Local Rules

by Jay Brandon

  “But he didn’t really have to speculate, did he? He knew from experience what Kevin did when he got mad and frus­trated. Dale Hines knows; he’d seen it A few other girls in Green Hills know, too, what happened when Kevin Wain­wright got mad at them.”

  “Objection,” Mike Arriendez said. “That’s arguing out­side the record.”

  Indeed it was. Outside the record, but not outside the collective memory of his audience, Jordan thought. He stood close in front of the jury, leaning on the railing, talking to them as if he and they were all long-time residents of the town, who had known all its citizens well since childhood. The jurors’ expressions as they watched him attentively made him feel they were accepting his pose. One or two nodded slightly at where he was heading. They were all there ahead of him.

  The objection was sustained in a quiet, distracted voice. Jordan didn’t glance at the judge.

  “He’d hit,” Jordan said simply. “Wayne knew it. He’d seen it before. When Jenny refused Kevin, when she tried to walk away, when Kevin was so hurt and angry he didn’t know what else to do, he’d hit her.”

  Jordan waited for acknowledging looks. “But he made a bad mistake when he hit Jenny Fecklewhite, didn’t he? Be­cause Jenny wasn’t like other girls. Maybe it was just a little open-handed slap, but Jenny wouldn’t let it pass. She wasn’t the meek type, was she? She’d hit back. Or maybe say some­thing that would cut him worse than a blow. Whatever she did to goad him, it made Kevin furious. And Kevin knew what you do when somebody hurts you. You hit back even harder.

  “That’s what Kevin Wainwright did. That’s when he punched Jenny right in the face, wearing the ring he’d bor­rowed to give to her. Instead he hit her with it. He marked her face so badly that Dr. Wyntlowski could identify the ring by the wound it had left, like a brand.”

  He must have been painting the picture vividly, or his listeners didn’t need much help to see it clearly. When Jor­dan turned aside, he saw the judge’s head bowed in his hands. Laura’s head was up, but two long tear tracks bright­ened her cheeks. Jordan was stricken by the pain he’d in­flicted. He tried to soften it.

  “And she fell back,” he said quietly, “and something terri­ble happened, something Kevin never intended. They both had a horribly unlucky moment, because Jenny landed ex­actly wrong, and what should have been only a little spat left her dead.

  “Wayne pictured everything that had happened. He told you that. When he found Jenny’s body after he’d seen Kevin racing away from the park, Wayne saw exactly what his friend had done. He saw her lying there and he saw her hands folded on her chest. That’s not how a person falls, we know that. Someone, after the terrible accident, had tried to do what he could for her. He’d tried to make her look peaceful. It was a crazy act, maybe, but that’s how Kevin had been acting, crazy. Those hands told Wayne the story, too: that Jenny had been killed by someone who loved her.”

  Another reason Jordan had suspected the judge. He glanced again at Laura, thinking she was the only other per­son who understood what he was saying. Laura didn’t look back at him. Her face had hardened slightly. The tear tracks still glistened on her cheeks, but there were no new tears.

  “And in turn what he pictured drove Wayne a little crazy. He raced back into town himself, following his friend’s track. And he found him right away, before Wayne had had time to cool down. He saw Kevin on the street and Wayne jumped out and screamed the worst threat he could think of, something people say automatically when they’re so mad they can’t stand it, and he ran up and punched Kevin as hard as he could, right in the face.

  “Right in the face,” Jordan repeated, touching his own cheek. “Hit him so hard he cracked Kevin’s cheekbone and cut his face, but the cut was nothing like the one on Jenny’s face. That’s what Dr. Wyntlowski testified, and he’s the ex­pert. But you don’t have to be an expert, you can see for yourself from the autopsy photos.”

  He held up the pictures, one in each hand. Some of the jurors lowered their eyes, unwilling to study the cut on Kevin Wainwright’s cheek, the much worse wound on Jen­ny’s face. Others in the jury stared at the twin photographs with a strange absorption, the autopsy portraits that strangely joined Kevin and Jenny, made them the couple they had been in everyone’s minds.

  “Another indication,” Jordan concluded, “that the person who struck Jenny wasn’t the same as the person who hit Kevin.

