Fourth Person No More

by John Gastineau

  Then he said quietly, “Did what?”

  Jake swallowed. He stared at the floor in front of the box and swallowed again.

  “Shot ‘em.”

  “How many times?”

  “I don’t know.” He looked up at Crandall annoyed. “I unloaded both barrels of a double-barrel. I felt the blast from his gun on my arm, that’s how wired I was, so I know he shot, too.”

  Jake was talking fast, some anger boiling off him.

  “He said load up. He said we got to make sure they’re down. He said shoot ‘em again. And this time, you little bastard, he said, open your damn eyes, he said, and you aim, he said. So I did.”

  “And did the Defendant shoot then, too?” Crandall asked quickly.

  “His gun was smoking when I finally looked at him.”

  He cocked his chin at the Defendant.

  “And the son of bitch,” Jake said, “he was still wearing his mask.”

  “Do you know why he did not remove his mask?”

  “Hell, yes. He told me. He said he wanted to make sure I’d go through with it. Said if they knew what I looked like I’d have to kill them, so, you know, they wouldn’t tell. Said besides you always show your face when you’re trick or treating and you’re going to trick them. Only fair.”

  Jake shook his head. There were differences in the ways his mind and the Defendant’s mind worked that he still just could not believe.

  “’Course, he didn’t pull his off until we was done,” Jake said after a time.

  Crandall had wound him up and now just let him go.

  “The old lady was twitchin’. He said, ‘Finish her.’ He had to shout. I couldn’t hear shit after all that noise. And his gun, his smoking gun, he was pointing it at me, so I shot her again. When I was done, he hooked his thumb under the bottom of his mask, dragged her back over his head, and shook out his hair like a girl. He took a big breath, and while he was putting another shell in his gun, he had kind of glassy look on his face for a second, like he’d just shot his wad. Then he pointed the damn gun at me again. ‘Gimme your weapon, Jake,’ he said. ‘Time to go.’ He wasn’t trusting me one bit.”

  Crandall spent another hour or so with Jake, walking him through the details of picking up the shells, fleeing, disposing of the guns, and running to Florida. Crandall wanted just enough detail to corroborate the testimony of other witnesses. And probably to camouflage the landmine Jake had exposed.

  Jake fulfilled the promise Reardon made in his opening. Without saying so directly, he told the jury that no one but him could say who the second person in that double-wide was. Not even Aunt Lotty would be able to describe her assailant with cross-proof certainty if he had not removed his mask. It explained why Crandall had not sought the death penalty. Telling jurors that if they convicted they would have to impose the death penalty tended to make them even more cautious about convicting, and Crandall apparently was concerned enough with Jake’s credibility that he would not freight it with the needle’s specter.

  I had my lede. I knew it as soon as I heard it, but I did not then dare lift my eyes from my pad for fear of giving it away. Secrist called for a break. I snuck a peak at Janelle and the rest of the clans. If they knew what they had heard, they were playing it as cool as I hoped I was.

  The jurors were having a hard time leaving the box. A couple remained seated, staring hard at Jake. The others had stood, all of them grim and drawn. They were waiting patiently on their colleagues to rise so they could all file out. Standing at their respective tables, both Reardon and Crandall watched this moment with interest. As the two finally rose and the jury left, Reardon winked at Legs.

  The practitioners of the fine art of cross-examination generally agree that a lawyer should always ask yes-or-no questions to which he already knows the answers. One school of thought among those practitioners, however, refines the theory further.

  Those lawyers hold that questions should be framed so that the witness must always answer in the affirmative and should be posed in series of three. Each series should focus on a single issue or theme, and each question in the series should produce a new fact. It’s a theory based on psychological studies of how we—jurors at any rate—are wired to perceive, and its aim is to make it easier for jurors to absorb and understand evidence.

  Those of us among the clans who care enough to know this sort of thing generally agree the theories of cross-examination are a little like different schools of Buddhism. You can’t say with any degree of certainty what will carry a juror to enlightenment. It had become apparent, however, that Reardon was a disciple of the 3-yes dharma.

  “So,” Reardon began. He remained seated at the table, not giving Jake the respect of rising to address him. “After you killed three children and shot Lottie Nusbaumer, you ran to Florida. Is that correct?”

  Crandall objected on grounds of relevance and exceeding the scope of direct examination. Reardon stayed in his chair, showing no more respect for Crandall than he did for Jake. He said it went to bias and Jake’s motive in testifying and offered to subpoena Jake to return, if that’s what Crandall wanted.

  Secrist agreed with Reardon. The objection worked to Reardon’s advantage, as I’m sure he knew when he asked the question in a way that was sure to produce the objection. It allowed him to repeat a question from which nothing good about Jake could be drawn.

  “You killed three children and shot Lottie Nusbaumer. You admit that. Yes?”

  “Yeah.”

  “Then you ran to Florida.”

  “With him.” Jake raised a lazy finger in the direction of the Defendant but did not look at him directly.

  “You ran to Florida. Yes or no.”

  “Yes.”

  “And you were arrested in Florida.”

  “Yes.”

  “Three charges, correct?”

  “Yeah.”

