Alibi

by Sydney Bauer

  “If worse comes to worse, Diane said Flinn had promised to write a statement to be read in court. He is a lawyer so he knows what he is doing. He also said that if Buntine was unable to make it in time, he would organize for his statement to be taken in Western Australia. Apparently Flinn has contacted the Port Hedland Police in an attempt to track his friend down so . . .”

  They sat there in silence, taking it all in.

  “Who else have we got?” asked Arthur at last.

  “One teacher, one swim coach and the principal from Sydney,” David began. “The Reverend Luke Mitchell from Brookline who christened James and has watched him grow from a boy to a man, Jessica’s best friend Meredith Wentworth and . . .”

  “Still no one from the Deane faculty,” finished Arthur.

  There was no avoiding it. The lack of character witnesses from Deane was a major hole in their case. David had no doubt that Dean Johns and his blessed board had made it quite clear to the university as a whole that James was not to be supported. But even so, they had hoped someone would come forward on his behalf.

  The problem was, David knew, that this was not so much a case of academic or administrative bullying; the cruel fact was that most of James’ tutors and coaches, and even his fellow students at Deane, had a valid reason for refusing to testify on their client’s behalf—they thought he was guilty, and that was the biggest blow of all.

  Just then there was a rap on the door, and an energetic Sawyer came bounding into the room, almost knocking over an umbrella stand and tripping on a box of case files in the process.

  “Whoops,” he said, all arms and legs as he regained his balance and looked up at them all. “I thought this was meant to be a good day,” he said, reading the despair clearly written on their faces.

  “Well, time for a pick-me-up, folks,” he grinned, as he flopped onto the office sofa next to Sara. “And as I am feeling particularly generous today, my good news will be delivered in twos.”

  “All right, kid,” said David at last, rising from his chair to move to Arthur’s beer fridge in the far corner of the room. David opened the door and grabbed a close-to-freezing Coke before tossing it across the room to Sawyer. “Don’t keep us waiting. What have you got?”

  Sawyer popped the Coke and took a long, slow drink. He wiped brown fizz from his top lip with the back of his hand, and offered a beaming smile before going on.

  “First up, Mr. Lim the younger has arrived. I dropped him at the Regency Plaza where he is currently enjoying his first hot bath in over a year. He understands he may not be needed at trial but, considering his own suspicions, is willing to hang around, just in case.”

  This kid really was part of their team, thought David, and in lots of ways had more than earned his place among them.

  “Secondly, you’ll be pleased to know that I have been following your friend Simpson for the past twenty-four hours.”

  “You checked out his hands,” smiled David.

  “I sure did. Which was not easy, I might add, given he never removes his camel cashmere gloves. Which is understandable given I overheard him telling Westinghouse he bought them at Saks for 250 bucks a pair.”

  This was interesting in itself, thought David. Simpson and Westinghouse were talking—and obviously on friendly terms. They were still in Katz’s camp, he knew, and to be honest, he was not surprised.

  “Come on, Sawyer,” said Sara, punching the kid in the arm. “Cut to the chase.”

  “Okay, okay,” said Sawyer, obviously enjoying the attention. “Well, let me put it this way,” he said, holding up his own set of narrow hands. “If we were in a small hand competition then H. Edgar would win hands down, no pun intended.”

  “Are you sure?” asked Sara.

  “Saw them with my own eyes, but stopped short of asking to inspect his manicure.” Sawyer grinned.

  David looked at Arthur. “It doesn’t prove he did it but it doesn’t rule him out either. You did good, kid,” he said, turning back to Sawyer.

  “All part of the service,” said a now beaming Sawyer. “Now, tell me, what else do you need me to do?”

  73

  The room smelled of snow. Well, not snow exactly but everything that had been walked into the room with it—fallen leaves and street grime and a million other city smells that gave the odorless white ice a pungent scent of its own.

  It was cold outside and hot inside—the clerk having jacked up the heaters in Boston Superior Courtroom number nine to compensate for the below-zero temps outside, obviously not realizing that they were indeed indoors and jammed into a space now bursting with bodies and the bundles of discarded overcoats and scarves that came with them. The place looked like Grand Central Station before the holidays, thought David as he surveyed the room around him, and the people like travelers set on a journey of hope or catastrophe, depending on where they were headed and who they were expecting to see.

  Katz was on his feet—pacing, head down. He had swapped his usual dark-hued suit for one of a deep taupe, a shade which, every now and again, when the sallow beam of the overhanging pendulums reflected off the snow-bordered windows, gave off a tinge of gold, creating the illusion of an aura. He had decided to forgo his usual palm-pumping, confident as all hell, bring it on persona for a more subtle “I am humbled to be chosen as the Commonwealth’s representative to seek truth and justice in these very important proceedings” façade, which he had obviously thought would win him more points with the press, and more importantly, with the jury, who were now being shepherded into the room.

  And there they were—the merry band of twelve and their four bridesmaids. Tall, short, fat, thin, male, female, young, old, black, white, Asian, Hispanic and sadly, from David’s perspective, all already staring across the room at his client, with the glint of accusation in their eyes.

