CHAPTER
TWENTY-ONE
Court got off to a slow start that morning. One of the jurors had tried to beg off duty to get back to work, resulting in a long conversation in the judge’s chambers. By the time the actual testimony began—with the complaining juror once again firmly ensconced in his seat––it was well after eleven.
The first witness of the day, Wes Omernik, was already up and striding toward the witness box before the bailiff could finish pronouncing his name. The security guard who had chased the suspect the night of the murder marched toward the stand like a champion boxer climbing into the ring. Thane noticed a laundry tag safety-pinned to the back of the man’s jacket.
Stone was brief with his questions. He quickly led Wes through his credentials, including his years at the company that patrolled Detective Gruber’s neighborhood, and asked about the events leading up to seeing the intruder. After spending considerable time on the suspect’s limp, Stone had Skunk limp across the floor in front of Wes, despite Thane’s objections. After walking back and forth in front of the witness stand a couple of times, Stone once again turned back to his eager witness.
“Having now seen the defendant walk, you are testifying that his limp is consistent with the man you chased on July twenty-eighth?” Stone asked.
“Objection,” Thane said. “The phrase ‘consistent with’ is inappropriately vague.”
Stone shook his head and rolled his eyes for the jury’s behalf. “What I’m asking is, is that how the man you saw moved?”
Judge Reynolds angled his head at Thane, directing the lawyer to retake his seat. “Overruled. The jury understands what the prosecution meant.”
Wes turned towards the jury. “I’ve been in law enforcement for over six years, and it is my professional opinion that the defendant’s limp is, indeed, consistent with the man I chased on July twenty-eighth. I would stake my career as a lawman on it.”
Stone cleared his throat. “Thank you, Mr. Omernik. No further questions.”
Thane rose before Stone took his seat. “I’d like a more exact comparison, if you don’t mind,” Thane said. “Please tell me when you think my limp is identical, not consistent with, but identical to that of the defendant.”
It was Stone’s turn to shout out an objection. Thane faced the judge.
“Your Honor,” he said, “I want to make sure the witness can identify the same limp on somebody else, not simply when the defendant walks for him. That’s like having a one-person line up. I don’t believe that’s asking too much.”
Judge Reynolds nodded in agreement. “Overruled. Proceed, Mr. Banning, but let’s not make a production out of this.”
“Mr. Omernik, I’m going to start limping in front of you. I want you to tell me when my limp is the exact same as the individual you saw the night of the murder.”
Thane started walking back and forth between the defense table and the jury box, starting with a slow, subtle limp, gradually making it more pronounced until the security guard called out.
“That’s about right.”
Thane continued limping slowly back and forth across the floor. “So this is what the defendant looked like as he ran away?”
“Yes, sir.”
“You’re positive?”
“Yes, I’m positive.”
Thane slowed down his pace even further, but continued limping.
“That’s interesting, because I’m limping on the opposite leg from the defendant.” He walked for a few seconds more, giving everybody time to take note, then stopped in front of the witness box.
“Well, I . . . that’s not what I was . . .”
“Objection,” Stone shouted. “Counsel was stressing the pace of the limp, not the accuracy of the leg.”
Thane turned toward the judge, not to Stone. “I never said anything about the pace. I said for him to let me know when the limp was identical to that of the person he saw the night of the murder. Surely the leg of the limp matters.”
Reynolds paused for just a moment, then shook his head. “Sustained. Counsel, you were a bit misleading in your presentation.”
Thane shrugged slightly, then turned back to the witness. “Then let me ask you this, Mr. Omernik: I limped in such a way as to look like the defendant. Doesn’t it stand to reason, therefore, that somebody else could have done the same thing the night of the murder?”
Wes eyed Thane suspiciously. “Maybe,” he finally said. “But I don’t know why anybody would do that.”
Thane stepped up next to the witness stand and looked Wes over, sizing him up. “I understand you’ve been trying to join the police force, so I’m sure you work to keep fit.”
