Afraid of the Dark

by James Grippando

  “Overruled. The witness will answer.”

  Vince paused, but Jack didn’t read it as any kind of confusion as to courtroom procedures. It was the question that had given him pause—Vince’s acute awareness that defense lawyers didn’t ask questions without a hidden agenda. “She certainly had no reason to think I was a liar,” said Vince.

  “Exactly,” said Jack. “McKenna Mays had no reason to believe that her uncle Vince would lie to her. Correct?”

  Again he hesitated, but Jack had left him little wiggle room. “I would say that’s true.”

  Jack faced the judge. “With the court’s permission, I would like to play the answering machine recording of McKenna Mays. It’s the key piece of evidence in the state’s case against my client.”

  “No objection,” said the prosecutor.

  “All right, let’s hear it,” said the judge.

  Neil came forward to help the judicial assistant find the CD among the grand jury materials. She marked it, inserted it into the player, and then waited for Jack’s cue.

  “Just to set the stage,” said Jack. “Sergeant Paulo, can you tell us exactly where you were at the time of this recording.”

  Vince was slow to respond. “I was in her bedroom,” he said, his tone forced, as if it were a struggle not to get emotional.

  Jack knew that these were painful memories for him, but seeing his reaction—and knowing that he had no choice but to take him down this road—was almost equally painful for Jack. “Where was McKenna?”

  “On the floor,” he said softly. “I knelt at her side, and raised her head up.”

  Jack wished he didn’t have to ask the next question. “How was McKenna doing at this point?”

  “Not well,” he said, and the words hit Jack sharply, as if Vince had reached inside his tormented self and told Jack, “Up yours for asking.”

  “She’d been stabbed?”

  “Several times,” Vince said. His voice almost cracked, but he drew a deep breath, and he sounded like a cop again. “She had defensive wounds on her hands, and a large puncture wound to her rib cage that was spewing bloody foam from her lungs. She was also bleeding heavily from a slash across the left side of her neck. Her pulse was weak. When I called her name, her eyes opened, but her body was going cold. I pulled a blanket from the bed and covered her, tore a sheet into bandages and applied them to the wounds. It didn’t do much good.”

  “Was that when you dialed nine-one-one?”

  “Redialed. I had already called once, and the second time was to find out what was taking so long. Then I noticed that McKenna was trying to say something.”

  “So you hung up and dialed your answering machine?”

  “At this point . . .” He paused and gathered himself. “It looked bad for McKenna. My law enforcement instincts took over. If she was going to tell me what happened, I wanted to have a record of it. I was in no position to take notes and didn’t have a recording device. The idea popped into my head to get it on my answering machine. So that’s what I did.”

  Jack gave him a moment, then signaled to the judicial assistant. “Let’s listen,” said Jack.

  The assistant hit PLAY, and after brief static, there was noise on the line, probably the sound of Vince holding the phone to McKenna’s lips. Then in a faint voice, the victim spoke:

  “Tell me,” she whispered. “Am I dying?”

  “No, sweetheart,” said Vince. “You’re gonna be just fine.”

  Jack paused the recording.

  “That’s the first time you told her she was not going to die—correct, Sergeant?”

  Vince seemed momentarily confused, as if he hadn’t expected the question. “Yes,” he said.

  “Thank you,” said Jack, and then he glanced back at his client. Jamal was staring at the carpet, his forehead resting on the table’s edge, as if it were all unbearable. The recording resumed.

  “Really?” said McKenna.

  “Who did this to you?” said Vince.

  “Am I going to die?”

  “No, McKenna. You’re going to be fine. Who did this?”

  Jack paused the recording again. “Sergeant, am I correct that this is the second time you told her she was not going to die?”

  “Yes.”

  “Thank you,” said Jack, and the recording continued with McKenna’s ever-weakening voice.

  “You really think I’m going to be okay?”

  “Yes, it’s not your time. I saw much worse than this in Iraq, and they’re all fine. Tell me who did this to you.”

  Jack hit PAUSE once more.

