by David Ellis
“Yes, Your Honor.” Mapp rose and buttoned his impressive suit coat.
“I’ve read your motion. Do you have anything further?”
“We’d ask to call Thomas Butcher, Your Honor.”
“Is Mr. Butcher present—okay, Mr. Butcher. Will you please come forward, sir?”
Witnesses come in all shapes and sizes, well-dressed and not, confident and meek, but you always want someone who seems comfortable, which means they’re being honest. Butcher seemed to do well enough on first glance, walking slowly to the witness stand and swearing the oath given to him by the bailiff. He rolled his neck, showing his discomfort with a buttoned-up collar and tie. That part wasn’t so good. Fidgeting was not on a lawyer’s wish list for his client.
“Permission to treat as adverse,” said Mapp. I didn’t bother to object, because Butcher was a defense witness. Mapp was asking for the right to cross-examine, to ask leading questions.
“Your Honor, for the record, I assume we can stipulate that the offense under indictment—the murder of Griffin Perlini—took place on September 21, 2006.”
“So stipulated,” I said.
“Thank you, Counsel.” Lester Mapp opened a file folder on the lectern between the prosecution and defense tables. “Mr. Butcher, good morning.”
That was about as friendly as the prosecutor was going to get.
“You gave a statement to the police in regard to this crime on September 18 of 2007,” he said. “Two-thousand-seven. Almost an entire year later.”
“Yeah, that’s right.” Already, Butcher was getting his back up a bit, adjusting in his seat and setting his jaw. His eyes shot in my direction.
“On the date of this shooting—September 21, 2006—you were not aware of a shooting taking place.”
“No. Not then, no.”
“You heard about it later?”
“Right. I read about it in the paper.”
“The Watch?”
“Yeah. Some article about the case.”
“Do you recall when this was?”
“Not the exact date.”
“Well, okay—but let’s try it like this,” Mapp said. “You came to the police on September 18 of this year. How many days before that date had you read the article?”
When I asked Butcher almost that precise question yesterday, he couldn’t say. I went through the online archives of the Watch and found an article dated September 16 of this year, which was the Sunday edition. The article was a one-paragraph in the Metro Shorts about a firm trial date being set, including in the discussion that a shooting took place outside the Liberty Street Apartment Complex on the evening of September 21, 2006.
“The Sunday previous,” said Butcher. “Something about it in the Metro section.”
“Okay.” Mapp was slightly disappointed. He obviously had done some research in this regard and was aware of that article. “And what made you come forward?”
“Well, it’s like I told the cops. I’d seen this man running from the building with a gun in his pants. So I figured, maybe there was something to it.”
“You remembered the date that well?” asked the prosecutor. “You remembered September 21, 2006, as the date that you saw this alleged man running from the building?”
“Well, not exactly like that. I mean, I had to think about it. But then I checked back and it was a Thursday that it happened, and I asked my brother Jake about it, and we both thought about it and figured that, yeah, it was the right date.”
“All right, let’s come back to that,” Mapp said. I felt a flutter in my stomach. Sometimes lawyers change the topic because they’re not making any inroads, and rather than cry uncle, they just act like they’ll “come back to it.” Other times, however, they’re hoping to trap a witness by jumping from topic to topic, locking them down on one detail and then using that detail against them in another area.
“Tell the Court where you were,” Mapp said. “Before this event, I mean.”
“Downey’s Pub is the name.” Butcher looked at the judge. “Over on West Liberty, right about Liberty and Manning.”
“Manning is the cross street,” Mapp confirmed.
“Yeah.”
“That’s about four city blocks away from the Liberty Apartments, right?”
“Somethin’ like that.”
“Okay, and who was present with you at Downey’s Pub?”
“Me and my brother.”
“And why Downey’s Pub?”
“Good place, I guess.”
“You didn’t go there for the décor, I take it.”
Butcher smiled. “Downey’s? No.”
“Or for the nice neighborhood?”
“No, definitely not.”
Not a good answer. I’d talked to Butcher about that.
“Kind of—kind of a rough neighborhood, wouldn’t you say?”
“Kind of rough,” Butcher agreed.
“But no particular reason for Downey’s?”
I could have objected but didn’t.
Butcher opened his hands. “I mean, what do you want?”
“I want to know why you were there. You live, what, about four miles from the place?”
“Yeah, so?”
Lester Mapp shrugged easily. He was handling this pretty well. “There’s a tavern or two between your house and that bar, right?”
The judge smiled. Butcher chuckled. “One or three hundred,” he said. “It’s as good a place as any. Me and my brother, we used to go there a lot before we had wives.”
Several people sprinkled in the gallery, a reporter or two and some court junkies, laughed. Judge Kathleen Poker did not.
“What was the occasion for going out that night?” Mapp asked.
“Now you sound like my wife,” he answered.
More laughter, but the judge turned to Butcher and said, “Please answer the question.”
Butcher nodded at her. “Okay, well, we was out, that’s all. Me and my brother blow off some steam now and then. It had been a long week.”
“Oh, it’s not unusual?” Mapp asked it casually, but it was not a casual question.
“No. We go out a lot.”
