The Hanging Judge (41 page)

55

“W
hat are you eating?”

Eva stood in the doorway of Frank’s office, writhing and reaching behind her as she tried to scratch an itch the middle of her back.

Frank waved a brown rectangle at her before taking a bite.

“Diet bar. Trish says I’m getting alderman’s jowls,” he said. “They’re not bad. This is my third one this morning. You okay there, or what?”

Eva turned away from Frank and pointed.

“Scratch my back please.”

A week had passed since the guilty verdicts, and the days spent watching the penalty-phase evidence had been brutal. Gomez-Larsen held nothing back, dominating the courtroom with the efficiency of a tennis pro humiliating an overmatched opponent. She led off with the testimony of the EMTs, who described Ginger Daley O’Connor’s terrified face and their desperate efforts on the sidewalk to stop her bleeding. Then, one after another, Ginger’s coworkers marched to the witness box, sketching for the jurors the impact of Ginger’s violent death on the clinic and their children’s nightmares, as well as their own. Ginger’s seventy-nine-year-old mother followed, groping for words to convey to the jury the horror of learning what had happened, the black cloud over every holiday and birthday. The old woman’s faltering passage back across the courtroom after she finished testifying brought her within six feet of Moon. When she paused before him for several seconds with her hand pawing the air, and it looked as though she was about to say something, Norcross quietly asked her to return to her seat in the gallery.

After that, Ginger’s husband, Jack, offered his testimony, and then her son, Edward, came forward to offer his. As the boy lifted his hand to take the oath, before he’d uttered a single word, four of the jurors were already wiping tears away, and Norcross called a ten-minute recess that extended to nearly an hour while the exhausted panel regained its composure.

Carmella Díaz proved to be the government’s secret weapon. In a lightly accented voice, she described her pregnancy, Peach Delgado’s joy at the prospect of fatherhood, their shattered plans for the future, and her miscarriage, brought on by the sight of Delgado lying dead in a pool of blood in the crosswalk. When it was her turn to make her way back across the courtroom, the eyes of the jurors followed her and then shifted to where Moon sat—iron-faced, still staring at the backs of his hands, the perfect image of unrepentant viciousness.

The defense witnesses during this stage were only two so far: Sandra Hudson and a child psychiatrist who testified that the defendant’s execution might eventually have a “deleterious effect” on his baby, Grace. Gomez-Larsen, in a bored tone, waived any questioning of Sandra. The guilty verdicts already confirmed the jury’s opinion of her. Gomez-Larsen made cruel sport, however, of the defense psychiatrist’s clinically phrased assumptions, brought out that he was being paid three hundred dollars per hour, and left him looking, as Eva put it, “like the hired gun who couldn’t shoot straight.”

Now as she reveled in Frank’s vigorous scratching, Eva said, for the tenth time, “I still can’t believe they found him guilty.”

Frank moved his hands up to give his co-clerk a shoulder rub. “Like I said, Hudson was dog meat after Pepe testified. You could tell even the judge thought he was a Boy Scout.”

“He was lying, lying, lying, Frank—lying to save his little round behind. Thanks, that’s better.” Eva put her hands in the small of her back and stretched. “Buddy Hogan is not going to cut Pepe any deals for saying his dead uncle Carlos did it, that’s for sure.”

Frank returned to his desk and sat down. He reached into a drawer for another diet bar.

“Maybe not. But if I’ve learned one thing here, it’s that a trial is about believability, not necessarily truth. Whatever that is.” He peeled back the wrapping and sniffed before taking a bite. “Speaking of which, how about the horrible jury instructions?”

“Well, it’s anybody’s guess what the word ‘justified’ means, but come listen to what we’ve got this time. And leave the crud bar please. It’s making me nauseous.”

The battle over the wording of the judge’s final penalty-phase instructions to the jury had been hot, both in the courtroom and in chambers. Norcross had read, edited, and tossed back drafts of the final pages to Eva three times, trying to get the words perfect.

“He’s crazy,” Eva said. “It’s impossible.” She stepped around piles of paper on her office floor as she made her way to her cluttered desk. “Language won’t slice so fine. It’s like trying to perform brain surgery with a trowel.”

“Let’s hear.”

