by David Staats
Loveless swayed slightly in his chair before answering. “No,” he finally said.
“When I inspected the scene on that late Monday afternoon, June 8, my assistant took photographs, one of which shows that window with no shades drawn.”
“Okay,” said Loveless.
“You are suggesting that normally you do not draw the shades during the day, but you might have done so on that particular weekend?”
“I might have had my sleep schedule discombobulated,” said Loveless.
“Perhaps by some illicit nighttime activity?” suggested Dure.
Loveless seemed annoyed. “I don’t know what you are trying to suggest,” he said.
“You testified that you had overheard quarrels between Mrs. Houlihan and Mr. Houlihan?”
“Yes.”
“I think you testified that the most recent argument you overheard was ‘loud’ and ‘violent’?”
“Yes.”
“And you could hear her voice from her yard to yours?”
“Yes.”
“So her voice was loud?”
“Yes.”
“And violent?” said Dure.
“I don’t know what you mean by ‘violent’.” said Loveless.
“It’s your word. You testified that the argument was ‘loud’ and ‘violent.’
“They were arguing violently.”
“Were you watching them, or only hearing them?”
“I could not see them, but only hear.”
“And when you testified on direct, you only mentioned her voice, isn’t that right?”
“I don’t recall.”
“Should we read back the transcript?”
“Her voice stood out. He either said nothing, or spoke so low that I just heard a mumble.”
“So it would be fair to say, that based on your perception, Mrs. Houlihan could at times use her voice in a manner that was loud and violent.”
“Okay.”
“In fact, you had personal experience of Mrs. Houlihan’s loud and violent voice, didn’t you?”
Loveless made a slight gesture with his shoulders, twice in quick succession. He seemed uncertain how to answer. Then he smiled and said, “She did get upset on one occasion.”
Now it was Dure’s turn to hesitate. He stared at the legal pad he was holding in his hand and made a moue. Then he said, “What occasion was that?” But before Loveless could answer, he said, “Strike the question. In fact, it was on an occasion when you were burning some branches in your backyard?”
“Yes,” said Loveless.
“Within the past two years?”
“Yes.”
“She came into your yard screaming?”
“I would say she was upset.”
“And in fact, she threatened to report you to the police, didn’t she?”
Loveless pressed his lips together before answering. “She may have. I don’t recall everything that was said.”
“And didn’t you threaten to have her arrested for trespassing?”
“Again, I don’t recall everything that was said.”
“You don’t deny it?”
“I don’t recall exactly.”
“So you cannot deny that you threatened to have her arrested for trespassing in your yard?”
“I don’t know what your source of information is.”
“That is now the third time you have failed to deny that you threatened to have her arrested for trespassing in your yard. We understand.”
Dure stood still for a long moment, and silent. He stepped to the clerk’s table and took up the baggie with the bullet in it.
“May I approach the witness?” said Dure to the judge.
“Go ahead.”
Dure showed the baggie with its enclosed bullet to Loveless. “Have you seen this before?”
Loveless barely glanced at it. “No,” he said dismissively.
Dure walked slowly back to the clerk’s table and put the baggie down. He turned.
“Mr. Loveless, you are aware that the prosecution has not disavowed the death penalty in this case?”
“I don’t know. It’s not something that concerns me.”
“So that if the defendant, Mr. Houlihan, should be convicted, he might be put to death?”
Loveless snorted a kind of ‘hmmpf.’ “He was the one who confessed, not me.”
Instead of asking another question, Dure stared at Loveless for a long moment. Then he said, “No, you haven’t confessed, have you? So we have one potential outcome of this trial is that Liam Houlihan would become an orphan?”
Loveless shrugged his shoulders and looked away.
Dure did not insist on an answer, but went on to his next question. All during this series of questions, Preston had been half springing up from his chair and then subsiding, as if he wanted to object, but each time at the last second decided not to.
Dure asked, “Not only an orphan, but an orphaned young man who would be convinced that his father murdered his mother?”
“Don’t bother me about it. Mr. Houlihan confessed and there’s an end of the matter.”
“Obviously not the end of the matter, since we are here, talking about what happened. You’re seventy years old, right?”
“Yes.”
“Objection, Your Honor.” Preston finally was standing.
Yet another conclave took place at the judge’s bench. Several jurors rolled their eyes.
“Your Honor!” said Preston, in a tone of aggrievement, “this cross-examination is beyond all bounds. The questions are irrelevant, incompetent, argumentative, beyond the scope of direct examination, and simply unprofessional.”
Dure stood silent and patient to the extent that the judge had to ask him for his answer to the objection. Dure’s hazel eyes were beginning to blaze and he spoke with restrained heat. “What I have to say, Your Honor already knows. Cross-examination is an engine to ferret out the truth. Sometimes, as in this case, it is the only thing that an innocent defendant has to protect himself from wrongful conviction. It is in criminal trials a sacred right.” (Preston pressed his lips tightly together, and looked away in disgust.) “The prosecution is determined to deny the defendant this right by running interference for the witness, disrupting the examination with repeated objections. None of my questions is objectionable. The total import of the series of questions is intended to be non-obvious to the witness. Perhaps my learned friend also does not see where this is leading – or, if he does, then his repeated objections are truly despicable.”