“How often? Once a week?”
“Could be.”
“Twice a week?”
“Been known to happen.”
“You didn’t need a special occasion that night,” Mapp said.
“No.”
“And you didn’t have a special occasion.”
“No.”
“So let’s talk about that month last year. September of last year. How many times did you two go out drinking that month?”
“Oh, well, come on—I don’t know. Who knows?”
No—that was not a good answer. You can’t claim to remember a date certain, going back a year, but then act like you have no memory of other dates in that month.
“No idea,” Mapp confirmed.
“No, I mean—I don’t know.”
“Fair enough. What were you drinking that night?”
“Probably whiskey.”
“Probably? You’re not sure?”
“It’s what I usually drink.”
“You don’t have a specific memory.”
“No. Not, like, specific.”
“How many drinks?”
“I don’t know. I mean, I was okay afterward, so not that much.”
“But you don’t recall.”
“No.”
“How long were you there?”
“Oh, probably a normal amount. Maybe couple hours, three hours maybe.”
“You don’t specifically recall?”
“No, but it wasn’t, like, a marathon session.”
Mapp smiled. “Okay. What was the weather like that night?”
Butcher cleared his throat. “Probably—I mean, pretty much normal.”
“Cold? Rainy? Snowing?”
“No, I mean—pretty much normal, I guess. Not rainin’ or nothin’ like that.”
“Okay. Oh, by the way
—did you pay with a credit card? Or did your brother?”
Butcher and I had worked on his answer to this question.
“I don’t know for certain, but I doubt it,” he answered. “We usually pay cash.”
“You usually pay cash? Why’s that?”
“Keep it off the credit card bills,” he said. “The wives, you know. No offense, Your Honor,” he added, looking up at the judge.
The judge shook her head but smiled.
“So there’s no record of this transaction?”
“There’s a cash record.”
“Okay, fine.” The prosecutor had made his point, and it seemed like it wasn’t lost on the judge. “A cash record. Okay. Did you eat there that night?”
“No.”
“You just went there for some drinks?”
“Yeah.”
“Alcoholic drinks? You’re not saying you went there for fountain sodas?”
“No.” Butcher chuckled again. “We didn’t drink Pepsi.”
“What time did you leave?”
“Maybe—maybe ten. About ten?”
“Was that early for you guys?”
“I don’t know about early. I mean, the missus doesn’t appreciate it, you stay out real late.”
“You wanted to get home to your wife.”
“Yeah.”
“Did you guys drive together?”
“No.”
“Okay, where’d you park your car?”
“A few blocks away.”
“What direction from Downey’s?”
“Well, west of it, ’cause that’s the direction we were walking.”
“Okay, where specifically?”
“I don’t know, specifically.”
“But to have passed the Liberty Apartments Complex, you’d have to walk four city blocks from Downey’s Pub. So you were parked at least four city blocks away, right? A half mile away.”
Butcher and I had worked on this answer extensively.
“Yeah, see, but that’s on purpose,” said Butcher. “That’s what I do when I’m out. I give myself a walk after drinking. Straightens you out. Sobers you up. So yeah, I parked a way’s away.”
“But you don’t know where, exactly.”
“No.”
“And the point was, you guys were drinking, so you wanted to give yourself a walk.”
“That’s it.”
“Whiskey, I think you said.”
“Probably.”
“Probably. But definitely not soft drinks.”
“No, definitely not.”
Mapp paused, which probably meant a segue. “Now, Mr. Butcher, you have a criminal record, isn’t that true?”
Butcher adjusted his position in the witness chair. “Yeah, it’s true.”
“You were convicted of submitting a false bid application on a public construction contract, isn’t that the case?”
“Yeah.”
“You were a project manager for Emerson Construction Company back in 1982,” he said.
“Yeah, and in a bid application for an annex to a high school, we listed a subcontractor as a minority-owned business that, it turned out, was not minority owned.”
“We listed. You mean, you listed.”
“Well—yeah, I mean, I wasn’t an owner at Emerson. This was before our family owned our own company. But yeah, I was the one who filled the thing out.”
“And you knew, when you listed that subcontractor on your bid application—you knew that the sub was not a minority-owned company.”
“Yeah, I did. It was wrong.”
“And you signed an affidavit swearing to the truth of that statement.”
“Right.”
“So you lied under oath.”
“I admitted to that. I was young and stupid.”
“Were you young and stupid in 1990, too? Isn’t that when you were convicted of obstruction of justice when you lied to an IRS inspector about payroll taxes?”
“Well, I don’t know about young—but I was stupid.”
“You knew that it was a crime to lie to a federal agent, didn’t you?”
“I s’pose I did.”
Mapp nodded. I was getting uneasy. He had something up his sleeve here.
“Before you were to find yourself in another legal—predicament, let’s say—I’d just want to make sure you were clearly testifying to the truth here today.”
“Objection,” I said. “Argumentative.”
“Let’s move on,” the judge said.
“Yes, Your Honor.” Mapp did a slight bow. “Mr. Butcher, you’re sure it was Downey’s Pub you were at that night?”
“Yeah.”
“You’re sure you were drinking alcohol?”
“Yeah.”
