Fourth Person No More

by John Gastineau

  Secrist sighed.

  “Noted and overruled,” he said to Crandall.

  “Keep it short,” the judge barked at Reardon.

  “You found footprints at the scene?” Reardon said again.

  “We did.”

  “How many?”

  “Off the top of my head, I don’t know.”

  “You weren’t expecting to testify about footprints today, were you?”

  “Irrelevant,” Crandall called. “Argumentative.”

  “Get on with it, Mr. Reardon,” Secrist said.

  “Would you say hundreds?” Reardon said to the tech.

  “Maybe not hundreds.”

  “Dozens then?”

  “Yeah, probably.”

  “Would it be true to say that if you had found footprints that matched shoes belonging to my client you would know how many of those footprints you had?”

  “Calls for speculation,” Crandall called.

  “Overruled.”

  “Yes,” the tech said, “probably.”

  “That is your practice and habit, is it not, to know the number of pieces of evidence that prove something one way or another?”

  “Generally, yes.”

  “You searched my client’s residence, did you not?”

  “Yes.”

  “And you took into possession at that time all of the shoes belonging to my client that your found there?”

  “Yes.”

  “And you examined the shoes he was wearing when he was arrested, did you not?”

  “Yes, we did.”

  “And how many of the footprints that you found at Ms. Nussbaumer’s property matched any of my client’s shoes that you examined?”

  The tech was a pro. He did not sigh or look away.

  “None,” he said.

  On re-direct, Crandall said: “If the Defendant had disposed of shoes or boots before you searched his home or before he was arrested, you would not have those available to compare to footprints found at the scene, would you?”

  “Now we are in the land of speculation,” Reardon said.

  Crandall smiled at him.

  “As counsel has demonstrated, the man surely would be expected to know his own work habits and his profession’s customary procedures. Consider it if you will, Judge, a hypothetical posed to an expert witness.”

  “Overruled,” Secrist said.

  The tech had played through objections before. He wanted to make sure the jury remembered the question before he answered it, so he asked Crandall to repeat it.

  When Crandall did, the tech said: “I can’t match footprints to shoes I don’t have. It takes two to tango.”

  A few in the gallery giggled. The tech colored.

  “I’m sorry,” he said. “This is not funny. I didn’t mean to make a joke.”

  We marked up the round as a draw.

  Another tech, a specialist in ballistics, identified the pellets taken from the bodies of the children and Lottie by size and composition. Two types of shot were found in each body, he said. He concluded from that and the angles by which the pellets entered each body that there were two “assailants.”

  “Corporal,” Reardon began, “do I understand correctly that there is no scientific test you could run that would tell us what gun fired those pellets?”

  The ballistic tech was young, female, and not as experienced on the stand as her colleague who testified previously.

  “Well,” she said, signaling an instinctive resistance to a question with no discernable destination. “Perhaps if we had a shell of the gauge and brand that we have here, we could match the mark on its butt to the firing pin of a particular weapon.”

  She said too much. It let Reardon underscore a theme.

  “We don’t have any shells, do we?”

  “No.”

  “So that test could not be run, could it?”

  “Yeah. I mean, no. I mean, correct.”

  “And we’re not talking about a bullet from a rifle, correct?”

  “No.”

  “With a bullet, you might be able to match the marks on a bullet to the rifling in the barrel of the weapon that shot it, correct?”

  “Yes.”

  “But you can’t do that here because pellets from a shotgun shell cannot be matched to rifling, can they?”

  “No.”

  “Would I be correct if I concluded from what you’re saying that none of the tests you performed would show that my client here fired a shotgun from which those pellets emerged?”

  “Yes, you would be correct.”

  Point for the defense.

  The hardware store manager testified that he sold shells containing each type of shot the ballistic tech identified at and before the time of the murders. He testified that he knew Jake, that at the request of the police he had checked his records, and that Jake had bought a box of each type of shell, the first one three weeks before the murders and the other two weeks before the murders. Since he had talked to me, he had remembered that he had remarked to Jake when he appeared the second time that he’d gone through a lot of shells and that Jake had remarked that there were a lot of squirrels in the woods.

  Reardon stood, pointed to his client, and said, “Do remember seeing this man when that boy was buying shells?”

  “No.”

  “Before today, have you ever seen this man?”

  “Only his picture in the paper.”

  “But he’s never been in your store.”

  “Not that I recall.”

  “You’re able to remember that boy. Don’t you think you’d remember my client?”

  The hardware store manager was doing his best to avoid eye contact with the Defendant, who was staring at him, willing the man to look. The manager did for a moment and blinked.

  “Yeah,” he said, “I’m pretty sure a guy looked at me like that I’d remember.”

  Reardon realized his client was trying to spook a witness in front of the jury and wrapped it up.

  “And you don’t remember ever seeing this man?”

  “No.”

  Wood had caught the exchange of looks between the manager and the Defendant and nudged Crandall to draw his attention to it. Crandall let the manager squirm under the Defendant’s gaze for a long moment. When a couple of the jurors caught on, Crandall waited a little longer before he said, “Nothing further.”

