Mitigating Circumstances

by Nancy Taylor Rosenberg

  Cunningham covered the few feet to her desk in seconds and put both his palms down on her desk, sticking his face right in front of her, so close that he could smell her breath. “No free rides, huh?” He paused and let his words hang in the air, thinking she should think before she mouthed off, particularly under the circumstances. He watched the color drain from her face when he repeated what she’d just said. She reacted. He saw it. An inch or two more and she’d crack.

  “Well,” he said finally, “he’ll be risking his life if he talks, federal facility or not. Someone can always get to him. I wouldn’t spill my guts and risk getting my throat slit one night in the John just to spend time in a nicer prison facility.” He had been pacing and now he spun around and faced her. “Would you?” he asked. She just looked at him. He continued, “You’re asking him to give you a pound of cocaine in exchange for a lid of marijuana.”

  Her eyes were blinking, perspiration was breaking out on her forehead. She backed away from him and dropped into her chair, speaking to him in a low voice, looking down. “Butler said he’d consider a plea…try it straight first…doesn’t want us to play our ace until our hand is forced.”

  The words came out in little spurts and then dropped to such a level that he had to strain to hear her. Inside his jacket, Cunningham felt warm and sticky. He reached up and loosened his tie. This wasn’t turning out at all the way he had planned it. All he wanted to do right at that moment was walk out the door before he did or said something he’d later regret. The case was too weak to arrest her without a warrant. The eyewitness was dead and he simply wasn’t one hundred percent certain. If and when he decided it was time to put a district attorney behind bars, he’d damn sure better know what he was doing.

  His face solemn, he said, “I’ll go talk to Nieves now.” He headed for the door. The windowless room was filled with cigarette smoke, and several people walked by and looked as if they wanted to chastise him, but he glared at them and they scurried off without a word. Then he leaned in the doorway, facing the hall, his back to Lily. He looked down at the butt of his cigarette and walked back to pick the cup off the floor and toss the butt into it. For a moment he studied her face and wondered what she would look like with her hair pushed up inside a knit ski cap, without makeup.

  He knew what she’d look like and it was scary. She’d look exactly like the composite drawing.

  “This your daughter?” he said, picking the silver frame off her desk. “She’s a beauty. Guess no one ever told you she looks just like you.”

  For a moment the tension left her face and she smiled, taking the frame from his outstretched hand. “She’s the greatest kid in the world.” Her face turned red with embarrassment. “I’m sure every parent feels that way.”

  “Not every parent,” he replied, studying her face intently. “I sure wouldn’t want to claim the Hernandez brothers if they’d been my sons. Something went haywire there for sure.”

  He watched as a cloud passed over her face and she reached for her glasses, her hand trembling visibly. Yep, he thought, reckoning he knew what she was thinking. They had parents too. “By the way, for what it’s worth, we found a crack pipe in Manny’s Plymouth and some vials with residue. They were probably loaded when they did Lopez and McDonald.”

  “Crack,” she said, slamming a file down on her desk.

  Cunningham left, leaving behind a wake of cigarette smoke mixed with the sweet odor of Hero cologne, the face of Shana Forrester entrenched in his mind. It wouldn’t really be so bad, he thought, being a chief of police in a small, quiet town. Right now he could use a little boredom, a little peace of mind. If someone offered him a job right this minute, he might just take it.

  He stuck his head into the receptionist’s cubicle by the security doors. “It’s the big, bad wolf again, sweetie,” he said in a menacing voice. “I know you want to let me out.”

  The buzzer rang instantly, and Cunningham hit the double doors with his fists and headed to the jail. Things were getting bad, really bad. Seemed like both the good guys and the bad guys were wearing black hats these days. Before long, everyone would be carrying 9mm revolvers or submachine guns every time they left home. The days of the white hats were over, and the time to move on was drawing near. “Black is black and white is white,” he said out loud as he walked across the courtyard, but no matter what he said, all he saw in this situation was gray.

