Fool Me Twice

by Paul Levine

  “I m not sure.”

  “Five, fifty, a hundred, a thousand?”

  “I’m not sure. More than five, less than fifty. Say nine or ten.”

  “And in those dozen gunshot wounds, how many were homicides and how many were suicides?”

  He paused and gave the impression of honestly trying to remember. “One was Russian roulette. I suppose that was an accident. Maybe two were gang killings. The rest were suicides, as I recall.”

  “But you never considered that possibility here because you immediately accepted as true Josefina Baroso’s version of events, isn’t that correct?”

  Trapped. He’d already said it. Not that we could prove Cimarron killed himself. But there were two living people in that barn, and it damn sure helps a reasonable doubt case if the cops were too quick to grab one of them.

  “Yes, that’s right,” the detective said, just wanting to end the agony.

  H. T. Patterson told the judge he had nothing further and gave the witness back to the prosecutor, who didn’t want him. Judge Witherspoon allowed as how it seemed like a good time for lunch, and no one disagreed.

  ***

  By the middle of the afternoon, half the jury was dozing or looked as if they wanted to. Two crime scene technicians and a lab worker identified little bags filled with odds and ends, none of which you’d want in your refrigerator. The blood, skin, bone, and brain matter belonged to K. C. Cimarron. Fingerprints on the stud gun were smudged, and the handle may have been wiped with a cloth, but there were still latents on the barrel identified as belonging to Cimarron and me. A partial of a third person’s print was picked up there, too.

  “Do you have any idea who this final fingerprint comes from?” McBain asked on direct examination.

  The prints guy, a bookworm type with a laboratory pallor, looked at the jury as he was doubtless instructed and said, right on cue. “All I can say is that it isn’t from Mr. Cimarron, Mr. Lassiter . . .” He paused for effect, “or Miss Baroso.”

  McBain smiled at Patterson, and just in case anybody missed the point, he repeated it. “Not Ms. Baroso’s prints?”

  “No, sir.”

  The other technician, a dark-haired woman in her thirties, testified about picking up the stud gun and delivering it to a Douglas Clifton who would perform certain tests on it. This was just chain-of-custody material, so the gun could be admitted into evidence. When she picked up the gun from the barn floor, or in her words, when she “secured the apparent weapon,” there was no nail in the barrel, but there was a plastic clip with nine .27-caliber bullets remaining in the gun.

  The nail pulled from the saddle was three inches long, made of carbon steel, and fit perfectly into the gun. The head of the nail contained a small amount of gunpowder residue in addition to the gunk from Cimarron’s skull. Actually, she didn’t say “gunk.” She called it brain tissue, and the schoolteacher juror with the lace handkerchief squeezed her eyes shut.

  ***

  It was a few minutes before six o’clock, and all the technical talk was over, so the judge sent the jury home with the usual admonition against forming opinions or discussing the case with the neighbors, and added the friendly advice about driving carefully with all the tourists in town.

  As he stuffed his files into cardboard boxes for the night, H. T. Patterson asked me, “Can I buy you a drink?”

  “Is the law an ass?”

  We walked out of the stuffy, overheated courthouse and into the bracing air of dusk in the Rocky Mountains. Snowflakes whirled in a crisp breeze, and a three-quarter moon hung low over Smuggler Mountain. Cars crunched through a new snowfall on Main Street, and exhausted, happy skiers headed back to their hotels, condos, and chalets. I was struck by the utter beauty of the coming night, but at the same time, was overcome by a profound, nameless melancholy, a sense of approaching doom, and an unshakable conviction that I was powerless to affect my own destiny.

  CHAPTER 23

  WHERE DAYLIGHT MEETS DARKNESS

  If you are charged with murder and plead not guilty, you have several choices. You can simply try a reasonable doubt case. Don’t take the stand, but cross-examine the bejesus out of the state’s witnesses. Magnify inconsistencies, exaggerate sloppy police work, and ridicule the prosecution. With some luck, you might get an acquittal, or at least a hung jury.

