After ten minutes they were both bored. Theo couldn't concentrate because his mind was on Julio's cousin and the potential bomb his testimony would be. Julio was drifting because he hated algebra. Theo's cell phone rang.
"It's my mom," he said as he flipped it open.
She was leaving the office and was concerned about him.
He assured her that he was fine, working diligently with Julio, and would be home in time for Chinese, even though it might be cold Chinese. What difference did it make, hot or cold?
After he flipped the phone shut, Julio said, "It's pretty cool that you have a cell phone."
"I'm not the only kid in school with a cell phone," Theo said. "And it's only for local calls, no long distance."
"Still cool."
"And it's just a phone, not a computer."
"No one in my class has a cell phone."
"You're just a seventh grader. Wait till next year. Where do you suppose your cousin is right now?"
"Let's call him."
Theo hesitated, then thought, Why not? He didn't have all night to spend with the cousin. He punched the numbers, handed the phone to Julio, who listened for a few seconds and said, "Voice mail."
There was a knock at the door.
The cousin was still wearing a khaki work suit with Waverly Creek Golf in bold letters across the back of the shirt and in much smaller letters over the front pocket. His matching cap had the same wording. He wasn't much bigger in size than Theo, and certainly looked younger than eighteen or nineteen. His dark eyes danced around wildly, and before he even sat down he gave the clear impression that he was ready to leave.
He refused to shake hands with Theo and refused to give either his first name or his last. In rapid Spanish he went back and forth with Julio. The words were tense.
"He wants to know why he should trust you," Julio said. Theo was thankful for the interpretation because he'd understood almost none of the Spanish.
He said, "Look, Julio, how about a quick review? He came to you, you came to me, and now I'm here. I didn't start this process. If he wants to leave, then good-bye. I'll be happy to go home." It was tough talk and it sounded pretty strong in English. Julio passed it along in Spanish, and the cousin glared at Theo as if he'd been insulted.
Theo did not want to leave. He knew he should. He knew better than to get involved. He'd been telling himself to butt out, but the truth was that Theo relished being exactly where he was at that moment. "Tell him he can trust me and that I will not tell anyone what he says," he said to Julio.
Julio passed it along, and the cousin seemed to relax a little.
It was obvious to Theo that the cousin was deeply troubled and wanted some help. Julio kept rattling on in Spanish. He was heaping praise upon Theo, who understood some of it.
The cousin smiled.
Theo had printed a color Google Earth Search map of the Creek Course, and he had marked the Duffy home. The cousin, still unnamed, began to tell his story. He pointed to a spot in some trees in a dogleg on the sixth fairway, and spoke rapidly about what he had seen. He'd been sitting on some timbers near a streambed, just inside the tree line, eating his lunch, minding his own business, when he saw the man enter the house from the rear door and exit a few minutes later. Julio gamely hung on with his interpretation, often stopping his cousin so he could do the English for Theo. Theo, to his credit, began to understand more and more of the Spanish as he grew accustomed to the cousin's speech patterns.
The cousin described the frenzy around the golf course after the police showed up and the gossip spread. According to one of his friends, a kid from Honduras who waited tables in the clubhouse grill, Mr. Duffy was having a late lunch and a drink when he got the news that his wife had been found. He made a scene, hustled out, jumped in his golf cart, and raced home. This friend said that Mr. Duffy was wearing a black sweater, tan slacks, and a maroon golf cap. It was a perfect match, said the cousin. The same outfit worn by the man he saw enter the Duffy home and exit just minutes later.
From his file, Theo produced four photographs of Pete Duffy. All four had been found online, in the archives of the Strattenburg daily newspaper. He had enlarged them to 8 by 10 inches. He spread them on the table and waited. The cousin could not identify Mr. Duffy. He estimated that he was between sixty to a hundred yards away when he was having his quiet lunch and saw the man. The man he'd seen looked very similar to the one in the photographs, but the cousin could not be certain. He was certain, though, of what the man was wearing.
