Defense of an Other

by Grace Mead

  “Very well. You’re going to be on a very short leash. As for the jury instructions, my clerk is handing those out as I speak. The instructions supplied by the parties were blatantly partisan and the version I’m handing out has been adapted from my prior charges in other murder cases. You may review them over lunch, and we’ll meet again this afternoon to discuss them. Anything else?”

  “Your Honor,” Mr Farrar said. “We’d like to reiterate our objection to the surprise witness, but if Mr Hodges testifies, we’d like to be able to call another witness in response. We’d like to call Tommy O’Rourke, who owns the gym where Mr Durant supposedly received this specialized training.”

  “I’ve heard your objection and already overruled it. As for Mr O’Rourke, you may call him on Monday after the testimony of Mr Hodges.”

  As Judge Masterson had forewarned, his jury instructions were neutral and largely drawn from standard jury instructions. Farrar and Matt were optimistic the charge would assist this jury in deciding the case correctly. Only one concern lingered in the back of Matt’s mind: if the jury decided the case the wrong way, it wouldn’t provide any ammunition for an appeal.

  Chapter 13

  On Monday morning, Matt arrived at counsel table. He dreaded the thought of Hodges testifying—the ex-con could have made a story up out of whole cloth to ingratiate himself to the prosecutors.

  Hodges might feel constrained to tell the truth because of Farrar’s potential cross-examination or Tommy’s testimony. But Matt had lost track of what the truth might be from Hodges’s perspective. He didn’t know what Hodges might have heard at the gym: How long the parolee waited before the training session he’d attended? How close had he been while he and Dave had been talking? Had Dave said Matt didn’t need the bottle in the first or second training session? And what exact words had he used in response to Hodges’s suggestion he attack a smaller, weaker inmate? Since Thursday night, he’d wracked his brain for additional details, but he could only pick out fragments. He had no idea what the man would say.

  Judge Masterson took the bench. “I’ve been thinking about Mr Hodges over the weekend and I want a preview of his testimony before the jury hears it.” Matt tamped down the upwelling of relief and couldn’t bear to look back at Mary; he didn’t want to see her hopes rise only to be dashed; and he didn’t want to broadcast to the Judge that the considered Hodges’ testimony important.

  Judge Masterson continued: “I know that means keeping them waiting, but I want to hear exactly what Mr Hodges has to say. Is he here?”

  Hodges approached the witness stand, wearing khakis and a button-down shirt. He brushed back his long hair as he sat; and he kept his lips pressed together, likely a habit to conceal his yellowed teeth. Matt wondered if it was drug-use or stress that had Hodges looking pale and shaken. From the jury’s perspective, maybe it wouldn’t matter.

  “Mr Thibedeaux?” Judge Masterson asked.

  “Mr Hodges, have you seen Matthew Durant before today?”

  “Yeah, I met him at Tommy O’Rourke’s boxing gym.” Hodges remained close-mouthed and spoke softly.

  “What was the purpose of that meeting?”

  “He wanted to learn how to stay safe in prison.”

  “What was Mr Durant doing when you arrived?”

  “Dave Anderson, who used to be a Navy SEAL, was showing him some self-defense techniques.”

  “Do you know why Mr Anderson was showing Mr Durant some self-defense techniques?”

  “Well, I assume—”

  “Objection, speculation” Farrar said.

  “There’s no jury here, so I can hear it,” Judge Masterson said. “But I do want his testimony to focus on what he knows, what he and Mr Durant said and what he and Mr Durant did. Not what he assumes or speculates.”

  “I’ll move on, Your Honor. Mr Hodges, did Mr Durant say why he wanted to meet with you?”

  “I said I’d heard he was in a bit of trouble and he said that about summed it up.”

  “Did you offer any strategies for Mr Durant to pursue once he was in prison?”

  “Yeah, I told him he should beat up someone as soon as he got there. It would show the other inmates he could handle himself.”

  “How did Mr Durant respond to your suggestion?”

  “He said he was a pretty good lawyer and asked why he couldn’t offer to help inmates with their cases for protection.”

  “What did you say in response?”

  “I told him most convicts have lousy legal cases.” He shrugged. “And if he lost a case, it could get him killed.”

  “Did Mr Durant say anything in response?”

  “Naw.” Hodges shook his head. “He just asked whether I thought the other cons would attack him if they heard he was gay.”

