by D. W. Buffa
“There were two of us,” began Atkinson. He shifted in the witness chair to look at the jury. The few who looked back did so with open hostility. “The other guy – we’d done a few jobs together, breaking into houses when no one was there. We stole things, but never hurt no one. That night – those people were supposed to be gone – the other guy, Jerry, was kind of wasted, strung out on something. Coke, maybe meth – I don’t know. We got into the house. I’m in the living room. He goes upstairs. Then I heard it – shots being fired. And I run upstairs, but he isn’t there – in the bedroom, I mean. I see these two people, dead, blood all over. Then I heard something, just down the hall. That’s where I found him – the knife in his hand, the two kids he’s just killed. It was too late. I couldn’t do anything. He ran out the back and I took off the other way. He killed them, Jerry did; I didn’t do any of it. I went up there to stop it; would have, too, if I had been there in time.”
There was nothing Harlowe could do except what he would have done with a defendant he believed. He went back to the beginning and had Atkinson describe everything that happened that night, and everything that happened later. He asked him why he had not told the police about the other intruder, the one he now said was the real killer. Atkinson told the jury the same thing he had told Harlowe: that he did not think anyone would believe him. And then he added something that Harlowe had not expected: that if he had not been there, if he did not know what had really happened, he would not believe it either.
“I’d think I was lying if I heard that story. But it’s the truth, I swear it is. I swear it on my mother’s grave.”
His mother’s grave! Had he offered that last guarantee of his veracity because it was something he had heard other men in trouble say, or was it out of some twisted sense of humor, a joke that no one but he and Harlowe would understand: swearing on the grave of the mother he had never known, the woman who had given him up at birth, gotten rid of him before he even knew he was alive. Harlowe did not know and Harlowe did not care; he was past irony, his only thought the next question he had to ask.
He could have done this in his sleep, the sequential interrogation that took the defendant – any defendant – through each thing that happened at the time and place of the crime. Atkinson had in one short paragraph stated the grounds of his defense: someone else was guilty, someone else had committed murder. It was of course inconvenient that beyond the first name ‘Jerry’ he did not know anything that would help identify the killer.
“Where did Jerry live?” asked Harlowe with an expression as close to perfect neutrality as it was possible to imagine.
Atkinson shrugged; a movement which, like almost any movement he made, came accompanied with a brief, metallic rattle of his chains.
“I don’t know – on the streets, mainly.”
“On the streets,” repeated Harlowe, as if he needed time to digest the significance of this unremarkable fact. “Yes, I see. So that’s where you met him – when you got together to do one of the jobs you described?”
The defendant looked at his lawyer as if he were dense. He turned to the jury, sure they would understand.
“Guys like us, we live where we can. I’m not going to lie to you: most of what we did was to get money for drugs. Everyone knew where to go, who to see. Jerry was always around.”
It went on like this for more than an hour, each question designed to let the witness fill in the blank spots of his story, each answer producing a new doubt why that story should be believed. It was vague, confusing, at times even contradictory, but Atkinson did not seem to mind. He had gone through life bullying his way through, getting what he wanted any way he could, the only truth he knew the dull-eyed insistence on whatever was to his own advantage. He would repeat the same thing over and over again until you either believed what he told you or he knocked you senseless for questioning his word.
When Harlowe was finally finished, Hector Alfonso almost sprang out of his chair. He did not stay in close proximity to the counsel table, the one farthest from the jury box, the way Harlowe had done, but moved catlike to within arm’s length of the witness stand. He almost laughed in Atkinson’s face.
“So ‘Jerry’ did it – you tried to stop it?”
Atkinson seemed caught off guard by this bold assault. Shoving his chin down to his chest, he eyed the district attorney with suspicion.
“That’s right.”
Alfonso’s hands were in his pockets, perhaps to keep from breaking into applause; a smile stretched wide across his face as he bounced up and down on his toes.
“Of course it is! Jerry did it; you tried to stop it. And you felt so bad about it – what you weren’t able to stop – that you did everything you could to help the police, to help them find this butcher, this murderer, this criminal who slaughtered a whole family! That’s what you did – isn’t it? – stayed behind, told the police everything that had happened.”
The smile on Alfonso’s face was manic; his eyes were rabid.
“No, I forgot. You didn’t do anything like that, did you? Instead of helping the police find the real killer, you tried to kill the police – two of them, the two with whom you exchanged gun fire, the two who took you prisoner. That was helpful, wasn’t it? Just what you would expect from an innocent man!”
“They wouldn’t have believed me!” growled Atkinson. A mean, knowing grin slid crooked across his misshapen mouth. “They would have shot me where I stood. I had the gun, the knife, the stuff I had taken away from that strung out lunatic. You think the cops would have asked me where I got them, who was there with me? There would have been five dead bodies instead of four.”
Alfonso matched his scornful smile with one of his own.
“That would have saved us all some trouble, wouldn’t it?”
Harlowe, with hidden reluctance, was compelled to object.
“Your Honor, that’s….”
“Sustained. Mr. Alfonso, you know better than that. Ladies and gentlemen of the jury, you will ignore the prosecutor’s last remark.”
