“You got fifteen minutes,” the guard told Mark. He unlocked the door, and Mark entered the visitation room.
At Suwannee County Jail, meetings with attorneys were face-to-face, but normal visits were strictly noncontact. Mark took a seat on the stool and peered through the Plexiglas. It was smudged with countless fingerprints of inmates and visitors who’d pressed the glass from opposite sides to create the illusion of contact. The inmate to Mark’s immediate left was white, as was the inmate to his right. Farther down the row were black inmates. The segregated seating arrangement was no accident, Mark assumed, given the cafeteria incident.
On the other side of the Plexiglas was his sister, Shelly. Mark picked up the phone and spoke. “How you doing, sis?”
Shelly forced a smile and shrugged.
“How’s Mom?” he asked.
“She’s still in the hospital. I saw her today. She looks a little better.”
“That’s good. I tried calling her twice today, but she was asleep.”
Shelly took a breath. “It’s killing her that she won’t be at your hearing tomorrow.”
“Tell her not to worry about that.”
“I will,” she said, and then her gaze focused on his ear. “What’s that bruise on the side of your head?”
Mark hadn’t looked in a mirror, but he assumed it was from the cafeteria tray. “I fell out of my bunk this morning,” he said.
Her eyelashes fluttered. It was a nervous reaction of hers. “You always were a lousy liar,” she said.
“I guess that’s true.”
“Remember that time I cut my own hair? You were the only one who said it looked good.”
She was five at the time. Mark was seven. “It did look good. Kind of.”
“Such a lousy liar.”
They shared a smile, but stopped short of laughter. So much history between them, so many laughs. Shelly used to drive him crazy with her knock-knock jokes, until he came up with the perfect knock-knock buster: “Come in,” he’d say, which would set her off like a screaming banshee, “Mark, you’re supposed to say ‘Who’s there!’” He’d been locked up for just a few days, and solitary had been only a matter of hours. But already he was escaping mentally to those happier, innocent times.
“You’re biting your nails again,” he said, glancing at her hands.
She folded her arms self-consciously. “Yeah. I don’t know why I do that.”
It was a bad habit she’d started in high school. She’d applied to UF with grades and test scores that put Mark’s to shame, but those nails took a beating right up until her acceptance. It only got worse with their mother’s first cancer diagnosis.
It suddenly occurred to Mark that the entire focus of the past two weeks had been on him and his mother. But it was Shelly who had to walk on campus, attend class, and dodge reporters. She was out there every day. Who was looking after the little sister of the racist murderer?
“Shelly, how are—”
“Cooper’s funeral was today,” she said, changing the subject.
The words nearly knocked the wind out of him. “Wow.”
“Yeah. That’s a ‘wow,’ all right.”
“Was there a good turnout from the frat?”
“I assume so. A lot of people said they were going.”
Mark hesitated, then asked, “Did Baine go?”
“I don’t know. I saw him—”
“Forget it,” he said. “Jack said we shouldn’t talk about Baine. Jail conversations aren’t private. I shouldn’t have brought him up.”
Silence. Shelly looked down, as if measuring her next words. Finally, she raised her eyes—and her eyebrows. “I have to tell you something.”
“About what?”
She did that nervous thing with her eyelashes again, and the way she was looking at him, Mark knew that she wanted to tell him something about Baine.
Mark shifted uneasily, afraid of what she might say—of what the jail officials might hear.
Slowly, she slid her sleeve halfway up to her elbow, exposing what looked like a tattoo. Mark had seen scripted tattoos before, especially on women—a favorite expression or quote. But this was no tattoo. Mark was sure of it. Shelly wouldn’t have dared get a tattoo anyplace on her body where their parents could see it.
She’d written him a message.
Mark lowered his gaze, studying, trying not to be too conspicuous. The script was in French. Their mother had insisted that they both take French in middle school and high school. Neither of them was fluent, but when they didn’t want others to know what they were saying to each other, mediocre French was like their own code. It worked on most people, and if the guard had searched Shelly before allowing her to visit, a few scripted words in French that looked like a tattoo would have fooled him, too.
Mark translated in his mind, struggling not to show his surprise—shock, really. Then he looked into Shelly’s eyes through the glass.
Shelly knew him well enough to interpret what he was thinking solely from his expression—no words necessary. She nodded and then verbalized her response.
“C’est vrai,” she said, and Mark understood.
It’s true.
CHAPTER 58
The line for visitors outside the Suwannee County Courthouse rivaled those for Disney World’s most popular attractions.
Spectators had come from as far away as California to vie for the fifty seats available to the general public. Some had camped out all night, and arguments broke out over holding places in line for friends. A near fistfight required police intervention. The media made much of the fact that the altercation had pitted blacks against whites, each having accused the other of cutting in line. More than four hundred press passes had been issued, and every major broadcast network had at least one reporter at the courthouse around the clock. Time magazine published an exposé titled “Racial Terrorism Lynchings in America.” The Root and other leading black media planned daily in-court coverage with hourly updates. Breaking News Network was planning extended coverage and legal analysis from early morning through prime time. Network specials were slated to air over the weekend, including “The Lynching of Jamal Cousin” on Dateline NBC, and “Racial Justice in America” on 60 Minutes.