  Or, if you have evidence the victim attacked you first, plead self-defense. But that admits you did the killing, and you’ll be convicted unless you can convince the jury that you had reasonable ground to believe your life was in danger when you struck back.

  Or, you can bravely confront the state head-on. Take the stand and swear you didn’t do it, pure and simple. Well then, jurors might ask, if this rascal didn’t, who did? In which case, it’s useful to have a straw man. Or woman, as the case may be.

  Which is what H. T. Patterson wanted to talk about after court. Once the jurors were sent home, promising not to read the newspaper or chat about the case, oaths broken more frequently than marital vows, H. T. Patterson bought me a beer at a local pub not frequented by the chichi Beverly Hills ski crowd. The place didn’t have a view of the ski slopes, and it didn’t have a burning fireplace. It sat in a warehouse/office center across Route 82 from the airport and had dim lighting where even accused murderers could enjoy draft beer in peace. We sat at a round wooden table scarred with cigarette burns, sipped our brews and ate boiled peanuts.

  “I want you to watch your demeanor in court. Don’t be so despondent and dejected, depressed and discouraged. The jury’s going to conclude you think they’re going to convict you.”

  “I do.”

  “Well, don’t show it. It’s a self-fulfilling prophecy. It also makes you look sorry for what you did. It’s a face for sentencing, not for trial.”

  “Okay, from now on, I’ll laugh uproariously at every objection.”

  “Don’t be difficult. You know what I’m talking about.”

  “I know. Never let them see you sweat.”

  “Right. You ever hear the story of the two generals watching their forces battle the enemy?”

  “No, but I have a feeling I’m going to.”

  “One general is wearing a bright red cape, and the other asks him why such an outfit on a day of battle. ‘Because, if I’m wounded, my troops won’t see the blood, and they’ll fight on.’ The first general thinks about it and calls to his aide, ‘Fritz, bring my brown trousers.’

  That made me laugh, and my laughing made Patterson beam. “Good, much better. Now, you ready to play some poker?”

  “Deal.”

  There weren’t any cards, of course. It was a joke that went back to our first case together. Patterson had cleaned my clock in a civil suit in which I had sued a striptease joint where my client, a soon-to-be-groom, pulled a groin muscle in a hot-oil wrestling match with noted stripper Wanda the Whirling Dervish. It was my client’s bachelor party, and Wanda thought it would be fun to see how far apart his legs could spread in a hold called “make a wish.” I don’t remember what damn fool mistake I made in closing argument, but Patterson came up to me afterward and said, “Lawyering is playing poker with ideas, and you just drew to an inside straight, sucker.”

  Now he looked at me as a more or less equal. “How do you like the jury?” Patterson asked.

  “I don’t know. I suppose if we had six blacks and six Hispanics, all of whom had been wrongfully arrested and distrusted the cops, I might feel better. But we’ve got a white bread and mayonnaise crowd. You’d never see this in Miami. You remember the jury when the judges were tried in Operation Court Broom?’’

  “Sure do. Ten blacks, one Hispanic, one Anglo.”

  “Yeah, wouldn’t that be wonderful?”

  “Miami’s different,” Patterson said.

  “I know. Exotic and yet so close to the U.S. of A. I remember I was trying a case during the Persian Gulf War, and I had a witness flying in from Topeka or Omaha or somewhere normal. Anyway, he takes a cab from the airport straight
to the courthouse, and when I meet him, he says how great it is to be in a city where everyone is so patriotic. I figure he’s mistaken some Santeria ceremony for a marching band, so I ask him what he means, and he said that in every neighborhood he passed, people had strung up yellow ribbons for the troops.”

  “What’d you tell him?” Patterson asked.

  “The truth. I said those aren’t yellow ribbons. Those are crime scenes with their perimeters taped.”

  “A common mistake,” Patterson agreed.

  “So what do you think of our jury?”

  “They’re bourgeois and banal, common and conventional, the worst imaginable collection of middle-class, mundane white folk this side of 1950s television. Cimarron was a local lad, and even though he was considered something of an oddball, he’s become a mythic Western hero in his death. Our problem is that his halo now shines on Ms. Baroso. When she accuses you, she speaks for him.”

