by April Smith
“They won’t be spared because they’re children,” he cautioned.
“They aren’t children anymore,” Cal said. “Besides, how could it get worse unless they tarred and feathered us?”
The Kuseks had become stooges for every bad thing that had befallen the county in the past decade: the drought, a plague of screwworms and then grasshoppers, the cement plant closing down, Dutch Roy getting into a tractor accident, poor Charmin’ Charlie dying of cancer, someone’s cattle falling sick, but, scariest of all—and the “proof” of several conspiracy theories naming the Kuseks as agents of the devil—the mysterious disappearance of Scotty Roy.
Nobody had heard from Scotty since the day he showed up at the Lucky Clover Ranch, all scrubbed and ready for the road—the same day the Roys realized the tape of Betsy’s so-called interview with the FBI was missing from their living room. Weeks had gone by and he’d never called home. His parents heard he’d competed in the professional rodeo in Silver Springs, Texas, but after that nobody knew his whereabouts. Cal volunteered that he might have been the last to see Scotty Roy, and went down to the police station for an interview, which people thought was a calculated gesture, especially now that Scotty’s father, Dutch Roy, had been named as a co-conspirator in the lawsuit against Thaddeus Haynes.
The saddest and most shocking revelation to emerge for Cal from the discovery phase of the trial was the uncovering of checks written by Dutch Roy, as well as Haynes, to the printing company that manufactured deceitful letters mailed to voters after the Legion Hall meeting, as well as the “Meet Your Enemy” leaflets. His conspiracy with Haynes against Cal was clear. Dutch Roy had hosted anti-Communist study groups, played the tape, and donated money to Haynes’s whisper campaign. Not surprisingly, Master Sergeant Hayley Vance escaped scrutiny altogether.
Cal was torn between his understanding of Dutch Roy as a disappointed older man whose fortunes had turned…and the vengeful competitor seeking payback. Cal and Betsy agonized over whether to sue someone who, in good faith, had extended his hand to them, but Lennox insisted that adding the charge of conspiracy gave them a stronger case. Once that was made public, rumors flew that Cal had murdered Scotty to shut him up, or Scotty had chosen to disappear so he didn’t have to testify against his dad. Either way, it was agreed that Kusek had bored his way between father and son like a weevil.
After eighteen months of preparation and delays, the trial lasted almost five weeks. The jury looked like someone had rounded up patrons at the A&J market, thrown them in a van, and driven straight to the courthouse. They wore their usual everyday clothes and carried no pretensions. Among them were wives of cattlemen, a uranium miner, a cook at the local Italian restaurant, a druggist, a Lakota grandmother, a retired chemistry teacher, a construction worker. The presiding judge, Harold Wheeler, was difficult to look at: portly, with elongated ears that sprouted tufts of hair, coarse skin, and a thick lower lip hanging loose enough to create a traveling pool of saliva, but he was considered a brilliant eccentric—an author of textbooks on appellate law, as well as a professional beekeeper.
In his opening statement, Kurt Lennox promised that he would deliver proof that Cal’s reputation had been severely damaged by the attacks on his character by the defendants, Thaddeus Haynes and Dutch Roy. As a result of a calculated smear and fear campaign, enough people had come to believe that the Kuseks were disloyal to their country to cause harm to Cal’s livelihood as a politician.
Lennox summarized for the jury that they were suing in the amount of $200,000 for three separate libels: the radio broadcasts, the doctored tape, and the speeches at the American Legion meeting. In a stunning stroke worthy of that infamous defender of evolution, Clarence Darrow, he broadened the implications of the trial.
“This matter is not about the attacks against one man, but damage to the whole community, which has suffered the wounds of suspicion and cruelty as a result of the personal vendettas of Haynes and Roy.”
