Sins of the Fathers

by James Scott Bell

  Colby thought long and hard. A political question like this deserved a clever answer. But nothing clever came. Which bothered him more than he thought it would.

  “There’s been some expansion, shall we say, of certain facts,”

  Colby said. “I don’t see it as any big thing.”

  “Lindy Field, is she a big thing? Is she going to make trouble like she did on the Marcel Lee case?”

  “She might.”

  “And what do we do?”

  “We do our job. We fight back.”

  “That’s not good enough. I want a win. A slam dunk. What I don’t want are a lot of embarrassing questions dogging me after I leave this place. And Leon, I want to know if I can count on you, or if my confidence is misplaced. Because if it is, I’ll look around for someone else to take my place.”

  Colby rubbed the burnished-wood arms of the leather chair. They were clean and smooth and a whole lot nicer than the arms of the chairs in his own office. He said, “You have not misplaced your confidence.”

  Iron John smiled.

  4.

  “Drake is God,” Lindy said.

  She sat in Roxy’s car in the jail’s parking structure. The cement edifice cast dark shadows across the lot, even though the L.A. sun was bright and the sky blue. Only thin shafts of light made it between the columns and cars.

  “Drake is God to Darren. I’m sure that’s it. Drake beat him, telling him all the time he was getting rid of the devil. And that left him to be God.”

  “You got all that from Darren?”

  “Not in so many words. I’m reading between the lines here. Maybe Darren was listening to Drake when he says God told him to shoot up the field.”

  “You think?”

  “Let’s chase that for a minute. The question is why? Why would Drake tell Darren to shoot up a baseball game? And if Darren was aiming at Joel Dorai, what was it Drake had against him?”

  Roxy chewed her thumbnail. “Darren won’t tell you?”

  Lindy shook her head. “Not yet. He’s scared.”

  “But if you get this in front of the jury, we might be able to create reasonable doubt on mental state, right?”

  “That’s the question. How am I going to prove it?”

  “Maybe I can help.”

  Lindy said, “Go for it.”

  “While you were inside I finally got a call from the homicide detective in Vegas who handled the death of Darren’s mother,Trudy.”

  “Right. She was a hooker, wasn’t she?”

  “Yes.”

  “And died of a drug overdose?”

  “No.”

  “No?”

  “At least not according to this guy,Walsh. He thinks Drake killed her.”

  “Why didn’t he arrest him?”

  “They never had enough evidence. The DA told him to forget about it.”

  “The district attorney in Vegas?”

  “Right.”

  “Told this guy Walsh to forget about making it a murder?”

  “That’s it.”

  Lindy said, “That’s nothing! What relevance is that information going to be? We can’t use it in trial. Unless Drake DiCinni takes the stand, which he’s not going to do.”

  “The guy said something else that was interesting.”

  “What?”

  “He said there was a community activist going after the DA on some corruption deal. Shortly after they dropped Drake as a murder suspect, this activist winds up dead. And Drake winds up out of town, never to return.”

  “He thinks Drake killed the guy?”

  “More than that, he thinks the DA got him to do it.”

  5.

  Leon Colby knocked softly on the door of his father’s house.

  Rosa answered with a big smile. “Good, you’re here. He miss you, I think.”

  The house, as usual, smelled like old shoes and Mexican spices. Rosa was always in the kitchen, cooking something up not just for his father but the visitors from church who always stopped by.

  And there his father was, in his favorite chair, staring at the TV. The picture was on—a game show—but the sound was muted.

  Reverend Colby glanced up as his son sat next to him on the sofa.

  “How you doin’, Pop? Lookin’ good.”

  His father’s look did not register the usual signs of recognition.

  Colby felt a rush of despair and fought it back with words. “Let me tell you, Pop. I’ve been real busy with this case.You’ve probably seen me on the news a few times, right? Look pretty good, don’t I? The Colby good looks. You gave them to me, Pop.”

  His father put his head back slightly. His mouth quivered in what looked like an attempt to form a smile.

  “Yeah, you’d be real proud of me, Pop. Working hard. Getting the job done, you remember? Like out on the field? Remember how you used to tell me to get the job done? And then I’d go out there and do it for you, Pop. For the team.”

  What else did his father used to tell him? There was something else.

  “Remember that night against Manual Arts?” The biggest night of Colby’s high-school career. “We got the job done that night, didn’t we? Went to the city championship.”Where they were whupped, but that was okay. Colby had been the star of the game.

  Rosa came in with lemonade. She handed a glass to Colby. She held the other glass, with a straw in it, up to Reverend Colby’s mouth. He took a feeble sip.

  “That’s pretty good, huh, Pop? That Rosa, she makes a good glass of lemonade, doesn’t she?”

  “And he is eating Milky Way today,” Rosa said. “His special treat.”

  “That’s great.” Clearly though, no amount of candy or anything else was going to get his father’s weight back to where it should be. His father was wasting away, looking worse every time Leon came.

  “Oh, I find something,” Rosa said.

  “What’s that?”

  “In a closet. I think maybe your father like you to have it.”

  She put down the glass of lemonade and left the room.

