Alibi

by Sydney Bauer

  “Possible, yes,” she said.

  And Katz paused, allowing the jury to take this in. “I have no further questions for this witness, Your Honor.”

  “Professor,” said Sara, who took a long, strong breath and swallowed her burgeoning nerves before approaching the witness quickly, her high but conservative heels tapping loudly across the hardwood floor. “Where were you born?”

  It was an odd first question, which took Wakeford by surprise.

  “Ah—Charlestown, West Virginia.”

  “And you grew up in Charlestown?”

  “Yes. Until I was twelve, when we moved to Richmond.”

  “Virginia.”

  “Yes.”

  “But you studied in Connecticut?”

  “New Haven. At Yale. Yes.”

  “And did you know, Professor, that West Virginia and Virginia and Connecticut have different laws regarding feticide?”

  “Ah, I believe West Virginia recently passed a new fetal homicide statute making it a separate offense to kill a fetus starting at conception. And as for Virginia, I believe that while they do not have unborn victims’ laws, they do criminalize certain conduct that terminates a pregnancy or causes a miscarriage.”

  “Very good, Professor. And Connecticut?”

  “I believe Connecticut is one of the few states that does not have any specific laws that recognize unborn children as victims.”

  “Right again.

  “And are you aware of the Federal Unborn Victims of Violence Act?” asked Sara.

  “Yes,” said Wakeford, pushing her glasses farther up the bridge of her long, slender nose. “It was signed into law in 2004. The act recognizes unborn children as victims when they are injured or killed during the commission of a federal or military crime of violence.”

  “You have done your homework,” said Sara who, having researched Professor Wakeford, would not have expected anything less. “The legalization of the act was, in fact, seen as a major victory for the National Right to Life Committee.”

  “Yes, I believe so.”

  “Come on, Professor, you are just being modest. You have, in fact, done a lot of work for the NRLC’s Political Action Committee, have you not?”

  “Ah, yes but . . .”

  “What state are we in now, Professor,” said Sara, having made her point.

  “Massachusetts,” said the Professor, shifting slightly in her seat.

  “Not West Virginia or Virginia or Connecticut.”

  “Well, obviously not.”

  “And this is a state, not a federal crime.”

  “Yes.”

  “Right.”

  Despite David’s argument to the contrary, it had been Sara’s idea not to bog the jury in the specifics of precedents, but to simply establish that this was a matter of state law. A strategy she hoped was about to pay off.

  “And given your extensive knowledge on this subject, I am sure you are aware that Massachusetts has its own legal viewpoint on feticide. In fact, it is one of ten states that recognize unborn children as victims, but only when they become viable.”

  “I believe so,” said the now seemingly diminutive Wakeford.

  “And would you mind defining the term ‘viable’ for us, Professor?”

  “I . . . It has a rather general definition, which refers to the period when an unborn child can survive independently from the mother.”

  “That’s right, Professor—a benchmark generally considered to be roughly twenty-three weeks. And in your learned opinion, is there any chance a thirteen- or even fourteen-week-old fetus could survive outside of its mother’s womb.”

  “Well . . . no.”

  “It is a medical impossibility.”

  “Yes.”

  “Never happened in the history of the human race.”

  “No.”

  “Do you have strong opinions about this issue, Professor?”

  “Objection!” Katz was up. “Your Honor, I appreciate Miss Davis must be overjoyed and perhaps a little overexcited at her chance to take the floor. But my witness was called to give medical testimony, not legal, nor personal, comment.”

  “Your Honor,” chimed in Sara. “If you will allow me to continue I am sure I can quantify my queries in regards to the relevancy of the witness’ personal views.”

  “All right, Miss Davis,” said Stein. “But you overstep the mark and I’ll be reprimanding you for harassment. Sit down, Mr. Katz. Your objection is overruled. But you have my word, I am watching defense counsel like a hawk.”

