Misjudged

by James Chandler

  “Well, yeah. It might be that given the evidence that we face, your best bet to avoid the death penalty or a long jail sentence is to say, ‘Yeah, I did it, but at the time I did it I was not in control.’”

  “What part of ‘I didn't do it’ don’t you understand?”

  “Tommy, I hear you. But if you hang your hat on being found not guilty by a jury, and if they don’t like you or don’t believe what you are saying, you could find yourself in a trick.”

  “I don’t care. I didn’t do it. They won’t be able to find me guilty.”

  “Tommy, ever have a situation where you find out you did something, and you don’t remember doing it?”

  “Well, yeah—but only when I was drinkin’.”

  “Well, you were drinking with Emily the night she got killed, right?”

  “Yeah, so?”

  “So, how do you know you didn’t do her, and then black out?”

  “Because I remember everything. Trust me. She ain’t a gal you forget about.”

  Sam smiled despite himself and motioned for Tommy to sit beside him. “Tommy, a jury is comprised of twelve human beings. None is perfect individually, and they are not perfect as a group. I can’t sit here today and tell you or promise you—let alone guarantee you—that the jury in your case will not make a mistake. So, we need to look at all possible defenses. To that end, given your military service, I want you to agree to be evaluated by a psychiatrist to see if you are fit to stand trial now, and if you were legally sane at the time of the killing. We can get a doctor from the VA—”

  “I won’t do it. I am not a nutjob!”

  “Tommy, I can’t make you, but as your lawyer, I can ask the judge to order you to undergo an examination. I don’t want to do that. What I want is for you to sign a consent form so that I can order up an examination.”

  “I am not crazy. I was not there when she was killed. For Christ’s sake, I didn’t do it, Sam! Why won’t you believe me?”

  “Just humor me. Just go along with this for me, and let’s see what the results are.” He looked steadily at Tommy, who met his stare for a moment, then looked to the floor.

  “I’m not going to consent. There’s nothing wrong with me. I maybe have a temper, and sometimes maybe I drink too much, but I’m fine.”

  Sam grasped Olsen’s forearm and looked him in the eye. “Tommy, I can’t have you die on my watch. I’ve been there and done that. I can’t deal with it again. I can’t live with it. I need you to do this, for you and for me. And if you won’t do it, then maybe you’re going to have to retain another attorney.”

  “Damn, Sam. You’d walk away? I misjudged you, man. I thought you were straight up.” Tommy watched Sam, who had turned to stare at the cinderblock wall. “Sam, I’m fine. Just like you, I’m driving on.”

  “That’s where you are wrong, Tommy." Sam’s eyes were wet with tears. “We’re not fine. We’re all screwed up. It’s just a matter of degree.”

  29

  The sun’s warmth on the back of his neck contrasted with the temperature of the water swirling around his lower legs. Having caught a few decent fish, Sam waded to the water’s edge and sat heavily in the bent grass lining the bank of the spring creek. The breeze was slight and the sky was azure, with no clouds visible above the canyon walls looming over him.

  Sam had little enthusiasm today. Normally, an early winter day spent on stream served to clear his head of all but fishing-related thoughts. He’d simply focus on the fishing and let everything else go. But today was different, because this case was different. The stakes were high—hell, they couldn’t be any higher.

  The fish were cooperative, and Sam had matched the hatch, but he’d missed several solid strikes. Maybe it was all that whiskey last night; maybe the fish weren’t quite taking the fly like he thought. That didn’t make sense. He’d been fishing since he was a kid; he knew a solid strike when he saw one. Maybe his focus wasn’t what it should be—or maybe it was. Maybe this was a bad idea; maybe he should be back in the office getting ready for a preliminary hearing on behalf of a man whose life literally depended on his having it together.