  Because he was a police officer, Cunningham was allowed to interview Benny Nieves in a small room, containing a table and two chairs, like the type found in a grade school. The detective took a seat in one of the chairs and Nieves the other. The boy was so small that Cunningham thought of a seesaw on a playground and knew that it would take two or three kids the size of this one to balance the board. He couldn’t weigh more than 115 pounds dripping wet. His hair was neatly cut, probably at the insistence of the public defender. His small dark eyes were ravaged with fear.

  Cunningham looked at him and breathed a sigh of relief after the way the meeting with Lily had just gone. Benny Nieves he could handle any day of the week. But Forrester, well, he thought, that was something altogether different.

  “Okay, Benny. I’m Detective Cunningham with the Oxnard Police Department and I’m here to save your soul. You going to church services here?”

  “Yeah,” he said meekly, completely thrown by what this had to do with the case.

  “You believe in God?”

  “Yeah, man, I believe.”

  “Do you think God forgives those who sin? Do you think there’s a Hell for those who don’t repent of their sins?” The last time he’d used this approach, it had worked. When people sat in a cell, day after day, they frequently turned to religion. Even Kenneth Bianchi, the Hillside Strangler, now claimed that he was a minister.

  “Bible says you repent, God has to forgive you,” the boy answered, dead serious.

  Cunningham had been right. Benny had found Jesus in the Ventura County Jail. “And what does it mean to repent of your sins?”

  “Say you sorry, man. And that you wont do it again.”

  “Well, Benny, my man, you’re close, but not close enough. See, I’m not even a detective assigned to your case. God just talked to me this morning and said, There’s a boy who needs help down at the jail and his name is Benny Nieves.’ Cunningham watched as the boy’s eyes got as round as saucers and his mouth fell open. “You could even say that I’m a little like a guardian angel.” Cunningham leaned far over the table, only inches from Benny’s face. “Because you’re going to get the death penalty, Benny, and God thinks you can be saved.”

  “Shit, man, you crazy,” Benny said. “You shitting me, man. You just a fucking cop. You ain’t no guardian angel.” Even though his words were tough, his eyes were still glued to Cunninghams. He was trying to find hope in a pool of fear.

  “Now, Benny. You listen to what I’ve got to say, cause I’m offering you a chance to repent and that chance may not happen again. See, we have the gun that was used in the murder, and you probably know that both Manny and Bobby are dead. There’s also fingerprints on that gun, but none of them are yours. I think that those two boys in jail now who say they just hitched a ride with you guys are telling the truth. And I don’t think God would think too highly of you if you let them pay for something they didn’t do.”

  Benny jumped up from the chair, walked the two feet to the back wall, and leaned back against it. “They didn’t do nuthin’. They just boys on the street. Guys we know. Just caught a ride.”

  “Fine, Benny, but that’s not going to clear them.

  What’s going to clear them and save you from the death penalty is to tell me exactly what happened that night. We don’t think you did any shooting, and we don’t think you smashed that boys head in with that rock. Those were the worst things, know what I mean?”

  The metal doors outside closed with an electrical whine and clang, and Benny turned as if he could see through the door, as if someone was outside listening. He di
dn’t answer.

  “If you talk, we’ll move you to protective custody, and any time you serve will be at a federal prison facility. You’ve heard of those, Benny. They’re like country clubs compared to the state joints. They have swimming pools and golf courses and decent food. That’s where the big fat cats go who just steal people’s money.”

  “I don’t care ‘bout no fucking golf.” He looked at Cunningham and his face started to twitch. “I don’t wanna die.” He returned to the chair and leaned forward, whispering, “They’ll kill me, man.”

  “If you get the death penalty, you’ll die for sure. And the worst thing is that you’ll die without forgiveness. You want to go where the streets are paved with gold, or you want to go to the fires of Hell?”

  Cunningham stood and signaled for the guard. “You let me know. You think it over. Here’s my card.” He tossed it on the table just as the guard arrived to unlock the door.

