Defending Jacob

by William Landay

  “Don’t—”

  He stopped, looked down, considered his next sentence.

  “Don’t let it happen twice. One boy is dead. Don’t destroy another innocent boy to make up for it. Don’t let this case become a second tragedy. We’ve had enough tragedy already.”

  The first witness was Paula Giannetto, the jogger who discovered the body. I did not know this woman but I recognized her from around town, from the market or Starbucks or the dry cleaner. Newton is not a small town, but it is divided into several “villages” and within these neighborhoods the same faces keep popping up. Oddly, I did not remember seeing her jogging in Cold Spring Park, though apparently we both ran there often around the time of the murder.

  Logiudice led her through her testimony, which dragged on too long. He was over-thorough, anxious to get from her every last ounce of detail and pathos there was to be got. Ordinarily, for the prosecutor a funny transformation takes place with the first witness: after standing center-stage for his opening statement, the prosecutor now steps out of the spotlight. The focus shifts to the witness, and the rules require the prosecutor to be almost passive in his questions. He steers the witness or prods her along with neutral questions like “What happened next?” or “What did you see then?” But Logiudice was quite picky about the details he wanted from Paula Giannetto. He kept stopping her to probe about this or that. Jonathan never objected to any of this, since none of the testimony tied Jacob to the murder even remotely. But again I sensed Logiudice fumbling his case, not by some grand strategic blunder but inch by inch, in a thousand little ways. (Was this wishful thinking? Maybe. I do not pretend to be objective.) Giannetto was on the stand for the better part of an hour relating her story, which was essentially unchanged since she first told it the day of the murder.

  It had been a cool, damp spring morning. She was running along a hilly section of trail through Cold Spring Park when she saw what seemed to be a boy lying facedown on a leaf-strewn embankment, which sloped down to a tiny algae-skinned pond. The boy wore jeans, sneakers, and a sweatshirt. His backpack had tumbled down the hill near him. Giannetto was jogging by herself and she did not see anyone else near the body. She had passed a couple of other joggers and kids walking to school (the park was a common route to the McCormick School, which abutted it), but she saw no one near the body. She had not heard anything either, no cries or sounds of a struggle, since she had been listening to music on her iPod, which she wore in a holder strapped to her upper arm. She was even able to name the song that was playing when she saw the body: “This Is the Day” by a group called The The.

  Giannetto stopped, removed the earbuds of her iPod, and looked down at the boy from the trail above. From just a few feet away, she saw the bottoms of his sneakers, his body foreshortened. She said, “Are you okay? Do you need help?” When she got no response, she went down to check on him, sidestepping carefully down the hill because of the slippery leaves. She was a mother, she said, and she could not imagine not checking on the boy, as she would expect others to do for her kids. She had it in her head that the boy had passed out, maybe from some sickness or allergy, maybe even from drugs or who knew what. So she got down on her knees beside him and jostled his shoulder, then jostled both shoulders, then rolled him over by his shoulders.

  That is when she saw the blood that soaked his chest and the reddened leaves under him and all around him, still wet and glistening, draining out of the three vent-holes in his chest. The boy’s skin was gray but there were small splotches of pink on his face, she said. She had a vague recollection that his skin was cold to the touch but she had no specific memory of touching it. Perhaps the body had shifted in her hands so that its skin brushed her hand. The head fell back heavily, the mouth gawped open.

  It took her a moment to process the surreal fact that the boy in her arms was dead. She dropped the body, which she had been holding under the shoulders. She screamed. She slid away from it on her butt, then turned and managed to scramble over the leaves on all fours back up the hill to the trail.

  For a moment, she said, nothing happened. She stood there, alone in the woods, staring at the body. She could hear the music still playing faintly in her earbuds, still playing “This Is the Day.” The whole thing had not even lasted the three minutes it takes to get through a pop song.

  It took a ludicrously long time to bring out this simple story. After such a lengthy direct examination, Jonathan’s cross was brief almost to the point of comedy.

  “You never saw the defendant, Jacob Barber, in the park that morning, did you?”

  “No.”

  “No further questions.”

  With the next witness, Logiudice misstepped. No, more than that. He stepped in shit. The witness was the Newton P. D. detective who had headed up the investigation for the local department. This was a standard, pro forma sort of witness. Logiudice had to begin by running a few witnesses up there to establish the essential facts and the timetable of that first day, when the murder was discovered. The first-responding cop is often called to testify about the state of the murder scene and the critical early moments of the investigation, before the case is joined—and taken over—by the State Police CPAC unit. So this was a witness Logiudice had to call, really. He was just following the playbook. I’d have done the same thing. The trouble was, he did not know his witness as well as I did.