  Jake looked to Wood and Crandall for help, but they were not looking back.

  “One charge was related to possession of drugs and two related to soliciting oral sex with a church deacon near Disney World,” Reardon said. “True?”

  Before Crandall could get to his feet, Secrist said, “Answer the question, young man. Then move on, Mr. Reardon.”

  “Charges related to drugs and homosexual sex,” Reardon was again quick to repeat. “Yes or no?”

  Jake could not have been dumber.

  “I needed money,” he said.

  “You needed money? To buy more drugs? To go to Disney World?

  “Objection,” Crandall called, standing and glaring at Jake.

  “Opened door, Judge,” Reardon replied.

  “Go through it quickly, then close it,” Secrist said. “Now.” He pointed to Jake.

  Jake saw there was nowhere to go. He did not answer. Reardon let the silence linger as the answer.

  “So to get money for something,” Reardon continued finally, “you asked a church deacon if he would pay you to perform oral sex. Correct?”

  Chastened now, Jake looked down and whispered, “Yeah.”

  “And those charges were dropped when you agreed to come back to this state to face the charges against you for killing three children and shooting an old woman. Is that correct?”

  “Yeah.”

  “And you escaped with your life by testifying here today. True?”

  “True, yeah.”

  Reardon looked at Jake for a moment, then at the jury. He looked down at his legal pad, then nodded once to himself. He apparently had completed all the items on his checklist for round one: break Jake of the impulse to spar, train him to answer all questions in the affirmative, hold Crandall at bay, and poison at birth any notion a juror might entertain that Jake was a good and therefore credible boy.

  Reardon finally stood. He walked around the table and hitched a cheek on the corner so that Jake’s eyes
were drawn away from the jury and its view of his client was blocked.

  “You were in Lottie Nusbaumer’s trailer on the night before Halloween?”

  The question seemed too easy to Jake. He looked at Wood, sensing some trick. Wood remained inscrutable.

  “Yeah,” Jake said finally.

  “When you went into that trailer, you had a loaded shotgun in your hands?”

  Jake shrugged. Hadn’t he already said that?

  “Answer the question out loud,” Reardon ordered.

  “Yes,” Jake said, in the testy, no-shit hiss that teenage boys do so well.

  “And during nearly all the time you were in that trailer you had a loaded shotgun in your hands. True?”

  “Yeah, true.”

  “That was a gun you had stolen, was it not?”

  Crandall had heard the rhythm Reardon was starting to develop and didn’t like it. “Asked and answered,” he growled from his side of room.

  “Indeed, it has been,” Reardon said, smiling at Crandall to underscore his point.

  “I believe you said it had been stolen by you, did you not?” Reardon said to Jake before Secrist could respond. “You stole all of the guns that were involved in this murder. Wasn’t that your testimony?”

  Jake waited for a nod from Secrist.

  “Yeah,” he said.

  “You lined the children up on the floor?”

  The change in direction caused Jake to blink. His eyes roamed left and right, while he tried to figure where Reardon was going. A fact, however, is a fact, he finally decided, and said, “Yes.”

  “You put Lottie Nusbaumer on the floor beside them?”

  Jake was not as simple as some took him for. It’s doubtful he knew why he didn’t like how things were going, but he did know he had not heard the Defendant’s name in any of Reardon’s questions.

  He said, “I’m not the only one in the room, you know.”

  “Answer the question, yes or no. You put Lottie Nusbaumer on the floor beside them.”

  “Yeah, I reckon.”

  “You reckon? You weren’t there?”

  “I said I was.”

  “You said you were there,” Reardon repeated.

  “Your honor,” Crandall began, coming to his feet, “counsel has now adopted the role of the court reporter, repeating back to the witness what he has just said.”

  “An important fact bears repeating,” Reardon responded.

  “And now he’s testifying,” Crandall said.

  “Mr. Crandall, I didn’t hear a specific objection, but whatever it was, it is now sustained. Sit down,” the judge said. “Mr. Reardon, move on.”

  “And all three children and an elderly woman were on their stomachs, were they not?”

  Jake looked at Wood again, then at Crandall, who remained as impassive as Wood.

  “The answer?” Reardon prodded.

  “Yeah. I said it already.”

  “And it’s correct to say they didn’t have any guns or other weapons in their hands?”

  “Yeah, that’s correct.”

  “And it’s also correct to say they weren’t threatening you with harm?”

  “That’s so, too.”

  “And even though they were lying the floor and even though they had their backs to you and even though they presented no threat of harm to you, you emptied both barrels of a double-barreled shotgun into their backs and the backs of their heads?”

  That was a question Jake had been waiting for.

  “I didn’t look where I was aiming,” he said, too quickly for his own good.

  “You looked at them when you were done, didn’t you?”

  “Well, yeah.”

  “And you saw wounds in their backs and the backs of their heads, didn’t you?”

  “Yeah,” he said, “I did.”

  “So it’s true to say you hit them when you shot at them.”

  “Yes,” Jake said softly.

  “And then you reloaded your shotgun?”

