Misjudged

by James Chandler

  “Naaaw, not me, now.”

  “Ever been in her place?”

  “Sure.”

  “When was the last time?”

  “Mebbe a coupla days before she died.”

  “So, between the time my guy showed up and you seein’ his truck was gone, you didn’t hear or see anything?”

  “I didn’t say that, now.”

  “Excuse me?”

  “Well, sometime during the night I heard something—I imagine it was your boy leaving.”

  “Did you look?”

  “No.”

  “What time was it?”

  “Dunno. Didn’t look.”

  “So, sometime during the night you heard something, but you don’t know what it was or what time it was—true?”

  “Well, yeah, but I just figured it was your client. Didn’t have no cause then to think he’d kilt her.”

  27

  Tommy’s initial appearance had drawn a full house, Howard noted as he approached the bench. It was to be expected in a rural American town like this, where murders had historically occurred about once every other year or so. Most of the murders Howard had seen over the years involved drunken husbands killing wives or wives shooting battering husbands, so one like this would naturally draw a lot of interest. And since Emily had known practically everyone in the courthouse, it was no surprise that a lot of the courthouse staff had given up their lunch hour or otherwise taken time off to watch.

  “The first matter before the court is State of Wyoming versus Thomas Olsen,” Howard said. As a circuit court judge, Howard didn’t have the jurisdiction to take a plea. Instead, the purpose of the hearing was to ensure the defendant understood his rights, the charges, and the possible penalty should he plead or be found guilty; to arrange for attorney representation if necessary; and to set the terms of his pre-trial release. “Mr. Olsen, would you please step to the podium?”

  Tommy dutifully arose and shuffled to the podium, his feet constrained by steel shackles, where he was met by Sam.

  “Your Honor, Sam Johnstone, appearing for the defendant.”

  “Welcome, Mr. Johnstone. Have you been retained by Mr. Olsen?”

  “I have, Your Honor.” An audible murmur went through the courtroom as those who didn’t know Sam asked those beside them who he was, and those who knew him expressed surprise that an attorney in Paul Norquist’s office would take the case.

  “Mr. Johnstone, because this is an initial appearance on a felony, we’ll go through this rather quickly, and then we’ll talk about bail.”

  “Yes, sir.”

  Howard asked Tommy his name, social security number, address, and phone number.

  “Mr. Johnstone, will your client waive an advisal of rights?”

  “He will, Your Honor.”

  “Thank you, counsel,” Howard said. “Mr. Olsen, you are here pursuant to an Information and Warrant alleging you are guilty of one count of first-degree murder, a violation of Wyoming Statute—”

  Howard stopped talking when a tremendous clapping sound reverberated through the courtroom. He was looking around, startled, when Sam began yelling, “Get down! Incoming! Everyone get down!”

  The bailiffs immediately drew their weapons and began scanning the audience, yelling at Howard to get under his bench. Sam was behind the table, scanning for enemies and calling for his platoon leaders. He could hear the thump of mortars being launched at his men. “Get everyone down! Now! Incoming!”

  The bailiff was looking at Tommy, who was under the table, staring at Sam. The courtroom was very quiet. “Sam.” Tommy cautiously put a cuffed hand on Sam’s arm. “Sir, it’s me, Lance Corporal Olsen.”

  Sam peered cautiously up over the table, then got back down and looked at Tommy. “Sir,” Tommy repeated. “It’s me.”

  “What’s going on?” Sam said. He was sweating heavily.

  “That easel thing there in the corner fell down,” Tommy said, gesturing behind them. “Made a helluva noise. You, uh . . . You freaked out. But it’s okay.” He again placed a cuffed hand on Sam’s forearm. “We’re all okay.”

  Courtroom security cautiously approached Sam and Tommy and determined all was clear. One of the officers moved to Howard’s bench and was whispering in his ear. Howard nodded and looked at Sam, then stood and declared, “We’ll take a fifteen-minute recess. Counsel, in my chambers, please.”