  Lieutenant Detective Nils Peterson joined the force in Newton just a few years before I started at the DA’s office, fresh out of law school. Which is to say, I had known Nils since 1984—when Neal Logiudice was in high school struggling to maintain a busy schedule of A.P. classes, band, and compulsive masturbation. (I am speculating. I cannot say for sure that he was in the band.) Nils had been handsome when we were younger. He had the sandy blond hair you might imagine based on his name. Now, in his early fifties, his hair had darkened, his back was a little stooped, his belly thickened. But he had an attractive soft-spoken demeanor on the stand, with none of the abrasive, cocksure bluster some cops exude. Juries swooned for him.

  Logiudice took him through the basic facts. The body had been found lying on its back, face up to the sky, having been flipped over by the jogger who discovered it. The pattern of the three stab wounds. The lack of obvious motive or suspects. No signs of struggle or defensive wounds, suggesting a sudden or surprise attack. Photos of the body and the surrounding area were entered into evidence. In the first minutes and hours of the investigation, the park had been sealed and searched, with no results. Several footprints were found in the park but none in the immediate area of the body and none that were ever matched to a suspect. In any case it was a public park—there were probably thousands of footprint traces, if you cared to look for them.

  And then this.

  Logiudice: “Is it the usual procedure that an assistant district attorney is assigned to direct homicide investigations right away?”

  “Yes.”

  “Who was the assistant district attorney assigned to the case that day?”

  “Objection!”

  Judge French: “I’ll see counsel at sidebar.”

  Logiudice and Jonathan went to the far side of the judge’s bench where they talked in low murmurs. Judge French stood tall above them, as was his habit. Most judges wheeled their chairs over to the rail or leaned in close, the better to whisper with the lawyers. Not Burt French.

  The sidebar conference took place out of the jury’s hearing and mine. The next few paragraphs I have cut and pasted from the trial transcript.

  The judge: “Where are you going with this?”

  Logiudice: “Your Honor, the jury is entitled to know the defendant’s own father was in charge of the early stages of the investigation, particularly if the defense is going to suggest anything was handled improperly, as I suspect they will have to.”

  “Counselor?”

  Jonathan: “Well, our objection is twofold. First, it is irrelevant. It is guilt by association. Even if the defendant’s father should n
ot have taken the case and even if he mishandled it in some way—and I’m not suggesting that either is true—it still doesn’t say a damn thing about the defendant himself. Unless Mr. Logiudice means to suggest the son was involved in a conspiracy with his father to cover up evidence of the crime, then there is no way to construe evidence against the father as having anything to do with the son’s guilt or innocence. If Mr. Logiudice wants to indict the father for obstruction of justice or some such thing, then he should go ahead and do it and we’ll all come back here someday and we’ll have a trial on that. But that’s not the case we’re trying here today.

  “The second objection is that it is improperly prejudicial. It is guilt by insinuation. He is trying to poison the jury with the suggestion that the father must have known the son was involved and therefore he must have been up to something improper. But there’s no evidence either that the father suspected his son—which he certainly did not—or that he did anything improper when he was leading the investigation. Let’s be honest: the prosecutor wants to toss a stink bomb into this courtroom to distract the jury from the fact that there is virtually no direct evidence against the defendant. It’s—”

  “Okay, okay, I got it.”

  Logiudice: “Your Honor, how important it is, that’s for the jury to decide. But they have a right to know. The defendant can’t have it both ways: he can’t argue that the cops screwed up and then conveniently leave out the fact that the cop in charge was the defendant’s own father.”

  The judge: “I’m going to allow it. But Mr. Logiudice, I’m warning you, if this trial gets sidetracked into a discussion of whether the father screwed up, intentionally or not, I’m going to cut it off. The defense has a point: that’s not the case we’re here to try. If you want to indict the father, do it.”

  The transcript does not record Logiudice’s reaction, but I remember it well. He looked across the courtroom directly at me.

  Returning to the little lectern near the jury box, he faced Nils Peterson and resumed his questions. “Detective, I’ll repeat the question. Who was the assistant DA assigned to the case that day?”

  “Andrew Barber.”

  “Do you see Andrew Barber in the courtroom here today?”

  “Yes, he’s right there, beside the defendant.”

  “And did you know Mr. Barber when he was an assistant DA? Did the two of you ever work together?”

  “Sure, I knew him. We worked together many times.”

  “Were you friendly with Mr. Barber?”

  “Yes, I’d say so.”

  “Did it occur to you at the time that it was odd Mr. Barber was handling a case involving his own son’s school, a classmate, a boy he might even have known something about?”

  “No, not really.”

  “Well, did it seem strange to you that Mr. Barber’s son might well become a witness in the case?”

  “No, I didn’t think about that.”

  “But, when he was leading the case, the defendant’s father pushed for a suspect who turned out not to be involved, a man who lived near the park who had a record as a sexual offender?”

  “Yes. His name was Leonard Patz. He had a record for indecent A&Bs on kids, things like that.”

  “And Mr. Barber—Andrew Barber, the father—wanted to pursue this man as a suspect, did he not?”