  “So, what do we do?” I asked without much enthusiasm.

  Patterson drained his beer and patted his mouth with a paper napkin. “Destroy her, of course.”

  “She’s very smart, H.T., and very convincing.”

  “So am I,” my lawyer said.

  I started to order another beer, then thought better of it. I was working evenings, sketching outlines of questions, reviewing notes.

  “Now let us assume we convince the jury Ms. Baroso is lying about your alleged assault,” Patterson said. “What have we accomplished?”

  Lawyers just love rhetorical questions. “We’ve discredited her. If a witness lies about one material fact, all the testimony is in doubt.”

  “Including who attacked whom, and more important . . .”

  “Who killed Cimarron.”

  Patterson smiled at me and waved at the waitress, holding up one finger and pointing to his glass, the international symbol for another drink, s’il vous plaît. “So you understand, my large lugubrious friend?”

  “You’re saying we’re not arguing self-defense. I fought back, okay, and maybe I tried to kill Cimarron, or maybe I was just fending him off. Who knows? I certainly don’t. But I didn’t put the nail in his head ...”

  “Go on.”

  “Jo Jo did.”

  “It is a plausible version of events, is it not? She encouraged you to fight him, provoking you with the tale of her beating. When you failed to dispatch him, she expedited the process.”

  “Great theory, H.T. How do we prove it? I can’t testify that she told me to attack Cimarron. Hell, she told me not to come to the barn. She tried to stop me.”

  “Really? And did you pay attention to her words or to the pain in her voice, to the choking sobs with which she enticed you?

  “Okay, I get it, but will a jury believe Jo Jo set me up to kill Cimarron?”

  “Or him to kill you.”

  “What?”

  “She egged him on, but from what you said, he resisted. Oh, he was going to do plenty of damage but stop short of killing you. That’s not what she wanted. She needed you dead.”

  “Wait, you’re losing me. I thought she wanted him dead.”

  “Either way, Cimarron would be out of the picture, wouldn’t he? If you were dead, she could go back to story number one. Cimarron beat her, you tried to help, he killed you. He gets convicted of murder. If he’s dead, well that’s even better, and if Jake has to take a fall, too bad.”

  I chewed that over with some boiled peanuts, then said, “No way a jury will buy it. I don’t even buy it. I mean, why did she want Cimarron dead or convicted of murder?”

  “How should I know? I’m just playing poker with the cards dealt to me. You’ve got to figure the rest out.”

  “But you want me to say Jo Jo killed him?”

  “As I said before, it’s a plausible version of events, and the only explanation I have for her goading first you, then him, into a brawl.”

  I sat quietly a moment, trying to think like a juror and follow the twisted path of our defense, as just outlined by my lawyer.

  Too complex, too weird.

  Besides, I couldn’t swear I didn’t fire the shot, if you’ll pardon the double negative.

  Another thing, I didn’t see Jo Jo shoot anybody.

  And finally, if you’re going to accuse someone else, you better show a motive for the crime. If Jo Jo had a problem with Cimarron, she didn’t have to kill him or have him charged with murder. She could have just gone home. After all, she came to Colorado to be with him.

  Patterson said, “Just so the record is straight, Jake, I am not encouraging you to tell a version of the story that is less than the truth. I am only asking you to search the depths of your subliminal memory, that shadowy territory where light meets darkness, where conscious thought gives way to clouded, obscured vision. Perhaps if you search those dim perimeters of the mind, either by intense concentration or by hypnotic trance, your recollection will be enhanced.”

  In other words, H.T. was telling me, I could make it up, but that was my decision entirely.

  I thought about it some more, then said, “I can’t do it, old buddy. I can’t do it because that’s not what happened, and I can’t do it because it wouldn’t work anyway.”

  Patterson nodded gravely and signaled the waitress for the check. “I understand, Jake, but just out of curiosity, would you do it if that’s not what happened, but it would work?”

  ***

  On Wednesday morning, a fellow in a cardigan sweater took the stand. He told the jury his name was Don Russo, and he was director of products safety for Toolmaster Inc., a Delaware corporation that was a wholly owned subsidiary of a Japanese conglomerate with factories in Indonesia and Taiwan. Don Russo knew everything you ever wanted to know about the Masterjack Stud Driver 500.

