I took the hand Jacob was punishing and moved it down into his lap, out of the jurors’ sight, then rested my arm protectively on the back of his chair.
On the stand, a woman was testifying. Ruthann Something-or-other. She was fifty years old or so. Likeable face. Short, plain haircut. More gray hair than dark, a fact she made no effort to conceal. No jewelry except a watch and wedding ring. She wore black clogs. She was one of the neighbors who walked their dogs along the trails in Cold Spring Park every morning. Logiudice had called her to testify that she passed a boy who roughly resembled Jacob near the murder scene that morning. It would have been a worthwhile bit of evidence if only this woman could deliver on it, but she was obviously suffering on the stand. She washed her hands over and over in her lap. She weighed every question before answering. Before long, her anxiety became more compelling than her actual testimony, which did not amount to much.
Logiudice: “Could you describe this boy?”
“He was average, I guess. Five nine, five ten. Skinny. He was wearing jeans and sneakers. Dark hair.”
This was not a boy she was describing, it was a shadow. Half the kids in Newton fit the description, and she was not done yet. She hedged and hedged, until Logiudice was reduced to prompting his own witness by sneaking into his questions little reminders, like cue cards, of what she had said in her initial answers to the police on the day of the murder. The prosecutor’s constant prompting got Jonathan up on his feet to object over and over, and the whole thing became increasingly ridiculous, with the witness getting ready to recant the ID, and Logiudice too dense to get her off the stand before she made it official, and Jonathan jumping up and down to object to the leading—
and somehow it all faded into the background for me. I could not focus on it, let alone care about it. I had a sinking sense that this whole trial did not matter. It was already too late. Dr. Vogel’s verdict mattered at least as much as this one would.
Next to me was Jacob, this riddle Laurie and I had made. His size, his resemblance to me, the likelihood that he would fill out and come to resemble me even more—all this shattered me. Every father knows the disconcerting moment when you see your child as a weird, distorted double of yourself. It is as if for a moment your identities overlap. You see an idea, a conception of your boyish inner self, stand right up in front of you, made real and flesh. He is you and not you, familiar and strange. He is you restarted, rewound; at the same time he is as foreign and unknowable as any other person. In the push/pull of this confusion, with my arm on the back of his chair, I touched his shoulder.
Guiltily he laid his hands flat on his lap, where he had gone back to picking the raw skin on his right thumb and had managed to pry up a new sliver.
Directly behind me, Laurie sat alone on the front bench. She sat alone every day of the trial. We were friendless in Newton, of course. I wanted to enlist Laurie’s parents to sit with her in the courtroom. I am sure they would have done it. But Laurie would not allow it. She was being a bit of a martyr here. She had brought down catastrophe on her own family by marrying into mine; now she was determined to pay the price alone. In court, people tended to leave a foot or so on either side of her. Whenever I turned, she was alone in that zone of isolation on the bench, distracted, her arms half folded, her chin resting in one hand, listening, looking down at the floor rather than at the witness. The night before, Laurie had been so shaken by Dr. Vogel’s diagnosis that she begged one of my Ambiens and still could not sleep. Lying in bed in the dark, she said, “If he is guilty, Andy, what do we do?” I told her there was nothing to do at the moment but wait until the jury decided if he was guilty or not. I tried to snuggle with her to comfort her, which seemed like the husbandly thing to do, but my touch rattled her even more and she wriggled away from me to the very edge of the bed, where she lay as still as she could but quite obviously awake, her sniffles and little movements betraying her. Back in her teaching days, Laurie had been (to me) a miraculous sleeper. She turned off the light as early as nine o’clock because she had to wake up so early, and she was asleep as soon as her head hit the pillow. But that was another Laurie.
Meanwhile, in the courtroom Logiudice apparently had decided to ride it out to the end with this witness, even as she gave every sign of imploding. It is hard to justify Logiudice’s decision in strategic terms, so I imagine he just wanted to prevent Jonathan from having the honor of eliciting her final recantation. Or maybe he still hoped, desperately, that she would come around in the end. But he would not give up, the stubborn bastard. It was actually sort of noble, in a weird way, like a captain going down with his ship or a monk dousing himself with gasoline and setting himself on fire. By the time Logiudice got to his last question—he had scripted the whole examination on his yellow legal pad and stuck to the script even as the witness improvised freely—Jonathan had put down his pen and was watching through his fingers.
Question: “Is the boy you saw in Cold Spring Park that morning sitting here in the courtroom today?”
Answer: “I can’t be sure.”
“Well, do you see a boy matching the description you gave of the boy from the park?”
Answer: “I don’t—I’m really not sure anymore. It was a kid. That’s all I know for sure. It was a long time ago. The more I think about it, I just don’t want to say. I don’t want to send some kid to prison for life if there’s a chance I might be wrong. I couldn’t live with myself if I did that.”
Judge French blew out a long, droll sigh. He arched his eyebrows and removed his glasses. “Mr. Klein, I take it you have no questions?”
“No, Your Honor.”
“I didn’t think so.”
