Defense of an Other

by Grace Mead

  Thibedeaux rose. “Mr Durant, you said you were drinking throughout the night of September 7, correct?”

  “Yes.”

  “Did the police perform a breathalyzer test when you were arrested late that night?”

  “Yes.”

  “How long had it been since your last drink when the police performed that test?”

  “About an hour and a half.”

  “Do you know what the results of that breathalyzer test were?”

  “I believe it was 0.18.”

  “And are you aware that 0.18 is over twice the legal limit for driving?”

  “Objection,” Farrar said.

  “Overruled. Answer the question, Mr Durant.”

  “Yes.”

  “Do you think that being intoxicated could have affected your judgment on the night of September 7?”

  “It probably could have affected my judgment at the margins, but as I testified, I can’t think of anything I could’ve done differently in that alley.” Matt wondered if he sounded too evasive, and knew that Thibedeaux would press with more focused questions.

  “Do you think being intoxicated could have affected your ability to determine whether Mr Cutler had a knife?”

  “It may have affected that ability at the margins, but I’m certain he had a knife.”

  “Do you think being intoxicated could have affected your ability to recall details of that night?”

  “It may have affected my ability to recall details, but I clearly recall everything that I just testified to. A threat to your life will sober you up pretty quickly.” Again, Matt hoped he didn’t sound like he was dodging the question.

  “Do you know whether the police found a knife on Mr Cutler?”

  “I understand they didn’t.”

  “How much did you earn at Farrar Levinson?”

  “I earned about $100,000 a year.”

  “That would be a lot to lose if your attack on Mr Cutler was unprovoked, wouldn’t it?”

  “I’m far more concerned about the death penalty than losing my salary.”

  “Are you concerned enough about the death penalty to lie?”

  “No. If I’d wanted to avoid responsibility, I would have tried to run from the alley after hitting Mr Cutler. I didn’t.” Matt looked at Thibedeaux defiantly, daring him to continue the cross-examination.

  Thibedeaux looked at his legal pad, considering his remaining potential questions. “No further questions, Your Honor,” he concluded.

  “We’ll now take our break for lunch,” Judge Masterson said. “I remind the jurors not to discuss the case during the break.” The jurors went out a door near the bench toward the jury room, and Judge Masterson rose to go to his chambers.

  Matt stood, exited the witness stand, and exhaled a small measure of the tension locking up every muscle in his body.

  Farrar turned to him and said, “You did well. You’re much more credible than the three stooges.” His mother hugged him.

  After the lunch break, Farrar led the jury on a brisk march through corroborating details. He began with Robert Diener, a delicate man with rimless glasses and a carefully trimmed moustache. Diener was an expert on photography in general and security cameras in particular. He’d analyzed photographs from an ATM machine located on St Ann Street that had captured blurry photographs of the events in the alley; he walked the jury through pictures of Matt and Joey leaving Drink as well as enhanced ones and an analysis that showed an eighty-percent chance Cutler had been holding a finished metal object in his hand. The prosecution, unsurprisingly, focused on the twenty-percent chance that the object wasn’t finished metal.

  Farrar also presented testimony from Jennifer Dobson, the plastic and reconstructive surgeon who’d repaired Joey’s nose. Dobson, a slight woman with mousy brown hair, testified about the severity of Joey’s injuries.

  Farrar concluded the day with the first character witness, Judge Michael Thompson. Matt had clerked for Judge Thompson on the Louisiana Third Circuit Court of Appeal after law school. As he had during Matt’s testimony, Judge Masterson ceased typing on his computer and listened closely to Judge Thompson’s testimony. The jurors followed his cue. Judge Thompson testified that Matt was honest, moral and had performed important job responsibilities with a full awareness of their importance. He testified he considered it impossible that Matt had committed the crime with which he was charged. All in all, it was an excellent day for the defense.

  Judge Masterson excused the jury. After they had filed out of the room, he turned to the attorneys. “Mr Farrar, how many more witnesses do you intend to call?”