A positive identification by the cousin would be helpful, but not crucial. It would be easy to establish how Mr. Duffy was dressed, and the fact that a witness saw a man in the identical clothing enter the home just minutes before the murder would nail a conviction, at least in Theo's opinion.
As Theo listened to Julio translate into Spanish, he watched the cousin closely. There was no doubt he was telling the truth. Why would he not tell the truth? He had nothing to gain by lying, and plenty to lose! His story was believable. And, it fit perfectly into the prosecution's theory of guilt. The problem, though, was that the prosecution had no idea such a witness even existed.
Theo listened, and again asked himself what he should do next.
The cousin was talking even faster, as if the dam had finally broken and he wanted to unload everything. Julio was working even harder to translate. Theo typed feverishly on his laptop, taking as many notes as possible. He stopped the narrative, asked Julio to repeat something, then off they went again.
When Theo could think of no more questions, he glanced at his watch and was surprised at how late it was. It was after 7:00 p.m. and his parents would not be happy that he was late for dinner. He said he needed to leave. The cousin asked what would happen next.
"I'm not sure," Theo answered. "Give me some time. Let me sleep on it."
"But you promised not to tell," Julio said.
"I won't tell, Julio. Not until we--the three of us--decide on a plan."
"If he gets scared, he'll just disappear," Julio said, nodding at his cousin. "He cannot get caught. Understand?"
"Of course I understand."
The chicken chow mein was colder than usual, but Theo had little appetite for it. The Boones ate on TV trays in the den. Judge, who had refused dog food since the first week as a member of the family, ate from his bowl near the television. There was nothing wrong with his appetite.
"Why aren't you eating?" his mother said, her chopsticks in midair.
"I am eating."
"You seem preoccupied," his father said. He used a fork.
"Yes, you do," his mother agreed. "Something happen at the shelter?"
"No, just thinking about Julio and his family and how difficult it must be for them."
"You're such a sweet kid, Teddy."
If you only knew, Theo thought.
Perry Mason, in black and white, was in the midst of a big trial, and he was on the verge of losing the case. The judge was fed up with him. The jurors looked skeptical. The prosecutor was full of confidence. Suddenly, Perry looked into the crowd of spectators and called the name of a surprise witness. The witness took the stand and began telling a story far different from the one the prosecutor had put forth. The new story made perfect sense. The surprise witness withstood the cross-examination, and the jury found in favor of Perry Mason's client.
Another happy ending. Another courtroom victory.
"Doesn't work that way," Mrs. Boone said. It was something she managed to say at least three times during every episode. "No such thing as a surprise witness."
Theo saw an opening. "But what if a witness suddenly appeared? One that was crucial to finding the truth? And one that no one knew about?"
"If no one knew about him, how would he find his way to the courtroom?" Mr. Boone asked.
"What if he just appeared?" Theo replied. "What if an eyewitness read about the trial in the newspaper, or saw something about it on television, and came forward. No one knew he existe
d. No one knew he witnessed the crime. What would the judge do?"
It was rare that Theo could stump, even briefly, the other two lawyers in the family. His parents thought about his question. A couple of things were certain at this point. One, both parents would have an opinion. Two, there was no way they would agree.
His mother went first. "The prosecution cannot use a witness it has not disclosed to the court and the defense. The rules prohibit surprise witnesses."
"But," his father said, almost interrupting and obviously ready to argue, "if the prosecution doesn't know about a witness, then the prosecution cannot disclose his identity. A trial is all about finding the truth. Denying an eyewitness the chance to testify is the same as hiding the truth."
"The rules are the rules."
"But the rules can be modified by the judge when necessary."
"A conviction would not stand up on appeal."
"I'm not so sure about that."
Back and forth, back and forth. Theo grew quiet. He thought of reminding his parents that neither specialized in criminal law, but such a comment would probably draw fire from both. Such discussions were common in the Boone household, and Theo had learned much about the law over dinner, on the front porch, even riding down the road in the backseat.