  “Damn, son, you scared the shit out of me.” Howard wiped his forehead with a paper towel he’d gotten from the restroom in his chambers. Handing one to Sam, he asked, “You all right?”

  Sam asserted he was fine but accepted the towel. “My apologies, Your Honor.”

  “How about you, Ms. Fulks?” Ann was looking at one of her shoes—apparently a buckle had been broken in all the excitement.

  “I’ll take care of that,” Sam assured her. “My fault. I’m, I’m sorry. I thought—”

  “We know what you thought, counsel,” Ann said. “It was clear to everyone. Your Honor, I’d like to put something on the record. I cannot abide by Mr. Johnstone’s antics—”

  “Antics?” Howard asked. “Surely, Ms. Fulks, you cannot think that Mr. Johnstone would create such a disturbance on purpose?”

  “I don’t know,” Ann said. “What I do know is that we are in the middle of an initial appearance on a charge of murder. If Mr. Johnstone cannot, or will not, represent his client without . . . theatrics, then I would ask the court to see to it that he is replaced.”

  “Your concern is noted, counsel.” Howard turned to Sam. “Mr. Johnstone, are you all right?”

  “I’m . . . fine, Judge. I just got startled, that’s all. I’ll. . . I’ll be okay.”

  “Are you fit to continue?” Howard asked. He was up and handing out bottles of water from the refrigerator in his office. “We can continue until tomorrow, if you prefer.”

  “Your Honor, the State will object to any continuance.”

  “Ann, we’re not on the record here, so shut up for a moment, would you?” Howard stared her down. “Now, Sam, how would you like to proceed?”

  Five minutes later, the parties were reassembled. The judge had put the matter back on the record and was in the process of reading the charge to Tommy. Still shaky on his feet, Sam rose, holding onto the table for support. “Your Honor, my client waives his right to a reading of the charges against him, and—” Sam was hoping to avoid a reading of the charges and penalties.

  “Not that quickly, Mr. Johnstone. This is a serious matter. I’m going to read the elements of the crime and the possible penalties to the defendant, then I’m going to ensure he understands what he’s been charged with.”

  “Your Honor, I’ll represent to the court that before appearing here today Mr. Olsen and I discussed the warrant and the charges against him—to include possible sentences.”

  “I’m sure you did, counsel. Now, may I continue?”

  “Yes, Your Honor,” Sam said, sitting down and listening impatiently while Howard read the statute and the warrant verbatim. “Mr. Olsen, do you understand all that?”

  “Yes, sir,” Tommy said quietly.

  “The statute goes on to say,” Howard read, “that ‘a person convicted of murder in the first degree shall be punished by death, life imprisonment without parole, or life imprisonment according to law.’ Mr. Olsen, do you understand that?”

  Whispers and groans had run through the crowd at the mention of a possible death penalty. Tommy sat quietly, looking at the chains on his wrists, and said nothing. Sam leaned over and whispered in his ear, “Tom, did you hear that?”

  “Yeah,” Tommy said. “So I could die?”

  “Well, technically, but that isn’t going to happen. Answer the judge.”

  “What do I say?”

  “Tell him you understand.”

  “I understand, Your Honor,” Tommy said in a near-whisper.

  “Thank you, Mr. Olsen,” Howard said, shuffling through papers on his desk. “Does the State have a recommendation for bon
d?”

  Ann rose and stepped to the podium. Her moment had arrived, and she was well-rehearsed, aware that newspaper writers from all over the state were present. “Your Honor, as the court knows, Mr. Olsen has been charged with first-degree murder. While the State is still trying to determine whether to seek the death penalty, this is the most serious crime on the books. A young woman has lost her life. Mr. Olsen does have a prior record, one which includes prior assaults on women. For that reason, we would ask that the court allow no bond, and order him held until trial.”

  Howard, who had been taking notes, looked toward Sam. “Mr. Johnstone, does the defendant care to respond?”