“And you’re sure it was September 21, 2006?”
“Yeah. Why?” Butcher asked, a bit meekly. Suddenly, his brown tweed sport coat and buttoned collar seemed a little warm, a little uncomfortable, as Butcher rolled his neck and kept his eyes on the prosecutor.
“Why?” Mapp paused. “Because, Mr. Butcher, I’m just trying to figure out how Downey’s Pub could have served alcohol on September 21, 2006, when Downey’s Pub didn’t have a liquor license on that date. When it wasn’t even open on that date.”
51
OBJECTION.”I got to my feet on shaky legs. Lester Mapp handed me a certified copy of an order handed down by the state’s liquor control commission, which suspended the liquor license of Downey’s Pub effective September 1, 2006, for the period of thirty days.
“Selling alcohol to a minor was the offense,” said Mapp. “A third violation, warranting a one-month suspension. A one-month suspension that ran through the first week of October.”
“Objection,” I repeated. “This wasn’t disclosed to the defense. This wasn’t provided to me and it wasn’t in the prosecution’s written motion.” What I was saying had merit, but it was like complaining that a life preserver hadn’t been properly inflated to federal regulations. I was right, but I was still going to drown.
“I just got it today,” said Mapp. “We’re two weeks out from trial. This is just a hearing.”
The judge shot the prosecutor a look. She didn’t appreciate the grand-standing. She read from the document that Mapp handed her.
Unfair surprise, I wanted to say, but there was no cure for my ill. Mapp was right. I had almost two weeks before trial. And the document said what it said. Tommy Butcher couldn’t have been at Downey’s Pub on the evening of September 21, 2006, the night Griffin Perlini was murdered.
“Counsel,” the judge said, waving the document at me. “I don’t know—you’re right, of course, that Mr. Mapp improperly sprang this on you. But that doesn’t change what I’m reading here. Mr. Butcher.” She turned to him. “Mr. Butcher, this is a serious development for you.”
Butcher had already figured that out. He was white as a sheet. “Your Honor, best of my memory—I mean, maybe he was open anyway?”
“The front door of the establishment was locked on order of the Liquor Control Commission,” Mapp said with confidence. He was clearly enjoying himself. “The state locks the front door with a padlock. They don’t leave a key for the owner. The owner can go in the back door, but he’s not allowed to open the place to the public—”
“I understand, Counsel. You’ve more than made your point.”
I couldn’t believe this was happening. One-half of my two-pronged attack was coming apart before my eyes.
“Mr. Butcher,” the judge said. “I’m going to ask you a few questions, and you have the right to have a lawyer present if you wish.”
Butcher didn’t answer. His mouth parted, like he was a curious child.
“Would you like to consult with an attorney, Mr. Butcher?”
“No—no, Judge.”
“All right, then. Do you have any personal stake in the outcome of this case?”
“Me? No.”
“Do you have any relationship with the defendant, Mr. Cutler?”
/> “No.”
“Or Mr. Kolarich, the attorney?”
“No, Judge.” Butcher still looked like the guy who hadn’t figured out the joke was on him. Maybe that’s because the joke was on me. And Sammy.
“Fuck,” Sammy mumbled.
“Judge, this can’t be right,” Butcher said. “Maybe—maybe—”
“All right, now.” The judge resumed her position, facing the entire courtroom. “The Court will state for the record that it is inclined to believe that Mr. Butcher has made an inadvertent mistake and not an intentional lie. It would not be my decision ultimately, but I think the record should reflect my viewpoint.” She looked at the prosecutor. “In light of Mr. Mapp’s surprise evidence here, I think it would be imprudent for me to bar Mr. Butcher’s testimony today. Maybe, Mr. Kolarich, you can find some way to resuscitate it. I will hear this motion to bar the testimony again, if necessary, the day of trial. But Mr. Kolarich, do not try my patience here. It seems abundantly clear to me that Mr. Butcher’s testimony is mistaken, at best, and I absolutely will not allow his testimony unless you can give me an extraordinarily satisfactory explanation for why I should. Am I making myself clear?”
I managed to say, “Yes, Your Honor.” In the space of five minutes, Tommy Butcher had been officially scratched off my witness list.
“And Mr. Mapp, this will not be the first time you spring evidence on the defense at a hearing before me. It will be the last time. Am I making that clear?”
“Of course, Your Honor.”
The judge rose and left the bunch. I looked at Tommy Butcher, who was mumbling to himself, his eyes frantically darting about.
The deputy came over to escort Sammy back to detention.
“We still have Archie Novotny,” I told him.
He looked at me with fear in his eyes. “I sure hope so, Koke,” he said.
The deputy took Sammy away. I looked back at Tommy Butcher, his face ashen, sitting motionless in the witness stand.
“Voluntary and twelve.” Lester Mapp, enjoying the upper hand, approached me. “And after today, you thank your lucky stars I haven’t pulled that offer.”
“You’d mentioned voluntary and ten.” I did my best to sound confident, after having my lunch handed to me in court.
“I said think about ten years, and you didn’t get back to me, and now you’ve lost the best thing you had going for you. You’re lucky twelve is still on the table.”