  “Let me ask you this, Professor,” said Sara, swallowing her nerves and getting back on track. “You mentioned earlier that you specialize in fetal disabilities.”

  “Yes.”

  “And have you ever advised a mother not to terminate a pregnancy, despite the child’s obvious physical disadvantages.”

  “Objection!” yelled Katz once again.

  “Sit down, Mr. Katz. I want to hear this. Professor Wakeford,” he said turning to the woman on his left. “You may answer the question.”

  And the room fell silent, as Wakeford took a breath, her previously overconfident demeanor now showing the earliest signs of insecurity.

  And then her face—her pale, smooth-skinned complexion—turned a determined shade of red as she sat up in her seat and voiced the point that she had obviously been determined to make all morning.

  “We do not get to choose, Miss Davis, if our child be blond or dark or have blue eyes or brown. That is nature’s call, just as it is whether a child is born with a disability or not. Yes, I have encouraged mothers to bear their children when our investigations show them to be disadvantaged. And I have never had a mother express regret.

  “Your client robbed a healthy young woman from giving birth to a healthy little boy and in the process stupidly stole the ultimate joy from himself. This is not about viability, Miss Davis, it is about life and the taking of it. Mr. Matheson killed his own son and in my opinion—medical, legal and otherwise—he should rot in hell for it.”

  And then Sara let out a breath—a lungful of air she had no idea she had been holding for the past minute. She had done it. She had forced this woman to tell the court what she really felt—an admission that gave Sara more than reasonable cause to turn to Judge Stein with the question she had hoped she could ask from the get-go.

  “Your Honor,” she began. “The defense requests the witness’s entire testimony be struck from the record for reasons of personal bias.”

  Stein’s entire body tensed, the frustration and fury written all over his now flushed face. “Your request is granted, Miss Davis,” he said at last. “And Mr. Katz,” the judge added, turning to the now horrified ADA. “If I ever catch you trying to disguise a secret agenda in the auspices of fact, if I ever see a personal opinion masquerading as an ‘expert testimony’ of any kind, I shall arrest you for contempt and throw away the key, do you understand?”

  “Yes, Your Honor,” said an obviously livid Katz.

  “First Jones and now this,” said Stein, shaking his head. “Truly unacceptable.”

  In that moment Sara turned to look at David. And he met her eyes, a look of pure admiration on his face. She had done her job as intended—for David, for James and perhaps, even more so, for herself.

  81

  “It’s done,” said H. Edgar as he approached an extremely agitated Westinghouse at the far end of the faculty corridor.

  “Did you say anything when you gave it to him?”

  “I told him to read it.”

  “Quickly?” asked Westinghouse.

  “That wasn’t necessary,” said Simpson, passing Westinghouse without stopping and gesturing for him to keep up. “The most important slip of paper was stapled to the front of the report. He won’t be able to help himself. He’ll be reading it as we speak.”

  Things were happening quickly. Once H. Edgar had finally convinced Westinghouse to play along, they had spent the entire week working on their “assignment,” research
ing and triple checking their personal immunity every step of the way.

  “Are you sure about this?” asked Westinghouse at last. “Heffer hates our guts. How do you know he will pass on the message?”

  “Because the fat fuck is a man of principle.”

  “Well, he better be, because we are due on the stand tomorrow.”

  “Trust me, Westinghouse,” said Simpson, stopping at the end of the corridor. “I can do this. You just need to sit tight and let me fix this thing for good.”

  Roger Katz had spent the lunch hour in the court’s executive private men’s room. He had commandeered the key from the clerk, saying that if it was not immediately forthcoming he would use his influence to send said clerk back to the mail room, which he could have, and would have, if the young idiot had not fished into his pocket and produced it forthwith.

  He had locked the door. And then he had gone through his paces—concentrating, breathing, counting off the moves one by one. Katz did not practice yoga, that was for those piss-weak pussies with tight clothes and little rolled up mats that they carried under their arms like large colorful sausages.

