Fourth Person No More

by John Gastineau

  No one, least of all the Governor, the one man who could grant an exemption, cared to hear that Walt didn’t want to go. The Governor was having budget problems that year, and Walt’s meager pension was a damn sight cheaper than his 40-year-old salary. “Every penny counts,” the Governor said.

  It was enough to make a usually genial man bitter, maybe overtly so, but Pratt emerged into the light of unplanned leisure with his head up and his 24-hour-a-day grin in place. A week or so after the brass made him trade his badge and gun for a plaque and a rather meager monthly check, he secured a line of credit, some plain business cards, and office space. A few days after that, he landed his first client: Reardon, a man quick to recognize the strategic and tactical possibilities of putting an old fox in the legal henhouse. Pratt tucked the coin under his tongue and snapped his fingers to Charon. “Defense whore” was what Crandall called him ever since.

  Mixed is how I felt when I saw Pratt’s name on Reardon’s witness list. Pratt and Crandall would make nothing but good copy. I just didn’t know to what extent it would involve me.

  When Reardon stood and called his name, Pratt waited a beat then burst through both double doors at the back. He marched down the aisle and backhanded open the swinging gate in the rail. At the box, he leaned into a snappy left face complete with toe and heel, swung a fat, black, three-ring binder around and out from under his arm, and smacked it down onto the box. He nodded smartly, first to the judge, then to Reardon, let his gaze fall to the bailiff, and waited while we recovered our senses. He had yet to raise his hand to swear and already he had testified: “Don’t let my appearance fool you. Few men of any age have better moves than me.”

  Pratt believed in appearances and impressions. To him, they were tossed bones and tea leaves. They told him things about the people he hunted. That’s why he was known to harry victims, witnesses, and lesser cops for thorough descriptions.

  In his case on that day, it would be: Medium height, medium build. Hair: gray and wavy, gathered at the front in a foamy bunch, like sea striking shore. Eyes: a deep green, with a focus and clarity unobscured by rimless trifocals. Apparel: burgundy sport coat, gray slacks, white shirt, elderly but tasteful striped tie. His “buryin’ clothes” Pratt called them when he was still a cop, for they were what he wore to the funerals of victims and later to the courts when his testimony would seal the convictions of those who killed them.

  And all the while, he rode that grin. His mouth naturally turned up at the corners, but he tuned it continuously. Too much, and he might look maniacal. Too little, and he might look insincere. Just right, enough to crinkle his eyes so you couldn’t tell what he thought or notice how much he saw, and it was easy to forget a wily intelligence worked there.

  Pratt gave the jury a little sample of the grin when he had taken the oath and turned to take the stand. He lingered to make eye contact with each juror. At this late stage of the proceedings, a pleasant witness evidently caught them off guard. As their eyes met, the grin startled them. A couple of jurors blinked and smiled back.

  Since calling Pratt, Reardon had remained on his feet, making Pratt the first witness to whom he had paid deference. As much as a sitting man can, Crandall had squared off. He sat erect on the edge of his chair, his arms on the table fencing off his pad, his hands fists, a pen jutting out the right.

  Crandall devoted his attention entirely to Pratt. He left it to Wood and everyone else in the room to read the jury. Call that a tactical error.

  Reardon began with the usual preliminaries for an expert witness, questions about Pratt’s qualifications to offer opinions on matters the ordinary folks of a jury might not otherwise understand. Those who know criminal litigation only from Law & Order complain about its mind-numbing aspects when they observe the real thing for the first time. The drudgery of trial arises in no small part from the necessity of having to lay such evidentiary foundations. As Reardon walked Pratt through his education and work history, though, it soon became apparent both understood spells are cast by incantation.

  Turned out, Pratt had not only been a cop, he had taught cops, at the state’s police academy and in criminal justice programs at a couple of the state’s vocational colleges.

  “Any of your students here today?”

  Pratt nodded to Wood.

  “Sheriff Modine.”

  Pratt dipped his head toward the side of the gallery where various members of the state police had taken up positions to buffer the victims’ families from gawkers and the clans.

  “Sgt. McConegal.”

  He nodded toward the door, where Moze stood, having been released from the restrictions of the separation order by his testimony.

  “Deputy Beard.”

  None of those mentioned returned the nods.

  “What did you teach them?”

  “I taught classes in investigative procedures and techniques, how to conduct an investigation.”

  “Were Sheriff Modine and Sgt. McConegal and Deputy Beard good students?”

  Crandall called objection on grounds of relevance. Secrist sustained it, but both Pratt and Reardon smiled at the jury in a way intended to make them think they’d have an answer pretty soon.

  Turned out, too, Pratt kept score.

  “And when you were a detective for the state police,” Reardon said, turning back to Pratt, “were you also called upon to testify at the trials of the persons you had investigated?”

  “Yes, frequently.”

  “How frequently?”

  “Two, maybe three times a year on average.”

  “During the period of time you were a detective for the state police, in how many cases did you testify at the trial of the person you investigated?”

  “Ninety seven.”

  “Of that number, how many of those cases resulted in conviction?”