  “For further proof,” he continued after a pause, “we have the way Kevin acted afterward. What did all the witnesses say about Kevin as he was walking down the street just before Wayne’s truck screeched to a stop in front of him? He was dazed. He didn’t even seem to recognize his best friend. And when Wayne came running up and it was per­fectly obvious he was going to punch Kevin, Kevin didn’t even raise his hands to defend himself. Hiram Lester said he’d never seen anything like it. What he saw was helpless, stunned guilt. Kevin didn’t defend himself from Wayne’s blows because he knew he had them coming after what he’d done.”

  His slow pacing had brought Jordan close to the district attorney. Arriendez was watching him thoughtfully, an un­convinced expression on his face. Jordan acknowledged him with a rising hand.

  “He’s going to tell you, So what?” he told the jury. “Mr. Arriendez is going to tell you, quite correctly, that Wayne isn’t charged with murdering Jenny Fecklewhite. So even if I got up here and proved to your absolute satisfaction that someone else killed Jenny, that doesn’t matter in this case.

  “But it mattered to Wayne. That’s why it’s relevant in this trial. Jenny’s killing sent Wayne over the edge. It was the only reason for what he did. Do you think Wayne would have beaten his best friend as badly as he did without some terrible provocation? Look at him.”

  Jordan hadn’t glanced over his shoulder and he hadn’t prepped his client, but he knew what he’d find when he turned, drawing the jury’s attention to Wayne. Wayne tried to straighten his shoulders, regain his manliness, but the at­tempt only emphasized his red eyes, his emaciated frame. Again his shirt and suit cuffs fell down his skinny wrist as he lifted his hand to wipe his nose and kept the hand there covering his mouth and half his face. His temples and fore­head crawled with the effort to maintain. Jordan watched him for a long moment, seeing his client’s pain over his lost friend. He had only found two people—no, three—in Green Hills to whom Kevin Wainwright’s death really mattered, and one of them was Wayne.

  “Judge Waverly has instructed you on three crimes,” Jor­dan continued, having to pull his eyes and his thoughts away from Wayne to talk about the abstract Wayne of his argu­ment “Murder, which you understand. Murder means you intended to kill someone and did it Then there’s voluntary manslaughter. Voluntary manslaughter also means you killed someone, but that you were acting under the influence of what the law calls ‘sudden passion.’ Sudden passion isn’t just anger. It means emotion so strong you can’t control yourself. You could scream that you’re going to kill someone without even hearing yourself. You could beat your best friend without even noticing that he’s not fighting back. Sud­den passion has to be an emotion that has such a grip on you that you do something terrible without even realizing it until afterward, when you’re so sorry you feel empty, be­cause the rage is gone and that’s the only thing that was controlling you. Isn’t that exactly what you heard described? Not just by Wayne Orkney but by the prosecution witnesses as well? If Wayne could have stopped himself, would he have hurt his best friend the way he did and would he have done it so stupidly? Wayne acted in front of the State’s long parade of witnesses because Wayne didn’t even know they were there. All he was seeing was the terrible sight he’d seen in Pleasant Grove Park.”

  Jordan glanced at the copy of the judge’s jury instructions he held in his hand. “The other requirement of voluntary manslaughter is that the sudden passion has to have been prompted by ‘adequate cause.’ It can’t be over something trivial. I’m not even going to discuss that. If Wayne’s discov­ery of Jenny’s bod
y and his realization that Kevin had killed her doesn’t amount to adequate cause, then there’s no such thing as adequate cause. We wouldn’t even have a law men­tioning it”

  Jordan stood in front of the jury feeling suddenly hollow himself, feeling resolve drain out of him. He looked at the recognizable, worn, earnest faces that in turn were looking back at him. He had the familiar feeling they were just wish­ing he’d get the hell on with it

  “The third crime you could find Wayne guilty of is the last one explained in the instructions, aggravated assault. That’s just a beating. We’ve probably all seen aggravated assault happen. Sometimes it’s just a fight that gets out of hand. No one intends to kill anyone, he just hits, and some­one else gets hurt badly.” He raised his eyebrows, waiting for looks of recognition. “Isn’t that what happened here? I’ll acknowledge that Wayne hurt Kevin, there’s no way to dispute that after all the witnesses you heard, but he didn’t intend to kill him. Not his best friend, no matter what Kevin had done.”