  Point for the State, maybe.

  The wags never understood what Crandall did with Jake and nitpicked it regularly long after the verdict. The Pug talk went like this: Why in hell did old Potter make that kid out to be anything other than walking, talking dog shit, something you’d scrape off the bottom of your shoe? Wasn’t he there? Didn’t he shoot them kids and Aunt Lotty himself? Potter’s getting old. He never would’ve let up on scum as putrid as that when he was younger.

  The truth of the matter was Crandall made Jake out to be sympathetic because he could and the jury needed to believe that to believe anything else Jake had to say. I tried to explain it in print at the time, but Marley had decided the kid was as offensive as everyone said and cut the explanation and most of the quotes from the story about his testimony.

  When Crandall called Jake on day six about mid-morning, the door just off the jury box opened but nobody came out. We waited through a long, tense moment before we heard the metallic clatter chain links make when shackles come off.

  With the cuffs and leg chains still tinkling in his hands, Moze finally steered Jake by the shoulders through the door and aimed him toward the witness box. Seated beside Crandall, Wood scowled at his deputy’s faux pas. No one doubted the fact Jake was a criminal would come out shortly, but why lead with that fact when jurors’ first impressions count for so much?

  Jake moved forward with a stoop-shoulder shu
ffle as though he were still chained. He focused entirely on making the 20-foot trip between the door and the box.

  The greasy, rodent-brown, shoulder-length hair he had in his mug shot was gone, buzzed down so close now you could see his pasty scalp. A volcanic acne atoll had erupted on one gaunt cheek.

  Someone had taken a couple of tens from the prosecutor’s discretionary account and bought him a long-sleeved, white shirt and black, cotton slacks at Wal-Mart. Moze or Jake had buttoned the shirt up to the neck, but it was too big, the pants were too short, and both bore the sort of deeply cut wrinkles that said the clothes had come out of the plastic wrap no more than an hour before.

  As he shuffled, there were winks of white socks above the tops of faded blue Chuck Taylor’s. Probably the shoes were the only items of clothing he could call his own. He made me think of photos of refugees who have fled civil war.

  Jake pulled himself up outside the box and swiveled his head, blinking, uncertain. He glanced at the Defendant, who had tried to eye-fuck him from the moment he came through the door. Jake’s gaze jumped off him like it’d stepped on a toad.

  He scanned the gallery, but if he were looking for his mom, he wasn’t going to find her. Or any other friendly face, for that matter.

  His court-appointed defender, an unreasonably young woman in a black pantsuit and green cotton blouse, slipped into the courtroom through the same door Jake had come through and took a chair that had been placed near the witness box for her. She draped Jake with an expression of unctuous concern, no doubt more for the jury’s benefit than his, but Jake wasn’t wasting any energy on her.

  Instead, his eyes found Wood’s and settled there. Wood smiled and nodded to him, and the panicky trace that had lapped at the edge of Jake’s haunted eyes disappeared.

  Wood’s wife, Alice, had told me they’d talked a lot on the long drive back from Florida. She said Wood had spent a little time with him each day since then and a little more time on those days when he was the only juvenile in the cellblock. She said Wood thought the boy might be lonely.

  I thought Wood probably thought more than that. He certainly would know better than to talk about the crime outside the presence of the boy’s attorney, but he also would know the value to the State’s case of earning a needy boy’s trust and he would recognize that, as a calm, honest, and upright man who was going to spend a good deal of time with the boy anyway, he might be the guy for the job.

  Wood had only to tip his head to Jake to prompt him to enter the box and raise his right hand. Reardon noted it by a cocked eyebrow.

  Everybody in the room who’d ever watched a cop show or a lawyer show knew the first thing Reardon would use against Jake was his plea agreement. Reardon said as much in his opening. With all his years as a real prosecutor, Crandall knew it better than any of us.

  The common tactic is to address the issue either at the beginning or the end of the witness’ testimony. Put it at the beginning and you’re betting the jury will forget it after they hear the rest of what the witness has to say. Put it at the end and you’re betting that the jury will ignore it after hearing whatever came before.

  In his blunt, short-road way, Crandall dealt with it at the beginning. Jake had no more than got his name out before Crandall asked, “Why’re you here?”

  Jake rocked side to side arranging his cheeks. His eyes darted around the room a time or two before he leaned toward the microphone. Looking at a spot on the floor in front of him and speaking in a husky voice, just above a whisper, he drawled, “’Cause I said I would.”

  Still standing at the state’s table, Crandall tucked his chin deep into his jowls. He may have been suppressing a satisfied smile.

  Jake didn’t directly answer the question, but the first words out of his mouth implied he was someone who kept his word. If you were trying to persuade 14 people they could believe a teenage boy who was about to admit he had killed three children and shot an old woman, it was a decent start.

  “Did you participate in killing Timothy Crawford, Emily Russell, and Kyle Russell?”

  Jake cleared his throat.

  “Yeah,” he said softly.

  From one side and in front of me, I heard Naomi moan.