For example, he had learned that his parents, as lawyers, were considered to be officers of the court. And as such, they had a duty to aid in the administration of justice. If other lawyers violated ethics, or if the police broke the rules, or if a judge got out of line, then his parents were supposed to take appropriate action. Many lawyers ignored this responsibility, according to his parents, but not them.
Theo was afraid to tell them about Julio's cousin. Their sense of duty would probably force them to go straight to Judge Gantry. The cousin would be picked up by the police, dragged into court, forced to testify, then detained as an illegal immigrant. They would put him in jail, then some sort of detention center, where, according to Mr. Mount, he might spend months waiting to get shipped back to El Salvador.
Theo's credibility would be ruined. A family would be seriously harmed.
But, a guilty man would be convicted. Otherwise, Pete Duffy would probably walk out of court a free man. He would get away with murder.
Theo choked down another bite of cold chicken.
He knew he would sleep little.
The nightmares stopped just before sunrise, and Theo abandoned the notion of somehow finding meaningful rest. He stared at the ceiling of his bedroom for a long time, waiting for sounds that his parents were up and moving about. He said good morning to Judge, who slept under the bed.
Theo had convinced himself many times throughout the night that he had no choice but to sit down with them early that morning and tell them the story of Julio's cousin. He'd changed his mind many times. And he could not, he decided as he finally eased out of his bed, force himself to violate the promise he'd made to Julio and his cousin. He could not tell anyone. If a guilty man was about to walk free, then it wasn't Theo's problem.
Or was it?
He made the usual noise as he went about his morning ritual--shower, teeth, braces, the daily torture of deciding what to wear. As always, he thought of Elsa and her irritating habit of quickly inspecting his shirt, pants, and shoes to make sure it all matched and that none of it had been worn in the past three days.
He heard his father leave a few minutes before seven. He heard his mother in the den watching an early morning television show. At exactly seven thirty, Theo closed the door to his bathroom, opened his cell phone, and called Uncle Ike.
Ike was not an early riser. His sad little career of a smalltime tax man wasn't very demanding, and he didn't start the day with a rush of enthusiasm. His work was dreary, something he had mentioned to Theo on many occasions. And there was another problem. Ike drank too much, and this unfortunate habit made for slow mornings. Over the years, Theo had heard the adults whispering about Ike's drinking. Elsa had once asked Vince a question dealing with Ike, and Vince replied with a curt, "Maybe if he's sober." Theo wasn't supposed to hear that, but Theo heard a lot more around the office than the others knew.
The call was finally answered with a scratchy and rude, "Is this Theo?"
"Yes, Ike, good morning. Sorry to bother you so early." Theo was speaking as softly as possible into the phone.
"No problem, Theo. I assume you have something on your mind."
"Yes, can we talk this morning, early? At your office? Something real important has come up and I'm not sure I can discuss it with my parents."
"Well, sure, Theo. What time?"
"Maybe a few minutes after eight. School starts at eight thirty. If I leave too early Mom will get suspicious."
"Sure. I'd love to."
"Thanks, Ike."
Theo hurried through breakfast, kissed his mom goodbye, spoke to Judge, and was on his bike racing down Mallard Lane at straight-up eight o'clock.
Chapter 11
Ike was at his desk with a tall paper cup of steaming coffee and a huge cinnamon swirl coated with at least an inch of frosting. It looked delicious, but Theo had just finished his cereal. Plus, he had no appetite.
"Are you okay?" Ike said as Theo sat down, on the very edge of his chair.
"I guess. I need to talk to someone in confidence, someone I can trust, someone who knows something about the law."
"Have you murdered someone? Robbed a bank?"
"No."
"You seem awfully uptight," Ike said as he pulled off a huge bite of the cinnamon swirl and stuffed it in his mouth.
"It's the Duffy case, Ike. I might know something about whether Mr. Duffy is guilty or not."