  “Wait a minute,” Judge Masterson said. “Maybe I can cut to the chase. Please tell us everything else that Mr Durant said in response to your recommendation he attack another inmate.”

  “He said he understood me.”

  “That’s it?” Judge Masterson asked, eyebrows shooting above the black frames of his glasses.

  “That’s it.”

  “I’ve heard enough,” Judge Masterson said. “Mr Hodges, please leave the room while the lawyers and I discuss some legal issues.” He glared at Thibedeaux as Hodges stood and walked out of the room.

  “This is garbage,” Judge Masterson said. “Those don’t sound like admissions to me. Do you still want to present this witness or have I spared you some embarrassment in front of the jury?”

  “Your Honor, I believe his testimony is relevant—”

  “No. It’s not. We’re not doing this. Not in a murder trial. Are you prepared to deliver your closing statement?” Judge Masterson crossed his arms.

  “Well, Your Honor, I’d expected we’d have two more witnesses today.”

  “Who you also knew would probably be done by lunch, especially if you had any idea Mr Hodges’s testimony was going to be so thin.”

  “If I could just have a few minutes, Your Honor.”

  “You have fifteen. The jury’s waiting and, while you may be determined to waste their time, I’m not.” Judge Masterson rose before his clerk could announce his departure. The lawyers and spectators stood in a ragtag fashion.

  Matt couldn’t help but smile. Hodges had sounded pretty lame, but he still wasn’t sure what the jury would have made of the precautions he’d taken against going to prison. Now they were back where they had ended last week, with the prosecution’s case in shambles. And if Thibedeaux and Farrar had to deliver their closing statements on short notice, Matt thought that favored Farrar.

  Thibedeaux scribbled furiously throughout the break. As they waited, he joined Mary in the galley, where she grasped his hand and he looked up to see a wan smile; she was trying to encourage them both. He wanted to avoid distracting Farrar from his preparations so simply squeezed back.

  The jury filed back into the room after precisely fifteen minutes and Judge Masterson instructed Thibedeaux to proceed with his argument.

  “Ladies and gentlemen,” Thibedeaux said. “I’d like to conclude the trial the same way I began, by thanking you for your service. That service will not last much longer.” He departed the lectern and walked toward the jury.

  “Your service should end quickly because this isn’t a complicated or difficult case. There were three eyewitnesses to what happened in that alley on the night of September 7, and every single one testified they saw the same thing: Matt Durant, frantic at the thought of being discovered purchasing drugs, killed Brian Cutler in an attempt to cover up his criminal activities.” Thibedeaux looked at Matt as he levied the charge.

  “Against the weight of the consistent testimony from three eyewitnesses, you have only the testimony of Matthew Durant. He’s potentially facing the death penalty, and it’s not surprising that a lawyer could come up with an artful self-defense theory in the face of such a penalty. But Mr Durant’s claim of self-defense simply doesn’t hold up. Mos
t importantly, the police didn’t find a knife in that alley, on Mr Cutler or anywhere else. Mr Durant’s attorney points to a fuzzy picture that might show a piece of metal to argue Mr Cutler had a knife that night. But you heard Mr Durant’s expert admit that at least one out of five times that computer program will misidentify metal. And a piece of metal isn’t necessarily a knife. Mr Durant’s attorney also attempted to attack Detective Jones for failing to investigate his claim of self-defense more thoroughly. Of course, Detective Jones wasn’t even aware of Mr Durant’s claim of self-defense at the time. None of the witnesses he interviewed raised the possibility. And Mr Durant’s attorney hasn’t explained how Detective Jones was supposed to guess Matthew Durant’s version of events.” Thibedeaux cast a scornful look at Farrar. “Mr Durant also called a variety of character witnesses, including his mother. The prosecution doesn’t dispute Mr Durant is intelligent and a technically capable attorney or that his mother loves him, but very little of that testimony spoke to his character for honesty or morality. It boiled down to testimony that Mr Durant is a very smart and capable young man, which no one disputes. That supposed character evidence also shows Mr Durant had a great deal to lose if he were convicted of attempting to purchase cocaine. Mr Durant, for the first time in his life, was making a considerable amount of money. Mr Durant also craves the respect of his bosses and he testified that he went out of his way to conceal his sexual orientation to keep it. What lengths do you think he would go to in order to cover up the fact he’d tried to buy cocaine?” Thibedeaux raised and lowered his hands to punctuate the question, and finished with his left finger pointed toward Matt.