  Slowly and deliberately, Sam retrieved his line, clipped off the fly, and attached it to the drying patch on his vest. Even now, with the advancements in equipment, Sam still wore a decades-old vest containing a bladder that could be inflated with the pull of a cord or by blowing into a tube. It had been a gift from a girlfriend, the result of one too many tales of a fall into a creek, a misstep that resulted in his tripping into the river, or a bank giving way that ended up with him swimming downstream until he could regain his footing. She always hated those stories, and when a drunken buddy had ignored her look of shock and horror and regaled everyone at a party with the tale of how Sam’s waders had filled with water on Arkansas’s White River and only a fortuitously overhanging branch had saved him from drowning, she had spent more money than she could afford on what was, at the time, a state-of-the-art vest.

  He wondered idly whatever happened to her, then rooted in the pockets until he found the flask, took a long pull from it, and lay back in the grass. Somewhere among the prairie oaks lining the valley floor, tom turkeys called mournfully for mates.

  “Dude, what is your problem?” Tommy asked. He was at the door of the adjoining inmate’s cell. The inmate, a young guy by the name of Vargas, had been running his sink and flushing his toilet all night long. “I’m trying to get some sleep.”

  “What does it look like I’m doing, man?” Vargas replied. “I’m doing laundry. My girl is coming tomorrow, and I need to be looking good.”

  “Do it during daylight hours, please.”

  “Fuck you, man. I’ll do it when I want. You can go—”

  Tommy had crossed Vargas’s cell much quicker than the young convict had anticipated and was on top of him in an instant. Vargas tried to fight back, landing one punch under Tommy’s right eye. But it had little effect, and Tommy beat Vargas until the little man was unable to fight back.

  Stepping away, Tommy heard the prisoners shouting in the adjoining cells. He backed himself into a corner in case anyone came to assist Vargas, heard the alarms, and waited. Moments later, the jail’s quick response team arrived, geared up and ready to go.

  “It was me,” Tommy admitted, turning and putting his hands behind his back as he nodded toward Vargas on the floor. “This little fucker was being disrespectful, and I got sick of it.”

  “Tommy, let me make sure I have this straight,” Sam said. “Some asshole is being an asshole, so you—charged with first-degree murder and potentially facing the death penalty—get pissed off and assault the guy? Are you kidding me?”

  “Sam, I’m sorry,” Tommy pleaded. “I was tired, it was late, and I’ve been feeling a little stressed out.”

  “Well, no shit.” Sam shook his head. “I’m sure I’ve heard of something someone did that was stupider; I just can’t remember what it was right now. Another little trick like this and you’re gonna have to find yourself another boy. You understand?”

  “I understand, Sam,” Tommy said. “And I want you to know something.”

  “What’s that?”

  “I don’t usually let people talk to me like you are right now. Just so you know.”

  “For Christ’s sake, Tommy! Really? You’re going to threaten your lawyer now?” Sam signaled for the guard through the window. “You know what? Get yourself cleaned up, and let’s go do this.”

  30

  “Good morning, Circuit Court for the County of Custer, State of Wyoming is in session,” Howard began. “This is the matter of State of Wyoming v. Thomas John Olsen. Today is the 12th day of December. I note the presence of Deputy County and Prosecuting Attorney Ann Fulks. Mr. Olsen is here and is represented by Sam Johnstone. We are here for a preliminary hearing.”

  Seeing the mouse over Tommy’s eye, Howard asked, “Mr. Johnstone, is your client able to proceed here today?”

  “Yes, Your Honor,” Sam said.

&n
bsp; “Ms. Fulks, is the State prepared to proceed?”

  “We are, Your Honor.”

  Sam had explained what was going to happen at this hearing to Tommy earlier in the day. “Under Wyoming law, Tommy, when a defendant is charged with a felony, he has the right to a preliminary hearing,” he had begun.

  “What’s that?” Tommy had asked sullenly.

  “It’s a hearing to determine if there is probable cause to bind you over to district court—the higher court having jurisdiction over felonies—for further proceedings,” Sam responded. When Tommy looked at him blankly, he continued. “Probable cause means that an ordinary person could reasonably believe that the offense was committed and that you did it.”