Things did not improve much for Logiudice the rest of that day. He had organized his witnesses into logical groups, and today was devoted to the civilian witnesses. They were passersby. None had seen anything especially damning from Jacob’s point of view. But then, it was a weak case, and Logiudice was right to throw everything he had into the pot. So we heard from two more people, a man and a woman, who each testified they saw Jacob in the park, albeit not near the murder scene. Another witness saw a figure running from the general area of the murder. She could not say anything about this person’s age or identity, but the clothes roughly matched what Jacob was wearing that day, even if jeans and a light jacket were not exactly a distinctive uniform, especially in a park filled with kids walking to school.
Logiudice did end on a harrowing note. His last witness was a man named Sam Studnitzer who was walking his dog through the park that morning. Studnitzer had a very short haircut, narrow shoulders, a gentle manner.
“Where were you going?” Logiudice asked.
“There is a field where dogs can run around off the leash. I take my dog most mornings.”
“What kind of dog is he?”
“A black Lab. His name is Bo.”
“What time was it?”
“Around eight-twenty. I’m usually earlier.”
“Where in the park were you and Bo?”
“We were on one of the paths through the woods. The dog had gone on ahead, sniffing around.”
“And what happened?”
Studnitzer hesitated.
The Rifkins were in the courtroom, on the front bench behind the prosecution table.
“I heard a little boy’s voice.”
“What did the little boy say?”
“He said, ‘Stop, you’re hurting me.’ ”
“Did he say anything else?”
Studnitzer slumped, frowned. Quietly: “No.”
“Just ‘Stop, you’re hurting me’?”
Studnitzer did not answer, but clamped fingers over his temples, covering his eyes.
Logiudice waited.
The courtroom was so dead quiet, Studnitzer’s sniffly breathing was clearly audible. He took his hand away from his face. “No. That’s all I heard.”
“Did you see anyone else around you?”
“No. I couldn’t see very far. Th
e sight lines are limited. That part of the park is hilly. The trees grow thick. We were coming down a little slope. I couldn’t see anyone.”
“Could you tell which direction the cry came from?”
“No.”
“Did you look around, did you investigate? Did you try to help the little boy in any way?”
“No. I didn’t know. I thought it was just kids. I didn’t know. I didn’t think anything of it. There are so many kids in that park every morning, laughing, fooling around. It sounded like just … roughhousing.” His eyes fell.
“What did the boy’s voice sound like?”
“Like he was hurt. He was in pain.”
“Were there any other sounds after the cry? Pushing, sounds of a struggle, anything at all?”
“No. I didn’t hear anything like that.”
“What happened next?”
“The dog was alert, hyper, strange. I didn’t know what his problem was. I kind of pushed him along, and we kept on walking through the park.”
“Did you see anyone as you were walking?”
“No.”
“Did you observe anything else unusual that morning?”
“No, not until after, when I heard the sirens and cops started streaming into the park. That’s when I found out what happened.”
Logiudice sat down.
Everyone in the courtroom was hearing those words in a loop in their heads: Stop, you’re hurting me. Stop, you’re hurting me. I have not gotten them out of my head yet. I doubt I ever will. But the truth is, even this detail did not point to Jacob.
To underscore that fact, Jonathan stood up on cross to ask a single perfunctory question: “Mr. Studnitzer, you never saw this boy, Jacob Barber, in the park that morning, did you?”
“No.”
Jonathan took a moment to shake his head in front of the jury and say, “Terrible, terrible,” to demonstrate that we too were on the side of the angels.
There it stood. Despite everything—Dr. Vogel’s awful diagnosis and Laurie’s shell shock and the hauntingly ordinary words of the boy as he was stabbed—after three days we were still up, way up. If this were a Little League game, we might be talking about the mercy rule. As it turned out, it was our last good day.
Mr. Logiudice: Let me stop you there for just a moment. I understand your wife was upset.
Witness: We were all upset.
Mr. Logiudice: But Laurie in particular was struggling.
Witness: Yes, she was having a hard time handling the pressure.
Mr. Logiudice: More than that. She was clearly having her doubts about Jacob’s innocence, especially after you all spoke with Dr. Vogel and got the full diagnosis in some detail. She even asked you point-blank what you two ought to do if he was guilty, didn’t she?
Witness: Yes. A little later. But she was very upset at that moment. You have no idea what this sort of pressure is like.
Mr. Logiudice: What about you? Weren’t you upset too?
Witness: Of course I was. I was terrified.
Mr. Logiudice: Terrified because you were finally beginning to consider the possibility Jacob might be guilty?
Witness: No, terrified because the jury might convict him whether he was actually guilty or not.
Mr. Logiudice: It still hadn’t crossed your mind that Jacob might actually have done it?
Witness: No.
Mr. Logiudice: Not once? Not for a single second?
Witness: Not once.
Mr. Logiudice: “Confirmation bias,” is that it, Andy?
Witness: Fuck you, Neal. Heartless prick.
Mr. Logiudice: Don’t lose your temper.