  “Mr Durant admittedly had a strong motive to lie about attempting to purchase drugs before his arrest. He has an even stronger motive to lie now. How did Mr Farrar respond? With a hodgepodge of attacks on the character of the three eyewitnesses who saw Mr Durant commit this murder. Mr Rand is lying because he was arrested for battery. Mr Buckner is lying because of an ambiguous tape and because criminals most frequently witness criminal acts. And then we come to the best of his excuses, that Mr Harlan is lying because he got into trouble with his high-school principal. Mr Durant’s mother testified that he’d received detentions, but I didn’t cross-examine her about those. None of the various reasons Mr Farrar has offered throughout the trial justify ignoring the testimony of three eyewitnesses. And don’t forget, Mr Durant has the strongest motive to lie.” Thiebedeaux raised an arm and open palm toward the defense table, in a sweeping gesture.

  “Mr Durant has the most to lose. He could potentially be facing the death penalty. We may not have scoured Mr Durant’s elementary-school years for detentions to prove he’s lied before. But that’s because we didn’t need to. If Mr Durant ever had a reason to lie in his life, it was in this courtroom to you. The overwhelming evidence shows Mr Durant deliberately chose to use deadly force to prevent Mr Cutler from stopping his crime. You should find him guilty of first-degree murder.”

  Matt thought that Thibedeaux had done a good job with what he had, but he also knew that as a lawyer, if this was his case, he wouldn’t have been satisfied with it.

  “We’ll take our lunch break now. Be back here at one-thirty. Please remember not to discuss the case,” Judge Masterson said.

  Matt was relieved Farrar would have the additional hour to prepare. Thibedeaux hadn’t just wasted the jury’s time this morning; he’d also given Farrar an advantage.

  Matt, Lisa and Mary retreated to the small conference room. Farrar joined them so he could ask questions of Lisa as he continued to work on his closing statement. Matt didn’t mind keeping quiet. Mary held his hand and he waited for Farrar to put an end to this mess.

  *

  At one-thirty sharp, the jury filed in and Judge Masterson asked, “Mr Farrar, your closing?”

  Farrar drew himself up to his full height and carried his legal pad to the podium. He pushed back the microphone. He didn’t need it. “Ladies and gentlemen, I, too, would like to begin by thanking you for your service. I, too, think your deliberations should be brief, although it won’t surprise you to hear I disagree with Mr Thibedeaux about the correct outcome.” Farrar smiled at the jurors. “I believe if you apply common sense to this case, you’ll quickly reach a verdict of not guilty. Mr Thibedeaux who, unlike me, will have the opportunity to speak to you once more, addressed Mr Durant’s credibility and motives, but he gave short shrift to the credibility of his witnesses. He doesn’t want you to dwell on those problems.” Farrar turned toward the prosecution table before reengaging the jury.

  “Let’s spend a little bit of time on them, though. I wouldn’t want you to think I wasted your time during the trial.” Farrar smiled again. “Let’s start with Mr Rand. Mr Rand has a history of committing hate crimes, has previously beaten a black man for dating a white woman, and severely injured Joey Buckner when he easily could have restrained him. Mr Rand also initially lied to you about why he’d attacked the black man dating his white friend. Even after pleading guilty to a hate crime, he still tried to lie to you about his motive for that crime. I think we can all safely say after his testimony that we wouldn’t want to run into him in a dark alley. But there’s more. Mr Rand, like Mr Harlan, had the oldest motive known to man for lying in this courtroom: vengeance. Mr Durant killed their friend. I believe the evidence shows he did it in defense of Joey Buckner. But it does give those two men an incredibly powerful reason to lie to you.

  “Now let’s talk about Mr Harlan. Mr Thibedeaux belittled Mr Harlan’s testimony about being expelled from high school. He failed to mention Mr Harlan was also a close friend of Brian Cutler’s. And Mr Harlan’s testimony about his previous marijuana possession might not have been very important in the abstract. It might be a teenage indiscretion, as Mr Thibedeaux—a prosecutor—would have you believe. But Mr Harlan swore to tell the truth, the whole truth and nothing but the truth, and then claimed he attacked Mr Buckner because he hates all forms of drug use. And that just doesn’t add up. As the Judge will instruct you, you don’t leave your common sense at the door when you enter this courtroom.” He turned back to Thibedeaux to place the blame where it lay: “And that testimony makes no sense.”