  “Objection. Relevance.”

  “Sustained.”

  Logiudice: “Detective, while the defendant’s father was leading the investigation, did you consider Leonard Patz as a suspect?”

  “Yes.”

  “And Patz was later cleared when the defendant’s own son was charged?”

  “Objection.”

  “Overruled.”

  Peterson hesitated here, seeing the trap. If he went too far to help his friend, he would necessarily help the defense. He tried to find a middle way. “Patz was not charged.”

  “And when Mr. Barber’s son was charged, were you surprised at that point by Mr. Barber’s earlier involvement in the case?”

  “Objection.”

  “Overruled.”

  “I thought it was surprising, yes, in the sense—”

  “Have you ever heard of a prosecutor or a cop becoming involved in an investigation of his own son?”

  Cornered, Peterson drew a deep breath. “No.”

  “It would be a conflict of interest, wouldn’t it?”

  “Objection.”

  “Sustained. Move on, Mr. Logiudice.”

  Logiudice asked a few more desultory, halfhearted questions, relishing the afterglow of a victory. When he sat down, he had the dopey, flushed face of a man who just got laid, and he kept his head down until he could overmaster it.

  On cross, Jonathan again did not bother to attack much of anything Peterson had said about the crime scene, because again there was virtually nothing in his rendition that pointed to Jacob. There was so little trace of antagonism between these two soft-spoken guys, in fact, and the questions were all so inconsequential, that it might have been a defense witness Jonathan was questioning.

  “The body was lying in a twisted position when you arrived at the scene, is that right, Detective?”

  “Yes.”

  “So, given the fact the body had been moved, some evidence had been lost even before you arrived. For example, the position of the body can often help you reconstruct the attack itself, isn’t that right?”

  “Yes, it is.”

  “And when the body is flipped over, the effect of lividity—or the blood settling with gravity—is also reversed. It’s like turning over a sand timer: the blood starts to flow the other way, and the inferences you usually draw from lividity are lost, isn’t that right?”

  “Yes. I’m not a forensics expert, but yes.”

  “Understood, but you are a homicide detective.”

  “Yes.”

  “And it’s fair to say that, as a general rule, at a murder scene when the body is disturbed or moved, evidence is often lost.”

  “Generally true, yes. In this case, there’s no way of knowing if anything was actually lost.”

  “Was the murder weapon found?”

  “Not that day, no.”

  “Was it ever found?”

  “No.”

  “And besides the single fingerprint on the victim’s sweatshirt, there was nothing at all that pointed to a particular defendant?”

  “Correct.”

  “And of course the fingerprint was not identified until much later, right?”

  “Yes.”

  “So the crime scene itself, on that first day, did not yield any evidence that pointed to a particular suspect?”

  “No. Just the unidentified fingerprint.”

  “So it’s fair to say that at the beginning of the investigation you didn’t have any obvious suspects?”

  “Yes.”

  “So in that situation, as an investigator, wouldn’t you want to know, wouldn’t it be relevant information that a known, convicted pedophile lived adjacent to that park? A man with a record of sexual assaults on young boys of about the victim’s age?”

  “It would.”

  I could feel the jury’s eyes on me as they seemed to understand, finally, where Jonathan was going—that he was not simply settling for a series of small hits.

  “So it didn’t seem improper or unusual or the slightest bit odd to you when Andy Barber, the defendant’s father, focused his attention on this man, this Leonard Patz?”

  “No, it didn’t.”

  “In fact, based on what you knew at the time, he wouldn’t be doing his job if he didn’t check out this man, would he?”

  “No, I don’t think so.”

  “And, in fact, you learned in your subsequent investigation that Patz was indeed known to walk in that park in the mornings, isn’t that true?”

  “Yes.”

  “Objection.” There was not much conviction in Logiudice’s voice.

  “Overruled.” Plenty of conviction in the judge’s voice.
“You opened the door, Counselor.”

  I had always disliked Judge French’s tendency to let his sympathies show. He was a ham, and generally his emoting favored the defense. His courtroom always felt like a home game for the defendant. Now that I was on the defendant’s side, of course, I was delighted to see the judge so openly cheerleading for us. It was an easy ruling, anyway. Logiudice had opened this subject. He could not now prevent the defense from exploring it.

  I gestured to Jonathan and he came over to accept a piece of paper from me. When he read it, his eyebrows rose. I had written three questions on the paper. He folded the paper neatly and moved closer to the witness stand.

  “Detective, did you ever disagree with any of the decisions Andy Barber made when he was leading the investigation?”

  “No.”

  “And, in fact, isn’t it true that you also wanted to pursue the investigation against this man, Patz, at the beginning of the investigation?”

  “Yes.”

  A juror—Fat Somerville Guy, in chair number seven—actually snorted and shook his head.

  Jonathan heard that guffaw over his shoulder from the jury box, and he looked like he was about to sit down.