  Standing in front of the electronic doors to the lobby, Cunningham looked up at the television monitor and belched. He reached into his pocket and found a roll of Rolaids he had bought the day before and tossed one into his mouth. “Hey, open the damn door,” he yelled at the monitor. “I’m beginning to feel like a fucking prisoner.” He waited. No one came. He gave thought to returning to Lilys office and confronting her again, but the ball was in his court now and it was burning its way through his stomach like a red-hot poker.

  “What the hell is going on here?” he yelled again, his frustration level rising. He couldn’t possibly imagine what it would be like to be locked inside this place, behind bars, no privacy, no sunshine or fresh air, no way out. He only knew one thing, reaching up and hitting the monitor with his fists—he’d just as soon die. The world outside might be a garbage dump, but this here was a cesspool. This was the end of the line.

  “Sorry, you had to wait. I was in the bathroom,” the unseen voice of the deputy rang out over the speaker. “It’s raining like hell outside.”

  “My favorite subject,” Cunningham said.

  “Rain?” the voice asked.

  “No, Hell, my man. Hell.”

  CHAPTER 40

  Before Shana left for school, she called Greg. “Aren’t you going to school?” she said. “It’s after eight already.”

  “Sure,” he mumbled, “I’m going. I just overslept. Who is this anyway?”

  “It’s me. You know, Shana. If you don’t go to school, you might end up a garbage man like your dad said.” He didn’t answer right away and she thought her statement might have been cruel, but then, he could have just rolled over and gone back to sleep. “If you’re awake, I wanted to ask you to pick me up at school today. I want to talk to you about this thing with my mother. Are you listening?”

  “Yeah. I’m putting on my clothes. I’m not really into garbage. I’ll pick you up. What time?”

  “We get out at three-thirty, but I’ll wait if you’re late.”

  “I won’t be late,” he said.

  After her father had gone to the car, Shana retrieved the newspaper article from the trash can and put it inside her notebook before rushing out the door for school.

  Shana strolled out the front doors of Camarillo Junior High with at least six girls surrounding her. She kept trying to get away, but it was impossible. Then she saw him, and the girls with her saw him. He was leaning against his Volkswagen van, posing, his blond hair sparkling in the sunshine, wearing a white T-shirt, jeans, and Ray-Ban sunglasses. Shana took off at a jog, leaving the girls standing there gaping and crowding together to speculate. He must love the attention, she thought, because he tossed his hair and flashed the girls a rakish smile.

  “I’m moving to Ventura next week,” she said, struggling to get the rickety van door to stay shut. “Where do you live?”

  “My dad lives in the foothills,” he replied.

  “I can’t remember the name of the street our new house is on, but it’s in the foothills. Isn’t that totally cool? We’ll be neighbors.”

  Greg looked at her and smiled, but without enthusiasm. “You know, Shana,” he said, “I meant what I said about having a girlfriend.” He pulled down his Ray-Bans and peered at her over the lenses, like he wanted her to understand what he was trying to say.

  “That’s cool,” she said and then pushed out her lower lip. “You don’t think I asked you to come today just to show you off to my friends? I mean, I don’t expect you to take me to the prom or anything.”

  “All right,” he said with relief. “Now that we got that established, lil sis, what’s this stuff about your mother?”

  “Go to the park up the street and I’ll tell you. I don’t have anyone else to talk to and it’s driving me crazy.”

  Once they got there, he pulled the smelly blanket from the back of the van and they sat on the grass.

  When a bunch of small children erupted screaming on the playgrounds, they got up and moved the blanket away from the racket. Shana started at the beginning, telling him how her mother had stayed out all night after the rape, and then how she’d found her in the garage behind her car that morning with something on a rag that smelled like paint thinner. She told him about the photo of Hernandez that was in her mother’s purse. He was spread out on his stomach, listening.

  “Now see,” she said, removing the newspaper article, “this is the man right here.” She pointed at the picture. “He looks just like the man that raped us, but he’s not.”