  “Your Honor, we currently anticipate calling only one more witness, Mary Durant.”

  “Very well. I’ll see you all in the morning.”

  Chapter 12

  Matt and Mary prepared dinner on Thursday night. Long ago, Mary had found a meatloaf recipe fit for Louisiana; it banished ketchup and oatmeal, replacing them with Worcestershire sauce, whole mustard seed, chili powder and cayenne. Matt couldn’t stand the traditional, bland dish: the spicier version, since childhood, had been his comfort food. She took it out of the oven, pulled rice off the stove, and the two sat down to dinner.

  “So, Matt, before I went to the grocery store, I went to St Louis Cathedral.” So much for a casual dinnertime conversation, thought Matt.

  “Mom, hate to break it to you, but you’re not Catholic. You’re Methodist.”

  “I know, honey, but it’s such a beautiful church. It has stunning paintings inside covering the walls and ceiling, and I just needed a quiet place to think and pray. Besides, nobody asked me if I was Catholic.” As usual, she matched his wit, defusing it.

  “You do know there’s a statue of a Confederate general out front, and the Catholic church thinks being gay is a sin, right?”

  “Well, as you pointed out, I’m not Catholic. I know you barely tolerate going to church with me on Christmas and Easter and I guess I appreciate you at least doing that, but sometimes going to church helps me to feel like I’m in the palm of God’s hand.”

  “It doesn’t help me. Apparently, I don’t get to sit there so it does nothing for me. Lots of people around here think gay people are going to hell. They probably think that Mahatma Gandhi went to hell. I guess I’ve bet my soul that Gandhi’s not in hell.”

  “Well, would you form an opinion on any historical or legal issue without reading the most important text?”

  “No. But you know I had to constantly learn Bible verses growing up, for school and Sunday School.” Matt recited, at a blistering pace: “For God so loved the world He sent His only begotten son that whosoever believeth in Him shall not perish but shall have eternal life. John 3:16.”

  “Did you ever think about what you just recited?”

  “Yeah, it says you have to believe in Jesus to avoid hell.”

  “No it doesn’t. Memorizing and reciting is not understanding, and you know that. You’re not even trying,” Mary said. “I think it says if you believe in, and try to follow, Jesus’s teachings, you won’t go to hell. It doesn’t say if you don’t believe in Jesus you’ll go to hell. It certainly doesn’t mean Mahatma Gandhi’s in hell. I know you don’t read legal cases that sloppily.”

  “Well, lots of people think it means that.”

  “Well, at least since Martin Luther nailed that paper on that church in Germany, you get to read it and decide for yourself. Why don’t you think about reading the Gospel and actually using that big brain of yours to think about it? You could use some prayer and support.”

  “No thanks.” Matt needed say nothing further: his mother had to know that he wouldn’t restrict himself to the New Testament; that he feared if he read the Bible too closely he would discover himself irredeemable; better to live with that possibility than to study until it became a certainty.

  “Well, you can’t stop me from praying for you. And I do every night. Ever since you were born.”

  The phone rang, interrupting them, and Matt
ducked into the bedroom to answer, thinking it might be Eric and feeling guilty.

  But it was Farrar. “Matt, we have an emergency. I just received a call from Thibedeaux telling me he’s going to ask the judge’s permission to put on a rebuttal witness. Apparently some guy named Frank Hodges was busted on a parole violation earlier this week. And now he’s saying he can testify you were training to kill in that gym you work out in. What do I need to know about this?”

  “That’s not true. Before that night in the alley, I just went there for exercise. I never even did any full-contact sparring.”

  “Why were you exercising with a guy on parole?”

  “Well, I wasn’t exactly exercising with him,” Matt said. “Tommy brought him in to talk to me about survival strategies in prison.”

  “Damn it, Matt,” Farrar said. “You had to know how that would look. You’re lucky a reporter didn’t get hold of it.”