“Good morning,” said Judge Teague. “The purpose of this hearing is to determine whether the defendant, Mark Towson, should be released before trial. The state opposes bail. Bail can be denied only if the prosecution establishes that the proof is evident and the presumption great that Mr. Towson is guilty of the charges against him. This is an extremely high standard to meet.”
Jack had heard reference to that “high standard” before—usually right before a judge’s denial of bail. Mark sat quietly at Jack’s side, having been forewarned by his lawyer that, no matter what the judge said, pretrial release of a defendant charged with first-degree murder was the rare exception to the rule.
“Mr. Boalt, call your first witness, please.”
“The state calls Detective Josh Proctor, Suwannee County Sheriff’s Department.”
It was no surprise to Jack or anyone else in the packed courtroom that the state attorney would begin with the homicide detective who was in charge of the crime scene. Still, there was an uneasy anticipation in the air as Boalt led the detective through the preliminary questions, as if everyone knew that the pivot to more substantive testimony would be powerful.
“Detective Proctor, what did you see when you first arrived on the scene?”
It was the moment that Jamal’s parents, seated behind the prosecution, had been dreading. Boalt was about to present the photograph, not previously released to the public, that the media had been waiting for. Jack couldn’t think of a legal objection, but as a parent, he knew that if something this horrific had happened to his child, he wouldn’t want it displayed on an overhead projection screen in a courtroom.
Jack rose. “Your Honor, even at trial I’ve seen the projection screen positioned so that only the judge, the witness, and t
he jury can see the photographs of the victim. I think the same sensitivity should be shown here.”
Boalt glared across the courtroom at Jack. “Judge, I frankly resent Mr. Swyteck’s implication that it is the defense who respects the victim in this case.”
“Let’s not make this personal,” the judge said. “Mr. Boalt, turn the screen. Members of the media, any photographs accepted into evidence at this hearing will be made available at the conclusion of this hearing. Please exercise good judgment in how you share them.”
Boalt complied, and Jack spent the rest of the examination standing in front of the empty jury box, rather than at the defense table, so that he could see the photographs. “Horrific” did not begin to describe them. Jack couldn’t even imagine what had gone through the minds of the two fraternity brothers who’d found Jamal in this position—hog-tied, hovering just above the river, hanging at the end of a rope from a tree limb. Had the image been in black and white, it could have come straight out of the Jim Crow era. Jack glanced out toward the gallery and spotted one of the first witnesses on the scene. Kelso was his name.
Jack wondered what had become of the other young man—Percy Donovan—who was still missing.
The prosecutor’s examination continued for another hour. The detective addressed each aspect of the crime. The rowboat that was stolen from a pier upriver. The lynching site a hundred yards downriver. The same rowboat found sunk another quarter mile downriver. And the foam resin shoe that divers had pulled from the muck a week after the lynching.
“What size was that shoe?” asked Boalt.
“Size eleven,” said Proctor.
“What size shoe was the defendant, Mark Towson, wearing when he was taken into custody?”
“Size eleven and a half.”
“Don’t Crocs run big, Detective?”
“Objection,” said Jack. “There’s no way for this witness to know that.”
“Sustained.”
The prosecutor moved on, having made his point even if the question was improper.
“Detective, I have just one final exhibit,” he said, and it appeared on-screen. “This is a text message that was retrieved from Jamal Cousin’s phone. Your Honor, the defense does not dispute that Mr. Cousin received this message one week before the tubing trip down the Ichetucknee River.”
“Mr. Swyteck, is that true?” the judge asked.
“We do not dispute that Mr. Cousin received it,” said Jack. “We dispute who sent it.”
“Understood. Proceed, Mr. Boalt.”
“Detective Proctor, can you read it aloud, please?”
“It says, ‘Watch yo ass on the float nigga. Strange fruit on the river.’”
The disturbing words hovered in the courtroom. The jury box was empty, but Jack was standing right in front of it, fully able to appreciate the assault on eyes and ears that twelve future jurors would experience at trial.
“Did you ever discuss this text message with Mr. Towson?” the prosecutor asked.
“Yes. I questioned Mr. Towson after the body of Jamal Cousin was found on the river.”
“Did you show him the cell phone number from which that message was sent?”
“Yes.”
“What was his response?”
“Mr. Towson confirmed that it was his cell phone.”
Jack would have liked to object, but the prosecutor had threaded the needle properly: there was no dispute that it was Mark’s phone number.
“I have no further questions,” said Boalt, and he returned to the seat at his table.
“Mr. Swyteck, cross-examination?” the judge asked.
Jack thanked the judge and approached the witness. Detective Proctor seemed to realize that he’d done little to link Mark Towson to the lynching of Jamal Cousin. Jack had only a couple of points that he needed to make.