Ike kept chewing as he leaned forward on his elbows. The wrinkles around his eyes squeezed together as he glared at Theo. "Go on."
"There is a witness out there, a guy nobody knows about, who saw something at the time of the murder."
"And you know who it is?"
"Yes, and I promised not to tell."
"How in the world did you come across this guy?"
"Through a kid at school. I can't tell you anything else, Ike. I promised I wouldn't."
Ike swallowed hard, then grabbed the cup and took a long sip of the coffee. His eyes never left Theo. He really wasn't that surprised. His nephew knew more lawyers, court clerks, judges, and policemen than anyone else in town.
"And whatever this unknown witness saw out there would have a big impact on the trial, is that right?" Ike asked.
"Yes."
"Has this witness talked to the police or lawyers or anyone involved with the case?"
"No."
"And this witness is unwilling to come forward at this time?"
"Yes."
"This witness is afraid of something?"
"Yes."
"Would the testimony of this witness help convict Mr. Duffy, or would it help acquit him?"
"Convict, no doubt."
"Have you talked to this witness?"
"Yes."
"And you believe him?"
"Yes. He's telling the truth."
Another long drink of coffee. A smacking of the lips. Ike's eyes were drilling holes in Theo's.
Ike continued. "Today is Thursday, the third full day of trial. From what I hear, Judge Gantry is determined to finish this week, even if that means holding court on Saturday. So the trial is probably half finished."
Theo nodded. His uncle stuffed another large bite into his mouth and chewed slowly. A minute passed.
Ike finally swallowed and said, "So the question is, obviously, what, if anything, could or should be done about this witness at this point in the trial?"
"That's it," Theo said.
"Yes, and from what I gather Mr. Jack Hogan needs a few surprises. The prosecution started with a weak case and it's only grown weaker."
"I thought you weren't following the trial."
"I have friends, Theo. Sources."
Ike jumped to his feet and walked to the fa
r end of the room where some old shelves were filled with law books. He ran a finger along the spines of several, then snatched one off a shelf and began thumbing through the pages. He returned to his desk, sat down, placed the book in front of him, and searched for whatever was on his mind. Finally, after a long silence, he said, "Here it is. Under our rules of procedure, a judge in a criminal trial has the authority to declare a mistrial if the judge thinks that something improper has occurred. It gives a few examples: a juror gets contacted by someone with an interest in the outcome; an important witness gets sick or can't testify for some reason; key evidence disappears. Stuff like that."
Theo knew this. "Does it cover surprise witnesses?" he asked.
"Not specifically, but it's a pretty broad rule that allows the judge to do whatever he thinks is right. The argument could be made that the absence of an important witness is grounds for a mistrial."
"What happens after a mistrial?"
"The charges are not dismissed. Another trial is rescheduled."
"When?"
"It's up to the judge, but in this case I suspect Gantry wouldn't wait too long. A couple of months. Enough time for this secret witness to get his act together."
Theo's mind was racing so fast he couldn't decide what to say next.
Ike said, "So, Theo, the question is, How do you convince Judge Gantry to declare a mistrial before the case goes to the jury? Before the jury finds Mr. Duffy not guilty, when in fact he is guilty?"
"I don't know. That's where you come in, Ike. I need your help."
Ike shoved the book aside and peeled off another piece of the cinnamon swirl. He chewed it while he pondered the situation. "Here's what we do," he said, still chewing. "You go to school. I'll go over to the courtroom and have a look. I'll do some more research, maybe talk to a friend or two. I won't use your name. Believe me, Theo, I'll always protect you. Can you call me during lunch?"
"Sure."
"Take off."
When Theo was at the door, Ike said, "Why haven't you told your parents?"
"You think I should?"
"Not yet. Maybe later."
"They're very ethical, Ike. You know that. They are officers of the court and they might force me to reveal what I know. It's complicated."
John Grisham Page 8