  “We trained there after-hours, when no one was around.”

  “Oh, that looks much better,” Farrar said. “Didn’t you think training to go to prison might make it look as if you expected to go to prison? You’re no stranger to the importance of admissions.”

  “What choice did I have?” Matt asked. “I trust you, Thomas, but come on. I almost got the shit kicked out of me in the middle of the French Quarter because I’m gay.” His voice had risen to a shout. “What do you think is going to happen to me if I go to prison?” Matt realized too late his mother had overheard him from the other room and deflated.

  “Okay,” Farrar said. “We can’t change what’s already been done. Let’s figure out what to do now.” He questioned Matt methodically about his single meeting with Hodges for the next half-hour and concluded by telling Matt to “get this Tommy O’Rourke guy over to the office tonight so I can interview him.”

  Tommy readily agreed to meet with Farrar, but when Matt phoned to inform the trial lawyer, he told Matt not to come into the office.

  “I want to hear Tommy’s version of events without interruption. And we’re not going to make the same mistake that idiot Detective Jones did by having you listen to it.” So Matt was relegated to crawling into bed.

  Andre Thibedeaux had requested a conference with Judge Masterson first thing in the morning, before he called the jury into the courtroom. The defense team was subdued that morning and hardly spoke to one other. Matt hoped the judge couldn’t detect their mood and he could mask it later when the jury entered the courtroom.

  “Your Honor, I received a message while in trial yesterday from a parole officer,” Thibedeaux said. “He indicated they had a parolee named Frank Hodges who’d tested positive for cocaine. When he came in yesterday to meet with the officer, he offered something in exchange for leniency.”

  “They usually do,” Judge Masterson said. “How on earth does that have anything to do with this case?”

  “Mr Hodges will testify Mr Durant was training in deadly hand-to-hand combat techniques to prepare for going to prison. We think his testimony will rebut the defendant’s self-defense claim.”

  “Your Honor, we object,” Farrar responded. “The prosecution shouldn’t be able to introduce such inflammatory testimony about what happened after September 7. Hasn’t the prosecution presented enough witnesses with a criminal background in this trial? And it’s far too late in the day for them to call a surprise witness.” Matt could tell Farrar was working hard to avoid any suggestion of shrillness and sound authoritative—he just barely succeeded.

  “Mr Thibedeaux, why didn’t you investigate this earlier?” Judge Masterson asked.

  “Your Honor, we attempted to interview the owner of the gym as well as a handful of regular customers,” Thibedeaux said. “Everyone refused to talk to us.”

  “Your Honor,” Farrar began, “we’d like to object on the additional grounds any such training after the night of September 7 is irrelevant to what Mr Durant did on September 7. Any slight probative value would be substantially outweighed by the risk of enormous, unfair prejudice.”

  “It’s relevant,” Thibedeaux insisted. “Training to prepare to go to prison and what he said while training are admissions. They show his consciousness that he is, in fact, guilty.”

  “Consciousness there’s a risk one might go to prison is hardly consciousness of guilt,” Farrar said. “And as for whether Mr Durant reasonably held on to that beer bottle, the prosecution should have done a more thorough investigation and explored this line of evidence during their direct case.”

  “We still have one more witness in the defense case, right?” Judge Masterson asked.

  “Yes, Your Honor,” Farrar responded.

  “Well, why don’t I take some more time to consider the issue of whether Mr Hodges can testify? I’ll rule after the defense’s last witness is done.”

  “Thank you, Your Honor,” Thibedeaux responded. Farrar remained impassive; a poker face was his best bet. Matt exhaled and tried to put the thought of Hodges’ potential testimony out of his mind because there was nothing to be done about it at the moment—at times repression could be adaptive.

  Judge Masterson arrived back at the bench, instructed his clerk to bring in the jury, and addressed them. “Ladies and gentlemen of the jury, I apologize for the late start. From time to time, legal issues may arise in this case I don’t want to waste your time with. One of those issues came up this morning, so I had to discuss it with the attorneys before we could begin. I thank you for your patience. Mr Farrar, your next witness.”