“I spend my time in the gym, if that’s what you mean.”
“So you’re saying you’re just in average shape?”
“No, I’m in excellent shape. I was quarterback in high school, made first team conference two years in a row.”
“Objection, Your Honor,” Stone said wearily. “What in the world does this have to do with anything?”
Before the judge could respond, Thane looked at the jury and said, “I was just wondering how a man with such a pronounced limp managed to outrun the witness?”
Reynolds nodded. “Objection overruled. Proceed.”
“Well?” Thane asked. “Weren’t you surprised to find the man had disappeared when you reached the backyard?”
Wes gave Thane a hostile look. “Well, it was dark. And he did have a head start.”
“Yes, I understand that, but you’re obviously in great shape, and you said you weren’t all that far behind him when he went around the side of the house. So honestly, weren’t you at least a little bit surprised that somebody running with a limp that bad was able to cross the backyard and get through the bushes before you even got there?”
Wes paused, then hesitantly admitted, “Yeah, I guess I was kind of surprised.”
Thane turned and walked back toward the defense table. “Don’t feel bad, Mr. Omernik. Maybe the man didn’t really have a limp after all. No further questions.”
The Court’s lunch recess was almost over, after which Yoder would be called to the witness box. Thane had no appetite. He stood in the small meeting room assigned to the defense team, gazing out the window. He loosened his tie and opened the top button of his shirt, but he still felt winded.
Kristin sat at a table reading through her notes from that morning, occasionally glancing up at Thane. Gideon leaned against a wall nearby, watching Thane closely. He looked up at the clock over the door, then walked over and joined Thane in looking outside at nothing in particular. Without taking his eye off the street below, Gideon asked, “You ready?”
Thane didn’t respond. A four-car pile-up could have taken place outside and he probably wouldn’t have noticed. He was someplace in the past.
Kristin put down her pen. “So who’s this guy again?” she finally asked.
Gideon glanced at Thane. When he didn’t answer, Gideon spoke for him.
“Name’s Yoder. Prison guard at Forsman. He’s just a stupid redneck who probably got kicked around as a pup, and now he likes doing the same to others. If he was married he’d probably take it out on his wife, too, but I can’t imagine there’s a woman dumb enough to go on a second date with him.”
“There’s not much we can do to refute his testimony, is there?” Kristin asked. “It’s going to be his word against our client’s, since nobody else was around. Not even sure it makes sense to cross-examine him. Probably best to let him say what he’s got to say and get him off the stand.”
“I don’t want to make it that easy for him,” Thane said as he finally turned around, leaning against the windowsill. His voice sounded hollow.
Gideon walked over and took a chair across from Kristin, turning it so that he faced Thane. “You know there’s nothing I’d like more than
to see that asshole taste his own blood in front of everybody in that courtroom, but what the fuck can you do? Vengeance is mine, sayeth the lawyer, but just probably not today.”
Kristin looked at her notes. “At the deposition, Mr. Yoder—”
Thane brusquely cut her off. “It’s just Yoder. Don’t dignify him.”
She paused a moment, looking surprised at the harshness of his tone. “Yoder said Mr. Burns made a veiled threat to him while being escorted to his cell, saying now that he’d murdered a cop, there was nothing stopping him from taking a shot at anybody else in the prison.”
“Bullshit,” Gideon responded, spitting the word onto the floor. “If Yoder thought Skunk was saying anything to him other than ‘yes sir’ or ‘no sir’, ol’ Skunk would be nothing but a bag of bones by now.”
“I’m not saying I believe it,” Kristin said, “I’m just saying there’s no way to disprove it. And given the choice between believing a prison guard or a thief, who do you think they’re going to believe? The jury doesn’t know Mr.—doesn’t know Yoder—like you guys do.”
“Then maybe we need to introduce him,” Thane said. “Gideon and I know more about him than he realizes. Plus, he’s an arrogant prick.”