  “That’s our top-of-the-line powder-actuated power-load stud driver, or what you folks might call a nail gun,” he told the jury.

  Russo was a pleasant man with clear-rimmed eyeglasses, and he reminded me of the enthusiastic clerk in the hardware store who knows just what grade of sandpaper you need for every imaginable job. Russo usually testified in civil cases where a hapless amateur carpenter put a nail through his hand, trying to cock the gun with his palm over the muzzle and his finger on the trigger.

  Now Russo stood in front of the jury box, holding state’s exhibit nine, a red evidence tag tied around its rubberized handle. “I always advise folks to treat the Masterjack as they would a rifle. Heck, they don’t understand, just because the bullet’s got no projectile, that doesn’t mean it’s not powerful. It’s really much more powerful than small arms ammo of the same caliber.”

  We learned how the powder explodes, sending expanding gas against a captive piston, which slams into a pin that shoots a nail out the barrel into what Russo called the working surface, which in this case was K. C. Cimarron’s skull. We learned not to use nails that are too long, because they may fishhook in concrete and come back out at you like a boomerang. We learned the importance of keeping the breech wiped clean and we learned that someone, presumably Mr. Cimarron, had disengaged the safety device which was intended to prevent discharge unless the muzzle was pressed against the working surface. Russo tut-tut-tutted at that and said the gun is perfectly safe unless misused.

  “The stud driver is really for the professional, but every once in a while, we get somebody trying to hang a picture on the wall of his apartment and he ends up nailing his neighbor to the sofa in the next apartment.”

  “In short, Mr. Russo,” McBain asked in summary, “is exhibit nine a deadly weapon?”

  “If used as such, yes.”

  “And the firing of such a gun into the ear of another is an act calculated to cause death?”

  Ah yes. The issue of intent.

  “Objection.” Patterson got to his feet. “Invades the province of the jury and not subject to expert opinion.”

  Judge Witherspoon seemed to think about it.

  “This witness cannot ascertain the state of mind of my client,�
�� Patterson continued.

  “I don’t believe that’s what the question called for,” the judge said. “Overruled.”

  “Yes, I should think so,” Russo responded. “Anybody who sticks a stud driver in somebody’s ear and pulls the trigger…why, there’s only one thing that can happen, and I guess every red-blooded American boy’s gotta know that.”

  ***

  The coroner was an Asian-American woman in her forties who was the only trial participant shorter than H. T. Patterson. She approached the witness stand with dainty steps, sat down, and looked the jurors straight in the eye. She wore black flats and a white lab coat that came to her knees. A touch of purple eye shadow was her only makeup.

  She took the oath, told us her name was Dr. Ivy Chin, with degrees from Berkeley and Harvard Medical School, internships and a residency at Mass General, plus extensive training in pathology at a variety of big-ticket hospitals. For the past five years, she’d been the chief deputy medical examiner for Pitkin County.

  “Did you have occasion to perform an autopsy on the body of Mr. Kit Carson Cimarron?” McBain asked.

  “Yes.”

  Dr. Chin first saw the body in the morgue, cowboy boots hanging over the end of the steel tray. “I observed a major head wound, which I ultimately concluded to be the cause of death. There was what appeared to be an entrance wound in the area of the right ear and an exit wound in the temporal bone just above the left ear. From outward appearances, it had the characteristics of a gunshot to the head.”

  “What did you do then?”

  “I ordered X rays of the head to determine if any projectiles were inside the skull. There were none. With scalpel, I refracted the scalp which was bloody underneath. Then I sawed through the skull front to back and removed the skullcap. I noted lacerations in the dura, both subdural and arachnoid. Additionally, there were multiple hemorrhages and disruption of the brain tissue. Near the exit wound, there were fractures radiating throughout the skull.”

  “At this point what had you concluded?”

  “That a projectile had entered Mr. Cimarron’s right ear and exited the temporal bone of the skull above the left ear.”