The defense attorney, William Price from Sioux Falls, was a large, lumpy man with slumped shoulders who wore cheap suits—easily underrated, but perfectly in tune with the majority of South Dakotans. He shared the same black-and-white vision of the world as his clients: that Communism was the enemy, a worldwide conspiracy aimed at destroying the United States. Rather than rebut the charges, he kept those emotions alive by repeating the accusations against Cal: he’d deliberately kept Betsy’s membership in the Communist Party secret from the public in order to get elected. As leader of the left wing in the state legislature, he’d subversively followed party line. Price flatly denied Betsy’s statements that she’d cooperated with the FBI and that she’d left the party. His promise to the jury was to prove that Cal and Betsy Kusek were still, at this very moment, “under the discipline of the Communist Party.”
Price had brazenly shifted the focus right back to the Red Threat. His strategy would be to keep the jury in such an anxious state about nuclear war with Russia that it would blur the legal issues at hand. The defendants would emerge as guardians of freedom, and Kusek the agent of threatening, dark annihilation. Lennox countered by depicting Haynes as a lying, ruthless, misguided demigod who had taken advantage of Dutch Roy, a susceptible and feeble old man, with the aim of destroying a good citizen in order to feed his empire of hate.
Lennox set out to take Haynes apart six ways from Sunday on the witness stand. He cut through the claim that Haynes never filed tax returns because he had no income, having dedicated his life to the defeat of Communism, by holding up canceled checks to prove Haynes was currently employed as the owner of a commercial TV and radio station. He questioned Haynes about a statement he’d made in a broadcast that Communists were “highly trained and out to kill us.” Lennox pointed to the Kuseks and asked if Haynes was accusing them of attempted murder. Haynes backed off. He meant the “army” of “other Communists” trained to kill us.
Was Haynes aware that Cal had been given top-level navy intelligence clearance? What did that tell him about Cal’s loyalty? Haynes replied that he had no knowledge of how the navy decided those things or what they meant.
“So you didn’t know what it meant but you accused him anyway?” Lennox asked incredulously.
He played an audiotape of the Legion Hall meeting and called Verna Bismark to testify as to what it was like to be booed off the stage.
“It was the most humiliating moment of my life,” she said with her chin in the air.
Playing the tape had been effective. The jury did not approve of a middle-aged business lady being manhandled with audible shouts of “Throw her out!”
The trial had become local entertainment and national news. Classes of schoolchildren were brought in to observe the legal process, and TV reporters came from all over the country when it was Betsy’s turn to take the stand.
For months Betsy had been nervous about appearing in court, and now it was taking its toll. Since Doc Avery’s death, she’d been employed by an agency that hired out visiting nurses. But with all the rumors going around, more than once she’d had the door slammed in her face. That was intolerable, so she’d quit the agency and was working at Mercy Medical Center as a floor nurse giving patient care. It was the emotional fatigue that was getting her down—the long shifts, plus drilling her responses with the endlessly patient Kurt Lennox. She even rehearsed in front of a mirror. But she wasn’t used to being in the limelight, and began to perspire the moment his practice questions touched on joining the party. It was decided that Lance and Jo should make their first appearances in the courtroom that day. They would make a strong family showing, and the jury would approve of a daughter who’d just gone on to study at a big college in Portland coming back to support her mother.
Lennox’s job was to demystify the party meetings, make them human for jurors who had never seen the ocean, let alone were familiar with the 1930s Progressive movement in New York. He described it as a social club. Betsy testified that there had been only a yearning for a better, more just
world. She worked in soup kitchens and collected clothes for the needy. When they met, Cal had no faith in Communists and their egotistical leaders, but he set that aside in his love for her. He would later testify that although he disagreed, he never pressured Betsy to quit.
“I knew she’d come to it in her own way,” he said.
And she did. Like a lot of her comrades, she was disillusioned by its impossible and repressive dream. “I stopped paying dues and never looked back. It was a youthful mistake that has nothing to do with who I am today,” Betsy said in a clear, strong voice.
Lance and Jo sat together in the courtroom and gave their mom a secret thumbs-up.
The tape of her “interview” was played and she was questioned about her opposition to Communism on the Map being shown in school. Asked if she’d ever said those things, Betsy stated yes, in Mr. Emry’s office, when she was there to discuss her daughter. But on the stand Mr. Emry had denied they’d ever spoken, and his secretary, Kay Angerhoffer, backed him up. She had no record of her boss having met with Mrs. Kusek.