Eva dropped into her chair and tapped her keyboard. “Okay, this comes after we tell them the aggravating factors have to outweigh the mitigating factors, blah, blah, blah.” Sighing deeply, she read off her monitor: “The careful judgment that the law expects you to exercise in this regard is further reflected in the fact that, even if you are persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, you must still be unanimously convinced beyond a reasonable doubt that the aggravating factors are sufficiently serious to demand the penalty of death.”

“I thought he wanted ‘justify’ there, not ‘demand,’ ” Frank broke in.

“What the fuck does ‘justify’ mean? And what’s the difference between asking the jury to find that death is ‘justified’ versus death is ‘demanded’?”

“Come on. It’s obvious.”

“I’m going with ‘demand.’ Let him change it.”

Standing in the doorway, Frank placed the heels of his hands together, tapped his fingers, and quoted Dr. Seuss. “ ‘He meant what he said, and he said what he meant. An elephant’s faithful one hundred percent.’ ”

Eva stared at the screen and swallowed twice before her fingers began to dance over the keys. A few taps, and it was done.

“… that the aggravating factors are sufficiently serious to justify a sentence of death. If even one juror thinks justice could be served by a sentence less than death, the jury is not permitted to return a decision in favor of capital punishment.”

“ ‘May not return’ was the phrase, I thought,” Frank interrupted again.

“He wants it this way,” Eva said, still staring at the screen bleakly.

“ ‘One fish, two fish—red fish, blue fish.’ ”

“You should get out more, Frank. Here’s the grand finale: ‘I also remind you, ladies and gentlemen, that you are never required to impose a death sentence. For example, there may be something about this case that you are not able to identify as a specific mitigating factor, but that nevertheless creates a reasonable doubt about the absolute necessity for the defendant’s …’ ”

“You’re fudging again. ‘Absolute’ wasn’t in your earlier draft.”

“He stuck that in during the last round. Shut up and let me finish.” She continued: “ ‘Any one of you is free to decide that a death sentence should not be imposed for any reason you see fit. Indeed, I am specifically required to advise you that you have this broad discretion.’ Blech!” Eva shook her head with disgust. “Really. What the fuck does ‘justified’ mean?”

“You’re right. It stinks. But it’s the best you’re going to do, little buddy.” Seeing the twisted look on her face, Frank took a step forward and added: “They’re words on paper, Eva. They can only do so much.”

“It’s fucking horrible.” She folded her arms on her desk and buried her head. “And don’t call me ‘little.’ ”

The orange light reflecting off the brick of the buildings across from the courthouse gave Frank’s face a flush as he sucked on the end of his mustache.

“I have some good news,” he said in a wheedling voice.

“You have good news,” Eva parroted. “You would.” She looked up. “Shit, you haven’t written any more gay marriage letters, have you? The judge will have a …”

“Nah, one near-death experience was enough. This is better. I promised Trish I wouldn’t tell, but …”

“Oh no,” Eva said, starting to smile despite herself. “You’re not …”

“We are,” Frank said, bursting into a grin. “We’re pregnant! Can you believe it? God, I’m praying for a girl this time!”

56

J
udge Norcross’s voice cut the air with a note of warning: “I take it the defense has no further witnesses?”

Redpath felt the weight of his exhaustion pressing down on his shoulders. He tapped with his large, square fingers on counsel table, counting the moments before he replied, still uncertain whether to plunge. Finally, he bowed slightly and took a breath.

“Judge, I’m going to offer one final witness.” He paused, noticing Norcross tuck in his chin. “A very brief one.” Gomez-Larsen leaned back in her chair and folded her arms.

He could see the judge working to keep his cool. “I’ll see you at sidebar.” Norcross’s expression did not crack, but several jurors did not trouble to conceal sour looks. One cleared her throat loudly and coughed. The whole front row shifted and rustled.

I’ve lost them,
Redpath thought as he and Gomez-Larsen walked, one more time, across the spongy courtroom carpet toward the far right corner of the bench.

As soon as the stenographer wormed her way into place, Norcross spoke. “I don’t see any other witnesses on your list, Mr. Redpath.”

“I didn’t list him,” Redpath said.

“If the witness was not disclosed, then how can I allow you to put him on? Or her on. It wouldn’t be fair to the government.”

“Judge, the witness is a minor. I only learned last night that his father would permit him to testify.”