  “But I didn’t do it,” Tommy interjected. “And I’ve been in jail for weeks already.”

  “I understand,” Sam said. “But this hearing is not to determine whether you did it; it’s only to determine if you might or could have done it. In other words, for the State to prevail today and bind you over, they don’t have to prove your guilt beyond a reasonable doubt, but only that a crime was committed, and it is reasonable to believe that you did it. Do you understand that?”

  “Hell, no. I didn’t do it, Sam!” Tommy said.

  “Tommy, I hear you. But that’s not what this is about. In this hearing the State will present evidence, then I will cross-examine the State’s witnesses—okay?”

  “You need to rip them a new one, Sam.”

  “Tommy, I’m not your big brother. I’m your lawyer. There are rules.”

  “Screw the rules, Sam! I’m innocent!”

  “Tommy, pipe down!” Sam exclaimed. Then, softening, “Tommy, I hear you, okay? I know what you want. You want out, but I cannot do that right now. And you aren’t helping things by sounding off and acting like a hothead. I need you to keep your poise. Do you understand that?”

  “Put me on the stand. Let me talk to the judge. He’ll see—”

  “No.”

  “Damn it, Sam!” Tommy banged his fist on the metal table between them, rattling the chains on his wrists.

  Sam didn’t respond, so Tommy sat sullenly staring at the table between them. After a moment, Sam looked at his client. “Tommy, look at me.”

  Tommy looked up at Sam. His eyes were red, his face was blotchy, and he looked tired.

  “I need you to suck it up right now, Tommy,” Sam said. “A lot of this is theater. I need you to go into the courtroom today looking confident and ready to show your innocence.”

  “But you just told me we’re not going to do that,” Tommy said.

  “Not yet. It’s not the time. I need you to trust me, and act like we’ve got this in the bag. And when Howard binds you over, which he will, I need you to act like it’s no big deal.”

  Now, two hours later, Tommy was holding up his end. He was sitting up straight and appeared to be listening closely as Howard called the case.

  “Counsel, before we begin, are there matters preliminary?”

  “No, Judge,” Ann said.

  Sam had spent the last few weeks attempting to convince Tommy to change his plea to one of not guilty by reason of mental illness, but Tommy had steadfastly refused. Under the rules, Sam could go ahead and ask for an evaluation of his client. Now, taking a last long look at Tommy, Sam decided against it.

  “Mr. Johnstone?”

  “No, Your Honor,” Sam said.

  “Thank you, Mr. Johnstone.” Howard turned to Ann, ordering her to call her first witness.

  “Your Honor, the State of Wyoming calls Detective Kenneth Polson.”

  After swearing an oath, Punch took the stand.

  “Mr. Polson, please state your full legal name for the record,” Ann said.

  “Kenneth Polson—but everyone calls me Punch, ma’am.”

  “Why is that, Mr. Polson?”

  “Well, I got in a lot of fights as a kid,” Punch said. “Wasn’t much good at it, neither.”

  The capacity audience briefly tittered but quieted under Howard’s glare.

  “Mr. Polson, are you employed?”

  “Yes, ma’am.”

  “What do you do?”

  “I am a detective with the Custer Police Department, assigned to the major crimes unit.”

  “And how long have you been assigned to the major crimes unit?”

  “Five years.”

  “What did you do before that?”

  “I was a patrol officer.”

  “And how long did you do that?”

  “Oh, I suppose it was three or four years. I can’t remember exactly. I started after I got out of the Army. I did a year or so as a detention officer, and then went to the law enforcement academy, then out on patrol.”

  “So, you started as a detention officer at the jail, spent a year or so doing that, then went to the law enforcement academy, and then came back to Custer County?”

  “That’s right. Then I was a patrol officer, and then I made detective.”

  “Your Honor,” Sam said as he stood. “The prosecution is repeating itself. The defendant will stipulate Detective Polson is who he said he is, and that he lost a few fights.”