  No, his daily calisthenics—which he normally practiced in the privacy of his own extensive bedroom at 5 a.m. every morning, were man’s exercises—a series of focused, specific movements that cleansed him of the bullshit of others, and focused his attention on the cause at hand, one hundred and ten fucking percent.

  Wakeford was a mistake, a huge gaffe of astronomical proportions. He thought she could keep her goddamned personal views in her pocket but obviously he was wrong. He knew that righteous Cavanaugh and his stunning and (he had to admit) smarter than average girlfriend, would be patting themselves on the back—or on the pussy if Cavanaugh had the balls to give her one in the lunchtime break. And she would be ripe for the picking, fresh from the victory of kicking his own precious balls with that A Few Good Men strategy of forcing his witness to vomit her conscientious crap all over the witness partition like a goddamned nun with gastro.

  But! But, he told himself, trying to refocus on the positives as he stretched both his arms above his head. The jury heard her earlier testimony and despite the fact that Stein had told them to disregard it all, there was no way the images of that half-baked bun-in-the-oven wouldn’t stay with them—haunt them even—every time he referred to the Nagoshi girl’s unborn kid.

  In other words, he told himself, as he brought his arms down and arched his back, feeling the stretch right down the front of his body, Davis may have won the battle but he had set the groundwork for winning the war.

  Katz straightened. He closed his eyes and shook his arms and legs and then took ten deep consecutive breaths, feeling the cool air feed his lungs and nourish his reserve with a fresh supply of voltage.

  Time to play my next card, he said to himself. And then he straightened his tie, smoothed his hair and checked his reflection in the freshly cleaned mirror before heading for the door— the power of self-confidence injecting him with vigor and the taste of victory as sweet as candy in his mouth.

  “James, please,” said Sara. “You have to sit down.”

  The lunch break was almost over, and rather than use it to go over their cross of Barbara Rousseau, they had spent the entire hour trying to calm their client. Wakeford’s controversial testimony had hit him hard, finally allowing him to see his unborn son for the potential life that he was—to see him, and feel him, and know him as a person rather than just an idea, or a promise of a hope destroyed by tragedy.

  “Did you hear what she said?” asked James for the umpteenth time. “About his heart and his kidneys and his lungs—about his eyes and his ears and his hair and his fingers and his incredible response to touch.

  “Do you think he felt it? Do you think he felt himself dying when that bastard stole her life? I don’t want to believe it—I still can’t bring myself to accept it. But if you are sure H. Edgar killed them, then I need you to find him and bring him to justice before I break out of here and kill the goddamned traitor myself.”

  But David had had enough. While he felt sorry for his client he knew that if he did not keep him on track, his very distress could ruin his chances at freedom. He had been honest with James from the very beginning, telling James that while they suspected Simpson they still had no bona fide proof. And more and more, as the trial progressed, he was beginning to realize that this evidence may never come, that James’ future could well rely entirely on his testimony alone—and his ability to convince the jury that he did not kill either his girlfriend or his unborn child.

  “Okay,” he said, rising from his vinyl chair to grab James’ shoulders in both of his hands, forcing him to stop pacing and look him directly in the eye.

  “This stops right here, right now! If you don’t pull yourself together, if you allow the jury to see you as a young man wracked with regret, then they will simply mistake your remorse for guilt and put you away for good.

  “Simpson’s hands may be small, Simpson may be in love with you, Simpson may have even murdered your girlfriend and sold you out, but when it comes down to it we still don’t have any proof. I wish I could tell you otherwise, I wish I could have met you in that too-crowded bar on that fateful night, and helped with your assignments and later, watched your blossoming career with awe and admiration, but the fact is, James, that is not how it turned out.

  “You are on trial for murder, James, and double murder at that. You lost your son, granted, but if you do not wake up to the seriousness of the situation around you, you may never have the chance to become a father again.”

  James’ shoulders slumped, the talk of fatherhood obviously wrenching at his heart.

