by D. W. Buffa
He let them consider the significance of that singular remark, consider in all its implications the announcement in advance that any rulings he had to make would, whenever possible, go against the prosecution, and all for the purpose of producing a degree of finality for what was decided at the end by the jury. Those who were crying for blood, who thought the fact that Daniel Lee Atkinson had a lawyer proof of a perverse and misguided sympathy for the rights of murderers, rapists and thieves, would have laughed themselves into a rage at the notion that by ruling whenever he could in favor of the defense Bannister was shortening the time Daniel Lee Atkinson would be allowed to live.
“Who knows, maybe you’ll win,” said Bannister, breaking the silence. They were alone, the three of them, no one there to overhear their private conversation, what they could talk about among themselves: the way things really worked in a jury trial. “You made a good start,” he continued, smiling at Hector Alfonso, certain he would agree with his assessment of what Harlowe had done. “Telling everyone that the defendant looked like a murderer, looked just the way they must have imagined. If Hector had done that, if any prosecutor had done that – pointed to the defendant and said ‘he looks just like the murderer he is’ – you would have been on your feet demanding a mistrial, and you would have gotten it.”
A shrewd, subtle smile made its way around the back corners of his lips. Bannister had a great appreciation for the way a good lawyer worked. Anyone could learn the technical rules, the kind of evidence that was allowed, the questions one could ask a witness, but there were not many lawyers who could turn a trial into a drama, not many who could make a jury hang on every word, never knowing, and always wanting to know, what was going to happen next, and almost none at all who knew how to break the rules with impunity and effect.
“A prosecutor could never get away with what you did, and he shouldn’t. ‘He must be guilty because he looks the part!’” exclaimed Bannister with a short, emphatic laugh at the absurdity of it. “No, I don’t think so. But you can do it,” he said, turning to Harlowe, “because coming from you it has the opposite effect. It isn’t, ‘he must be guilty because he looks it; it is ‘you need to be careful what you do here, careful that you don’t convict someone of a crime because he looks like the kind of person you imagine does such things.’ He looks like a murderer, therefore you better be damn certain you give him all the presumption of innocence he is supposed to get.”
With the back of three fingers, Harlowe scratched briefly the side of his face. His pale blue eyes danced with amusement.
“It may not be the best defense I’ve ever heard of – telling a jury they should find someone not guilty because he looks like the worst nightmare they’ve ever had,” he said in a slow, deliberate drawl.
“It’s an odd thing, though, isn’t it?” asked Bannister, one thought leading to another. “That we make that association between what someone looks like and what they do, or what they are. What’s the first thing we think when someone with good manners and a decent appearance commits a particularly vicious murder? – That he doesn’t look like the kind of man who would do something like that. We’re always trying to figure this out, find some physical basis for the way we behave. Remember phrenology, what passed for psychology or science in the 19th century: explaining the criminal by the shape of his skull? We laugh about that now, but what do we do instead – look at something missing in the brain, or try to find the gene, that gives the reason why some of us commit murder and other do not. A hundred years from now they’ll be laughing about that, convinced that they’re on the track of the real cause.”
He threw a sharp look at Hector Alfonso. “And what about you?”
“Me?”
“You prosecute people for murder and other violent crimes. What makes the people who do these things different from you and me? Is it something in their physical make-up, or is it what we were taught a generation ago: that crime follows poverty as day follows night? Or is it education? We certainly don’t see many college graduates put on trial. Is it alcohol and drugs? Is it the absence of religion, a belief in something that teaches respect for others and restraint?”
These were not questions that Hector Alfonso, or, to be fair, most other prosecutors thought much about. They were too busy dealing with the things that happened to worry about the cause. In other circumstances, in front of another audience, he would have made up on the spot a response that sounded impressive and said nothing. In front of Walter Bannister he blurted out the truth.
“A lot of them steal to get money for drugs. I’m not sure I can remember a burglary that didn’t involve that. But murder – a murder like this one – I don’t think there is any explanation. Guys like this are just deranged.”
“Deranged, but not legally insane,” added Bannister, quick to show the irony in what was said. “Do you want to know what I think? – People kill, not always, but more often than we want to admit, for the sheer thrill of it, the sense of excitement it gives them. And we all approve of it, as long as it’s someone we believe ought to be dead.”
Bannister waited to see the look of surprise, bordering on something like alarm, rise to the conscious level of their minds, the stunned reaction that something crazy and barbaric had just been suggested.
“How else do you explain that we hold parades and pin medals on the chests of soldiers, men we have sent out to kill, when they come marching home from war?”
It was typical, they told each other after they left the judge’s chambers and were walking down the hall on their way out of the courthouse; typical and, in their experience, unique. Only Walter Bannister would have thought things through like that, instead of, like nearly everyone else, stopping at the obvious conclusions. Hector Alfonso emitted a low, rueful laugh.
“Spend enough time with him and you’ll never think anything is certain again.”
He said this with a breath of relief. It had been like sitting in a classroom, listening to a tightly reasoned lecture, afraid that if he missed one word he would not be able to understand anything. He was glad he had done it, and glad that it was over and he could relax.