  “They hate me already,” whispered James—his clean-shaven young face now back to its former perfection—as he leaned toward David.

  “No,” said David, turning to his client. “They are just curious. People always have a morbid fascination with anyone whose image has been splashed across the media for weeks on end. They need to look at you, take you in, make you real in their universe. Before long they will get to know you as you really are, and by the time this trial is over, their eyes will show regret and remorse and anger that you have been put through all that you have.”

  Moments later the judge entered the room, his heavy footfalls resounding off the worn cedar floor. He took his seat, flipping his long black robe over the back of his chair, before donning his worse-for-wear wire-rim glasses and surveying the anxious crowd before him. He said nothing, just turned his head slowly from left to right, right to left, nodding separately at Katz and his associates, and David and his team, before lifting both his arms simultaneously to point at the boxed gathering of people at the far left- and far right-hand sides of the room.

  “It is no coincidence that you are seated where you are,” he began. “The good people of the media to my right, the generous people of the jury to my left. For just like the representatives of the Commonwealth,” he said, gesturing at Katz, “and the defense,” he went on, pointing at David, “you hold a great responsibility in these proceedings.”

  Stein adjusted himself so that he might turn to his right and address the already mesmerized members of the press.

  “To the ladies and gentlemen of the media, I ask that you promise to uphold the principles of your profession and to report accurately and fairly without any trace of bias, abandon any personal opinions and serve the people of this great state, indeed this great nation, with accurate and impartial representation of the events that are about to take place.”

  Stein hesitated, various members of the press nodding in agreement, the room resting on his every word, before shifting slightly and maneuvering himself to his left.

  “To the members of the jury, first and foremost, I want to thank you for your unselfish determination to serve this court today, and in co
ming days as this trial progresses. I know I do not need to reinforce that this proceeding—our entire system of criminal justice—is based on one all-important principle: that if the defendant is to be found guilty, he or she must be found so beyond all reasonable doubt.

  “Now,” Stein paused then to lean toward them that few inches further, “I shall not insult your intelligence by embarking on a lengthy diatribe regarding the definition of reasonable doubt. We have all watched enough legal shows on TV to grasp the concept of that.” He smiled, and the jury smiled with him. “But I shall say that any decision you reach must be justified unquestionably, and without the tiniest shadow of uncertainty.

  “Secondly, ladies and gentlemen, I must stress that any determination you make must be based on the facts presented in this room and this room alone. You are not to be swayed by the reports of the good people to my right,” he said, pointing over his shoulder to the press. “For despite their best efforts, they have been known to stray.

  “Thirdly, you must promise, I repeat, you must promise this court, and more to the point yourselves, that any decision you make must be yours and yours alone. I know you are part of a group and groups tend to work as teams and I encourage you to discuss matters freely and openly during your deliberations but . . . I implore you to remember that the very nature of our system of justice is based on the rights of the individual and it is your right—your duty—to make decisions independently and not because they appear to be the most popular position of the day.”

  David wondered if this last remark was for his benefit. Stein was not stupid; he knew the jury was stacked toward the Commonwealth and perhaps this was his way of telling each and every one of the twelve that they should not be swayed by the majority.

  “Finally,” said the judge, swiveling on his chair once again to face the front of the crowd, “I want to express my condolences to both the Nagoshis and the Mathesons,” he said as he nodded to the two men sitting behind Katz and to the impeccably dressed Jed and Diane Matheson behind the defense table. “Parenting is, no doubt, the most difficult job any human being can undertake, and I acknowledge your feelings of loss and deep-seated concern.”

  Stein took a breath then, before straightening the papers before him, pushing his glasses back up his nose and looking up at the crowd with a new expression of intent.

  “I believe we are ready to begin, Mr. Katz,” he said, his former tone now replaced by one of authority and purpose. “So if the Commonwealth is ready to deliver their opening statement . . .”

  “Of course, Your Honor,” said Katz, springing to his feet.

  And so, it began.

  “Ladies and gentleman,” Katz started, buttoning his jacket and moving around the table to pace slowly toward the jury. “I want to be honest with you,” he said, looking down, shaking his head. “I have been working on this opening statement for some weeks. In fact, up until last night I was pretty happy with it—thinking I had it down pat.” Katz lifted his hands and gave the jury a slight, confessional smile as if to say, “Call me the clichéd conscientious prosecutor because that’s exactly who I am.”

  “But for some reason, late last night, something occurred to me, not just about my part in this trial, but the job we are all here to do.” He nodded then, taking yet another step toward them. “Justice is a positive force and, selfishly, one of the main reasons I love my job so much. I do get a sense of satisfaction every time I remove a violent perpetrator from the streets, I do feel proud every time I secure a conviction against an offender who has violated the rights of others, and I do feel admiration for every juror who does their duty and finds a guilty man to be so, no matter how difficult that may be.

  “And then I considered this case, this defendant, and in all honesty I felt sad.” Katz shrugged and nodded again. “That’s right, ladies and gentlemen, it seems like such a basic, simple word but there is really no better way to describe it. It struck me, when I considered the defendant, James Matheson,” he said, turning to gesture at James, the jury’s eyes following his direction, “that this is one of the saddest cases I have ever had to prosecute.

