He paused, making sure their eyes were still on him. “But this is also true. Green Rage has never, in the entire history of the organization, harmed any living creature in pursuit of its goals. Whatever rumors or gossip you may have heard to the contrary. They might spike trees or blow up machinery, but they do not hurt people. And neither does George Zakin.” He made eye contact again, this time lingering a bit longer. “George Zakin-his friends call him Zak-did not kill Dwayne Gardiner. By the conclusion of the trial, I believe you will be convinced, as I am, that he is not the murderer. And what’s more, you may have a pretty good idea who was.”
Well, that got their attention, Ben was pleased to see. It was a strategy from Granny’s playbook-give them something to look forward to. Ben only hoped Loving would scrape up enough information about Alberto Vincenzo to allow him to deliver on the promise.
“The evidence, when put before you and scrutinized carefully, will prove to be not nearly so damning as Madame Prosecutor would suggest. True-Zak was in the forest the night of the murder. Zak was in the forest every night, as was every other member of Green Rage. That’s not a suspicious coincidence, that’s just a fact. A fact the prosecutor hopes to take advantage of. The evidence will show that Zak was in fact with a Green Rage colleague-miles from the scene of the murder at the critical time-who will testify that he had nothing to do with it. And the evidence will show that the so-called physical evidence is either easily explained or altogether ambiguous. Either way, it doesn’t prove Zak’s guilt.
“And that’s the most important detail,” Ben continued, “because, as the judge will later instruct you, the defendant doesn’t have to prove anything. In fact, we don’t have to say a word if we don’t want to, because we have no burden of proof. The burden of proof is entirely on the prosecution. Every element of their case has to be proved by them. And if they fail to prove any element, any at all-beyond a reasonable doubt-then the judge will instruct you that you have no choice in your verdict. You must find Zak not guilty.” He leaned against the guardrail. “Let me say it again, just to make sure we’re clear here. Regardless of what your personal feelings may be, regardless of your instincts, whether you like Zak, or what you think really happened, if his guilt is not thoroughly proved beyond a reasonable doubt, you must return a verdict of not guilty.”
Ben couldn’t lay it on any thicker than that. He’d made his point. Time to move on.
“Let me make one other point before I sit down. It may not be necessary; most of you probably already understand this. But I’m a lawyer, and I get paid by the hour, so let me go ahead and say it anyway.”
A mild titter from the gallery; most of the jury remained stone-faced.
“This trial is not about politics. Don’t let anyone try to suggest that it is. I’m aware that these environmental issues are complex, that there are two sides to every story. How many more forests can we afford to turn into pulp? How many jobs can we sacrifice to conservation? And I’m aware that many of you probably disagree with my client’s position on these issues. That doesn’t matter. Do you understand that?” He said it softly but insistently. “It doesn’t matter. It’s not what this trial is about. This trial is only about one thing: did George Zakin kill Dwayne Gardiner? Or more accurately, has the prosecution proved that George Zakin killed Dwayne Gardiner? I am convinced-I am absolutely certain-that you can make a full and fair determination of that question even if you disagree with my client’s political beliefs. Even if you’ve worked for logging companies all your life. Even if you think Green Rage is just a bunch of troublemakers. You can still be fair. I know you can.”
He glanced up at the bench. “Thank you, your honor. That’s all I wanted to say.”
Chapter 39
After opening statements, judge Pickens gave the jury a fifteen-minute recess to stretch their legs and powder their noses. Ben was grateful to have time to gear up for the prosecution’s first witness.
“Nice job on opening,” Christina whispered in his ear as he reviewed his notes. “I think you made your points very effectively.”
“But do they like me?” Ben asked.
“It’s early yet. At any rate, you played it straight with them, and I think they’ll remember that.”
After the break, the bailiff reassembled the jury, and Judge Pickens gave them a few more instructions. We are now entering the evidentiary phase of the trial, he told them, so pay close attention to everything you see and hear. You can’t take notes. You can’t ask questions. Just listen up. And so forth.
“The State calls Deputy Kyle Wagner to the stand,” Granny announced.
From the back of the courtroom, an extremely young-looking peace officer made his way to the front. He did not appear particularly anxious to testify, not that anyone ever did. Wagner seemed especially pale and sickly, though. Ben wondered if the bailiff should distribute barf bags at the same time as he administered the oath.
Wagner was, predictably, wearing his uniform, sporting a fresh short haircut, and clean-shaven. Ben had the impression the man couldn’t lie if his mother’s life depended on it.
Granny introduced the young officer to the jury and led him through a few preliminary questions. “What do you do for a living?”
“I work for the sheriff.”
“Would that be Sheriff Allen, here in Magic Valley?”
“Right.” His voice was thin and wavering. If he was this distraught during the softball questions, Ben could only imagine what he might be like when they got to the crime scene. “I’m a deputy.”
“I see.” She asked a few more preliminary background questions, then moved to the night of the murder. “Would you tell the jury what you were doing on the night of July thirteenth?”