  “Did you also participate in shooting Lottie Nusbaumer?”

  Jake had not lifted his eyes from the floor.

  “Yes,” he said. He cleared his throat again. “That’s so.”

  There was no one present to moan for Lottie.

  Crandall then walked Jake through the criminal charges he had been arrested on and the criminal charges he had pled guilty to and the sentences he was likely to receive when he had completed his testimony—55 years for each murder count. In exchange for his testimony, Crandall had dropped any charge related to Lottie, agreed to let Jake serve his time for each of the murder charges concurrently, and—the real key to the deal—chose not to seek the death penalty.

  “The charges against you were reduced and the sentences you received are less than they could have been because you made a deal with my office, right?”

  ‘Yeah.”

  “My end of the deal was to recommend a reduced sentence. What’s your end?”

  “Come here. Talk.”

  “Talk truthfully, right?”

  The boy nodded distractedly as though he was rethinking the deal.

  “You have to answer out loud, Jake. Is that ‘yes’?”

  “Yes.”

  “You think you’ll ever get out of prison?”

  Jake looked at his hands as he rubbed the fingertips of one over the palm of the other.

  “Probably not,” Jake said.

  With his elbows on the armrests, Jake interlaced his fingers in front of him, and his thumbs pushed against each other, bending back and forth as though wrestling. In the way he watched them, he might not have known which one would win.

  “I do,” he said, “I don’t ‘spect it’ll be till I’m old.”

  Finally, he lifted his eyes to Crandall.

  “Like you,” Jake said with a perfectly straight face.

  The gallery split between gasps and titters. Given the circumstances, no one expected the boy to be cheeky, and more than a few obviously thought the remark disrespectful, if not of Crandall then of dead children and Lotty.

  But Crandall wanted—needed—the jury to like Jake. He cocked his head and gave Jake a rueful grin, gently acknowledging in a way the jury could see that from the perspective of someone as young as Jake he was, indeed, old.

  Crandall’s gesture and Jake’s straight face premised Jake in the jury’s thinking just the way Crandall wanted him premised: Young, impressionable, if not impulsive, and truthful.

  Crandall’s reaction was part of a pattern a couple of us who knew him well had seen developing throughout the trial. He was consciously reining himself in.

  He still knew what he wanted to do and how he was going to do it, and he still moved toward his goals in straight lines. But he was suppressing the aggression, rounding off the bluntness, and abandoning the hyperbole. He had, for once, dialed back the presence that impinged on your awareness when he entered a room and that threatened to engulf you when he turned his attention on you.

  In many ways, it felt like he was stepping to one side, so that the jury could focus on the witnesses. Dill would have said he was the actor become director.

  Crandall marched to the defense table and pointed at the Defendant.

  “You know this man?”

  The Defendant had not taken his eyes off Jake’s face since Jake had entered the courtroom, and if he had blinked in that time, I missed it. Jake must have felt it. He would only glance in the direction Crandall pointed.

  “Yeah,” Jake said, one word strained through tones of disgust and shame.

  That Jake answered with only one word was a measure of how well Crandall had prepped h
im. Every lawyer tells his client that when he testifies he is to say no more than is necessary to answer a question.

  The rules are: “Answer honestly and to the best of your ability, then shut up. Do not elaborate, guess, or speculate. Do not offer an opinion unless you’re asked for one, and do not give it until you know whether I will object.”

  And every lawyer will tell you that if the impulse to talk grabs him it’s hard to make a teenage boy shut up. In that situation, as a rule, they’re worse than teenage girls, probably because teenage boys tend to be dumber and less mature and because they have the idea that telling the truth means leaving no thought unspoken.

  They seem to think that if they get it all out the listener can sort out what’s worth believing and what’s not. Most boys either don’t know or can’t be bothered to figure it out.

  Still, Jake answered with one word and waited. And Crandall, instead of inviting Jake to blurt out his whole story by asking “how?”, asked, “When did you first meet him?”

  “When I was fourteen,” Jake said.

  Crandall had decided to take things chronologically. It was another wise move, since Jake’s story of the relationship’s development would tell the jury a lot, not only about Jake and whether he was to be believed, but also—and more to the point—about the Defendant. Neither Crandall or I would say so, either to jurors or readers, at the time, but later we would admit that even as perverse as it was Jake’s story amounted to no more than a true tale about the extent to which we yearn for love.

  They had met through Jake’s Uncle Don, a boy himself at the time, no more three or four years older than Jake. Jake finally looked at the Defendant and said, “He used to sell Donnie . . .”

  “Objection,” Reardon said, coming to his feet perhaps a little too quickly. “Approach.” He barked it as a command, not a request, and Secrist scowled.

  “. . . dope,” Jake finished, looking now at the jury.

  “Hush,” Secrist told him.

  The words “irrelevant,” “prejudice,” and “mistrial” could be heard from a visibly angry Reardon at the bench. Crandall smiled at him and then turned to Secrist and murmured. They argued for a couple more minutes before Secrist, visibly annoyed, shooed them back to their tables with the backs of his hands.