  “You got a present for me, Pop?” Colby said.“Well listen, you just get better and that’s present enough, okay?”

  His father looked at him with cloudy eyes, though behind the veil he could see a spark, a bit of the old light that the Reverend Colby used to shine on his congregation when he preached.

  Rosa came back holding something. When Leon saw it, he almost fell backward.

  “You recognize?” Rosa said.

  “I don’t believe this.” Colby took from Rosa’s hands a small rubber football. The one he used to sleep with. The one family legend said he once threw from his crib into his daddy’s forehead. It was brown and faded. The white seams were barely visible. But he could still see in pale ink the words his father had inscribed. On one seam was written, Play hard. On the other, Play fair.

  The memory engulfed him. That’s what his father always told him. Play hard. Play fair.

  Colby looked at the football, completely encased in one big hand.

  When had he put this ball away for good? Was it when he was ten years old and he talked back to his father for the first time and got a good old-fashioned spanking?

  He tossed it in the air a couple of times, spiraling it up to the ceiling. “Yeah, I remember this old thing, it—”

  Colby stopped. His father’s cheeks had streaks on them.

  “Hey . . .” Colby slid off the sofa and took a knee. He put his hand on his father’s arm. “Hey now, Pop, no need for that.”

  But his father’s tears kept coming, not in diffuse streams but small, incessant rivulets. And then he felt his father’s hand on his, grasping feebly.

  6.

  Another sleepless night.

  Mona was used to it now. She’d heard about the dangers of sleep deprivation, all that. She even knew that something was happening to her body, the weakness of it. But that was only a small part of what she thought.

  Mostly she thought about the killer and his lawyer, and
why she was not hating them like she wanted to.

  Why not?

  As she watched television, the images flashed before her unseen, the sounds of the commercials melding into one big indistinguishable sound.

  Was she going to go crazy? Maybe that would be a relief. Crazy people were happy in their own heads.

  No. Hang on for Matthew.

  What could she do? What could she possibly do?

  Hang onto the anger. Like they told her. Anger is good. Hate the evil. Hate the killer.

  Don’t worry,Matthew, don’t ever worry.

  Her stomach flared, hot and sharp. That was happening a lot too. Mona went to the bathroom and got a few Rolaids. That was the only sure answer she knew these days.

  7.

  The morning’s chief witness for the prosecution was Dr. Daniel Tucker, a psychologist of stellar reputation. Around sixty, trim, and bereft of ostentation, he possessed complete command of his area of expertise.

  Lindy and Everett had readied a double-barreled response to his report. Judge Lipton posed the only potential obstacle. How would he rule when Colby’s objections came up, as they inevitably would?

  She watched Leon, who huddled with his investigator, Lopez, at the counsel table. Was it just her imagination, or did Colby’s expression register more concern than usual?

  Probably imagination. Wishful thinking. The big wish being that Leon would do the right thing. She had seen a flash of decency in him. Just go with it, Leon.

  The doctor took the oath and sat on the witness chair. Colby asked him the usual introductory questions about his education, qualifications, and experience. Lindy watched the jurors’ faces carefully. They looked impressed.

  Then Colby went to the meat of the testimony. “Dr. Tucker, did you examine the defendant in this case?”

  “I did.”

  “And how many times have you examined the defendant?”

  “Twice. For one hour each time. The first examination occurred three weeks ago and the second eight days ago.”

  “Was counsel present during these examinations?”

  “Mr.Woodard was present.”

  “Did you prepare a report on your examinations of the defendant?”

  “I did.”

  “Would you please tell the jury what your conclusions were?”

  “Certainly.” The veteran witness turned toward the jury box. “I found Darren DiCinni to be of average to slightly above-average intelligence. He did not have any trouble understanding my questions, nor communicating his answers, though he was not entirely forthcoming with me. He chose to remain silent much of the time. This I found to be consistent with feelings of deep guilt. I found also that his physical and emotional reactions were similar to those of a young teenager with normal troubles at home. Mr. DiCinni did show positive reaction to the Hunt Battery of questions regarding knowledge of right and wrong, good and bad.”

  Woodard stood. “We object to any consideration of the Hunt Battery as being outside the Daubert test for scientific reliability.”

  Judge Lipton looked as if he had been expecting this. “The court will overrule the objection. Counsel is free to present contrary evidence at the appropriate time. You may continue,Mr. Colby.”

  “Thank you, Your Honor.” Colby returned to the witness. “Will you briefly explain to the jury what the Hunt Battery is intended to show?”

  “Yes. This is a series of questions designed to elicit both verbal and nonverbal responses in young adults regarding certain behavioral norms. An observer trained in the Hunt Battery response will listen to voice inflection as well as observing gaze nystagmus—that is, movement of the eyeball—and other nonverbal indicators. From this the observer uses a scale to determine both understanding of and conformity with said norms.”

  “Where on the scale, in plain English, did the defendant fall?”

  “Again, he was in the average to above-average classification. That means his understanding of norms is precisely where it should be for a normal thirteen-year-old.”

  “Is your conclusion consistent with someone understanding the gravity of a crime?”

  “Yes.”

  “At the time of your examination, then,was your conclusion that Darren DiCinni understood, or had the capacity to understand, the wrongful nature of a criminal act?”