  “Sergeant Paulo, that makes three times that you told her she was not going to die.”

  “Yes.”

  “In less than a minute.”

  Vince swallowed hard, seeming to sense where this was headed. “I . . . yes.”

  “And after you gave her those three separate assurances, you asked her, ‘Who did this to you?’ ”

  “I believe so.”

  “And her answer was ‘Jamal.’ ”

  “That’s correct.”

  Jack glanced over his shoulder at his client, and their eyes met. Jamal looked scared, terrified, really. Jack wasn’t sure if he looked innocent, but he didn’t look guilty, either. If he had, Jack wouldn’t have found the strength to go on.

  He took a step closer to the witness. “Your intention was to make McKenna believe that she was not going to die,” said Jack.

  “She was scared. So scared she couldn’t even talk.”

  “Scared of dying, right?”

  “Yes.”

  “So you told her she was not going to die.”

  “Right.”

  “Three times.”

  “Only so she wouldn’t be scared.”

  “And your words removed her fear.”

  “Objection,” said the prosecutor. “How would the witness know what was in the victim’s head?”

  “Your Honor, based on his own perception, Sergeant Paulo just testified that the victim was too scared to talk. I’m entitled to an answer, again based on his own perception: Did his words allay her fears?”

  “I strongly object,” said the prosecutor.

  The judge frowned with thought. “There’s no jury here. I’ll allow it. The witness may answer.”

  Vince considered it, then said, “I’m sure it helped.”

  It wasn’t a perfect answer, but this was unpleasant work for Jack, and he had pushed Vince as far as he cared to push.

  “Your Honor, at this time . . .”

  His voice halted, and Jack was suddenly at war with himself. Again, he glanced over his shoulder. What if Jamal is guilty?

  The question gnawed at his soul, but Jack fought through it, reminding himself that he wouldn’t have come this far if Jamal hadn’t passed a polygraph examination. If McKenna’s own father hadn’t expressed doubts about Jamal’s guilt. If the government hadn’t pushed back so hard against Jamal’s alibi. If the witness who had flown all the way from the Czech Republic to support the alibi hadn’t died so mysteriously at Lincoln Road Mall.

  If the message scrawled on Jack’s napkin hadn’t read “Are you afraid of The Dark?”

  “At this time,” Jack continued, “the defense moves to exclude the answering machine recording as hearsay.”

  The prosecutor was on his feet. “It’s admissible as a dying declaration,” he said, noting one of the oldest exceptions to the hearsay rule.

  Jack said, “The premise underlying a dying declaration is that a victim of a violent crime has no reason to lie about the identity of her attacker if she knows that she is about to die. The key concept is that she must know—or at least believe—that death is imminent. The opposite is true here. Sergeant Paulo told her repeatedly that she was not going to die.”

  “To put her at ease,” said the prosecutor.

  “Precisely my point,” said Jack. “Sergeant Paulo testified that the victim was so scared that she couldn’t even speak. After he told her three times that s
he was not going to die, she was able to name her attacker. Clearly, she did not believe her death was imminent—or even likely.”

  The judge seemed troubled. The prosecutor was clearly worried.

  “Judge, we—” said the prosecutor, but the judge cut him off.

  “Hold it, Mr. McCue. I’m thinking.”

  Jack glanced at Neil, who looked almost as surprised as Jack. This was a long shot that had played out much better than either of them had anticipated.

  The judge asked, “What is left of the government’s case against Mr. Wakefield if this recording is excluded?”

  “Virtually nothing,” said Jack.

  “That’s not true,” said the prosecutor.

  The judge asked, “Is there any physical evidence linking the defendant to the commission of the crime?”

  “None,” said Jack.

  “It burned in the fire,” said the prosecutor.

  “It never existed,” said Jack. “My client was in a detention facility in the Czech Republic at the time of the crime.”

  The Justice Department lawyer was suddenly yanking at the prosecutor’s sleeve, and the two of them huddled into an intense exchange of whispers. The judge leaned back in his chair until he was staring up at the ceiling tiles, retreating even deeper into thought.

