Fourth Person No More

by John Gastineau

  Gene is the wire-service guy. He’s little, his face is dark and puckered like a dried apple, and he has a gravelly voice. His uniform is a short-sleeved white shirt, an ugly tie, and stained cotton pants a half step up from faded blue jeans. In his prime, he would’ve been described as spunky. He’s been around for 30, 35 years, he knows everybody who is anybody, and his stories go to every paper in the state.

  If a reporter did not at least mention in her story what Gene had in his lede, she could expect a snippy call from her editor wanting to know why she wasn’t covering the same story as Gene. So every day, somebody asked, “Hey, Gene, what’s your lede?” And every day, Gene told us. He had nothing to hide; all our papers paid his wage.

  But on that day, Janelle asked the question with a little more relish than I would have liked, and Gene, who fancied his personality to be far brighter than his deadpan, wire-service prose, delivered the punchline.

  “I’m thinking Geraldo, the big boy, here,” Gene said, looking at me.

  “Me, too,” said Janelle said and laughed. “I guess we know how he got his stuff early in this cluster, don’t we?”

  Janelle missed it. Gene had smiled when he said it, but I was looking at his eyes, and there was no amusement to be had there.

  “Everybody here knows I talked to Orlo and more than a few cops,” I said.

  I looked around, but nobody was going to throw me that bone.

  “You can’t equate anything I did with Geraldo,” I said. “I mean all that crap he pulls to get in his own mediocre stories. We’re not talking cult of personality here. Come on, what’s your lede? Seriously, Gene. Everybody’s trying to get the hell out of here.”

  “I’m entirely serious, Clay,” he said. Indeed, he had stopped smiling.

  There might’ve been some jealously, but mostly Gene is old school. No doubt, he knew Moze had lied and that offended him at the ethical and moral levels reporters and editors spend so much time talking to themselves about. At the professional level, Gene would have been frustrated that he could not write about it because he could not prove Moze had lied. On top of that, while he might’ve admired my enterprise at the crime scene and with Orlo, he would hate the fact that I’d let my name get in the story and the extent that it could now be used. He was going to have to write about that, and he may as well make me pay by putting it at the top.

  “Tell me. . .”

  For once in Gene’s life, he hesitated to ask a question, probably because it went to the source of a story and we’re all innately chary about asking one another about sources. He began again.

  “Tell me you’re not the guy who left the footprints that Reardon questioned the deputy about, that you weren’t in that trailer on the night of the murder.”

  We may as well have stood toe to toe in the schoolyard. I could feel the others draw back to let Gene and me have at it, so instead I smiled and held up my hands in submission.

  “Gene,” I said, “you know better. No sources for you.”

  “You didn’t answer my question, Clay.”

  “Well, you got to write it the way you see it,” I said finally. “But looks to me like you’re missing the story.”

  “Which is?” Gene growled.

  “Orlo had guns and didn’t like the children his girlfriend babysat. He’s the one had Lottie and her blood in his house.”

  “Meaning?”

  “He’s either a pawn Reardon’s using to create reasonable doubt, or he’s something else.”

  “Someone who should be a suspect.” I let Gene say what I wouldn’t. “Why shouldn’t the same thing be said of you—that either you’re a pawn or you ought to be a suspect?”

  “I’m a little offended by the suspect shit, Gene, but for the record, I have no motive. As for the other, maybe that’s just an example for a larger story about Reardon’s strategy and some unfounded speculation about whether it’s working.”

  He didn’t flinch under my stare, so I raised my hands again and lowered my head.

  “You heard the same testimony I did. I’m not going to tell you how to think about it.”

  I carried to my car the hope that, nurtured in the empty time it would take my colleagues to drive back to their homes and offices, the seeds of doubt I had tried to plant would spring to full flower. I know it worked for me.

  In the three-hour drive back to Failey, I wrote in my head the stories that would appear in the paper the next day. The rest of the time, I speculated on the fair market value of a soul bought by selling decent people I liked down the river.

  Yes, I mentioned the questions and answers footprints and who was in the double-wide in Saturday’s story, but well down in the story since I played it straight, taking the testimony chronologically. The others, Gene included, emphasized Reardon’s emerging theory that someone else had done the murders and that Reardon through his questioning had implied that Orlo was at least one someone else.

  Marley said he liked the other stories better. Of course, he didn’t know then that, thanks in no small part to me, the Bunny Theory was born. What I didn’t know then was that Reardon had already thought of it a long time ago.

  Be careful about what I say. I speak with the certainty of hindsight now.

  Then I couldn’t say for sure how things went for each side from witness to witness. Not that I didn’t handicap it—or at least imply odds—each day in the lead stories and the analytical pieces. My colleagues, of course, did the same.

  But truth is, keeping score by watching jurors to see whom they believe and how they will react is like walking down the street trying to decide who among the people you see got laid the night before. Nobody wears a sign. Pretty much everyone keeps it to themselves.