“A judge who thinks,” said Harlowe, grinning broadly as they started down the steps outside. The air was warm and still, one of those summer evenings that make you forget the breathless daytime heat. “You don’t find many of those. He’s subtle, though, isn’t he? The way his mind moves back and forth. First, he’s going to give me all the latitude the defense is ever going to want; next, he’s only doing it so after the defendant gets convicted there won’t be anything to appeal.”
Alfonso stopped on the second step from the bottom. He made sure there was no one else around, no one who might wonder why the prosecutor in such a high profile murder case was having such a good time talking with the attorney for the accused. Hector Alfonso was always aware of the appearance of things. He rested his hand on Harlowe’s shoulder and looked past him, his gaze fixed on what they had a few minutes earlier seen together.
“He tells you that when all the evidence is against your client you have the easiest of all possible cases. You have nothing to lose because everyone knows he’s guilty and that you can’t win. He doesn’t say a word – he doesn’t have to, does he? – about what that says about my situation: that if this is the easiest case you could have, it is, for the same reason, the hardest one for me. That’s what I learned about him a long time ago, first time I tried a case in his courtroom: with Walter Bannister it isn’t so much what he says as what he doesn’t say that is important.” Alfonso’s dark eyebrows shot up, his eyes filled first with admiration and then, the next instant, a kind of baffled wonder. “That mind of his, it’s a goddamn labyrinth. Every time you turn a corner, every time you think you know where he’s going, he’s off in a direction you didn’t even know was there. The thing is, he’s thinking all the time.”
Hector Alfonso shook his head, wishing he could explain it all better. Harlowe thought he understood.
�
��I know what you mean. Whenever I’ve tried a case in front of him, there’s a point when I start to think he knows the case better than I know it. It’s the way he follows everything, looks at you when you’re asking a question, looks at the witness, studies him, anticipating the answer; the way he seems to get inside everyone – including me – like he’s read their mind. He doesn’t see the police reports, doesn’t interview witnesses or visit the crime scene. He’s hearing it all for the first time, and yet – it’s spooky – I get the feeling that he’s trying the case all by himself.”
Alfonso began to grasp something he had not understood before. He did not quite know what it was, only that it matched his own experience, though before this moment he could not have said precisely in what that experience had consisted.
“Trying the case all by himself,” he repeated out loud.
“Like no one else is there – the defense, the prosecution, even the guy on trial – he’s all of them. He thinks the way they do – the way we do – feels what they feel. Did you hear him back there, that business about what makes people kill? He means it. He wants to know; wants to know, if I followed what he was saying, what someone like this guy, Daniel Lee Atkinson – the guy we’re trying – must have been thinking, must have felt, if he did what everyone says he did.” He looked at Hector Alfonso for a moment, a friendly adversary he liked and respected. “But you couldn’t really do that, could you? – Get inside the head of someone who would do something like this, the things you told the jury – know what it was like, feel what it was like, to commit a brutal murder.”
The face of Hector Alfonso glistened in the bronze light cast by the fading summer sun. The dry heat felt good against his skin. He liked Michael Harlowe and was glad to talk to him.
“I don’t think you can know what it really feels like to do anything unless you’ve done it yourself. You can imagine it, but that wouldn’t tell you if what you imagined was true.”
He leaned closer. They were alone on the steps, but had someone been standing right next to them his voice was so low what he said could not have been overheard.
“Let me tell you a secret, something I’ve never told anyone. The sympathy people have for the victims, even of a crime like this – I don’t know anymore how much of it is real – what they really feel – and how much of it is what they think they’re supposed to feel, and, not feeling it, pretend.”
Chapter Four
“You may call your first witness,” announced Walter Bannister, looking down from the bench.
Hector Alfonso, wearing another new suit and another new tie, rose from his place at the counsel table and called out the name of the first of the long list of witnesses the prosecution intended to call.
Michael Harlowe was right when he told the jury that he did not have to do anything, that he did not have to ask a question, and did not have to call a witness of his own; right when he said that the defense did not have to prove anything, that it was up to the prosecution to prove that the defendant had done something wrong. The burden was all on the other side. He had not told them, what he sometimes added when he tried cases involving lesser crimes - what, done the right way, made a jury laugh - that it was one of the reasons he had become a defense lawyer: so he could sit all day in court and watch the other fellow work. Murder, especially one like this, was too serious for that.
Still, murder or not, Harlowe liked the advantage it gave him, not having to do anything of his own, but sit there, waiting for the other side to make an error. It did not need to be much: a simple misstatement of fact, or the hesitation, the slight uncertainty, the nervous catch in the throat, the brief, passing instant of confusion when a witness gave an answer that was not quite right. Harlowe had an instinct for it, knew almost before it happened that a witness had made a mistake, and knew as soon as that what to do with it. Convinced it must be something he read in a witness’s eyes, prosecutors he had beaten in earlier cases told their witnesses to look at the jury instead. But even when they remembered, his face was too open, too friendly and something always pulled them back.