  “Judge, we’d like a recess,” said the prosecutor.

  “I’m in the middle of my examination,” said Jack.

  The judge ignored the exchange between the lawyers, rocking in his chair and thinking aloud. “If I rule this recording inadmissible,” he said, “I would imagine the defense will be filing a motion to dismiss the indictment.”

  “That would be correct,” said Jack.

  That sent the prosecution scrambling. “Judge—”

  “Quiet, Mr. McCue.”

  “Judge,” said the prosecutor, “I have an announcement. The state of Florida withdraws its objection to the release of Mr. Wakefield on bond.”

  The judge seemed poised to rebuke him for the sudden change of position, but he quickly appreciated that his own butt was off the hook. Throwing out McKenna’s dying declaration would have been front-page news—and letting accused murders go free was generally not a career-enhancing move for an elected state court judge.

  “That certainly changes things,” said the judge.

  Smart move, thought Jack. The government was better off letting Jamal out of jail on pretrial release than digging in its heels and losing the entire case at a bail hearing.

  “We would ask for release on the prisoner’s own recognizance,” said Jack.

  “Bail should be set at one million dollars,” said the prosecutor. “And Mr. Wakefield should be required to wear a GPS tracking bracelet.”

  “A tracking device seems like a reasonable request in a case of first degree murder,” said the judge. “But a million dollars? Really now. Anything further from the defense?”

  Jack knew when to cut and run. “No, Your Honor.”

  “Bail is set at seventy-five thousand dollars,” said the judge. “The prisoner is to be released on the condition that he remain in Miami-Dade County and wear an ankle bracelet at all times. The witness is dismissed. We’re adjourned.”

  With a bang of the gavel and bailiff’s announcement—“All rise!”—the judge started toward his chambers.

  Jack looked at Vince. He was frozen in his chair, as if he were reliving McKenna’s funeral, so distraught that the bailiff’s command to rise probably hadn’t even registered. As Jack started back toward the defense table, Alicia caught his eye. She was on the other side of the rail in the first row of public seating behind the prosecution. Her stare was deadly. She moved to the defense side of the courtroom, came to the rail, and practically leaned over, leaving just a few feet between her and Jack.

  “Shame on you,” she said.

  Jack could find no response. It wasn’t the foulmouthed vitriol he might have gotten from other cops or their wives, but that only made it worse.

  “Shame on you,” she said, and it was even worse the second time. She walked to the center of the rail, pushed through the low swinging gate, and went to her husband on the stand.

  Neil laid his hand on Jack’s shoulder. “That was a great piece of lawyering, my friend. I’m proud of you.”

  The words were lost on Jack. His client attempted to shake his hand in gratitude, but Jack’s gaze was fixed on the witness stand. Vince was still in a state of shock, his wife trying to console him.

  At that moment, Jack hated his job.

  Chapter Twenty-four

  For the first time in three years, Jamal Wakefield was a free man.

  His mother had come up with the 10 percent fee for F. Lee Bail-me Inc.—the only bail bondsman in Miami with a sense of humor—to post the $75,000 bond. It was just pretrial release, and he was a long way from an acquittal, but that was not going to spoil his Saturday night on South Beach. A 5.3-ounce Omnilink ankle bracelet was a small concession in the big scheme of things. Some chicks might even think it was cool. Jamal the bad boy. Computer genius. Smarter than the losers in law enforcement who monitor ankle bracelets. Smarter than the guy who invented the damn device. Smarter than the interrogators who had thought barking dogs and waterboarding would make him talk. Smarter than Vince Paulo, the prosecutors, and his defense lawyers put together. Smarter than anyone he’d ever met.

  Except Chuck Mays.