  Again, the audience laughed nervously. “Mr. Johnstone, please be seated,” Howard said. “Your objection is overruled. Ms. Fulks, please continue.”

  “Thank you, Your Honor,” Ann said. “Detective Polson, were you ever in the service?”

  “Yeah, I was an MP.” She was nervous, Sam knew, and working from an outline without listening to the answers.

  “Where did you do that?”

  “Primarily at Fort Drum, New York. Spent a little time in the Middle East, as well.”

  “And before that?”

  “High school.”

  “Where?”

  “Here.”

  “Did you graduate?”

  “Barely,” Polson replied, glancing at Howard, who was not amused.

  “Were you on duty as a member of the major crimes unit on or about October 31?”

  “No, I was on call.”

  “And on that date, were you called to a residence on Custer Avenue?”

  “Yes.”

  “Please tell the court what happened.”

  “I was on call and had gone home a couple of hours earlier. Was home and got a call. It was Officer Ron Baker. He told me we had a stiff, er, dead person at that address.”

  “And what did you do then?”

  “I got up, showered, and went to that address.”

  “And what did you find?”

  “Well, first I met with the first officer on the scene and asked him what he had found.”

  “What did he tell you?”

  “He told me that he had been asked to do a welfare check on a female named Smith, because she had missed a couple of court appearances. So he went to her residence and looked around. There was no answer, so he decided to get in the house and see what was going on.”

  “What happened next?”

  “The officer broke a pane of glass on the back door, reached through, unlocked the door, and effected entry into the home. Said he knew something was wrong. Went upstairs and found her.”

  “Found who?”

  “Found a woman we later identified as C. Emily Smith, lawyer.”

  “What condition was she in?”

  “She was dead.”

  “How did the officer know?” Ann asked.

  Tommy leaned over to Sam. “Shouldn’t you be objecting or something?”

  “Just hang tight and let me listen to what’s being said,” Sam said. “I promise I’m on this.”

  “Okay.”

  “You just know,” Punch said.

  “How?”

  “Well, she was lying on the floor with a cut across her throat like this”—he gestured with a slashing motion across his own neck—“and more blood than . . . well, there was a lot. It was on the walls, ceiling, everywhere.”

  “What happened then?”

  “The officer called the desk ser
geant, who called me. The officer secured the scene and I showed up.”

  “The scene you mentioned—is that in Custer County, Wyoming?”

  “Yes.”

  “Okay, so what happened next?”

  “We processed the scene forensically and began our investigation.”

  “How did you do that?”

  “Well, first we secured the scene—literally blocked it off so only people known to us, like crime scene photographers, forensics people, etc., could get in. Then, we let those experts do their thing. After they had done their job, I went through the scene to see if there was anything I could find out.”

  “And what did you find out?”

  “Well, as I mentioned, there was a lot of blood. She’d almost been decapitated—I’m sorry,” he said, when he heard the crowd gasp.

  “Go on.”

  “And at some point, I saw blood in the kitchen, which I thought was significant.”

  “Why?”

  “Well, because the way the victim had been attacked, there’s no way her blood would have gotten into the kitchen unless someone else put it there. I mean, she never moved—she couldn’t have. So, the blood in the kitchen, I figured, was likely someone else’s.”

  “What else?”

  “Well, the forensics folks later told me she’d had sex prior to being killed.”

  “Was she raped?”

  “Inconclusive on that, but they found, uh, semen.”

  “Were you able to determine whose semen it was?”

  “Some of it.”

  “Some?”

  “Some belonged to Tommy Olsen, the defendant.”

  “And the rest?”

  “Unknown donor at this time.”

  Ann allowed the murmuring to die under Howard’s scowl before she continued. “What else?”

  “Well, the fingerprint folks went over the whole house, gathering prints. They found quite a few. And we had Emily’s—Ms. Smith’s—prints, so we were able to tell which prints were hers and which were not.”

  “And did you find prints in the house that did not belong to Ms. Smith?”

  “Our print guys did. Yeah. You bet.”