  “Yes, Your Honor,” Sam replied, gathering his notes and walking to the podium. “As the court well knows, my client is presumed innocent until proven otherwise. Mr. Olsen vehemently denies these charges and looks forward to the opportunity to defend himself. He is married, has a wife and kids here in town, and is employed as a rig hand. He is not a flight risk. Further, Mr. Olsen is a decorated veteran who spent several years of his life defending the rest of us in Afghanistan and elsewhere. While he acknowledges his criminal record, I am made to understand that it consists primarily of driving under the influence and domestic difficulties. Further, I understand that these incidents stem from an underlying, untreated post-traumatic stress disorder. Basically, he’s been self-medicating with alcohol, Your Honor. Because my client presents no threat to the community when sober, I’d ask that you set a reasonable bond in order to ensure that he appears for trial. We feel a bond in the amount of $25,000—"

  “Twenty-five thousand bucks? Where the hell am I going to get that kind of money?” Tommy interjected.

  “Mr. Johnstone, please restrain your client,” Howard said sharply.

  Sam leaned over to Tommy and whispered earnestly, “Tom, are you interested in spending the rest of your life in jail, or worse?”

  “Of course not. But I ain’t got no money,” Tommy replied.

  “I need you to trust me. I need you to be quiet for just a minute and trust me. Can you do that?” Sam looked Tommy in the eyes.

  Tommy met his stare, then looked down. “I didn’t do this.”

  “I understand that. But will you trust me?”

  “Yes, sir.”

  Turning his attention to the judge, Sam concluded, “Your Honor, I apologize for the interruption. We believe that Mr. Olsen does not present a danger to the public, and a bond in that amount is sufficient to ensure his appearance at all further hearings in this matter. I’d ask that you set bond in that amount, order my client to comply with a house arrest order, and abstain from the possession or use of controlled substances, alcohol, and weapons. Thank you.”

  Sam sat down and watched Howard. Tommy leaned over and asked in a low voice, “Does that mean I can’t hunt?”

  “Yes,” Sam said, jaw tight.

  “Sam—”

  “Tommy, I need you to sit tight. We’ll talk about this later.”

  “But Sam—”

  “Tommy, we’ll talk later. Rock steady, now.”

  Howard looked to Fulks. “Ms. Fulks, does the State have a response?”

  “We do, Your Honor,” she said, rising. “I recognize that Mr. Johnstone is new to this jurisdiction and to this state. And I don’t know how they do business back in Washington, D.C., but in Custer County, Wyoming, twenty-five thousand dollars is insufficient for a crime of this magnitude—”

  “An alleged crime of this magnitude,” Sam interjected, half out of his chair.

  “Mr. Johnstone, please let her finish,” Howard scolded. “In this jurisdiction, counsel do not address each other—all comments must be addressed to the court.”

  “I apologize to the court,” Sam said.

  “Continue, Ms. Fulks,” Judge Howard said.

  “As I was saying, twenty-five thousand dollars is insufficient, Your Honor, and the State renews its request that the court deny bond. Thank you.”

  “Well, having heard and considered the arguments of counsel, this court is going to deny bond. The reasons therefore are the severity of the allegations and the defendant’s prior criminal record.” The judge looked at Olsen. “Mr. Olsen, you are remanded to the custody of the detention center pending trial.”

  “Tom, I’ll be over to see you tonight. Need you to stay out of trouble,” Sam whispered.

  “Okay,” Tommy said. “Sam, I didn’t do this.”

  After Tommy was led from the courtroom, the public arose and left as well, eager to discuss the events they had just witnessed. Sam remained behind. He wasn’t surprised or even disappointed—no judge in his or her right mind would allow a man with Tommy’s background, who was suspected of murder, out of jail pending trial.

  Outside the courtroom, the press was ready with cameras and microphones. “Ms. Fulks, how are you feeling about the denial of bond by the judge?”

  “The charge is first-degree murder. The court’s job is to ensure that the defendant will appear for trial, and that the public’s safety is assured. Given that the death penalty has not been taken off the table, the State feels the denial of bond was appropriate,” Ann said, just as she’d rehearsed.

  “Are you nervous? This is your first murder trial, is it not?”

