“ ‘Temporary insanity,’ ” Richards said, sipping his drink.
“Think it’ll work?” Consolo said nervously.
“No, I don’t think it’ll work,” Gleason said. “It’s ingenious, and it’s about all Morrissey’s got, and it’s a hell of a lot better’n what Bigelow or Carolyn Veale’ve got to work with, but will it convince the jury? I doubt it. I had Tibbetts examined, soon’s I heard. My doc says he’s fine, and most likely always has been. That he’s probably lying now about the amount and variety of the drugs he says he used, and that they should disregard. His doc of course will say the opposite. That Tibbetts is back from the dead, like the Doctor in Two Cities — who was that, John?”
“Doctor Manette,” Richards said. “ ‘Returned to life.’ ”
“Right,” Gleason said, “and that’s essentially the claim that Sam Tibbetts has in mind.
“Now,” he said, “will it sell? Can John Morrissey make that leaky boat float? I dunno. I’ve been trying cases for a long time now. Learned the first time out that you never predict what a jury’s going to do, how a jury will react.”
“Mackenzie can sink it,” Consolo said. “You get him up there on the stand, Mackenzie can sink that. He can tell how Tibbetts planned all of those damned jobs. He was there. How his brain was working fine.”
“Oh God,” McNeil said.
“Please, Freddie,” Gleason said, “don’t start that again.”
“I don’t care,” Consolo said. “It’s the only way to do it. You got to have Mackenzie testify about Tibbetts’s condition.”
McNeil shook her head. “Won’t work, Fred,” she said. “Even if Terry could do it, which he can’t, Glenn’s not up to it. You’ve seen him, just like I have. All he does is talk about his girlfriend. ‘Goddamned Andrea. Ballbuster.’ Then he starts to cry. This guy, if this guy can stand up to even one day on the stand, it’ll be a miracle.” She looked at Gleason. “If you think.” she said, “if you think you can possibly get through this thing and prove your case, without putting Glenn on the stand, I would do it that way. This kid, he’s a spaceshot. He makes Apollo Three look like a Harley-Davidson.”
“He isn’t doing good, June?” Richards said.
“He wasn’t doing good last night,” she said. “I had the detail with Sara Kindred, down at Osgood’s summer house. Had to get him out the motel, he was so ditzy there. The gist of what he says last night is that he’s got to see Terry. Doesn’t matter what you say: ‘Terry is in trial, and he just can’t come down here.’ Nope, he’s got to talk to Terry. Tell you what he thinks. That his partners, his law partners, that they’re going to figure out where he is, and why he is there, and they’ll tell Klein or someone else, and he will get knocked off. I personally think he’s full of shit, and that what he’s really doing’s setting the stage to back out the deal. But he’s not stupid, and he puts on a good act, and I wouldn’t bet my lunch money he won’t get up and blow it, if you get him up at all. If he’s not getting close to becoming a basket case, he does a good impression of a man who is.”
“I don’t care,” Consolo said. “Whatever anybody says, the only way we’re going to hook this bastard Tibbetts is by getting Mackenzie up there. And when you’ve got him up there, nailing down this fucking sanity thing.”
“I can’t,” Gleason said. “I’ve told you that before.”
“You’ve got to,” Consolo said. “You don’t have any choice.”
Richards put his cup down on the desk. “Fred,” he said, “I’ve made a decision. You’re going to have to go to law school.”
“I don’t want to be a lawyer,” Consolo said. “I’ve got some pride, some integrity, you know.”
The other three laughed. “Not your pride we’re concerned about, Fred,” Gleason said.
“No,” Richards said, “anybody spends as much on clothes as you do, he’s either got a lot of money, lots of pride, or a lot of both. It’s your ignorance that concerns us.”
“I know,” Consolo said. “You talk about me starting in again.…”
“Well, but that’s the point,” Richards said. “That’s exactly what I mean. Three or four times now, Terry’s explained to you precisely why he can’t do what you’ve got in mind. And that it wouldn’t work if he could. Mackenzie wasn’t around Tibbetts just before The Friary. Not enough to be able to form a firm opinion as to his sanity. And Tibbetts isn’t charged here with the armored cars, which was when Mackenzie was around — only with The Friary. So, in the first place, Mackenzie doesn’t have much help for us, on insanity. And in the second place, if he did have it, we couldn’t use it. This game that we play, Freddie — the rules of evidence control it. You may not like them, and that’s okay, but if you’re gonna prosecute people, you really ought to know them.”
