questioning his witnesses as if I hadn't said a word, as if I'd proceeded since deferring my opening statement with further silence.

A less experienced lawyer would have called Nate Blair to the stand to refute my accusations. Mooney's decision to rest his case without calling him was a risky move. If I didn't put Blair up, the jury wouldn't hear from him. In an ordinary case, Mooney's apparent reluctance to call him might in itself support a reasonable doubt, given that the state, not the defense, has the burden of proof. But Mooney apparently was calculating that reasonable doubt wasn't going to win an acquittal for my client here. I agreed with him.

The judge addressed the jury. “You'll remember that I spoke to you at the beginning of this case about Mr. Maxwell's decision to defer his opening statement until after the close of the prosecution's evidence. The state has rested. So Mr. Maxwell will have the opportunity to deliver that statement now. You are to remember that the statements of counsel are not evidence . . .” He gave them a shortened version of the jury instruction he'd read prior to Mooney's opening last week.

My task was delicate. I needed to make it look like the state had something to hide in not calling Blair; at the same time, I couldn't promise much. The surest way to lose would be to forecast testimony I couldn't deliver. “The prosecution has just closed its case,” I said as I took the podium. “That means that the DA will put up no more witnesses, except in rebuttal of witnesses put up by the defense. The state will not be calling Nathan Blair.

“You've heard the judge's instructions on the burden of proof. The defense has no obligation to put forward any evidence, to produce any witness. Mr. Scarsdale is entitled, right now, to rely on the presumption of innocence and have the evidence go to the jury as you've heard it. Without the testimony of Mr. Blair.

“In just a few hours I think you're going to understand the state's reasons for not wanting you to hear from Mr. Blair. Mr. Scarsdale intends to call two witnesses. The first one will be Mr. Blair.

“Let me just briefly sum up what you've heard about Nathan Blair's involvement in the life of Erica Lawler, his thirteen-year-old niece. First, you've heard that Mr. Blair, when he lost his job as a teacher for whatever reason, also lost his apartment, and so came to live with his sister, Erica's mother, and her family. You've heard that Erica's parents were preoccupied with their work, and that they were grateful to have someone around to drive Erica to school and to her extracurricular activities, to pick her up, to spend time with her at home in the afternoon before her parents returned, sometimes eating dinner with her alone when they didn't get back until as late as seven or eight in the evening. You've heard that Erica, this impressionable young girl, spent more time with her uncle than with any other person in her life.

“You've heard about the bottle of vodka that somebody bought Erica, and you saw the look on her face when my colleague asked her who. And you've heard that at some point, most likely in June of last year, Erica Lawler became pregnant, and Uncle Nate found out about it. Without telling her parents, he drove her in secret to an abortion clinic in Marin County and paid for the procedure that ended her pregnancy. Paid for it with money he seemingly didn't have.

“Why would he do these things? That's the question you have to ask yourselves. He's not going to get up on the witness stand and admit to being the father of the child he paid to abort. He's not going to admit to having a sexual relationship with Erica, under her parents' noses and in their own house. He's not going to admit to raping the teenaged daughter of the only sister he has ever known. And so you're going to have to do something difficult. You're going to have to use your intuition and your knowledge of human nature. You're going to have to watch his reactions and decide what, if anything, you believe Nate Blair is hiding, and what he stands to gain or lose by his testimony today.”

It was a fairly objectionable opening statement. Mooney might have stood up at any of a half-dozen points and shut me down, but he didn't. He sat with his elbows on the table before him, making unhurried notes on a legal pad, continuing his strategy of pretending that the defense didn't exist. If the strategy was meant to rattle me, it worked. The longer I went on speaking, the more disturbed I was by the stillness from the other side of the courtroom. It was as if I were so far gone in error that he didn't need to point it out.

He was right. With every word I was aware that I was doing something that couldn't be undone, smearing the character of an innocent man with accusations that would taint him in ways that neither he nor I could foresee. We were in a court of law, and the accusations I was making were privileged by the forum, perhaps even mandatory according to the ethics of my profession. Those ethics dictated that I mount the strongest possible defense of my client no matter the consequences to others, yet my hands shook and my voice kept catching. I felt a wave of nausea gathering far off, like the surge that comes before the storm. Again and again I swallowed it.

“The second witness you'll hear from is an expert witness, a professional in the field of child psychology. You'll learn her qualifications, along with her expert opinion on how, why, and under what circumstances kids invent allegations of sexual abuse. If you accept that opinion, you may rely on her knowledge in coming to the verdict I'm confident you'll reach in this case.”

I'd skipped over several subheadings in my notes; glancing down, I decided not to backtrack. What was important was to get Blair on the stand and do what needed to be done before I lost my nerve. I wrapped up quickly, saying nothing about whether Scarsdale would testify, preserving for Jeanie, Scarsdale, and the jury the illusion that there was a choice to be made, not knowing myself what I would do at the moment of truth.

~ ~ ~

“The defense calls Nathan Blair,” I said when court resumed.

Blair was thirty-five years old, with a baby's fat stubby-fingered hands, a baby's face, and strangely pale eyes that when they fixed on me gave me a sense that either he or I was falling. His voice broke like a fourteen-year-old's as he swore to tell the truth. The courtroom was silent, the jurors attentive, primed by me to expect scandal.

“You may proceed, Mr. Maxwell.”

“Your Honor, I'd like to invoke the rule.” I was asking the judge to allow me to treat Blair as a hostile witness. Ordinarily, the party calling the witness must ask open-ended questions, but if the judge allowed my request I would be permitted to put words in his mouth.