Lennox asked Betsy how the contradiction in their statements was possible.
She’d been waiting for this. She located the pale, skeletal face of the high school principal in the audience, looked him in the eye, and replied forthrightly:
“It’s simple. Mr. Emry is lying,” she stated, shocking the courtroom and sending reporters running for the phones. Lance and Jo could scarcely resist high fives.
After she was deposed, an expert was called who testified that the tape had been altered.
When Cal took the stand he was the picture of dignity and composure. Lennox worked to establish his integrity and to emphasize the important projects—“things that change people’s lives”—he’d accomplished in the legislature: schools, roads, jobs.
“You’re not some phonus balonus, are you, Mr. Kusek? You’re a cattleman,” Lennox concluded. “You dig in, get your hands dirty, and get things done. Tell me,” he said, setting him up, “do you agree with the statement that we are witnessing a war between Christianity and Communism and only one can win?”
“No, sir, I do not,” Cal replied. “I believe in the basic values of democracy and free speech as set forth by our founding fathers. As long as there are humans on this earth, the right of freedom will outlast any philosophy.”
At this point the defense tactic had become slowing everything down to make the jury forget what it heard. When the time came to consider the verdict, they’d be exhausted, the impact of Lennox’s carefully orchestrated moves lost to a “let’s get it over with” mentality. To prove the Kuseks’ “association” with the party, William Price brought in a tedious lineup of experts on Communism and kept each one on the stand for days. Several swore that Betsy’s description of quitting simply wasn’t possible.
“They’ll assassinate you if you try to defect,” claimed a professor.
And nobody gets married without permission from higher up.
“They tell you who to marry,” insisted a former party member. “Your mate has to be of the same persuasion.”
During the third week of the trial, the defense changed course and brought in razzle-dazzle celebrity witnesses. More chairs were needed for the author of a real-life spy story about his years inside the “Soviet apparatus.” He declared Thaddeus Haynes’s information to be “correct and fair,” and characterized the Kuseks as “part of an underground espionage cell” taught to lie low and betray their country. Lennox attacked the author’s credibility, asking how you can tell a Communist from anybody else.
“Suspicion is enough,” he replied.
Cal’s team realized they had to change the pace of the trial, which was groaning along like a medieval cart down muddy cobblestone streets to the gallows. So they turned to Hollywood and flew in a famous matinee idol who’d joined the party in the 1940s but quit after six months. Then there was a former Trotskyite, who affirmed Betsy’s tale of leaving the party with zero recrimination. He dismissed the accusation that the Kuseks were members of an “underground espionage cell,” declaring there was no such thing. The chairman of the Political Studies Department at Harvard agreed that espionage was not a group activity.
Like the climax of a fireworks display, Lennox brought in a barrage of experts testifying to Cal’s integrity, including the president of the Bar Association, who swore he’d never heard Cal say anything pro-Communist and that he always voted along moderate Democratic lines. Finally there was a no-nonsense naval intelligence officer in full uniform who explained—“For Mr. Haynes’s benefit,” Lennox sneered—what a top security clearance meant, and that it would have been canceled immediately if there was the slightest doubt about Cal’s loyalty.
Lennox pivoted on the heels of his snakeskin boots and shared a cozy chuckle with the jury. “If you believe Mr. Haynes, we can’t trust anyone—not even the navy!”
The final assault by the defense was against the Kusek children. As Lennox predicted, they were vilified along with the parents. Jo’s high school record—surprisingly made available, although the principal’s appointment book had vanished—was dredged up as proof of her subversive behavior. She was criticized for attending Reed College in Portland, Oregon, which Price labeled “a known Bolshevik institution.” Doris Roy walked unassisted to the stand and recounted an incident that took place more than ten years ago, when, during a roundup at the Lucky Clover Ranch, she’d stumbled into the henhouse to discover the girl was smoking a cigarette. “She was about to burn the place down,” Doris declared. “They raised a little pyromaniac.”
Betsy, Jo, and Lance walked out of the courtroom.