Hector Alfonso did not care. With the instinct of the politician, he had given voice to what everyone was thinking. With a brief nod, the only acknowledgment of the judge’s rebuke, he went back to the attack.
“You testified that there wasn’t supposed to be anyone home, that the house was supposed to be empty. Who told you that?”
“Jerry,” insisted Atkinson, jutting out his chin.
“Jerry,” repeated Alfonso with open contempt. “And who told him?”
“Don’t know.”
“Don’t know. You said you had done several jobs with Jerry – and he doesn’t tell you who told him? The truth is that you didn’t know if the house would be empty or not. The truth is that you didn’t care. You didn’t care if anyone was at home, sleeping in their beds – You had a gun, a knife: you could always kill them if they got in the way. And that’s what you did – you, Daniel Lee Atkinson, no one else; no ‘Jerry,’ no one by that name or any other. You went there that night to take what you could get and you murdered four people before you left!” cried Alfonso.
And then, before the witness could start to deny it, Alfonso threw up his hands in a show of angry frustration, turned his back on Atkinson, walked back to the counsel table and sat down.
“No further questions,” he added, almost as an afterthought.
Atkinson was Harlowe’s only witness. The only things left before the case went to the jury were closing arguments, and those were given the next day. Hector Alfonso started slow, a calm, dispassionate summary of the evidence presented by the prosecution’s witnesses, all of the relevant facts of death and murder: the weapons – the gun and knife – the fatal wounds they inflicted and the blood and other evidence that proved beyond any doubt who did it. Then he stopped, and went back over it again, this time with all the facts in place, this time telling the story not of what the killer did, but what the victims must have thought and felt, the horrible, unspeakable terror, the know
ledge of their own death bad enough, impossible to comprehend, but then, evil topping evil, the certainty that their children would be next! The words came rushing out, a torrent of anger, hatred even, for Daniel Lee Atkinson and what he had done.
“And then, as if all the evil he had done wasn’t enough, he gets up here, in a court of law, swears to tell the truth, and not only lies, invents a story no one could possibly believe, but laughs at us – You saw it in his eyes! – laughs at us for letting him make fools of us!”
Harlowe could not match the passion of Hector Alfonso’s closing and did not try. There is a limit to how much you can pretend belief. It was just the nature of things. He could not point to the defendant, the way he had in other cases, and argue sympathy for him; he could not insist, as he sometimes could, that looking at him, listening to him testify, you knew he was telling you the truth. All he could do was repeat in a reasonable voice that the evidence produced by the prosecution was equally consistent with someone else being the killer; repeat that there was no eyewitness to the crime and no one who could say with certainty that the person identified by the defendant as the real killer did not exist.
Harlowe did not believe it; no one believed it. The jury deliberated for less than an hour before coming back with the verdict everyone expected. Daniel Lee Atkinson was found guilty on all four counts of murder. Only Walter Bannister thought he was guilty of something worse even than that.
Chapter Seven
The jailer did not know quite what to do. Roused from his late night lethargy, surprised that anyone would think he could visit a prisoner at that hour, he was forced to acknowledge that, even this close to midnight, a judge had certain privileges that could not be ignored.
“I have to sentence this man tomorrow,” explained Walter Bannister, “and there are things I need to know.”
The jailer, balding and overweight, a deputy sheriff close to retirement, did not ask what those things might be. A judge had a reason for what he did, and if Judge Bannister wanted to see Daniel Lee Atkinson before he sentenced him to death it only proved what everyone said, that he was the most thorough, fair-minded man on the bench. Nearly midnight, the jailer told himself, as he led Bannister down the narrow hallway to the same small windowless room where inmates met their lawyers, where earlier in the day Michael Harlowe had met with his client for what was probably the last time. Nearly midnight, and instead of home in bed, a judge comes to see the murderer he’s going to send to death row. The deputy was too astonished to wonder much about the reason why.
“I’ll bring him down,” he grunted as Bannister sat down at the table.
“Thank you. And I’m sorry for the trouble.”
“No trouble, your Honor; no trouble at all,” replied the jailer, his mind suddenly clear and feeling better than he had.
Atkinson was sound asleep when the jailer banged on the iron bars of his cell. He woke with a start, shouted an obscenity and tried to go back to sleep.
“The judge wants to see you,” said the jailer with a formality Atkinson had not heard from him before. “On your feet!”
Atkinson knew the drill. He walked over to the iron bars and put his hands out in front so his wrists could be shackled, and then turned back the other way while the jailer opened the cell and chained his ankles.
They passed down a long line of cells and the hoarse nighttime sounds of men sleeping. Just before they reached the door, Atkinson raised his wrists and, as hard as he could, struck with his chains the bars of a cell, then laughed at the chorus of profanity that echoed behind him as the jailer pushed him hard down the hallway to where Walter Bannister sat waiting.
He did not get up when Atkinson came in, did not so much as turn around; he sat with his back to him while he stumbled onto the plastic chair on the other side of the table. The prisoner started to say something in anger. Bannister stopped him with a kindly, almost friendly look; a gentle, forgiving smile that to Daniel Lee Atkinson was more unexpected than a sudden blow on the head. Completely confused, he blinked impotently.