  Jordan stood very still, forcing himself not to glance aside. He wondered if this was where he should stop. But after a moment he continued.

  “Wayne didn’t intend to kill Kevin, and maybe he didn’t kill him. Remember the testimony you heard from the de­fense witnesses. Dr. Wyntlowski was puzzled by the autopsy report on Kevin. It didn’t go far enough. Kevin should have recovered, he said. Even Dr. Prouty said that could have happened. Dr. Wyntlowski saw the possibility that some­thing could have happened to Kevin in the hospital, some­thing that overworked his heart just enough to cause his death.”

  Such a tender muscle, the heart. Jordan could feel his own beating in his ears.

  “And look at all the visitors Kevin had in the hospital. You have the list. People who could easily have reached the same conclusion that Wayne had, that it was Kevin who had killed Jenny in the park. Police had never arrested a suspect in Jenny’s death. One told you that was because Wayne was their best suspect, but they never charged him, did they? It might also be they never made an arrest because their best suspect was dead. That’s what Nurse Riegert said, that one of the officers told her Kevin might be a suspect in the other murder.

  “So someone could have figured it out and there were people in the hospital who cared about Jenny Fecklewhite. Officer Briggs, who rushed outside his jurisdiction to see her body. Deputy Delmore, who continued investigating her death even on his own time. Imagine them sitting there look­ing at the man who had murdered her and in a moment of anger doing something—some little thing, putting a hand over his mouth, twisting a blood line—some thing that wouldn’t even take a minute and that normally wouldn’t do any damage except to a man already struggling to recover. That’s where Kevin Wainwright died, in the hospital, days after Wayne attacked him. Maybe that’s where his death was caused, too.”

  Jordan waved away all he’d just said. “But it doesn’t mat­ter. I’m not saying someone else killed Kevin necessarily. That doesn’t matter to this trial. What matters is that Wayne didn’t intend to kill Kevin. That’s all you need to decide to bring a verdict of aggravated assault

  “And finally you could reach a verdict of not guilty. You could find that Wayne was justified in what he did, that he had no—”

  “Objection, Your Honor,” Arriendez said suddenly and strenuously. “There is no instruction in the charge that would allow the jury to find justification.”

  “That is true,” Judge Waverly said slowly. “No matter what you may have heard, there is no such defense in Texas as justifiable homicide. Not any more. The objection is sus­tained. Please disregard that argument.”

  The judge looked from juror to juror as he delivered his instruction but without his usual black glare. His voice left the district attorney staring at the judge. Jordan turned to look up at him as well. It almost sounded as if Judge Wa­verly had been sending a message to the jury entirely differ­ent from what his words had said.

  “No, but—” Jordan hesitantly picked up the thread of his argument again. “All these crimes require a certain mental state. All of them mean you must find the defendant acted ‘intentionally.’ You would be justified in finding that Wayne was so overwhelmed by emotion that he had no intention at all when he attacked his old friend. That he was simply lost in pain and rage.”

  He turned to look at his client again. Wayne’s face was the best support for this argument. Even today he looked still dazed by what had happened. Jordan let the jury study him and didn’t want to distract their attention.

  “Deliberate carefully,” he said quietly. “Thank you for your attention.”

  Before he even sat, Mike Arriendez was on his feet “Does this look unintentional?” he asked, interrupting the jurors’ gazes with his own exhibits, the autopsy photo of Kevin and a chart from the autopsy report, an outline of a human form with Kevin’s injuries marked. “Not one punch,” Arriendez continued. “Not just one kick. But here and here and here and here. And on and on. Look at the extent of these injuries. If the defendant had thrown only one punch, we might accept that as a man out of control. But at some point don’t we require him to regain control? Don’t we re­quire him to see what he’s doing? And isn’t that point some time before he beats a man to death?”