The judge said, “I am not pleased with the performance of either of you. I guess we will see how things turn out when the jury returns with a verdict. At the moment, it seems to me that Mr. Dure is doing as much harm to his client’s case as good, and I am going to let things play out. I think that both of your complaints have merit: Mr. Dure, your questions do seem far-fetched and borderline abusive – but again, I am going to give you leeway because this is cross-examination in a capital case. Mr. Preston, I will allow you to have a standing objection based on relevance, on this condition: that at the next break, you bring to the court’s attention that question or those questions with respect to which you wish to press your objection, and we will settle those matters when next the jury is taken out.”
Again the players returned to their places.
“You are seventy years old?” asked Dure.
“Yes,” said Loveless.
“Did you know that the appeals process in death-penalty cases often take ten years or more?”
“No.”
“How old was your father when he died?”
“What does that matter?” said Loveless, with resentment.
“Answer the question,” said Dure.
At the prosecution table, Preston was shaking his head.
Loveless turned to look up at the judge, who in answer to Loveless’s mute appeal, said, “Answer the question.”
“Sixty-six.”
“And your mother?”
> “Sixty-five.”
“Did you ever think you were on borrowed time?”
“No,” said Loveless, but it was apparent that he gave no thought to the answer, but was simply refusing to go along with anything Dure might suggest.
“Liam Houlihan is twenty-three years old,” said Dure. “How long is it from age twenty-three to age seventy?”
Loveless became briefly pensive. “Not that long,” he said in a soft voice.
“How long would it be if someone thought that his father had murdered his mother?”
Loveless shrugged his shoulders. “I wouldn’t know,” he said.
“Mr. Loveless, you do own a firearm, don’t you?”
Loveless’s body twitched and he looked at Dure. Without moving his head, let his eyes slide over to look at Houlihan. Houlihan, at the defense table, was staring back at Loveless. Loveless swayed slightly in the chair. He inhaled sharply and stared now at the front railing of the witness box. Finally, he settled back in the witness chair and said nothing.
“You own a .22 rifle. Isn’t that right?” said Dure.
Loveless pressed his lips together, inhaled again sharply, and settled his shoulders back in the chair, saying nothing.
“You do own a .22 rifle. It has a scope mounted on it?” said Dure.
Loveless turned to look at Houlihan and a faint smile of comprehension came on his lips. He seemed to make up his mind. “I did at one time,” he said.
“The report from a .22 is not very loud, is it?”
“It’s loud enough to wear ear protection,” said Loveless.
“You wear hearing protection when you fire it indoors, I take it?” said Dure.
Loveless gave a start and blinked. “Anyone would,” he said.
“Where you live, with the large lots and the trees, it’s not likely that the report of a .22, even if fired outdoors would be noticed, is it?”
“I think it would.”
“But if it were fired indoors, say through an open window, and at a time when loud lawnmowers were operating in the neighborhood, it’s not likely that anyone would notice it?”
“I don’t know how one would know that,” said Loveless.
“In this case, it appears that no one did, isn’t that right?”
Loveless was beginning to slump slightly, to subside in the chair in which he was sitting. “Did what?” he said.
“No one noticed the firing of a .22 from your bedroom through your open bedroom window while loud lawnmowers were operating in the Sweets’ yard across the street?”
Loveless let out a deep sigh. “No.”
Dure picked up the baggie with the bullet in it. He did not ask the judge’s permission, but went to the witness box and held it out to Loveless. “This bullet came from your rifle, didn’t it.”
“No,” said Loveless, weakly, but his head was nodding as if to say ‘yes.’
“You shot Mrs. Houlihan, and now, you are tired, and you are old, and you do not want to make a second murder by allowing an innocent man to be convicted. And maybe it was a mistake, or a crime of opportunity, I don’t know, but whatever justification you had, you did not foresee this, you did not sign up for this, you do not want to commit the cowardly and despicable deception of making a young man think his father killed his mother. You’ll have a chance to explain yourself, maybe even to justify yourself, but right now you have to say that you did it.” Dure stood silent, expectantly, as the whole courtroom was silent, and the air of expectation was heavy.
Loveless was breathing heavily. His head sagged and softly he voiced the words, “Alright . . . yes.”
It took a moment for the import of this utterance to be realized by the courtroom. Murmuring began throughout the courtroom. The judge rapped the bench with his gavel. Preston sat with a peculiar expression on his face, as if he had opened a gift-wrapped box and found something revolting inside. He rose and went with Dure to a sidebar conference.
“Your Honor,” said Preston “the Commonwealth would like to nol pros this case at this time.”
“The defense will not object,” said Dure, “so long as the dismissal is with prejudice.”
“Your Honor, the Commonwealth cannot agree to that,” said Preston. “Supposing this testimony should be recanted, the Commonwealth must retain the right to re-institute charges against this defendant.”
“In that case, Your Honor,” said Dure, “the defense insists that this trial go to verdict.”