Lennox had saved a surprise witness for last. Even the Kuseks hadn’t been told so that their reactions would be genuine.
“We call Mrs. Marja Winter,” Lennox announced.
The doors opened and Betsy’s sister entered the courtroom alone. They hadn’t seen each other since her abrupt departure, but were prevented from embracing or even speaking as Marja was marched to the stand. Side by side, Betsy looked work-worn and thin, while Marja—even more the spitting image of their mother—retained a fresh, pampered complexion, a New Yorker in a hurry, clutching an expensive pocketbook, wearing a nubby navy wool suit and red lipstick, speaking quickly because she had to get back on a plane.
Lennox hammered at the charge of secrecy.
“Why did your sister drop her given name, Coline?”
“I was too young to remember.”
“Did you always call her Betsy?”
“Yes.”
“Why didn’t Betsy talk about her membership in the Communist Party at home?”
“She knew our father would disapprove,” said Marja. “He disapproved of everything. He was a heavy drinker. If it weren’t for Betsy, we would have been on the street.”
“Why is that?”
“She supported us in every way.”
“Do you have proof?”
“I do,” said Marja, and handed Lennox a sheaf of yellowed papers.
“Please tell the court what this is.”
“My teenage diary. I was legally blind, so it’s written in Braille.”
There was a collective gasp from the courtroom. It was a brilliant move. The jury was mesmerized as Marja’s fingers traced the words and she read out loud how Betsy was working night and day at Gimbels and going to jail to defend working people. How she’d given up her dream of being a doctor in order to protect Marja, because their father was unable and their mother was gone.
Marja stopped reading. She looked at the courtroom and said, “Betsy always took care of me.”
Betsy was overcome with tears. Afterward the family shared only a brief moment in the grand lobby of the courthouse. A car was waiting to take Marja back to the airport. Although Betsy and Cal begged her to stay, Marja seemed skittish, perhaps afraid things might go sour…or she might not want to leave.
“Leon doesn’t like to be alone,” she explained.
The defense reste
d on Marja’s dramatic testimony. Thirty-five days after the trial had begun, Judge Wheeler gave instructions to the jury: “Every man has a right to have his good name unimpeached. Publishing a false and unjustifiable statement which assails the reputation of another is a wrong, for which the law provides a remedy. A libel is a false publication which tends to expose a living person to hatred, contempt, ridicule, or obloquy, or deprive him of the benefit of public confidence or social discourse, or to injure him in his business or occupation.”
It was impossible to read their faces as the jury filed out. On a daily basis, over the long course of the trial, the attorneys would assess their score from what they were hearing outside the courtroom, in order to fine-tune their approach to the jury—but now there was nothing to do but wait. Betsy, Cal, Lance, and Jo were staying at the Fletchers’ in town, expecting to be called when a decision was reached, which could be at any moment. Robbie phoned from Denver to say, “Right on!” He and Jo caught up and promised to be more in touch. Lennox hunkered down at the Hotel Alex Johnson. On the afternoon of the second day there was stirring. The foreman knocked on the door of the jury room and said they wanted to hear the tape recording of the Legion Hall meeting again.
That night Cal’s team waited hopefully in the law office until they all fell asleep.
The next day there was another sign: the jury didn’t go to the usual pizza place for lunch. Then nothing. By the fifth day Lennox gloomily concluded the jury must be undecided, which would be a disaster. That night they’d pretty much given up and gone to bed early. At midnight Fletch got a call. The verdict was in.
Almost giddy, they all met in front of the hotel and walked together through the cold, deserted streets to the courthouse, linking arms, telling themselves that one way or another this unbearable tension would be over. Even at that hour the courtroom was jammed with reporters, Legionnaires, Birchers, liberal Democrats, Kusek diehards, and court watchers who loved a good soap opera. Fletch squeezed Stell’s hand so hard her ring dug into their fingers. The judge called for order and threatened jail time if anyone caused a disturbance. There was a mass intake of breath before the verdict was given. Lance clenched his hat, looked at the sky, and whispered the Cowboy Prayer.