  “Katz is pissed,” David went on. “No, he is more than pissed because Sara just ate his witness for breakfast and he will be set on revenge. And Barbara Rousseau is his ultimate weapon—young, beautiful and ready to tell the world what a goddamned liar you are.”

  James lifted his face, his bloodshot eyes set on David’s similarly hued pair with a look of pure sorrow.

  “I’m sorry,” he said at last. And David looked across at Sara, her aqua eyes now pooling with tears.

  “I will try to help you, David,” James went on. “I will do the best I can. But you have to understand that right now I can’t even find a reason to want to save myself.”

  “I know, James,” said David at last, now pulling his client close, feeling the young man’s body convulse with long overdue sobs. “And if you cannot do it for you, then I beg you to do it for me. For if we lose this thing I will never forgive myself, and it will haunt me for the rest of my life.”

  82

  “Are you ready to call your next witness?” said a relatively calmer Stein as he took his seat for the afternoon session. His face returned to its normal pallor but his voice was still edged with the slightest trace of irritation.

  “No, Your Honor,” answered the Kat, looking remarkably well considering the morning’s shellacking, and the fact that he was, without a doubt, about to set a fire under the already volatile judge before him. “I am afraid our suggested order for the afternoon will need to be changed.”

  “He’s up to something,” David whispered to Arthur, who nodded in agreement.

  “Forgive me, Mr. Katz, but I believe I am owed an explanation,” glared Stein, his manner barely concealing his growing rage. “I am a stickler for order, in case you haven’t noticed.”

  “Yes, Judge. You see, Miss Rousseau’s flight has been delayed due to bad weather, and she is not as yet in Boston.”

  “And where is she, Mr. Katz?” asked Stein, removing his glasses to rub at his deep-set hazel eyes with vigor.

  “Still in Paris, Judge.”

  “That’s a long way from Boston, Mr. Katz.”

  “I know, Your Honor. There are rumors Logan International may be closed by this evening and if that is the case, we have made alternate plans to fly her into New York and will attempt to get her here by other means tomorrow or Frida
y at the latest.”

  “And I am assuming you have a backup plan, Mr. Katz, that ah . . .” Stein checked the witness list before him. “Perhaps Mr. Westinghouse has made himself available so that this day is not a complete loss?”

  “No, Your Honor. I did try to contact Mr. Westinghouse during the lunch break,” he lied. “But to no avail.” David guessed Katz was determined to play Westinghouse and Simpson as a double-hitter tomorrow and had no intention of breaking them with an overnight lag. “Apparently he is in class, and even if he left Wellesley now, he would not be here until three.”

  “Are you suggesting an early recess, Mr. Katz?”

  “That is exactly what I am proposing, Judge, with sincerest apologies for the delay.”

  “Are you all right with this, Mr. Cavanaugh?”

  “Do I have a choice, Judge?” said David, taking every opportunity to stick it to the ADA.

  “It appears not,” said Stein, shaking his head before turning to the jury.

  “Ladies and gentlemen, I want to thank you for your patience today and apologize for this senseless waste of your time. In fact, I know Mr. Katz feels so pained at this inconvenience that he would like to give you each fifty dollars apiece so that you might catch a taxi home in this dreadful weather. That all right with you, Mr. Katz?” asked Stein, peering down at the ADA in disdain.

  “Ah, of course, Your Honor,” said Katz, now fishing into his pocket. “But I may need an advance on some cash.”

  “That’s all right, Mr. Katz. There’s an ATM around the corner,” said Stein. “And as the jury were meant to be here all afternoon, I am sure they won’t mind the wait.”

  With the early adjournment and the weather worse than ever, David and Sara decided to work from home for the rest of the evening—Arthur having promised them he would call if they were needed back at the office. They made themselves a light early dinner and started to discuss the impact of Wakeford’s testimony when David looked up from his notes to meet Sara’s eyes.