“The state objects,” Mooney said, stirring himself at last. “Mr. Blair is Mr. Maxwell's witness, and I'm sure he'll be quite willing to answer any questions that the defense puts to him, without the need for leading examination.”

“Overruled. Mr. Maxwell, you may lead the witness. I will allow the state the same latitude on cross-examination, of course.”

I came around into the well of the court and spread my notes along the far edge of the counsel table, so that I could glance at them if needed. “Mr. Blair, you're aware that Erica brought a bottle of vodka to her friend Angela Scarsdale's house on the night she says she was sexually assaulted?”

Blair squinted and looked at Mooney, but there was no help for him there. So he was going to be one of those witnesses, I thought, the kind that have trouble with the English language. I knew how to deal with them.

“You don't want to answer that question?”

“I'm aware that she brought it, yeah.”

“You were the one who drove her to Angela's house that night, isn't that right?”

“I think so.”

“You saying you weren't?”

“No. I think so. Yes.”

“You saying you don't remember?”

“No, I remember.”

“There's no uncertainty about it, is there? You drove her. And you knew when you dropped her off that she had that bottle of vodka in her bag.”

Again he looked at Mooney, this time with an edge of panic in his gaze. Was it possible that Mooney hadn't prepared him for this line of questioning? I stepped between Blair and Mooney, making it obvious to both Blair and the jury what I was doing. “Mr. Blair, what conversations have you had with the district attorney about your testimony in this case?”

“I gave a statement.”

“That was to the police. I'm talking about the prosecutor. Have you met with Mr. Mooney, or Ms. Akida, or anyone else from their office?”

“Ms. Akida.”

“What did Ms. Akida tell you to say today?”

Mooney rose. “Objection. She didn't tell him to say anything. She told him to tell the truth.”

“You're not testifying, Mr. Mooney,” the judge said. “He can answer the question.”

“She told me to tell the truth,” Blair said.

I heard a juror laugh, just a small sound at the back of the throat, likely inadvertent, but it was all I needed, permission to press the attack. “What did Cassidy Akida tell you about testifying in this case?”

“She said I wouldn't have to.”

I realized what had happened. I'd called their bluff. Mooney hadn't thought that I would put Blair on the stand, and so they hadn't bothered to prepare him. In the guise of glancing at my notes, I looked at Cassidy Akida. She was stone-faced, ashen. She'd screwed up.

“Let me ask you the question again. When you dropped Erica off at her friend Angela's, you knew she had the bottle of vodka in her bag, correct?”

“I didn't
know
it.”

“You didn't know it? Did you
not
know it?”

“That's right. I didn't know it. I knew that she had it, but I didn't know that she had it with her. I mean, I figured.”

“And you knew that because you were the one who gave it to her, right?”

“Am I the one on trial?”

“You knew that she had the bottle of vodka because you were the one who'd given it to her.”

“I guess.” He corrected himself hurriedly. “Yes, I gave it to her.”

“Did she ask you to buy the vodka for her?”

“Yes. A few days before the sleepover.”

“Did you buy that vodka with your own money?”

“She gave me money. I don't know where she got it. From her friend, maybe.”

“What were your finances like at this time?”

Mooney might have objected but didn't. Probably he sensed what I did, that the jury wanted to hear from Blair, and that the lawyer who stood in the way of his testimony was going to be blamed for any answers he did not give. “Not too good,” he said.

“Did you have
any
income?”

He shook his head. No doubt he saw now where this was going, if he hadn't seen it before. He looked like a man who'd just been hit in the back with a sledgehammer.

“Savings?”

“No, not really.”

“Did you tell either of Erica's parents that she asked you to buy her alcohol?”

“Of course not. Claire, my sister, she would have killed me. I figured if they don't get it from me, they're going to get it somewhere. They're just going to go up to some bum on the street. Who knows what might happen? Girls get taken advantage of.”

I let that comment pass for now. “Did you tell either of Erica's parents after the fact that you'd bought her the alcohol, or did you keep it a secret?”

“Well, that would have gotten Erica in trouble. I didn't want that. She trusted me. I didn't want to betray that trust. See, this was a point in my life when I didn't have a lot going for me, as you pointed out. Erica would talk to me about things she didn't feel comfortable talking to her parents about. That was important to me. Made me feel like I was useful to someone.”

“Would it be fair to say that your relationship with Erica was the most interesting thing in your life during the summer of two thousand and one?”

His face looked wan, as if I'd hit him with that hammer again. I waited for the objection, and again it didn't come, although I heard Mooney shift his feet as if preparing to stand. “Interesting, I don't know. I don't know if that's the word I'd use. It was important to me.”

“Can you tell the jury anything that was more interesting to you, or that you thought of as more important that summer?”

“Getting back on my feet. Getting a job, I guess.”

“So you must have been sending out applications left and right, doing whatever you could to get out from under your sister's roof and back on your own.” I was off script now, doing my best to hang him with his own rope.

“Yeah. You know. Here and there.”

“Name one company you applied to, or one application you submitted.”

Again the stunned look. He shook his head. “I can't think of any. But I was applying to places.”

“You've got a job now, don't you.”

“Yes.”

“A good job. The best you've ever had.”

“Yes.”

“You don't want to lose it.”

“Hell, no.”

“You know that it's a crime to provide alcohol to minors.”

“Like I said, they were going to get it one way or another.”

“On what other occasions have you provided Erica with alcohol?”

“Just a few times.”

“A few times you went to the liquor store or the grocery and bought alcoholic beverages for her and her friends?”

“That's right. Only a few times.”

“Did you ever drink with her?”

“If I was having something she'd ask for a sip. In the evenings.”