“It’s a stupid game, then,” Consolo said.
“It is if you play it like a man who can clean both ears with one Q-tip,” Gleason said, “just by pushing it through. But it’s not supposed to be.”
SEPTEMBER 12, 1978
13
At 10:03 in the morning, Judge Bart nodded toward the prosecutor’s table and said: “Mister Gleason?” Gleason thanked the court as he came to his feet. He wore a blue poplin suit, a white shirt and a red-and-blue-striped tie. He approached the rail of the jury box. He rested the heels of his hands on it and delivered the customary cautionary remarks disclaiming any intention of appearing to present evidence. “This is merely a prediction,” he said, “of what the Commonwealth expects to prove. What you hear from the lips of the witnesses, see in the physical exhibits — that is the evidence. Not what I say now. Or what Mister Morrissey, Miss Veale, Mister Bigelow or Mister Klein choose to say when they in their turns address you.”
“Just remember the rule,” Richards had said to him the night before, when McNeil and Consolo had left: “ ‘If you aren’t sure you can prove it, put it in the opening. Hope the jury remembers, and everybody else forgets.’ ”
Gleason began by describing the discoveries made by Peter Walmsley. “You will hear what he found, on May fifth of last year,” Gleason said. “He will describe it in detail — sight, smell, everything. You will see the color photographs taken at the scene. Those taken in the office, where five victims were found. Those taken in the freezer, where two victims — and the two guard dogs — were found dead as well.”
“Objection,” Klein said, standing up. “No allusion yet to any evidence of homicide. Matter for the jury, whether anyone was killed.”
Judge Bart sighed. “Excuse me, Mister Gleason,” he said. “Just let me deal with this nuisance, if you will?”
“I didn’t say …,” Gleason said.
“I know you didn’t, Mister Gleason,” Bart said. “Mister Klein,” he said, “Mister Gleason said the human victims and the dogs were found, quote — dead — unquote. Not quote — killed — unquote. I take it there’s no dispute that the seven people found at the establishment, and the dogs as well, a year ago last May fifth were, in fact, quite dead?”
Klein looked confused. “No, your Honor, none,” he said. “I must’ve misunderstood.”
“And conveniently, too,” Bart said. “Your misunderstanding enabled you nicely to interrupt Mister Gleason’s train of thought. Which, I’m sure, was all you had in mind.” Klein sat down. “Mister Gleason,” the judge said, “sorry for the delay.”
“You will hear next,” Gleason said, “from two doctors. Doctor Charles Fox was the medical examiner for Suffolk County then — since retired. Doctor Stephen Fratus, then his assistant, has now replaced him in that job. Each is a doctor of medicine. Each is a forensic specialist. They will testify to what their post-mortem examinations of the victims disclosed. Each of them will testify that in his opinion death in each instance was caused by gunshot wounds in the head. Also appearing will be Doctor Alfred Ketchum. His doctorate is in veterinary medicine. He will report to you on his post-mortem examinations of the dogs. He will state his opinion that the death of each dog was
caused by gunshot wounds to the body.
“Each of those witnesses,” Gleason said, walking slowly toward the end of the jury box furthest from the judge, “each of them will identify among other things — photographs, articles of clothing, results of chemical tests — certain objects he removed from the bodies he examined. Those objects will be offered as exhibits. The next witness will be Lieutenant Edmund O’Malley, who will state the credentials that accredit him as an expert in ballistics. Lieutenant O’Malley will testify that in his capacity as head of the Ballistics Lab of the Massachusetts State Police, he received the objects removed from the bodies of the humans and the dogs, and examined them microscopically. He will testify that he studied a total of eighteen bullets, that he found each of them to be of twenty-two caliber, manufactured by Remington Arms, and that each of them showed markings consistent with having been fired from one of two High Standard, twenty-two caliber, automatic pistols.