Like a well-trained dog, Wagner turned toward the jury box. “I was working the night shift.”
“Were you the only one in the office?”
“Yes. Sheriff Allen and the other deputies were off duty.”
“And could you tell us what night duty entails?”
“Usually, just sitting around staring at the phone. Sometimes I work the crossword.” His lips turned up, making a goofy, lopsided grin. “Not much happens around here most nights.”
“But this night was different, wasn’t it?”
“Yes,” he said, licking his lips, “it certainly was.”
“What happened?”
Wagner straightened a bit. “Got a phone call. Told me there’d been some trouble out at a clearing on the south side of Mount Crescent. An explosion.”
“An explosion? What did that make you think?”
“Objection,” Ben said, rising to his feet. “What the officer thought is not relevant.”
Judge Pickens sighed. “All right, Gra-er, Madame Prosecutor. Rephrase.”
She nodded. “What did you do when you heard there had been an explosion?”
“I grabbed my hat and went out to investigate.”
“Did you call for backup?”
“Not at that time, no.”
“Why not?”
“Well, frankly, I didn’t expect it to be any great big deal.”
“An explosion?”
“Explosions have become all too common since those”-he stopped, glanced toward Zak-”since Green Rage came to Magic Valley.”
“There had been prior incidents?”
“Like about two dozen,” Wagner said. “More since. But before, they’d only blown up machinery and stuff. So I didn’t have any reason to believe this would be any different.”
“But it was different, wasn’t it?”
“Oh, yeah.” Wagner’s eyes seemed wide and hollow.
“How long did it take you to get to the clearing?”
“Not long. Maybe twenty, thirty minutes. I knew where it was, and I knew”-another glance at Zak-”well, I knew the logging operation had moved in there. So I thought there might be trouble.”
“Deputy Wagner, I know this won’t be easy for you, but I have to ask anyway. Would you
please tell the jury what you saw when you arrived at the clearing?”
Wagner nodded, although it was clear he was not anxious to do so. “Well, the first thing I saw of course was the tree cutter. Or what was left of it.”
“Describe what a tree cutter is, please.”
“It’s a big piece of machinery. Like a tractor, with two big steel claws in front. They use it to-well, to cut trees, obviously.”
“And what condition was this particular tree cutter in?”
“It had been blown to smithereens.”
“Could you perhaps give us a more … detailed description?”
“The debris was everywhere. Big chunks of charred, blackened metal. Still hot to the touch. Some of the smaller pieces glowed red-they were that hot. I could tell it had once been a tree cutter, but to most folks, I think it would’ve just looked like a big hunk of junk.”
“Was it salvageable?”
“Oh, no way. It was obvious that thing would never cut again.”
“Did you notice anything else?”
Wagner’s chin sank. “Yeah. I did.”
“Please tell the jury what you saw.”
Wagner swallowed. “Well … of course the whole area had been destroyed. Burnt grass. Couple of trees had caught fire-we’re lucky we didn’t have a full-out forest fire.”
“Yes, yes,” Granny said. “Tell them about the body.”
“Objection,” Ben said. “Leading.”
Judge Pickens ran his tongue across the front of his teeth. “ ’Fraid he’s right, Madame Prosecutor. I think Mr. Kincaid is determined to make sure we play by the rules.” His voice dropped, though not so much that the jury couldn’t hear him. “Even if it does make everything take five times as long.”
Granny returned her attention to the witness. “Deputy Wagner, please tell us what else you saw.”
Now, having been properly cued, he went straight to what she wanted. “Well, I–I didn’t see it at first.” Ben noticed the trembling in his hands was becoming more pronounced. “Sad fact is, I almost tripped over the thing. Before I–I …” His voice drifted. “ ’Fore I realized what it was.”
“And what was it?”
“It was a person. Least it used to be.” He swallowed. “I found the corpse. Burned to a crisp.”
Granny paused a moment, allowing the jury to drink in that charming mental image. “Can you describe the state of the remains?”
“I’ll try. I can’t tell you what it was like seeing that-that nightmare right before my eyes, all alone, in the middle of the night.” He clamped his hands down on the edge of the witness box. “It was all black, head to toe. There was barely any skin left, and what was left was black. I could see the skull, the exposed eye sockets. Some of his internal organs were visible, and they looked like-”
“Your honor, I object,” Ben said. “This is not necessary.”
“Overruled,” Pickens said without even looking at him. “Please proceed, Deputy.”
“The organs looked … charred. Cooked.” Wagner had a pained expression on his face; Ben was afraid he might cry. “Some of the fingers and toes had been broken off. A spot on his chest looked as if it had been ripped open. There were even … animals. …” He lowered his head. “Insects and birds and things. Eating what there was to eat. The whole body looked like someone’d stuck him on a rotisserie spit and turned up the heat. It was awful.”
Well, Ben thought, Granny had promised the jury something gruesome-and shed delivered on her promise. Emphasizing the horror of the crime would only make it all the more likely the jury would convict.
“You mentioned a … rip in the man’s chest. Could you tell what caused it?”