  That leaves you to rely on your own reactions to the testimony and maybe those of your peers among the clans. Despite what some would say, reporters are people. We know how people react.

  Hell, some of us are people who’ve sat through a few trials and think we know what plays with a jury. But those of us with more than a little experience also have seen a jury or two pull fruit loops, rendering a verdict based on little more than the cut of a lawyer’s suit or her client’s lisp. It therefore is a testament to the skills of Crandall and Reardon that at the end of each day, from the standpoint of credulity, even the most experienced of us felt a little whipsawed.

  Whenever I cover a murder case, I must always remind myself that regardless of how complex the case may be, at some point, the prosecutor must present evidence to the jury of one central fact: Somebody died.

  It does not go without saying. It may not be assumed or presumed. Cases have been lost when the prosecutor does not or cannot present evidence that somebody died, say, when there is no body, for example.

  In each case, a prosecutor must at some point start at the beginning, which is to say, the end of a person’s life, because all the rest of the case radiates from that point. The prosecutor is obliged to have someone who is knowledgeable in the scientific and legal ways of life and death put under oath and say that so-and-so, having been properly identified, is dead.

  Once that’s done, the same witness or another, also knowledgeable in the scientific ways of life and death, can say how the person died and why the manner of death leads that knowledgeable witness to believe death occurred as a result of the reckless, knowing or intentional act of another person.

  All of which is to say that Crandall cut Poteet, the coroner, out of the chain and called the forensic pathologist only. Crandall had not forgiven Poteet for the quotes he gave me the day after the murders, and in the end, he did not need Poteet.

  But it certainly is not to say that the pathologist’s testimony was as lively or clear as Poteet’s would have been. The pathologist was a short man in an expensive but oversized suit from which protruded a little paunch. He wore half-glasses and apparently declined to comb his thin, wispy
brown hair.

  He spoke in a murmuring monotone and was not inclined to translate medical terms from doc to layman. Twice, Secrist had to remind him to speak up, and any number of times, Crandall had to ask him follow-up questions that respectfully required him to speak English.

  It took maybe a half hour of talking to his lap, where he kept the copious notes that he seemed to feel he must continuously refer to, before the pathologist identified each of the children by name, date of birth, and address and declared each of them dead.

  He then at considerably greater length explained that their brains or their hearts or their lungs or their spleens or their kidneys or their livers or their intestines or their spinal cords had been pierced by pellets of a size, shape, and composition consistent with pellets commonly found in shotgun shells.

  The pellets had entered each body from two different angles, he said. In both instances, the pellets appeared to travel from the area of foot of the body toward the head, in an upward direction, if you will, but from opposite sides of each body, as though there were at least two people at the victims’ feet one on either side of the group firing in the directions of their heads.

  He had removed a particular number of such pellets from each child and a particular number from particular organs of each child. He peered at pellets through the clear plastic of evidence bags, counted the number of pellets in each bag, verified that number against the records in his lap, squinted at the initials written on each bag, and confirmed that the pellets contained in each bag had been removed from the body of Emily Russell or of Kyle Russell or of Timothy Crawford.

  This many, the pathologist said, holding up one of the bags, came from the back and head of the girl. Someone in the gallery, probably Ruth Russell, gasped. The number of pellets and the difference in size and locations on the girl’s body led him to conclude she had died from three or perhaps four discharges.

  Crandall asked if he had charted the locations on the body where he removed the pellets. He said that he had. From the side of the prosecution’s table, Crandall produced a three-by-four-foot poster showing the upper torso of a child. On it, the doc marked with little dots the places where he removed pellets and described which ones were fatal and why, so that Crandall got the pathologist’s story in front of the jury a second time.

  The Russells left the room as quietly as they could before Crandall and the pathologist repeated the display for each of the other children. William Crawford tried to run, but Naomi held him fast until the end.

  Based on his training and years of experience as a pathologist as well as his examination of the bodies and the evidence associated therewith, the pathologist said, it was his opinion to a reasonable degree of medical and scientific certainty that each child had likely died of trauma consistent with one or more gunshot wounds of the type produced by a shotgun or shotguns.

  “You mean somebody shot them with shotguns and killed them?” Crandall said.

  “Yes,” the pathologist said slowly, suspicious of the question. “That is what I just said.”

  Reardon did not rise. He did not intend to linger.

  “You can’t say what gun or guns the shots you’ve identified came from, can you, doctor?”

  “Oh, no, of course not.”

  “And you can’t say who fired the shotguns from which the pellets came?”

  “No. No, I couldn’t say that.”

  “Thanks, doc.”

  Reardon knew when to move on. He had watched the jurors, just as we had. He had bet, just as we would have, they were too ignorant to understand or too bored to remember a whole lot of anything the pathologist said.

  The jurors would remember the photos. They made two of them, including one of the men, weep.

  Crandall called the state police’s head tech purportedly to testify about the evidence found at the scene. Mostly, he was called to introduce the photos of the children that had been taken in situ before their bodies were removed from the trailer.