  Crandall was on his feet.

  “Objection. Irrelevant. Evidence of propensity, if that what this is, is not admissible.”

  “You’ll get your turn to explore it, Mr. Crandall,” Secrist said. “Overruled.”

  Pratt started to open his mouth to answer, then closed it, wet his lips, and raised his eyebrows.

  “I’ve forgotten,” he said, turning to Reardon. “What was your question again?”

  Damn near Oscar quality, that acting. Pratt had never forgotten a question in his life. Reardon walked him through it again and posed the question once more.

  “Ninety five,” Pratt said

  “Ninety five out of ninety seven,” Reardon repeated approvingly.

  “Couple of them your clients,” Pratt offered gratis, no question before him.

  “Yes, sir,” said Reardon, raising his modesty hand in submission. “Yes, sir, they were.”

  They were bouncing on the limb they’d walked out on. At a minimum, they risked conveying to the jury that all their off-the-cuff banter was, in fact, well-rehearsed and that they both accordingly were no more than fakers. More important, to suggest to the jury that Pratt was an effective cop but independent of Reardon, they also had to disclose that Reardon represented persons juries convicted. Reardon inched back.

  “Were there cases you investigated that did not go to trial?”

  “Sure, many.”

  “What happened in those cases?”

  “Ninety-six percent resulted in plea agreements by which the Defendant pleaded guilty, either to one or more original charge or other charges.”

  It was a precise answer dipped in candor. It told the jury what a winner he was while subtly acknowledging the reality of plea agreements, a fact of criminal litigation most lay people disdain. A man on the front row of the jury nodded. Whether that juror approved or merely understood is difficult to say, but Pratt appeared to have linked with one more.

  “And now what do you do?” Reardon asked.

  “Now,” said Pratt, “I ea
rn my keep as a forensic consultant.”

  “What does a forensic consultant do?”

  When Reardon asked Pratt a question, Pratt’s attention rested on Reardon, but when Pratt answered, he turned to his audience and they became the only other people in the room.

  “Oh, sure,” Pratt said by way of apologizing to the jury for using such a fancy term. “Well, in my case, I’m usually hired to conduct independent investigations of cases the police have been unable to close. Or sometimes, like this one, I’m asked to review cases and”—he laid his hand on the thick binder on the box rail—”offer some thoughts on the quality of the police work.”

  “Do the police ever retain your services?”

  “Once in a while. Some local departments favor me over the state police when they need help.”

  “Why would they do that?”

  Pratt gave it a beat before he tuned his grin to rueful and looked first to Wood, then to McConegal.

  “Because the state police are often very busy and don’t always give a local matter the care and attention that local officials think it deserves.”

  “So local officials will spend tax dollars to hire you when they could use the state police without charge?”

  “Yes.”

  Reardon gave the jurors a glance. No doubt he noticed that the regard Pratt devoted to them when he spoke they now returned to Pratt in equal measure.

  Perhaps Reardon saw, too, as I did, the look of intrigue and surprise on the faces of three or four of them. If so, he would have reason to believe that at least a few jurors were coming around to ideas that Pratt was independent, that he worked both sides of the street, and that maybe the state police didn’t always do such a good job.

  “That’s not what happened here,” Reardon said. “Sheriff Modine didn’t hire you.”

  Pratt was amused. He dialed up the grin and shook his head. “No.”

  “Who did?” Reardon said.

  “You,” Pratt said evenly, still grinning, not a trace of shame or embarrassment.

  “What’d you charge me?”

  “I work on an hourly basis, and my rates depend on the job.”

  Pratt abandoned his regard of Reardon. He would continue to focus on the jurors while he listened to Reardon’s questions.

  “You were paid for this job?” Reardon used the passive voice. Despite their bon ami, Reardon’s jury instincts would not let me him admit that he had paid Pratt.

  “Certainly,” Pratt said, as though anything else would be beyond natural order.

  “How much?”

  “For reasons I’m sure we’ll talk about in a little bit, I had to spend a lot of time on this matter. Because the stakes are so high here—the Defendant is accused of causing the deaths of three persons and attempting to cause the death of one other—I had to charge my highest rate. So, all told so far, just over six thousand seven hundred dollars.”

  Pratt tweaked the grin and looked directly at an older juror, a woman he had probably pegged as a grandmother. He shrugged.

  “Probably sounds like a lot of money,” he said to her, “but I’m raising a grandkid, and a pension doesn’t go as far as it used to.”

  From Crandall came the sound of hissing through his teeth. Both Secrist and grandma scowled.

  The prints—my footprints—pointed Pratt down a path that forked. Cops were the destination of one branch, Orlo the other, and both ran away from the Defendant.

  The rules of criminal procedure obligated Crandall to turn over to Reardon well in advance of the trial all the evidence the police gathered during the investigation. Reardon turned it over to Pratt.

  He laid his hand on the binder again as he explained to the jurors that “the book” the police maintained contained the recorded and transcribed statements of witnesses, autopsy and forensic reports, photographs, video, and reports prepared by the investigating officers to document their conclusions at any given time in the investigation. He had read and studied everything in the book at least three times, he said. He had examined the scene twice. He had spoken to an Orlo Ratliff.