  “Thank you, Your Honor. The defense calls Mary Durant to the stand.”

  Mary took her seat in the witness box, pallid and wan against the dark wood and leather. Her lips were tightly drawn and her white knuckles clutched the strap of the black leather tote in her lap.

  “Ms Durant, can you please describe your relationship to the defendant?”

  “I’m his mother.”

  “Was Matt ever in any sort of trouble growing up?”

  “No. He was a pleasure. I’m sure he got a few detentions, but he was a model student and child.” Mary actually managed a smile before her normally anxious expression reasserted itself. “Matt’s only flaw was that he’s always been very serious. I sometimes worried he just didn’t have enough fun.”

  “Is Matt an honest person?”

  “He’s honest to a fault. Again, I think that’s part of his seriousness. He’s been so intense over the years, and he’s constantly pushing himself. I think he does it in part because he knows other young lawyers may have had the advantage of going to fancier schools.” She shook her head and some of the tension left her shoulders. “The only thing he can be sure of is they haven’t lived through the demands he places on himself.”

  “Is there anything else bearing on Matt’s character you’d like to share with the jury?”

  “He’s always done a lot of volunteer work. In high school, he taught several illiterate adults how to read. Once he was in law school, he began to do volunteer work through the law. He’s helped many poor people accused of crimes just because he wants to be sure they have adequate legal representation.”

  “Knowing Matt’s character as you do, do you think he would ever buy drugs?”

  “No. Absolutely not.” Mary said. She straightened her spine and squared her shoulders as she looked at the jury.

  “Have you ever seen any signs that Matt used drugs?”

  “No. He drinks, especially on weekends, like most other people in Louisiana, but I don’t think he’s ever done drugs. Matt’s tremendously driven and I don’t think he’d impair himself in a way that could compromise his goals.”

  “Did you know that Matt was confused about his sexual orientation?”

  “No. I mean, he’s always had girlfriends.” Mary looked down at her lap. “I blame myself in a way for him having to get drunk to go to that gay bar. He should’ve known that he could talk to me about anything. He shouldn’t have worried about how I would react. We’ve gotten through a lot together.�
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  “Do you think that Matt would ever kill anyone to cover up his participation in a drug deal?”

  “No. You have to understand that what Matt says happened in that alley is consistent with everything I know and love about him. He wouldn’t have seriously considered abandoning someone else who was in trouble. Matt would never leave someone defenseless. I think in some ways he’s here today because he was too rigid about his standards. In the face of hate, he tried to do the right thing. But hateful people are least likely to respond to the right thing in the right way.”

  “No further questions, Your Honor,” Farrar concluded. Thibedeaux declined to ask Mary any questions. Mary rose, with her hands trembling, and Matt felt a pang of guilt for putting her through the ordeal of the trial and her testimony; perhaps by failing to acknowledge he was gay he’d simply replaced one trial with a different, far harsher one.

  “Ladies and gentlemen,” Judge Masterson began, “I think we should break for the weekend now. I know it’s early, but the lawyers and I need to discuss some legal issues before you return. Please remember not to discuss the case with anyone. Thank you, and have a good weekend.”

  The lawyers and spectators rose and watched the jurors file out the rear door behind the jury box.

  “As far as I can see, we have two issues to resolve this afternoon,” Judge Masterson said. “The first is the status of Mr Hodges, and the second is the proposed jury instructions. As for Mr Hodges, I’m going to let him testify on Monday. I appreciate the defense is upset the prosecution didn’t find the witness sooner, but I think it’s relevant testimony and I won’t exclude it because they weren’t able to discover these facts earlier. But as far as I understand it, Mr Hodges will only be testifying Mr Durant received additional training to prepare for the possibility he might go to prison, correct?”

  “Yes, Your Honor,” Thibedeaux said.