“Looked like a gunshot wound to me.”
Ben had to object. “Your honor, this witness has not been qualified as a gunshot wound expert or a coroner. Absent any evidence-”
“I could see the bullet inside the man’s chest,” Wagner said firmly. “How’s that for evidence?”
Ben pressed his lips together. Not too shabby, as evidence goes. He sat down.
“Could you tell us where the gunshot wound was located, please?” Granny asked.
“Right here.” He touched a spot on the right side of his chest, just below the collarbone.
“What did you do after you saw the corpse?”
“Well, ’course that changed everything. I got on my radio and called for assistance.”
“And did they come?”
“Oh yeah. Sheriff Allen came personally, with several other deputies and crime scene specialists. They took control of the crime scene and relieved me.”
“And what did you do then?”
Wagner looked up. His eyes were watery and he still looked shaken. “Well, by then it was almost five in the morning. I went home. Tried to get some sleep.”
“And did you?”
Wagner shook his head. “No, ma’am. Not a wink.” He looked down at the floor. “I never even closed my eyes.”
Chapter 40
For a brief moment, Ben considered not cross-examining Deputy Wagner at all. There was no reason to believe he was lying; Ben didn’t doubt a word he had said. And none of his testimony directly incriminated Zak, although Ben knew he had laid the groundwork for much evidence yet to come.
Still, Ben thought, it was always possible he might accomplish something. And he didn’t like to give the jury the impression this was all the prosecutor’s show, that he wasn’t a player. He would remind them the defense existed, if nothing else. Best to give them their money’s worth.
Ben walked to the podium. “Deputy Wagner, my name is Ben Kincaid. I’m a lawyer, and I represent the defendant George Zakin in this trial. I’d like to ask you a few questions.”
“Okay,” Wagner gamely replied.
“The whole time you were testifying, Deputy, I kept wondering-who called you?”
Wagner’s head dipped. “Uh-what?”
“The call. In the middle of the night. Telling you about the explosion. Who called?”
“Oh. That was an anonymous tip.”
“And you don’t know who called?”
“No.”
“Weren’t you curious?”
“Anonymous tips aren’t that uncommon.”
“Deputy Wagner, how many people do you suppose were wandering around that forest at one in the morning?”
Wagner shrugged. “I don’t know. Not many.”
“But there are two people we know for certain were out there, right?”
Wagner shook his head. “Huh?”
“The victim. And the murderer.”
“Oh, right. Right.” His trembling intensified.
“So it’s just possible your call came from the murderer.”
“Well-”
“And that would give you a pretty good reason to find out who made the call, don’t you think?”
“Well, by the next morning, we already knew that Zakin-”
“Excuse me. Did you see my client at the scene of the crime?”
“No.”
“So all you know is that by the next morning the sheriff’s office suspected George Zakin, right?”
“Yes.”
“And since they already had an easy, convenient suspect, there was no reason to look for another one.”
“Well, I hardly think-”
“Once you had your obvious suspect, the search for other suspects came to a halt.”
“Objection, your honor.” Granny jumped to her feet, looking extremely indignant. “He’s not giving the witness a chance to answer. And he’s not really asking questions anyway. He’s making a speech.”
“Sustained,” Judge Pickens said. “The jury is instructed to disregard defense counsel’s speechifying. And counsel”-he pointed his gavel-”if you don’t behave yourself, I’ll shut you down like a clam.”
Yes, yes, Ben thought. Scold me all you want. The more the judge threatened, the more likely the jury was to remember what Ben had said. “Deputy Wagn
er, did you in fact make any effort to find out who made the anonymous phone call?”
“As a matter of fact, we did.”
Ben drew back. Darn.
“We traced the call through phone company records. Turned out the call came from a phone booth not far from Bunyan’s-uh, that’s a bar here in town. It would still be open that time of night. We asked around inside the bar, but no one knew anything. There was no way to determine who made the call.”
“Do you remember anything distinctive about the call?”
“Distinctive?”
“Anything unusual about the voice? Anything that caught your attention?”
“Well … of course, I can’t be sure, but”-he glanced quickly at Granny-“I thought it was a woman.”
“A woman?”
“Right. I could tell whoever it was was trying to disguise her voice, but still and all, I thought it was female.”
A woman, Ben thought. A woman who witnessed the explosion. Hmm …
“Deputy Wagner, what was your reaction when you saw the … remains of Dwayne Gardiner?”
“My reaction? I don’t know what you mean.”
“Well, if it had been me, I would’ve been pretty shaken up. Were you?”
His trembling hands almost answered for him. “I guess you could say that, yeah.”
“Did you run?”
Wagner’s brow creased. “What do you mean? I’m not a coward.”
“I’m sure you’re not. But we all have a flight reflex. If I’d seen that horrible corpse, I would have instinctively run away.”
“Well … maybe I did. At first. But I came back.”
“So you ran away, then came back a second time. Must’ve left a lot of footprints around the corpse.”
Dark Justice bk-8 Page 26