  “It is my first murder trial, and no, I’m not nervous,” Ann replied, and then mustered what she hoped was a look of grim determination. “I’m not on trial.” And with that, she turned on her heel and walked swiftly away from the reporters, feeling pleased with herself.

  A few days after the initial appearance, Punch was on his way to the county attorney’s office to give her an update. He was still trying to tie up some loose ends. He was running late and looking at his watch when his phone rang. “Polson.”

  “Hey, boss. Baker here.”

  “Baker, what’s up? Make it quick; gotta meet the county attorney momentarily, and I’m running late.”

  “Lucky you. Hey, we got some good shit on Olsen.”

  “Tell me.”

  “You remember we did a request for his military records?”

  “I do.”

  “Well, we got the results.”

  “I’m listening.”

  “Turns out he almost got a dishonorable discharge. Apparently, he punched an officer!”

  Punch thought back to his brief career and the countless times he’d come close to nailing some pin-headed officer—especially majors. There was something about majors. “So what?”

  “So . . . it was a broad!”

  Ignoring for a moment his subordinate’s politically incorrect language—he’d worry about that later—Punch directed Baker to get on with it. “Gimme the skinny.”

  “Well, it was right before he got out. He was out-processing, this gal said something, he said something, and she slapped his ass. According to the Corps, he went crazy and knocked her out. Took three of his buddies to get him off her. But because she had slapped him, they just busted him a couple ranks on the way out the door.”

  Punch considered his next action. “Whattaya got—hard copies or is this all electronic?”

  “All I got is one hard copy. The Marines don’t give out the electronic version, apparently.”

  “All right. Make one copy and throw it in my inbox. I’ll get to it tonight,” Punch said, feeling a little better. It was one more nail in Tommy Olsen’s coffin. Maybe he and Rhonda could take the kids out to eat tonight.

  28

  “So, how are you doing?” Sam asked, eyeing Tommy carefully. It was mid-December, and Tommy had been in jail for more than a month. His preliminary hearing would be next week. He had gotten a haircut, revealing several unusual scars on his head. The orange jumpsuit was hanging on him, indicating a loss of weight. Jail food was obviously not agreeing with him.

  “I’m locked in a cage for a crime I didn’t commit. How the fuck you think I’m doing?” Tommy asked. “Where the hell have you been?”

  “Got that out of your system?” Sam asked. Tommy looked
at the floor. “Tommy, I told you I was not going to be able to get in to see you every day. I’m here as often as I can be. But I’ve got other cases, bills to pay, and a lot of work to do in preparation for this case. I’m doing the best I can, and I need you to believe in me—just like I believe in you.”

  “I’m sorry, Sam,” Tommy said. He stood up and walked the small cell’s perimeter. “Time goes slowly in here, and it’s hard not to get pissed off. I’m thankful for what you’re doing for me, but I’m going ape-shit in here.”

  “No problem,” Sam said. “Serious question: how are you feeling?”

  “I’m okay. I’ve been doing some push-ups to try to keep my strength up. They only let me exercise out of the cell for one hour a day, and only inside, so I’m not getting much cardio.”

  “You look like you’ve lost weight.”

  “Well, the chow here sucks.”

  “You gotta eat. Have you been reading those books I got you?”

  “Yeah, I’m okay with the Alcoholics Anonymous book, but some of those others just seem like a bunch of hocus-pocus.”

  “Fine, just give them all a try if you can, Tommy. They’ll help. I’m taking a look at them myself.”

  “You need to, after that shit-show in court. Jesus, you scared the hell out of everybody!”

  “I know, and I’m working on it,” Sam said. “Listen, I need to talk to you about something. The way criminal defense works is this: you either did it, you didn’t do it, you were justified in doing it, or you did it but weren’t responsible for doing it. Those are the four defense possibilities.”

  “I didn’t do it.”

  “I understand—”

  “I didn't do it!”

  “Tommy, quiet down! I understand what you’re saying. But it is my responsibility as a lawyer to provide you with the best defense possible, and it may be that your best defense is to admit killing her but assert that you were not responsible for your actions at the time that you—”

  “What? Killed her?”