“Well, at a minimum, you could have listed him as a potential witness, to put Ms. Gomez-Larsen on some kind of notice.” Norcross dropped his voice to be extra sure the jurors wouldn’t hear, and Redpath caught, with respect and some gratitude, the note of sympathy in the judge’s voice. “Think about what you’re doing here. I told the jury: final arguments and charge today. They’re not going to be happy if we don’t get to it.”

Redpath hesitated, then plowed forward. “It’s the son of one of the victims, Your Honor. I had no idea until last night at eight thirty.”

“Whose son?”

“It’s Michael O’Connor, Ginger O’Connor’s youngest.”

Norcross rocked back, looking surprised. “Criminy Christmas! You’re calling him?” He seemed to consider, then shook his head. “He’s only, what, eight or nine years old? I’d need to examine him outside the presence of the jury to see if he’s competent to testify. Are you sure you want me to let you do this?”

“He’s eleven, Judge. I’m told he’s mature for his age.”

“You haven’t even spoken to him?”

“Not directly.”

“Wow.” Norcross began scratching the back of his neck and shaking his head. Redpath placed both hands on the edge of the bench. If he was going to do this, there was no point in antsing around.

“Your Honor, Jack O’Connor, the boy’s father, called me.” He placed a hand on his chest with deliberate melodrama. “
He
called
me
, Judge. Last night, at eight thirty at my hotel. I about had another heart attack, frankly. He said the boy wants to testify,
needs
to testify. That’s the first I heard of it.”

“And you don’t even know what he’s going to say?”

“Only a vague idea. I’m probably committing malpractice here.”

“Good gravy.” Norcross had his chin on his hand, thinking hard.

While the interchange between defense counsel and the court twisted its way downstream, Gomez-Larsen had remained to the side of Redpath a step or two back from the bench. She was looking down at the carpet, nudging a piece of lint back and forth with the toe of her black pump, as though she were concentrating on some private game and not paying too much attention to the boys at the bench. Her serenity was giving Redpath the willies—what was she up to?—and now Norcross turned to her.

“What’s the government’s position?”

This was fair enough, but Redpath hated the thought of sharing control with the prosecutor. Should he have asked for a recess?

Gomez-Larsen took her time answering, rolling the ball of lint under her toe to play out the final set of whatever match she’d been fixed on.

“We don’t object,” she said at last in a neutral voice. She turned to Redpath. “Mikey will be twelve this August, Bill. He’s going into the seventh grade, and, you’re right, he’s pretty grown up for his age.” She lifted her dark eyes toward the bench. “We’ll stipulate to his competency. Fact is, Jack O’Connor called me last night, too. He said it’s important to the boy, and we owe it to him. So I’ve made my peace with this. It’s up to you, Judge. I don’t have much idea what the boy’s going to say, either. But if defense counsel wants to play Russian Roulette, we’re happy to let him pull the trigger.”

Norcross shook his head slowly.

“Well, I can feel the Court of Appeals breathing down our necks right now, all the way from Boston. The phrase ‘reversible error’ keeps running through my mind.”

“How about ‘ineffective assistance of counsel’?” Redpath broke in.

“It’s been, you know, an honor and a privilege,” Norcross continued. He smiled briefly and cleared his throat. “Spending all these weeks with you two, a true barrel of laughs, but …”

Redpath and Gomez-Larsen looked at each other wearily.

“Feeling’s entirely mutual,” Gomez-Larsen said.

“I’ll second that,” Redpath said.

“But it sure would be nice not to have my pals on the First Circuit remand this gorilla for another go-round.”

Redpath watched as Norcross lifted his eyes to the ceiling, thinking. The silence deepened, and the judge stroked the bridge of his nose. One of the jurors muttered something; another, a female, coughed.

“Okay, Mr. Redpath,” Norcross looked down. “Call your witness.”

Redpath returned slowly to counsel table, feeling as though a trapdoor could open up beneath him at any second. He nodded up at the bench and said in a lowered voice, “If Your Honor please, the defense calls Michael O’Connor.”

The jury, which had been carrying on with its unhappy fluttering, died into a stillness at the lawyer’s words. Every eye turned to the undersized, dark-haired boy who now rose from the first row of the gallery, glanced back at his brothers and father, and then walked, quite alone, toward the swinging oak door that marked the entry to the well of the court.