  He walked toward the jury and engaged them directly. “Finally, we come to Mr Buckner. Any fair evaluation of his testimony in this courtroom leads to the inescapable conclusion that he lied in his last criminal trial. And by testifying in this courtroom, Mr Buckner saved himself from four additional years in prison. But, as if we needed more, Mr Buckner admitted on tape that Mr Durant hadn’t known about the cocaine, admitted that he feared more severe injury if Mr Durant hadn’t intervened, and admitted he was negotiating with prosecutors because he was afraid of going to prison for a long time. Mr Thibedeaux shouldn’t get points for gathering together such a motley collection of criminals.

  “Mr Thibedeaux also failed to address the unique opportunities in this case that permitted his witnesses to coordinate and fabricate their stories. Detective Jones interviewed Mr Rand and Mr Harlan together and Detective Jones suggested to them that Mr Durant was buying drugs from Mr Buckner. And only after the New Orleans Times-Picayune had summarized Mr Harlan’s and Mr Rand’s version of events did Mr Buckner come to the prosecution. And, lo and behold, Mr Buckner’s story matches the descriptions in the Times-Picayune article word for word. These individuals not only had a track record of dishonesty and criminal activity. They also had the motive and opportunity to be dishonest.” Any hint of playfulness disappeared and Farrar looked directly at Thibedeaux. “And these men have the gall to call Matthew Durant a liar?”

  He continued: “Matt has no criminal record, has been involved in charitable work throughout his life, and has tried to do everything in his power to spare his mother the cost of his education. Every single witness who’s known Matt for more than one night testified that he would never buy drugs, let alone kill someone to cover up the fact he was buying drugs. Every single witness. And I shudder to think, based on the testim
ony and evidence we’ve heard, of the sorts of witnesses who would volunteer to vouch for the character of Mr Buckner, Mr Harlan or Mr Rand. The evidence of what happened on September 7 also corroborates Matt’s testimony. You heard Dr. Dobson testify that Mr Rand had completely destroyed Mr Buckner’s nose. This wasn’t the type of broken nose your son gets in a peewee football game. Mr Rand pulverized Mr Buckner’s nose with severe violence. Mr Rand’s claim he was acting to prevent Mr Buckner from escaping would be laughable if the consequences weren’t so deadly serious. And Mr Buckner’s statements on that tape also corroborated Matt Durant’s testimony about what happened in that alley.

  “Finally, what happened in that alley is perfectly consistent with Matthew Durant’s character. He could have turned and run away after hitting Mr Cutler with the beer bottle. He didn’t because he wanted to get Mr Buckner help as quickly as possible. So he ran into the bar and alerted everyone in the bar immediately after he hit Mr Cutler. Does that sound like the act of a guilty man? Mr Thibedeaux throws up a series of diversions in response. He pointed out the picture showing Mr Cutler holding a knife is fuzzy. But you also heard Mr Diener testify there’s an eighty-percent chance Mr Cutler was holding an object that could be a knife in his hand when the picture was taken. And, as Judge Masterson will instruct you, it’s not the defendant’s burden to show Mr Cutler had a knife. The prosecution must prove beyond a reasonable doubt that Mr Durant did not act in self-defense or in the defense of Mr Buckner. And I think an eighty-percent chance Mr Cutler was carrying a knife goes much further than creating reasonable doubt. Mr Thibedeaux argues that no knife was found in that alley. He also attempts to explain why Detective Jones didn’t look harder for a knife. Actually, it’s irrelevant why Detective Jones chose not to search too hard for that knife. But the sloppiness of that search does explain why the police didn’t find it. And it’s also irrelevant whether or not Mr Cutler even had a knife. When three large men jump two smaller men in an alley and employ enough force to injure one of them so badly he requires two operations, I don’t think they also need to be armed to the teeth for Mr Durant to reasonably fear he and Mr Buckner would suffer grave bodily injury. The law failed Mr Durant once in the past few months. The law failed to protect him from the hate of Mr Cutler, Mr Harlan and Mr Rand in that alley. Police officers can’t be everywhere at all times to protect us from criminals. And that’s why Matt Durant was forced to defend himself. But you shouldn’t let Mr Thibedeaux transform the law into an instrument that allows these criminals to further harm Mr Durant.”