Witness: You’ve never seen me lose my temper.
Mr. Logiudice: No. I can just imagine.
[The witness did not respond.]
Mr. Logiudice: All right, let’s continue.
30 | The Third Rail
Trial day four.
Paul Duffy on the stand. He wore a blue blazer, rep tie, and gray flannel pants, which was about as formal as he ever managed to dress. Like Jonathan, he was one of those men it is easy to imagine as boys, men whose appearance almost forces you to see the boy inside. It was nothing particular about his physical features, but a boyish quality in his manner. Maybe it was just the effect of my long friendship with him. To me, Paul remained twenty-seven years old forever, his age when I met him.
For Logiudice, of course, that friendship made Duffy a slippery witness. At the start, Logiudice’s manner was tentative, his questions overly cautious. If he had asked, I could have told him that Paul Duffy was not going to lie, even for me. It just wasn’t in him. (I would have told him also to put down his ridiculous yellow pad. He looked like a goddamn amateur.)
“Would you state your name for the record, please?”
“Paul Michael Duffy.”
“What do you do for work?”
“I’m a lieutenant detective with the Massachusetts State Police.”
“How long have you been employed by the state police?”
“Twenty-six years.”
“And what is your current assignment?”
“I am in a public relations unit.”
“Directing your attention to April 12, 2007, what was your assignment on that date?”
“I was in charge of a special unit of detectives assigned to the Middlesex District Attorney’s Office. The unit is called CPAC, for Crime Prevention and Control. It consists of fifteen to twenty detectives at any given time, all with the special training and experience required to assist the ADAs and local departments in the investigation and prosecution of complex cases of various kinds, particularly homicides.” Duffy recited this little speech in a drone, from rote memory.
“And had you participated in many homicide investigations prior to April 12, 2007?”
“Yes.”
“Approximately how many?”
“Over a hundred, though I was not in charge of all of them.”
“Okay, on April 12, 2007, did you receive a phone call about a murder in Newton?”
“Yes. Around nine-fifteen A.M. I got a call from a Lieutenant Foley in Newton informing me there had been a homicide involving a child in Cold Spring Park.”
“And what was the first thing you did?”
“I called the district attorney’s office to inform them.”
“Is that standard procedure?”
“Yes. The local department is required by law to inform the state police of all homicides or unnatural deaths, then we inform the DA immediately.”
“Who specifically did you call?”
“Andy Barber.”
“Why Andy Barber?”
“He was the First Assistant, which means he was the second in command to the district attorney herself.”
“What was your understanding about what Mr. Barber would do with that information?”
“He would assign an ADA to run the investigation for their office.”
“Might he keep the case for himself?”
“He might. He handled a lot of homicides himself.”
“Did you have any expectations that morning as to whether Mr. Barber would keep the case for himself?”
Jonathan lifted his butt six inches from his chair. “Objection.”
“Overruled.”
“Detective Duffy, what did you think Mr. Barber would do with the case at that point?”
“I did not know. I suppose I figured he might keep it. It looked like it might be a big case right from the get-go. He kept those sorts of cases a lot. But if he put someone else on it, that would not have surprised me either. There were other good people there besides Mr. Barber. To be honest, I did not really think about it much. I had my own job to do. I let him worry about the DA’s office. My job was to run CPAC.”
“Do you know whether the district attorney, Lynn Canavan, was informed right away?”
“I don’t know. I presume so.”
“All right, after telephoning Mr. Barber, what did you do next?�
��
“I went to the location.”
“What time did you arrive there?”
“Nine thirty-five in the morning.”
“Describe the scene when you first arrived.”
“The entrance to Cold Spring Park is on Beacon Street. There is a parking lot at the front of the park. Behind that there are tennis courts and playing fields. Then behind the fields it is all woods, and there are trails leading off into the woods. There were a lot of police vehicles in the parking lot and on the street out front. Lots of cops around.”
“What did you do?”
“I parked on Beacon Street and approached the location on foot. I was met by Detective Peterson of the Newton Police and by Mr. Barber.”
“Again, was there anything unusual about Mr. Barber’s presence at the homicide scene?”
“No. He lived pretty close to the location, and he generally went to homicide scenes even if he didn’t intend to keep the case.”
“How did you know Mr. Barber lived near Cold Spring Park?”
“Because I’ve known him for years.”
“In fact, you two are personal friends.”
“Yes.”
“Close friends?”
“Yes. We were.”
“And now?”
There was a hitch before he answered. “I can’t speak for him. I still consider him a friend.”
“Do you two still see each other socially?”
“No. Not since Jacob was indicted.”
“When was the last time you and Mr. Barber spoke?”
“Before the indictment.”
A lie, but a white lie. The truth would have been misleading to the jury. It would have suggested, wrongly, that Duffy could not be trusted. Duffy was biased but honest about the big questions. He did not flinch as he delivered the statement. I did not flinch at it either. The point of a trial is to reach the right result, which requires constant recalibration along the way, like a sailboat tacking upwind.
Defending Jacob Page 29