Preston looked at Dure with annoyance. Disgust showed on his aristocratic features. “In the absence of any cooperation from defense counsel,” he said, “the Commonwealth requests that the trial be adjourned for a week, so that further investigation can be done.”
“We object to that,” said Dure. “It would be a great inconvenience for the witnesses and the jury, and a violation of the defendant’s speedy trial right.”
The judge asked, “How many days has it been? Is there any danger of a speedy trial violation?”
“None whatever,” said Preston. “We are well within the guidelines.”
“The defense maintains,” said Dure, “that a delay during trial of that magnitude is a separate violation of speedy trial rights, independent of the total time of the prosecution, as well as a violation of due process because of the effect on the jury of loss of recollection of evidence, and risk of contamination by extra-judicial information.”
The judge said, “As you know, once the jury has been sworn, the Court cannot dismiss the case over the defendant’s objection. What I’m going to do is this: The court will adjourn until 10:00 tomorrow morning. At that time, the case will proceed to verdict, unless the prosecution agrees to a dismissal with prejudice.”
14.
The next morning, at 9:05, Dure received a telephone call from Preston. Preston said that the police had intensively interrogated Loveless, that he had signed a confession, and that the case against Houlihan would be dismissed with prejudice. Over the next fifteen minutes the two lawyers agreed by e-mail on the wording of a stipulation and order of dismissal. At ten o’clock, the order was presented to the judge, who signed it and discharged the jury with his thanks.
The winning of a murder case is such a powerful thrill that it even overcame Dure’s constitutional glumness for a day. He had an extra bounce in his step which made his gait awkward and slightly ridiculous, as if he were hurrying through a tall-grass meadow to meet someone special; and even though from his lack of sleep the bags under his eyes were larger and grayer than ever, his eyes themselves glowed golden.
The Monday after the trial, Houlihan stopped in to say thank you in a fuller manner than the fumbling utterances he could manage at the trial. He was dressed in neat civilian clothes. Kara showed him into Dure’s office.
“Now I know why people say you’re the best lawyer in town,” he said as he entered. His voice was clearer and stronger.
Dure took the praise with a grimace; he did not smile. He invited Houlihan to sit.
“I was shocked that it was Everett Loveless,” said Houlihan. “But then I thought: we had become somewhat estranged over the past few years. We had been friendly neighbors at one time.”
Dure nodded, said nothing.
“How did you know that it was him?” asked Houlihan.
“It was a complex process which culminated in cross-examination with a prepared mind,” said Dure. “It was observation, elimination, and pondering.” Dure sat back in his chair. “First of all, I believed that you did not do it. That meant someone else did it. You look for motive, opportunity, lack of alibi. This was a tough case because the time of death could not be pinpointed. That meant opportunity and lack of alibi were not useful clues. That meant the focus had to be on motive, but there didn’t seem to be any strong motive. Even as trial began, I had suspicions as to who did it, but I did not know. The key turned out to be post-crime efforts to evade detection. If Loveless had not planted the head in your trailer, which led to the discovery of the bullet, he might
have gotten away with the crime.” A strange look came over Dure’s face. “I should charge you double the fee,” he said, “because your ignoring my advice made the case three time harder than it would have been.”
“Huh?” said Houlihan with an expression of panic on his face.
“I told you not to talk about the case with anyone, then you go and talk about the case – with the police no less.” Dure seemed disgusted.
“I’m sorry about that,” said Houlihan.
Dure was silent, seeming to stew in irritation. Houlihan was sweating. Finally Dure said, “Okay. I’ll let it go. All’s swell that ends swell.”
Houlihan smiled involuntarily and relaxed. “But how did you know that it was Loveless?” he asked.
“Not until I was cross-examining him was I sure. In that very intense interaction you have to read the person you are cross-examining. With knowledge of the facts you probe – but it’s a matter of judgment which witness to probe and how much – it can blow up in your face. You probe and you read the witness and adjust your attack as you progress. Remember the Audubon on Loveless’s coffee table? And the story of his bird watching in the neighborhood? That didn’t add up with his not having noticed vultures in the next yard. So I was suspicious of him. When the prosecution brought in the head and the bullet, then it was clear how the murder was done. And then it was just a matter of probing and provoking the witness, and reading the signs. When I asked him if he owned a firearm and he twitched, that told me I was on the right track.”
The telephone rang. Kara answered it. “It’s for you,” she said to Dure. “Roderick Preston.”
Dure looked meaningfully at Houlihan and took up the receiver.
“Walter? This is Roderick Preston.”
“Yes, Roderick, I recognize your voice.”
“Ahem, regarding the Houlihan case, Cliff Whittaker is defending Mr. Loveless.”
“You have my sympathy.”
“Well, thanks. I was wondering if, in the interest of justice, you might help me out a bit?”
“Hang on a minute. I’m sitting here with Mr. Houlihan. Let me put you on the speaker.”
“I guess it’s alright,” said Preston, sounding unenthused.
Dure said, “Okay. Whatever I can do to further the cause of justice . . ..”