He had become in his years of practice an expert witness of his own, a judge of prosecutors and the way they worked. Most of them were competent within the limits of the usual standards, perfectly able to present a case in the proper way, calling a witness to prove each element of the crime in question and summarizing the case at the end without a major mistake. Many of them used notes to remind them what they wanted to say. It was all quite orderly, marshaling the evidence in a logical progression that seemed to lead to only one conclusion, nothing left to chance and no place for surprise. It was textbook procedure, a check list with each blank box clearly marked, the criminal law reduced to the law of mechanics. Harlowe looked forward to trying cases against prosecutors like these. They were easy to beat, too dull and methodical to recover once they were surprised by the failure of one of their witnesses or a new and unexpected piece of exculpatory evidence. But Hector Alfonso was not like that.
If Alfonso was not in a category all his own, there were so few others in it to make him part of a rare, and, so far as Harlowe could determine, dying breed, a lawyer for whom the rules were not so much to be followed as used, picked and chosen from until he had the one he wanted, the one that worked. That was the reason that, almost alone among prosecutors, he could smile and laugh and take you into his confidence about, among other things, Walter Bannister’s unusual ways of thinking; the reason he could shake your hand and wish you well and mean it and then, the moment you were back inside the courtroom, do everything he could to destroy you. He did not just want to win, he did not just want to beat you: he wanted you to be glad that if you had to lose you lost to him. That was the reason, strangely enough, that when he had finished with this first witness, a young black woman who had taken the 911 call reporting the gunshots, he had fairly shouted, “the gunshots that had started the slaughter, the death of four people, including two children, that the defendant –”
He did not try to finish, did not try to add the name, but wheeled around and with a broad, defiant smile waited for Harlowe to object. And then, before Harlowe could open his mouth, he turned back and as if astonished at his own misbehavior apologized to the court.
“Sorry, your Honor; this case has me a little overwrought.”
Harlowe sank down in his chair, but his eyes stayed fixed on Hector Alfonso.
“Do you wish to cross-examine the witness, Mr. Harlowe?” asked Judge Bannister after Alfonso reached the counsel table.
Harlowe’s eyes did not move from the district attorney. They stayed on him as he got up again and took two steps toward the witness stand, stayed on him as Alfonso settled into his chair and looked up, stayed on him as he asked the witness his first question.
“The gunshots that started the slaughter,” he began, repeating word for word the prosecutor’s own last inadmissible remark; “the death of four people, including two children, that the defendant - Well, actually,” he said, turning for the first time to the witness, “Mr. Alfonso did not ask, so I will. Did the caller, the person who reported the gunshots, say that she had seen who fired them?”
“No, she didn’t say anything about that.”
A smile flashed across Harlowe’s face.
“That isn’t true.”
The witness seemed to freeze. She had not meant to lie, and did not see how she had.
“I’ve listened to the tape. We could have it played for the jury. Why the prosecution did not have this done, I’m not sure. But if it will help you remember, I can….Let me remind you instead, you were told this woman had heard shots. You asked her, ‘Did you see anyone.’ You remember now. The shots had come from a house across the street. You wanted to know if anyone was outside, someone running away. She had heard shots, it could have been a murder/suicide; it could have been a lot of things. You told the woman to stay inside, to stay safe. The police would be there right away. You wanted to tell the police – the police you were
sending – everything you could. Remember now? She had not seen anyone, had she?”
“No, no one,” replied the witness.
Harlowe turned and started back to the counsel table.
“I guess that’s the reason why we don’t let the prosecution ask all the questions,” he said with a caustic grin. Tapping three times on the front corner of table, he looked straight into the eyes of Hector Alfonso. “My apologies, your Honor,” he added immediately. “I’m told that in a trial like this everyone gets a little overwrought.”
Hector Alfonso tried not to smile.
It was the same thing with the next witness and the one after that, the same thing with nearly every witness the prosecution called. Whatever they said, whatever evidence they presented, whether it was the coroner testifying about the cause of death for each of the four victims, the ballistic expert connecting the bullets taken from the two gunshot victims to the gun taken from the defendant, the police officers who had captured Daniel Lee Atkinson after an exchange of gun fire, Harlowe asked the same question on cross and got the same answer.
“You testified that the bullets that killed two of the victims came from the gun found in the possession of the defendant,” he reminded the expert on ballistics, a balding, middle-aged man with sloping shoulders and an unfortunate nervous twitch at the side of his mouth. “Can you testify that the defendant was the one who fired the gun, that the defendant, and no one else, pulled the trigger?”
Still, no matter how many times the question got answered, no matter how many times a witness for the prosecution admitted that he had not seen the defendant kill anyone, the circle narrowed and grew tighter. No one had seen the murders, but it became clear, as Hector Alfonso built his case, that someone had seen everything else. Gunshots had been heard. The bullets taken from the two dead bodies had been fired from the same gun with which the defendant had tried to shoot the two police officers who had finally apprehended him. He had been seen running from the house. And that was only half the prosecution’s case. What came next made the question Harlowe kept asking begin to seem almost as obscene as what the members of the jury were now asked to look at for themselves, the photographs, the two parents draped over the blood covered sheets of their bed, the husband shot in the head, the back of his wife’s head torn away after the barrel of the revolver had been shoved into her mouth.