“My colleague at the table,” Gleason said, gesturing toward Richards, “has already been introduced to you. Detective Lieutenant Inspector John D. Richards, Massachusetts State Police. Lieutenant Richards will take the stand to describe a cruise he took last May fourth on the Deerfield River, with five other members of the State Police, for the purpose of effecting arrests ordered by warrants issued by this court, subject to the indictments now before you for trial. He will tell you that they arrived at a cabin in a secluded area, that they disembarked, apparently unnoticed by the cabin’s occupants, and that they surprised four persons sleeping inside. He will identify those four persons as Samuel Tibbetts, James Walker, Jill Franklin and Kathie Fentress, and will tell you that the persons seated at the bar are the persons they arrested.
“He will describe and identify as well,” Gleason said, “certain physical objects we will offer as evidence. These will include photographs taken at the cabin, and objects seized from it. Several of those objects are firearms. Two of them are automatic pistols, caliber twenty-two, manufactured by High Standard. Lieutenant Richards will tell you that each of the weapons was carefully handled to preserve any possible latent fingerprints. He will tell you that extra magazines — ammunition clips and several boxes of live cartridges, in several calibers — were handled with the same caution. To preserve any latent fingerprints that might be on those items.
“Sergeant William Ford of the Massachusetts State Police, assigned to the Criminal Identification Unit, will describe his credentials as a fingerprint expert. He will tell you that he examined each of the weapons — including the pistols — for latent prints, and found on them three from each of two defendants, and four from each of the other two. He will tell you that cartridges found in the clips of the guns — they were fully loaded when recovered — and cartridges found in those magazines and other clips, also loaded, carry clear fingerprints from each of at least one of the defendants.
“Lieutenant O’Malley will be recalled to the stand. He will identify those two automatic pistols as weapons he test-fired at the Ballistics Lab in order to obtain exemplary rounds. He will tell you that the markings on the test-fired slugs were identical to the markings on the slugs recovered from the victims of The Friary incident. He will tell you that in his expert opinion there is no reasonable possibility that any of those bullets recovered from those bodies could have possibly been fired from any pistols other than the two High Standards recovered from the cabin.
“Now, Ladies and Gentlemen,” Gleason said, “this is an uncertain world. You heard his Honor warn you yesterday that I’d talk for an hour today. And I considered doing that. But as I told you at the outset, you’re not getting any evidence while I stand here shooting off my mouth. So I have given you the bare bones of what the Commonwealth expects its evidence to be, and if uncertainty occurs, I hope you will forgive me if I offer some that I did not just predict. Hold me, hold us, to what I have predicted we’ll produce, and I have every confidence that after this is over, when you have retired, your deliberations on the evidence will prompt you to conclude, beyond a reasonable doubt, that the proper verdicts in this case require you to find …” he wheeled and pointed toward the defendants, his voice dropping to a growl, “Samuel F. Tibbetts, the missing James Walker, Katherine Fentress and Jill Franklin, guilty on each of the seven charges against each of them, of murder in the first degree — that on or about May fourth, Nineteen-seventy-seven, at Boston, in the County of Suffolk, these four persons did with malice aforethought, and in the course of and for the purpose of committing a felony, to wit: robbery while armed, intentionally assault and beat Joseph Abbate, Joseph Nichols, Maureen Wilkerson, Helena Gross, Doreen Alexander, Diana McKechnie and Janet Iverson, by shooting them, with firearms, and did cause their deaths.” He turned back to the jury and nodded. “Thank you,” he said. He returned to his place at the table. He looked inquiringly at the judge. “May I call my first witness, your Honor?” Judge Bart said: “Proceed.”