  Jordan could have made the district attorney’s argument for him. He had made such arguments often as a prosecutor himself. He remembered very few occasions when he’d felt he had to expend much effort to refute the defense’s argu­ments. He wondered if this was such an occasion for Mike Arriendez. The things Jordan had said now sounded jumbled and forceless in his memory. But Arriendez was attacking them with intensity.

  “The defense relies on the burden of proof, the favorite weapon in any defense’s arsenal. The State has to prove the defendant guilty of murder. The defense doesn’t have to prove anything. They just have to raise possibilities. They can throw out any number of theories they can think of. They can bring in an entirely different case to try to distract you. And they don’t have to prove anything. They don’t have to prove that the victim in this case killed someone else. They don’t have to prove someone else murdered Kevin Wainwright in the hospital. They can just toss out the possibilities like birdshot.”

  Jordan sat stiffly. He was looking down at the table in front of him, nowhere else, bowing his head under Arriendez’s attack.

  “But their possibilities are ridiculous. Did they offer any evidence to support their suggestions? No. Their doctor testi­fied that if he had done the autopsy on Kevin he might have done this, this, and this extra, but did he say there was any evidence from the report that someone else had caused Kevin’s death? No. No evidence, just speculation. Nitpicking another man’s work the way anyone’s work can be picked to death. But Dr. Prouty, who was more perfectly familiar with the case and the facts, testified that Kevin was never on the road to recovery after he was savagely beaten by the defendant.”

  The prosecutor took a long moment to stare at Wayne Orkney. Wayne still looked shaken, but under the weight of silence he looked up, puzzled and a little frightened. It was a better expression from the prosecution point of view, the one Mike Arriendez had been waiting for.

  “Let me suggest another interpretation of the facts,” he said quietly. “One the defense’s evidence also suggests. They would have you believe that the defendant was completely overwhelmed by the sight of Jenny Fecklewhite’s murdered body. So stricken that he couldn’t recover his senses all the way through the long drive back into town. He had no idea what he was doing, he was so gripped by sudden passion. Yet he had the presence of mind to drive precisely into Green Hills, to decide where he’d be most likely to find Kevin Wainwright, to track him down. How likely do you find that? That a man could be overcome by emotion yet thread his way so accurately to his goal?”

  Jordan was poised to object but hadn’t thought how. What he really wanted was to refute the district attorney’s argu­ment, but he wouldn’t get the chance to do that. The State always got the last word. Bef
ore Jordan could rise to his feet, Arriendez changed course.

  “But I want to examine another aspect of Wayne’s mental state. Why was he so upset over Jenny’s death? I grant you, it would have been terrible to see such a thing. A young girl so full of promise cut down so suddenly. The sight of that would have shaken anyone.”

  Arriendez’s voice was growing harder. “But it didn’t just shake Wayne Orkney. It enraged him. It made him so un­controllably furious, the defense would have you believe, that he beat his best friend to death without even realizing it”

  “Objection,” Jordan said. “That’s a mischaracterization of the defense argument. We suggested that Wayne in fact didn’t kill the—”

  “Beat him so badly he required hospitalization then,” Ar­riendez interrupted. It had been a feeble objection, one Judge Waverly didn’t even stir himself to rule on. Jordan had just wanted to break the flow of the DA’s argument but it went relentlessly on.

  “Why? Why did Jenny’s death affect the defendant so profoundly? I don’t have to tell you the answer.”

  He didn’t. Wayne’s face helped tell it. Jordan looked at him and saw Wayne blushing. Wayne sat there as stiffly as before, but his face was burning with a new emotion.

  “He loved her,” Arriendez said anticlimactically. “Wayne loved Jenny Fecklewhite or he wouldn’t have reacted the way he did. Now that we’ve established that let’s back up. Wayne didn’t just suddenly discover his love for Jenny when he saw her lying dead. He must have known it earlier.”

  But it can happen that abruptly, Jordan wanted to say, but that wasn’t a legal objection.

  “Wayne loved Jenny, and his best friend stood in his way. Now let’s look at the evidence in that light. We know before the murders Wayne and Kevin were in the Pizza Hut to­gether. They had a discussion, maybe an argument. The ring played a part. Maybe Kevin did ask to borrow it, maybe he told his friend of his plan to propose. Maybe that’s what set Wayne off.