“I wanted to see you, Mr. Atkinson, because tomorrow I have to sentence you. I want you to know - what I’m sure you know already - that I’m going to sentence you to death.”
It was, in a way, a cruel dichotomy, the two of them. On the one hand, a wretched excuse for a human being, a murderer without any apparent redeeming qualities, a shackled prisoner with dust colored eyes and a rancid breath; and, on the other hand, a learned and respected judge with impeccable manners and clean cut nails dressed in an expensive tailored suit. But there was a bond between them, a strange closeness born of the fact that one of them was going to kill the other. Bannister was not going to do it himself – someone at the state prison would play the executioner – but the sentence of death came with the words only he could pronounce. They both knew it, Atkinson as well as he; understood it and what it meant, that they had become part of each other’s lives, and that each would remember the other until the day they died.
“I wanted you to know that the sentence of death is irrevocable. The law requires it. But you should also know that if I had a choice, the sentence would be the same. I want you to know this, Mr. Atkinson, because with nothing to gain by telling me lies, you have nothing to lose by telling me the truth.”
Atkinson did not know what to think, though it would be more accurate to say that he did not know how. Thought requires the ability to reason from one thing to the next, something he could not do. His mind did its work without any conscious intrusion by him; it was all instinct and reaction, which did not mean, of course, that he was without calculation. He knew he was going to be sentenced to death, he did not need to be told; but it was not like he was going to die tomorrow, or the day after that. It would be years before his execution and his idea of the future had never been much beyond what might happen next week. He looked at the judge and blinked.
“Tomorrow, before I pass sentence, I will ask you if you have anything to say.” Measuring to a rigid standard the precise angle of exposure, Bannister pulled his shirt cuffs down below his sleeve. “You won’t have anything to say – or if you do it won’t be more than a few awkward words.” Raising his eyes until they met Atkinson’s blank gaze, he added, “You’ll say you’re sorry for what you did, or continue to insist you’re innocent. This often happens with people convicted of serious crimes. They’ve told the lie so often they don’t remember the truth. Or because they lied at trial they would rather keep lying than admit they had been dishonest. But in your case, it doesn’t matter what you say, or if you say nothing at all. Nothing will change what I’m going to do. I came here to tell you that, and to give you the chance to clear your conscience. You can tell me what you did and I’ll never tell anyone. You can make your confession and leave it safe with me.”
There was no response, nothing beyond a slight movement of his eyes, a dim awareness of what this meant, and a doubt that it was anything he wanted to do.
“Confession?”
Bannister was sitting far enough away from the table that he could cross one leg over the other and, leaning back, subject the prisoner to a kind of clinical scrutiny, the way a physician – a psychiatrist – might examine a patient he knew to be disturbed.
“Confession might not be the right word. ‘Explanation’ might be better.”
He said this as if it were a question he was taking under advisement, something he had to think about before he decided. Atkinson was not interested.
“Nothing I want to confess; nothing I want to explain. I thought you were a judge; why do you want to act like a priest? Confess? – I said what I had to say at the trial.”
“You lied at the trial,” said Bannister matter-of-factly. “There wasn’t one thing you said that was true. There wasn’t anyone with you that night; you went there alone.”
“Yeah, and how do you know that?”
It was not what Bannister said that he had done - lied under oath – that got his attention; it was the accusation
itself, the challenge, that he felt a need to combat. There would have been the same reaction if, having admitted to a lie, someone had insisted he had been telling the truth. He stared hard at Bannister, as if daring him to repeat it. Bannister smiled.
“How do I know that? Because you made the same mistake the prosecutor made, the same omission.” Bannister fixed him with a penetrating stare. “You didn’t kill the parents first, you killed the children!”
A sense of something, not fear exactly, more like the sudden vulnerability at being discovered, made a first, fleeting appearance in the eyes of Daniel Lee Atkinson. Trying to brazen it out, he pretended indifference, shaking his head at what had no obvious significance.
“You know exactly what I’m talking about,” said Bannister with a smile now ominous and all knowing. “And you know exactly what it means. Did you notice – were you surprised – when it was not mentioned, that no one remarked upon the fact that was right in front of everyone. I imagine your lawyer noticed it, but it was scarcely something he could have used in your defense.”
Atkinson shifted in his chair, the dull rattle of the chains echoing quietly in the shadowed confines of the small room. His mouth had gone dry and he seemed now nervous and distracted, ill at ease, and yet at the same time eager and even desperate to hear how much Bannister knew and how much was only a quick-witted guess. His eyes narrowed into tiny slits, his mouth pinched hard at the corners.
“My lawyer was a fucking idiot!”
“Your lawyer is as good as any lawyer I’ve ever seen. The jury was out an hour. If you had had anyone else, they might have reached a verdict before they left the jury box!” he snapped back. Searching Atkinson’s eyes, he leaned forward and put his elbow on the table. “And if the prosecutor had made all the right connections, they might have done it anyway – if the crowd in the courtroom had not tried to lynch you first.”