  “Lookin’ hot,” Jamal said to a couple of young women who were too busy to notice him. They were dressed to kill and pleading their case to a rock-solid bouncer who was the keeper of the gate to the hottest new dance club on South Beach. The waiting line extended down the sidewalk, around the corner, and halfway up the block again. Most of the hopefuls would never see beyond the bouncers. Fat chance for the khaki-clad conventioneer from Pittsburgh who was dressed to sell insurance. The Latin babe in the staccato heels was a shoo-in. Most of the rejects would shrug it off and launch plan B. Others would plead and beg to no avail, only embarrassing themselves. A few would curse at the bouncers, maybe even come at them, driven by a dangerous combination of drugs and testosterone, only to find out that the eighteen-inch biceps weren’t just for show.

  After three years of incarceration, Jamal wasn’t wasting any time. He walked straight to the front of the line. “Hey, good to see you, my friend,” he said as he slid a wad of cash into the bouncer’s hand.

  The guy was a tattooed pillar of Brazilian marble, but money always talked.

  “Next time don’t pretend to fucking know me,” he said as he tucked away the cash and pulled the velvet rope aside.

  The main doors opened, and Jamal was immediately hit with a flash of swirling lights and a blast of music.

  Club Inversion was once known as Club Vertigo, a hot nightclub that Jamal and McKenna used to hit with fake driver’s licenses that had made them of age. It had a new name and a new owner, but the look and feel of the place was the same, the inside of the four-story warehouse having been gutted and completely reconfigured with a tall and narrow atrium. The main bar and dancing were on the ground floor, and several large mirrors suspended directly overhead at different angles made it difficult at times to discern whether you were looking up or down. With even a slight buzz, the pounding music, swirling lights, and throngs of sweaty bodies were enough to give anyone a sense of vertigo. The sensation worked both ways, with hordes of people watchers looking down on the dance crowd from tiered balconies. Jamal wasn’t sure why they’d changed the name to Club Inversion, but it seemed a bit ironic.

  You want inversion? Try it with your face completely covered by a wet cloth that they keep soaking and soaking with a steady stream from a canteen until your breathing is so restricted that you’re sucking nothing but water into your lungs, and it hurts so much and you’re so sure you’re gonna die that you’d confess to any—

  Jamal shook off the thought.

  A woman at the bar was checking him out, peering over the sugar-coated rim of her cocktail glass.
She appeared to be alone, which was a little strange, since women in South Beach typically arrived in groups. Maybe her girlfriend had already hooked up for the night, and she was on her own. Jamal made eye contact but kept cool about it. She was a dark-haired beauty wearing a clingy white dress and a gold necklace that played off her brown skin. He could feel the pulse of the music beneath his feet, almost smell the mix of perfume and perspiration wafting up from the crowd. Albino Girl was on stage at the other end of the club, a Vegas-style act in which a dancer managed to keep time to the music while a thirteen-foot lemon-yellow albino python coiled around her sculptured body.

  The woman at the bar tossed her hair, and then she glanced again in Jamal’s direction. Three years of detention had made him rusty, but not oblivious. He walked toward her. She smiled and said something as he approached, but it was impossible to hear her over the music. He could have texted her, but after being off the hookup circuit for so long, he wondered if it was no longer cool to text someone who was standing right next to you. He gestured toward the dance floor, and she followed, leaving her drink at the bar.

  They danced to Lady Gaga, and Jamal liked what he was seeing. It was bizarre to think that if it weren’t for Jack Swyteck he’d be in prison tonight, and he wondered how many other guys in the club were wearing ankle bracelets with GPS tracking.

  Probably more than anyone would guess.

  “I’m thirsty,” she said, shouting into his ear.

  Jamal led the way through the crowd, and she had her thumb in his belt loop as they headed back to the bar. Then she gestured toward the restroom and shouted something. After a momentary delay it registered: “Order me another drink.”

  He nodded and walked back to the bar. Her half-empty cocktail was exactly where she had left it, but there was another beside it. He could only surmise that some other dude had ordered her a fresh drink, and Jamal wondered who the competition was. Then he looked closer, and he froze. The new drink was resting atop a paper cocktail napkin, and the napkin came with a handwritten note:

  Are you afraid of The Dark?

  His gaze swept across the bar, but it was a sea of unfamiliar faces. He turned the napkin over, and the message continued on the other side.