  “And did you form any opinions as a result of your examinations of the police documentation of their investigation and the scene and your conversation with Mr. Ratliff?”

  Reardon asked.

  “Yes,” said Pratt, talking again to the jury. “Several.”

  The first had to do with what the footprints told him about the person who left them and the quality of the police work. As the tech had testified earlier, the police had found dozens at Lottie’s place. One set led from the double-wide into the woods. Once in the woods, they became hard to follow, Pratt said, summarizing the report he had opened the binder to.

  “However,” Pratt said, “similar prints were found at the base of a tree twenty-six feet into the wooded area.”

  Pratt tipped his head so that he could read through the proper slat of his glasses.

  “’From the tree, similar prints were found to have moved south then southeast through the woods to a gravel road adjoining the Nusbaumer property, where any further evidence of similar prints was obscured by the foot and vehicular traffic on that road.’”

  “What does that sentence mean to you?”

  “Several things.”

  Pratt ticked off his points on the fingers of his upraised left hand.

  Little finger: “First, it means they lost him.”

  Ring finger: “Why? Because they let feet and tires run over the evidence and pollute it.”

  Middle finger: “That means they didn’t set the perimeter of the crime scene wide enough.”

  “I’m sorry,” Reardon said. “Who’s ‘they’?”

  “The police who investigated this matter.”

  Throughout, Pratt’s tone was entirely affable and matter of fact, without a trace of sarcasm, bitterness, or annoyance, but as he answered the last question, he cast his hand in the general direction of Wood and Moze, an accusing index finger in disguise.

  Reardon said, “As a result of the facts you’ve just described, did you come to any conclusions about the person who made those prints?”

  Pratt skipped right ahead to answer the next question.

  “Someone walked away from the trailer and into the woods, stood behind a tree, then walked out to the road through the woods. Judging from the angles and how far that person went into the woods, probably to avoid anyone from the trailer or the road seeing them. In other words, to avoid being detected.”

  From my left, I felt Janelle’s eyes land on me. I picked up a vibe from my right, probably McConegal. I’m pretty sure someone bored holes in my back, but who’s to say whether it was Moze or Gene? I did not turn. I kept my eyes on my pad.

  “Did you consider other possibilities for why the prints were there?”

  “Sure,” Pratt said. “You have to. The technician described the prints as ‘recent’ and ‘fresh,’ so I assume, as the technician did, they were made at or about the time of the murders. I can’t think of any reason a person would stand around one tree in a woods unless they were huntin’ mushrooms, and I reckon it was little late in the year for that.”

  Humor is a precious and fragile commodity at a murder trial. I was grateful for whatever diverting chuckles Pratt could give us. The relieved expressions on several jurors’ faces suggested they might have been, too.

  Pratt said the technician had taken a cast of one of the prints. From the cast and his examination of the other prints, the tech had concluded that the prints were made by a man of some weight who wore a size 12 shoe, a fact I, of course, knew to be true. Attempts were made to determine the make and model of the shoe, but there was not a clear enough impression for that to be possible, Pratt said.

  “What size shoe does the Defendant wear?”

  “I examined two pairs of his shoes provided by his wife. There we
re tags in each shoe of each pair. They said size 10. I took them to a shoe store. A manager there measured them and confirmed the shoes were a size 10.”

  “Anyone the police talked to during the course of their investigation wear a size 12?”

  “I could find among their reports no indication that they had talked to anyone about shoe size.”

  “Did you?”

  “Yes.” Pratt gave it a beat. “Orlo Ratliff.”

  “And what did you find?”

  “He showed me a pair of boots that were size 12. He told me . . . “

  “Objection,” Crandall said, “hearsay.”

  “To which an expert may testify if the facts contained in the statement were used to form an opinion,” Reardon replied.

  “Overruled,” Secrist said.

  “Mr. Ratliff told me he wore a size 12 boot,” Pratt continued, “and he let me take a sample of some soil I found on the boot.”

  “Really.”

  Reardon put some English on it, spun it out, so it sounded snide. Pratt turned from the jury, dialed the grin down as low as it would go, and looked at Reardon for a long moment.

  If I’d asked him what that was about, he would’ve said he was just waiting for the next question. If Reardon had asked him, he would’ve said: “Read your jury. I’m doing pretty good here. Don’t screw it up.”

  Reardon’s eyes dropped to a legal pad on the defense table. They’d been doing this long enough to know each other’s moves.

  “What did you do with that sample?”

  “I had it analyzed and compared to soils I had collected around the Nusbaumer property.” For effect, Pratt waited until then to turn back to the jury and proceeded without being asked. “The composition of the soil on the boot and the composition of the soil in the woods were the same.”

  “Meaning?”

  “Mr. Ratliff probably had been in the woods near the double-wide.”

  A couple of jurors tore their attention away from Pratt and looked around the room; I guessed for Orlo. When they couldn’t find him, their eyes landed on Crandall. Wood sniffed and cleared his throat to cover a frown that got away before he could catch it.