“And dumb as plywood,” Gideon added.
Thane walked over and picked up his papers, sliding them into his briefcase. Kristin’s observation was dead on target, but he was hoping his knowledge of the guard’s history would be their ace in the hole. He didn’t know if Yoder had ever testified in court before, but if he thought of Thane as a lawyer rather than an ex-con, there might be an opportunity.
Kristin turned to Gideon. “Why’s this guy going to all this trouble to screw over Skunk?”
“He’s not after Skunk,” Thane said. “He’s after me.”
He picked up his briefcase and started toward the door. Every previous encounter with Yoder had been inside Forsman, but today the guard was on his turf. He knew the law, he knew his prey: now it was time for Yoder to see what could happen when force wasn’t an option.
“Let’s go,” Thane said. “It’s time for Yoder to suffer for his sins.”
Kristin paused a moment, then hopped up and raced over to walk with him. Gideon rose slowly. “Maybe vengeance is ours after all,” he said, grinning.
Whereas Detective Struthers was every prosecutor’s dream witness, Yoder was a ball of lightning on the witness stand. Even Stone had to have picked up on the sadistic streak running through this man. It was obvious to all that Yoder wasn’t a bad ass just when the situation called for it: he was wired that way. But Thane knew Yoder’s testimony was too important for the DA to ignore. The guard had reported Skunk’s alleged comments to the Warden, who then contacted the DA’s office. Stone most likely talked with the Warden to make sure there weren’t any possible ulterior motives that would have caused Yoder to concoct this story; perhaps Yoder didn’t like Skunk. Thane could imagine the Warden laughing, telling Stone that Yoder didn’t like anybody.
So far, though, Yoder was getting a passing grade on the witness stand. He actually cleaned up pretty well, and he answered each of Stone’s questions clearly and concisely, even tossing in an occasional ‘yes sir’, a sign of professionalism Thane never would have guessed resided within the coarse man. That’s not to say the words sounded comfortable on Yoder’s lips, but he appeared to be coming across to the jury as a credible enough witness.
Thane looked at his notes until Judge Reynolds asked if he was ready to cross-examine. He slowly lifted his head until he was facing Yoder directly for the first time since the guard had taken the stand. Thane stared at him, expressionless, then moved to a point about eight feet in front of the witness box.
“You say the defendant just . . . freely offered to you that he had killed an ex-detective. Even while claiming innocence to everybody else in the prison. Doesn’t that seem a bit odd to you?”
“To be honest, I always thought ol’ Skunk was a little odd to begin with.” Yoder chuckled.
“Your Honor, please direct the witness to refer to the defendant as Mr. Burns. I don’t have the patience for this sort of insolence.”
“It’s the court’s patience that I’m concerned about, Mr. Banning,” Reynolds said. The judge then turned toward Yoder. “Witness shall refer to the defendant as either ‘the defendant,’ or ‘Mr. Burns.’ ”
“Sorry, Your Honor.”
Thane offered Yoder a subtle smile. “Apology accepted.” He could see the guard’s teeth clench as his face flushed with anger.
“You’ve been a guard at Forsman Prison,” Thane continued, “for almost twenty years, as the District Attorney mentioned. And you’ve held that same rank all those years. There have been a few difficult points in your time at Forsman, haven’t there?”
Stone raised his hand toward the judge. “Objection, Your Honor. The witness deserves better than to be submitted to character assassination by the defense.”
Thane turned toward Stone, holding up his hands, palms out. “I haven’t even said anything yet. What makes you think I’m planning on attacking this man’s reputation?”
Reynolds rapped his gavel, redirecting Thane’s attention toward the bench. “Mr. Banning, I’m going out on a limb and guessing that what you’re about to offer is not exactly warm and fuzzy. If that is true, what is the relevance?”