  “Yes.”

  “Thank you. No further questions at this time.”

  “Who is going to cross-examine?” Judge Lipton said.

  “I am,” Lindy said. At the podium she faced the witness. “Just a few questions for you, Doctor. Your examination of the defendant took place months after the events in question, isn’t that true?”

  “True.”

  “You have no idea what happened to the defendant prior to the events, do you?”

  “By use of a backward extrapolation, I can make an educated guess about—”

  “Whoa. Slow down. I don’t want any educated guesses here.”

  “Your Honor,” Colby said, standing, “that is what an expert witness does. That’s one of the reasons he is called an expert. Since Ms. Field has opened the door to questions on the day of the killings, I must ask that the witness be allowed to walk through that door and state his opinion.”

  “Objection sustained,” Judge Lipton said. “The witness may complete his answer.”

  Tucker said, “All I was trying to say is that looking back from this point to the point of the events, one can make an educated judgment about the defendant’s capacity to understand right from wrong and the like.”

  This wasn’t helping, not with the judge being cheerleader for junk science.

  “Dr.Tucker, on direct examination you mentioned that my client was not outside the normal range of teenagers who, I think you said, had troubles at home. Is that right?”

  “That’s part of what I said, yes.”

  “Then is it psychologically possible that a teenager might receive enough mental trauma in the home to affect his mental state outside the home?”

  “Objection,” Leon Colby said. “No foundation.”

  Before the judge could speak, Lindy said, “Your Honor, as Mr. Colby knows, when you open a door, you need to let the witness walk through it. On direct, his witness mentioned home life, specifically trouble at home. I want to explore that a little bit more.”

  “I will see you in my chambers,” Judge Lipton said.

  8.

  Lindy felt the focused ire of the judge before he said a word. He threw his robe onto the back of his chair but didn’t sit down.

  “I’ve been very patient with you, Ms. Field. In part that is because of my soft, good Samaritan heart, which wants to give you a break. But I’ve just about had it. Mr. Colby made an objection out there, perfectly proper, and you used it as an opportunity to make a quick speech to the jury. Now if I rule against you, the jury will wonder what Mr. Colby is trying to hide. That kind of ploy is beneath you, Ms. Field.”

  The judge paused, folding his arms.

  Lindy said, “I’m sorry,Your Honor. You’re absolutely right. It was not my intention to do that, make a speech. It just came pouring out of me.”

  “You learn in first-year law school not to let things pour out of you, especially in court. And in a trial of this magnitude and attention, controlling yourself is even more important. Now why don’t you tell me the basis for these questions?”

  Lindy gave Colby a brief glance, wondering if he knew exactly what the basis was.“We have reason to believe that Darren DiCinni’s father engaged in the repeated physical and psychological abuse of his son.”

  “Do you have an offer of proof?”

  “We have a reluctant witness. My investigator and I interviewed her, but she is unwilling to testify.”

  “You have the power of subpoena.”

  “She’s too frightened. I think she would deny everything in order to protect herself.”

  Lipton sighed and shook his head. “Then on what foundation can I allow you to ask questions?”r />
  “May I offer a citation?”Woodard said.

  “By all means,” Judge Lipton said. “It would be nice to have a little law enter the discussion.”

  “It has long been held,”Woodard said, “that the defense has wide latitude in the cross-examination of prosecution witnesses in a criminal case. The case is People v. Ormes, 1948. It’s one of the cases I use in my class on trial procedure. Further, in the case of Gallaher v.Superior Court, it was stated that a prosecution witness testifies to facts tending to establish guilt, but defense is entitled to cross-examine on all relevant and material matters relating to those facts.”

  Judge Lipton turned. “What do you have to say,Mr. Colby?”

  “The question is whether her cross-examination is material,” Leon Colby said.“Your Honor asked for an offer of proof, and she does not have one.”

  Lindy bristled. She knew what she had. “I have given you an offer, Your Honor.”

  “No, you haven’t,” the judge said. “You don’t even have a written statement to offer me.”

  “Well, that’s just wonderful! Why don’t we let witnesses for the prosecution say whatever they want and make the defense jump through hoops?”

  “Ms. Field!”

  Lindy stopped.

  “I’m going to ignore that as a mark of your zealous representation, which is admirable when it is under control. I will remind you that we have a camera in the courtroom. That’s not supposed to matter, but we all know that it does. Everybody out here in Hollywood Land is waiting for us to make a spectacle of ourselves. We are not going to do it. I’m going to rule that you cannot ask that question, or any question that deals with hypothetical evidence of the defendant’s home life. If you come to me with an offer of proof, I will reconsider. If your client takes the stand and testifies to conditions at home, I will allow you to recall the present witness for a brief cross-examination.”

  “But, Your Honor—”

  “I’m not interested in discussing this further. Now let’s go back into court and act as if we are really lawyers.”

  9.

  With the teeth kicked out of Lindy Field’s questioning of Tucker, the rest of the morning was uneventful. But Lindy Field had something. Colby knew her well enough to know that when she said she believed a thing, she really believed it; if she said she had some witness, she was not lying.