At the luncheon recess, Gleason, Richards and O’Malley sat with their legs cramped at a small wooden table in an unused office on the seventh floor of the courthouse. On the table were waxed papers under the remains of the delicatessen sandwiches, cans of Coca-Cola, and two torn bags of potato chips. O’Malley was a beefy man in his late forties. He sat back from the table and belched. “What I like best about these testimony things,” he said, “what I like best is the fuckin’ fine table you bastards always set. I wanna tell you, boy, this is really great. I mean, if I could get food like this alla time for lunch, you know what I would weigh? I would weigh about a hundred and eighteen pounds, is what I would weigh. I would weigh the same weight that I used to weigh when I was in the seventh grade. Cripes, what a spread. Here’s the guys on the governor’s detail, and what do they get for lunch? Lobster salad, naturally, sent right up from Dini’s. Where they go for dinner, nights? Anthony’s Pier Four, of course. Jimmy’s Harborside. Few raw oysters, piece of swordfish, but no rich desserts — I bet. And these’re ordinary troopers. What the hell they know? Here I am, a damned lieutenant — I’m a famous man. And what do I get for my chow? To eat the damned phone book. Piece of ham and a piece of cheese on a roll that’s tougher’n I am.”
“ ’S good for you,” Richards said, leaning back. “Make you a better person. Little privation, little fasting? Give your bowels a rest, for Christ sake. Seek an inner peace.”
“Right,” O’Malley said. He reached into his shirt pocket and took out a pack of Luckies.
“Gimme one of those,” Richards said, reaching for the pack.
“I think I’ll have one, too,” Gleason said.
O’Malley pulled back. “Jee-zuss,” he said, “you fuckin’ guys, you fuckin’ guys’re cheap. Have to buy my own lunch, buy my own drink, and now you’re bummin’ my butts. I hope you got gas in your fuckin’ car, John. I don’t plan on driving you home.”
“Just shut up and gimme the butt,” Richards said. “Give my mouthpiece a cigarette too. Got to keep the bastard happy. Ball’s in his court now.” Each of them lit up.
“I thought you did good this morning,” O’Malley said, through the smoke in the small room. “I thought you did real good this morning. Kept it nice and short? I sat there lots of times in courtrooms, wait to testify, see these fuckin’ bastards get up, talk for days and days. Just love the sound of their own voice, don’t they? Think it’s Beethoven. Stand up, say what you got to say, and then sit the fuck down. That’s what I admire.”
“Thanks,” Gleason said.
“I’ll amen that,” Richards said. “Although of course I got to say, Fred’s going to be upset.”
“Who the fuck is Fred?” O’Malley said.
“Cowboy Fred Consolo,” Gleason said, stretching and rubbing his eyes. “Fred’s got reservations about my approach to this case.”
Richards laughed. “Fred,” he said to O’Malley, “Fred’s got reservations about everyone’s approach, to every goddamned case. I bet Fred in this one, I bet if you went up to Fred and asked him what he thought, he
’d tell you confidentially he thinks we also should’ve grabbed these bums, thrown in cruelty to animals, shooting the goddamned dogs. Fred wants all the stops pulled out. He thinks Terry’s tanking it. That’s what Terry means.”
“That asshole?” O’Malley said to Gleason. “Asshole Fred Consolo? Who cares what he thinks? The fuck do you care? Who the fuck’s trying this thing? Asshole Fred?” He shook his head. He looked back at Richards. “Uh uh. This is your case, John, yours and Terry’s here. You guys try the fuckin’ case. Let Fred go pound sand. Lemme tell you something, all right? Lemme tell you something. I testified, I have now testified over two hundred times, in six goddamned States, all right? And I sat on my ass at least four hundred days, sat on my ass in courtrooms. Because I’m the fuckin’ cop, and they know they can get me, so all the docs and all the hotshots, they get to wait on call, get their own work done. But all the guys that try these things, I know what they think. They think: ‘Oh what the hell, what if we need, we need a witness fast? Better have the cops come in, sit down on their ass. ’Cause they will get paid anyway, and they’re too dumb to care.’ That is how they think.
“Now,” he said, “I watch things, while I’m doing that, sitting on my ass. And I’ve seen a lot of trials. And one the things I learned about trials is that trials’re just like fuckin’. The most people that can do it at once, the way it’s supposed to get done, is: two. Not three, not half a dozen, not a rifle platoon. Two people is the most that can try a goddamned case. You get more’n that involved in the action, somebody’s always getting pissed off, feeling like they’ve been left out. And all of a sudden you’re doing things you didn’t want to do, because some jerk’s feelings got hurt and you want to cheer him up. And that is a mistake. That is always a mistake.
Outlaws (Vintage Crime/Black Lizard) Page 12