“Credibility, Your Honor. District Attorney Stone mentioned some of the witness’s accomplishments during his time at Forsman. I feel I deserve a bit of leeway to establish the other side. Besides, Your Honor, what I’m about to review with the witness is documented and on the record. It simply shows a day in the life of a prison guard. And to be honest, I don’t think even the witness will consider this hostile questioning.”
The judge studied Thane carefully. “Proceed, Mr. Banning, but I can assure you this won’t take long.”
“Yes, sir.” Thane walked back to his table and picked up his notepad. As he glanced up, he noticed Hannah in the back of the room.He froze: seeing her in the courtroom brought back memories of her sitting behind him during his trial five years ago. He wanted to walk her out, to shepherd her away from this place, but at the same time he found her presence reassuring, reminding him why he was there, why he was doing what he was doing. He paused, then turned back towards the witness box.
“Eight years ago, you killed an inmate, Joey Sanchez, who you said came at you with a knife, is that correct?”
“Yeah, that’s right. Sanchez pulled a knife he had somehow gotten hold of, and started toward me. I drew my handgun, directed him twice to stop, but he didn’t, so I put him down.”
“You shot him.”
“That’s right.”
“You killed him.”
“That’s what we’re trained to do,” Yoder said. “Anybody who thinks I should have tried to shoot the knife from his hand watches too many movies. There were scores of witnesses, and the review showed I did everything by the book.”
“I didn’t mean to imply you had done anything wrong. You’re correct: the record is quite clear and confirms what you just told us. In fact, I believe you received a commendation for your actions. I simply want to review some of these incidents, then I will ask my question.”
Thane returned his attention to his notes. He felt strong, finally having this man in his arena, being forced to answer his questions. He would have liked to ask Yoder a whole host of questions under oath, few of which pertained to this trial, but he knew the answers would be lies.
“Over the next four years, you had to ‘put down’ Pauly Giradello in the laundry room, Howard Jameson in his cell, and Corey Carlson in the courtyard. Each time you claimed the inmate in question was coming at you with malicious intent.”
“Yeah, inmates in a maximum-security prison sometimes tend to have ‘malicious intent’. But in each instance I was cleared.”
“Yes. Aga
in, the record shows that.”
Stone half-lifted his hand in the air. “Your Honor, any possibility of moving to something actually relevant to the matter at hand?”
“Your Honor,” Thane said, “I have just one more incident. I feel these are important for the jury to get a sense of the responsibilities of a prison guard.”
“I’m not sure they’re important at all, but you may offer one more—and then I’d appreciate it if you could question the witness regarding something related to this case.”
Thane looked at a blank page and pretended to be reading something; the prison grapevine, which had always been surprisingly accurate, was about to be introduced into a court of law.
“And a year and a half ago, you killed Ricky Hernandez while he was working in the prison kitchen. You claimed self-defense on this one as well. Said he came at you with a frying pan and you had to beat him back with your metal baton, resulting in his death.”
Gideon looked up at the name Ricky Hernandez, then immediately returned his focus to the floor.
Yoder paused for a moment, then nodded. “That’s correct. I didn’t have time to pull out my gun, he was that fast. A frying pan may not sound like much of a threat to most people, but if it had hit my head, I wouldn’t be here today.”
“You remember the incident that clearly?”
“Hernandez was a hard man. He came at me, I figured I wasn’t gonna live to see retirement. I got lucky.”
Thane nodded. “I’m sure you were quite scared.”
Yoder gave a piercing glare at Thane’s choice of words. “I wasn’t scared. But it was him or me. I still remember that look in his eyes.”
Thane turned and positioned himself in front of the jury box. “Then why, in your official report, did you state that Tony Hernandez had been beaten by a fellow inmate in the kitchen?”
Stone glanced quickly at Winston then started to rise, but Judge Reynolds caught his movement and with his palm turned downward directed Stone to return to his seat. Gideon put his hand over his mouth to hold back from laughing out loud.
Contempt: A Legal Thriller Page 13