  “So, what’s the big deal? I don’t get it.”

  “Mom told me this guy was killed by someone a long time before the rape and that wasn’t true. The paper says he was killed that very morning. You know, the morning after it happened. So, she lied to me about that.”

  “I told you they all lie.”

  She continued, “In the article they say the person who shot this man was driving a red compact car. My mom drives a red Honda.”

  Greg was reading as she spoke. “Wow, this is deadly. You mean you think your mom shot and killed this guy, thinking he was the dude who raped you? But they’re looking for a man. Says it right here.”

  “Maybe they thought my mom was a man,” she said, looking at Greg to see his reaction. “She’s tall and she might have been disguised or something.”

  “I bet it’s nothing,” he said, handing her the newspaper. “Your mom didn’t kill somebody. I mean, maybe your dad might have done it if he’d known where the guy was, but your mom? That’s radical. My mom can’t even kill a little spider.”

  “Yeah, but your mom isn’t my mom.”

  “You really, really think that she’s tough enough to kill someone,” he said, completely awed by the whole conversation, looking around the park as though he didn’t know what he’d got himself into.

  “She did it for me,” Shana said, choking up. “She did it so he wouldn’t come back.”

  “Okay, calm down. Don’t get upset.”

  “What should I do?”

  “Nothing, man. What do you think you should do? Even if by some wilder than wild thing your mom did kill this guy, I don’t think I’d go around telling everyone. Think about it.”

  “But what about my mom? Should I tell her about what I think? Maybe she can explain it to me. At least I should tell her I’ll stand by her no matter what. What if she gets caught and they take her away? I’d just die.”

  “Listen to me. You asked my advice and I’m giving it to you. You want me to act like a brother, so pay attention. Your mom figured out who the rapist was and where he lived. She went there all done up like a man and she blew him away.” Greg put his hands together and clapped. “A little round of applause for the old mom there.” Shana smiled weakly. “She came home, did something weird in the garage. We won’t talk about that. It might be gory or something.” He made a face, raising his eyebrows. “Maybe she shot him and then she ran over him and part of his body was stuck on the car. Gross.”

  “You’re making fun of me,” she cautioned, shaking her finger. “This isn’t funny.
”

  “Sorry. So, she killed him. He’s dead. See, I bought it all. But,” he said, raising his hand in the air, “your mom now lets another guy go to jail. No way. It all falls down, the whole nightmare on whatever street.”

  “She didn’t know he wasn’t the one. She didn’t wear her glasses. At first she said the man in the lineup wasn’t the right one.”

  Greg took both his hands and made a T with them, like time-out. “That’s it. No more. When the big brother speaks, that’s it. The peon under sister shuts up. Got it?”

  Shana was silent. “Forget it, huh?”

  “One last try and then I’m going to leave you here to walk home alone by yourself if you don’t listen. Put yourself in your mother’s place. Say all this did happen. Would she want you to know, anyone to know? Would she want to have little talks with you about the time she shot a rapist?”

  Impulsively she reached over and pecked him on his bronze forehead. “I wish you were my brother.”

  He stood and yanked the blanket, causing Shana to fall onto her side. “After all this, I am your brother.”

  In the van on the way to her house, Shana was silent. Greg turned up the stereo so loud that she wanted to scream, but she didn’t. He was nice. He’d picked her up at school and listened, but nothing had really changed. She was just as confused as ever. Playing over and over in her mind the events of that night and morning, she knew something terrible had happened, maybe something more awful than even the rape. And no matter what Greg said, it was her mother they were talking about and she was afraid.

  CHAPTER 41

  Cunningham pulled in the driveway and lumbered to the front door. His stomach was in knots, but he’d promised Sharon he’d come home for dinner. “Diet night,” he said, kicking a skateboard off the walk. Inside, it was quiet and the kids were nowhere to be found. He yelled, “That stupid kid left his skateboard on the sidewalk again, and I almost broke my fucking neck.”