“Detective Proctor, your written report states that your investigative team recovered fingerprints from the pier where the owner of the stolen rowboat kept his boat,” said Jack.
“Yes.”
“None of those fingerprints belonged to Mark Towson, correct?”
“That’s correct.”
“Your team checked the fallen cypress tree near Jamal Cousin’s body for fingerprints, too, right?”
“Yes.”
“You found none?”
“No, but in any well-planned homicide, it’s not unusual for the killer to wear gloves.”
“You didn’t find any gloves, did you, Detective?”
“No.”
“And you found no fingerprints on the sunken rowboat that you recovered downriver, correct?”
“That’s correct.”
“What about DNA evidence?” asked Jack. “Did you find any of Mark Towson’s DNA at the pier?”
“No.”
“At the body recovery site?”
“No.”
“In the sunken rowboat?”
“No.”
“In fact, there is no physical evidence that connects Mr. Towson to the murder of Jamal Cousin, is there?”
“That’s not correct,” Proctor said forcefully. “There’s the foam resin shoe that was recovered near Jamal’s body.”
“That shoe was size eleven, correct?”
“It was.”
“You testified that Mr. Towson wears size eleven and a half, correct?”
“I said the shoes he was wearing on the night of his arrest were size eleven and a half.”
Jack could have left it at that, but he was concerned about the “Crocs run big” argument that Boalt had snuck in during direct examination. Jack had a decision to make—whether to defend Mark by incriminating Baine. There really was no choice.
“Isn’t it true, Detective, that a foam resin shoe was found in Baine Robinson’s closet after the fire at the Theta house?”
“Yes, in seriously burned condition.”
“Mr. Towson’s fingerprints or DNA were not on that burned shoe, correct?”
“Correct.”
“The same holds true for the shoe found near Jamal’s body—no DNA or fingerprints from Mr. Towson, correct?”
“None that our tests detected.”
“You have no evidence that Mr. Towson ever purchased or owned a pair of Crocs like the one found at the crime scene. Isn’t that right, sir?”
“Not yet. But we are continuing to investigate.”
Jack was satisfied, and that seemed like a good place to end. “Nothing further, Your Honor.”
Jack returned to his table. The prosecutor rose. The judge allowed five minutes for redirect examination—Boalt’s chance to remedy the damage Jack had done on cross.
“Detective Proctor, when Mr. Swyteck asked about Mr. Towson’s ownership of a pair of Crocs, you said, ‘We are continuing to investigate.’ Where does that investigation stand as of now?”
“The crime lab is in the process of testing a foam resin shoe that was recovered on the bank of the Ichetucknee River two days ago.”
“Is that one a mate for the foam resin shoe that was recovered near Jamal Cousin’s body?”
“It appears to be. The testing will confirm that.”
“Is the lab also testing that shoe for fingerprints and DNA evidence?”
“Yes.”
“When will that testing be complete?”
“We should have a report early next week.”
It was lame, by legal standards, but Jack knew what the prosecutor was up to. The message—“we are continuing to investigate”—was a play to the crowd and the media. “Don’t worry if the evidence sounds weak at this stage,” Boalt was telling them, “we will nail this guy.”
“Detective, are you planning any further testing on the other shoe that Mr. Swyteck mentioned? I’m talking about the burned Croc found in the Theta house.”
“Yes,” said Proctor.
“What prompted the decision to undertake further testing on that shoe?”
“We met with an expert who was retained by Baine Robinson.”
<
br /> Jack bristled. The state was under no obligation to disclose a meeting with the Robinsons, but the fact that it had occurred without a single media report told Jack that it had been one very secret meeting indeed.
“What was discussed at that meeting?” asked the prosecutor.
“Mr. Robinson’s expert did a comparison of the wear patterns on the two Crocs.”
Jack smelled a rat. His own expert had told him that the bottom of the shoe was too badly burned to make that comparison.
“What was the conclusion of Mr. Robinson’s expert?”
“The shoes do not match.”
“Have you accepted that conclusion?”
“Not yet. As I say, that will be in the report issued by the lab next week.”
The prosecutor stepped away from the lectern. “I have no further questions, Your Honor.”
The witness stepped down, and all eyes followed him as he walked down the aisle and exited through the rear doors.
The judge peered out over his reading glasses and addressed the lawyers. “Here’s how I see it, gentlemen. I’ve reviewed the grand jury materials and other evidence filed with the court before this hearing. If the forensic test on this recently discovered shoe reveals Mr. Towson’s DNA or fingerprints, I don’t see a need for the two-day hearing I’ve scheduled. Mr. Boalt, can you have the test results by Monday morning?”
“I can try, Your Honor.”
“Try hard,” the judge said. “I’m going to adjourn this hearing at this point. We will reconvene at nine a.m. Monday morning.”
The crack of his gavel cut through the courtroom.
“All rise!” said the bailiff.
As the defense rose, Mark leaned toward his lawyer and whispered, “How bad is this?”
A Death in Live Oak Page 23