  Crandall slapped his palms on the table to stop Jake from answering, then pushed himself wearily to his feet. By now, Crandall had figured out what Reardon was doing. He was recasting the whole series of events so that it would appear only Jake had carried out the killings.

  “Judge,” he complained, “we have been through this at length, and the witness has not contradicted himself or any other previously introduced evidence. This cannot be impeachment. Asked and answered, if you want a formal statement of grounds.”

  “Your honor,” Reardon said, “I need only a few more questions to complete this line. If the court will indulge.”

  Secrist looked at the jury for a long moment, apparently trying to decide whether he would remove them from the courtroom so that he could hear the attorneys argue. “Approach,” he ordered, and the three whispered, occasionally in fury, for several minutes.

  Jake stared at Legs’ legs with kind of a dreamy smile on his face until Wood cleared his throat. So far as I could tell, the Defendant had not moved or taken his eyes off Jake since he entered the courtroom.

  “Overruled,” Secrist said as the attorneys stepped away, Reardon serene, Crandall flushed and puckered.

  “Answer the question,” Secrist said.

  “I don’t remember what it was,” Jake said.

  Secrist cocked his head at Reardon, who ran a finger down his yellow pad.

  “You shot the victims once with both barrels, did you not?”

  “Yeah.”

  “Then you reloaded your shotgun?”

  “Yeah.”

  “And you emptied your gun—both barrels—again. True or false?”

  “True.”

  “You say there was another man in the room with you when you shot three children and an elderly woman?”

  “Your client, yeah.”

  Reardon ignored it.

  “When you were talking with Mr. Crandall, I didn’t hear you say that you told that the second person that you didn’t want to shoot those people, did I?”

  “Say that again.”

  “During your earlier testimony, you did not say that you told that second person ‘I don’t want to shoot anybody.’ You didn’t say that, did you.”

  “No?” he said, as though he was unsure.

  “When this second person told you Lottie Nusbaumer’s place was a ‘trick’ house and when he told you what that meant, you didn’t say to that second person ‘maybe we shouldn’t do this.’”

  “You heard me say I was jittery on dust.”

  “Yes, we all heard you say that you were jittery on PCP. You liked the drugs, didn’t you?”

  It was a classic cross-examination question: no answer would benefit Jake. If he said no, after telling the jury how much of the Defendant’s dope he had consumed, his credibility was blown. Yes was probably true, but admitting it to this crowd did him no favors. He stuck with the truth.

  “I did,” he said. “Then,” he added in the hope of mitigating it.

  “Then,” Reardon repeated. “Then was when you were holding a loaded shotgun and you could have pointed it at that second person and shot him, but you did not, did you?”

  “He would’ve shot me.”

  “Answer the question. That second person didn’t look at you all the time. True or false.”

  Jake shrugged. “True.”

  “Which means at some point, you could have shot him. True or false.”

  “I don’t know. Maybe. I don’t remember.”

  “Well, you managed to shoot three children and an old woman. True?”

  “Yes.”

  “So obviously you were capable of shooting another human being?”

  “Yeah,” Jake said. “Yeah, I suppose,” he said, as though that made perfect sense now that it had be
en brought to his attention.

  “But you did not shoot that second person. True?”

  “Yeah,” Jake admitted.

  “And if you had, wouldn’t those three children and an old woman be alive today?”

  “Objection,” Crandall said. “Calls for speculation.”

  “No,” Secrist said quickly. “No, I don’t think it does. Overruled. Answer it, young man.”

  Jake looked at the floor and blew some air out his nostrils. He raised his eyebrows and cocked his head.

  “Yeah,” he said, at last. “Prob’ly they would.”

  Crandall was on his feet as soon as Reardon said he had nothing else. He nearly sprinted toward the defense table.

  “Who was the second man in that trailer?” he thundered.

  Jake blinked and said, “Him.”

  “Him?” Crandall said incredulously. “Him?” Crandall pointed at the Defendant.

  “Yeah,” Jake said enthusiastically, snared in Crandall’s passion.

  “You mean the Defendant?” Crandall asked.

  “Yeah, him.”

  “And isn’t he the one who told you there were no guns in that trailer?”

  “Yeah.” Jake’s answer was less enthusiastic and more uncertain.

  “And isn’t he the one who told you Lottie Nusbaumer’s place was a ‘trick house.’”

  Jake shrugged. “Sure.”

  “And isn’t he the one who said if there were no guns in the house you stopped at you and he would have to kill everyone inside?”

  Reardon had started to his feet, but Secrist motioned him to sit down.

  Jake nodded again enthusiastic and willing to give himself over to whatever course Crandall set.

  “That’s what he said.”

  Crandall paused, looked at the jury, looked at the Defendant, then looked at Jake. In a voice that was soft and full of regret, he asked, “Did he tell you there was a .22 caliber rifle in that trailer?”

  Crandall had wound Jake so tight he opened his mouth to answer as soon as Crandall began the question. When he actually heard the question, though, nothing came out.

  His eyes bugged, and his mouth opened and closed, like he’d gagged on a fish bone. He tipped his chin down, and his eyes receded deep under his brow. From out of that cave, he sighted Crandall with a look of cold hatred. Once more, he had been used.