  Crandall and Reardon had eaten up three hours of Secrist’s time in a pre-trial conference arguing about each and every one of 43 photos that Crandall wanted to show the jury. Crandall took the position each one was relevant and necessary to prove the children had died and to show the jury the heinous and deliberate nature of the crime. Reardon argued that each photo was being offered purely for the purpose of “inflaming the passions” of the jury against his client and that any relevance any photo might have would be significantly outweighed by the prejudice it would raise against the Defendant.

  Secrist gave Crandall the green light to introduce a baker’s dozen: four group shots, one from each side of the group from the feet looking toward their heads and one from each side looking toward the feet, plus various closeups of each child taken from various angles and of Lottie’s wounds.

  McConegal acted magnanimous when he called various members of the clans into one of the side rooms off the courtroom early that morning to show us the photos Crandall intended to introduce later that day. No doubt he did it with Crandall’s knowledge and permission, which made me wonder whether Crandall was so concerned with how the jury was receiving his presentation that he felt he had to spin us.

  I took a deep breath and hesitated before I propped my bulk on locked arms and leaned over the two rows of glossy, 8-by-10, color photos that McConegal had neatly arranged on a conference table.

  McConegal leaned over my shoulder.

  “Look any different to you, Clay?” he murmured in my ear.

  I eased him away with my elbow.

  “Don’t have a clue what you’re talking about, Detective Sergeant,” said I.

  But in fact, they did look different. The photos left little doubt each child had bled out. Rinsed of shadow by the flash of the tech’s strobe, each face was whiter than pale and dry, and each gaping wound was blacker than dark and wet.

  I had thought the memories of what I had seen in Aunt Lotty’s the night the children died were plenty for one experience, but now I had a few more images in my head that I would not soon shake. When she emerged from the room, Janelle spent time swallowing and taking deep breaths before she let her eyes meet mine. She waved me away and took her seat in the gallery.

  If one of Crandall’s purposes in introducing the photos was to anger the jurors and sear their resolve, it worked, at least at first. The delivery was dull and mechanical; the photos themselves did the work. Crandall introduced each one separately, starting with the group shots.

  “What is that?” he would begin.

  “That is a photo of . . . . ,” the tech, a young, top-heavy fireplug, would answer and describe what the photo depicted.

  “Did you take that photograph?”

  “Yes.”

  “Is that a true and accurate representation of what you saw inside the home of Lottie Nusbaumer on the night she was shot and three children there were murdered?”

  “Yes.”

  “Move to publish.”

  Secrist would look to Reardon, Reardon would stand and renew his objection for the record, and Secrist would overrule it. Secrist would nod to Crandall, and he would hand the photograph to the closest juror to examine and pass to the next juror.

  At first, the jurors could only glance at a photo before they let their eyes skitter away anywhere. But folks in these small towns are dutiful, and each juror summoned up the will to take another, closer look. By the fourth and last group shot, they knew what to expect. Some examined it carefully as soon as it was handed to them and others looked cursorily and passed it on.

  It was the closeups of each child that got them. One woman gasped. A tear crawled down the cheek of another.

  One man spent considerable time hunched over a photo held close to his face, as though he were memorizing each bloody detail. He passed it on only when a tear of his own threatened to smudge it. He pulled the photo from under his f
ace, and the drop fell between his legs.

  By the sixth or seventh photo, jurors were raising their eyes to glare at the Defendant. He did not flinch. He snagged each of their stares with his dreamy, sticky grin. He needed only a moment of that to make all but one look away.

  A tall, stringy, old man in a pressed, plaid shirt and bib overalls, a retired farmer according to my notes, stopped looking at the photos. He set his mouth in a lipless line. He waited until the Defendant’s gaze crossed his. He caught it and would not look away.

  The Defendant pulled back his lips and gave the old man a full-blown, teeth out, shining-as-the-sun smile, the warmth of which his dead-asteroid eyes belied. Maybe it was to freak the juror or maybe it was an expression of genuine pleasure at the intensity of the exchange, but as creepy as that face was, the juror did not look away. I was pretty sure Crandall had just secured his first vote.

  Reardon couldn’t fight the photos, so he ignored them on cross.

  “You found footprints at the scene?”

  Crandall jumped up, but Secrist waved him off.

  “No pun intended, but we’ve covered that ground, Mr. Reardon,” Secrist said. “At more than enough length.”

  “I have only a couple of questions, and they address an area that directly affects the defense.”

  Crandall had remained standing.

  “Whatever he’s going to ask about footprints will exceed the scope of direct examination of this witness. We introduced no evidence regarding footprints. The State objects accordingly.”

  Reardon shook his head.

  “I can ask questions of this witness now, or I can call him to the stand again later as part of my case.”

  He pulled a paper from his coat pocket.

  “Here’s the subpoena. I can serve it now. Court’s choice.”