  “Of course,” he went on, taking another small step forward, “my sorrow, my grief, stems from a number of sources. First of all, it is felt for Jessica Nagoshi who, let us not forget, was the one who experienced the incredible pain associated with such a brutal killing—the blows to the head, the manual strangulation, and most likely the knowledge that as the life was leaving her lungs, it was also leaving those of her unborn child, whose silent screams would never be heard.

  “Secondly, it comes for the Nagoshis, who will mourn the loss of their beautiful, energetic, enthusiastic, intelligent, humanitarian daughter and sister, and their unborn grandson and nephew, each and every day of their lives.

  “But finally, and perhaps surprisingly, it also comes for the loss of the defendant, or more specifically, for what he represents.”

  “What the fuck is he doing?” whispered David, leaning into Arthur’s ear.

  “I’m not sure, but it’s making me nervous,” returned his boss.

  “You see, James Matheson, at least by all appearances, is a smart, amiable, friendly, trustworthy, talented young man,” Katz said, slowly counting off James’ attributes on his long manicured fingers. “He comes from a good family, has plenty of firm friends and is admired by all who know him as someone who is reliable, dedicated and a generally nice guy to hang out with. He is good-looking and athletic, attentive and interested, and has the well-earned reputation of a young man unafraid of hard work to achieve his own highly set goals.

  “Now, the defense will bring before you a number of people who will describe these attributes in detail, and I feel it only fair to say that everything they tell you will most likely be true.”

  “Fuck,” said David in a whisper, finally realizing what the ADA was doing.

  “And that, ladies and gentlemen, is what I find so distressing.” Katz was right in front of them now, his hands clasping the wooden bar before him so that his upper body was literally over the bar—on their side, part of their team.

  “Part of me wants to believe James Matheson is innocent, and part of you will too. But the sad fact is, this young man with so many outwardly wonderful characteristics, this young man, the epitome of the American Dream, is a murderer plain and simple.

  “However,” he said, straightening again, looking each and every juror in the eye, “I can promise you that, no matter what my feelings of regret, no matter how difficult it may be to shatter the reputation of a young man with so much to live for, no matter how upsetting it will be to know that James’ upstanding parents are learning the true nature of their son for the very first time, I will present the truth about the defendant—for Jessica, for her unborn child, for the Nagoshis, and most of all for the system of justice that this country represents.

  “And so,” he said taking a breath, his face giving off the slightest trace of a sheen, “when you see that the evidence is irrefutable, when you realize that Mr. Matheson is the only viable suspect, when you hear that he lied to the police, that he concocted an alibi, that he confessed to his friends, and that he fathered a child who he killed in cold blood . . . you will have no choice but to swallow your sorrow and do your duty as well. For any less would make a mockery of this court, and fail to uphold the principles that we, as Americans, hold dear.”

  David was in shock. Katz had taken his entire opening statement, based almost exclusively on James’ good character and turned it against him. It was a disaster. They were losing their case before they even had a chance to begin.

  “David,” whispered Sara. “You have to take a recess, we have to regroup. We . . .”

  “No,” he said, realizing that now, as Katz had taken his seat, the entire jury were staring directly at him. “We call for a break we look weak. Katz has left us with only one way out and we have no choice but to take it.” He was starting to sweat.

  “How? David, please.”


  “David,” said Arthur just as David rose to his feet. “Sara’s right. You need to think about this, you need to . . .”

  But it was too late. David was up. Sara clasped James’ hand under the desk and the jury sat frozen in anticipation. The press had stopped scribbling, and the crowd held their breath. David glanced briefly up at the judge who, he could have sworn, gave him the slightest nod of encouragement before moving forward, swiftly, toward the twelve men and women on the other side of the room.

  “Mr. Katz is right,” he said, beginning on the same spot it had taken Katz ten minutes to reach. “James Matheson is a person I am proud to call friend, and I will not take any more of your time repeating the positive attributes the ADA so rightly bestowed upon him.

  “Mr. Katz is right. Murder is the ultimate tragedy and all of us, most significantly my client, would give anything to reverse the clock and return Jessica Nagoshi to her family.

  “Mr. Katz is correct when he says that satisfaction and sorrow come as two equal and opposing by-products of our profession, and Mr. Katz is right again when he says it is your duty to convict the true killer no matter how privileged or promising he may be.”

  David paused there, his heart beating triple time. He knew it sounded to the jury like he was giving in, like he was conceding his client had made the ultimate “mistake.” But this was right where he wanted them, in a state of confusion, uncertain as to what he was about to say next and on the edge of their seats, ready and willing to hear every single word.

  But as they sat there, staring at him, he did something none of them could have anticipated. He turned his back on them. He turned and stopped and looked directly at his client, his green eyes locking with James’ in some unspoken promise of truth. And in that moment it was as if all else in the room had disappeared, as James nodded in thanks and David refocused, turning back to the jury quickly, decidedly, with a new edge of determination in his voice.