by Michael Nava
Inside I was greeted by silence. The only unusual thing about this was that I noticed it at all. I put the folder on my desk, added the paper to the stack in the kitchen and leafed through the bills and solicitations that comprised my mail. I turned on a burner and poured water into the tea kettle, set it on the flame, opened a bag of Chips Ahoy and ate a few. When the water was boiling I poured it into a blue mug with “Henry” emblazoned on it—the gift of a client—and added a bag of Earl Grey tea. Then there was that silence again. It seemed to flow out of the electrical outlets and drip from the tap.
Only the silence was not quite silent enough. It was filled with my loneliness. I had lived alone long enough and I did not want to die this way. These days, death no longer seemed like such a distant prospect to me. I sipped my tea. I thought of my empty bed. I opened the folder and found the transcripts of Jim Pears’s preliminary hearing.
The purpose of a preliminary hearing is to see whether the prosecutor can establish probable cause to bring the defendant to trial—to “hold him to answer,” in the arcane language of the law. For the defense, however, the prelim is an opportunity to preview the prosecution’s evidence so as to prepare to refute it at trial. Consequently, the prosecutor puts on as little evidence as possible to show probable cause, holding what he can in reserve.
The transcripts of Jim’s prelim consisted of two slender volumes. The events leading up to Brian Fox’s death were narrated by two witnesses who had also worked at the restaurant. The first was a waiter named Josh Mandel. I set my cup down and began reading:
Frank Pisano, D.A.: At some point prior to Brian Fox’s death, did you have a conversation with Brian about Jim Pears?
Mrs. Sharon Hart, P.D.: Objection, calls for hearsay.
Pisano: This statement is admissible under section 1350 of the Evidence Code. We filed some papers—
The Court: I have them here.
Pisano: Yes, Your Honor. Uh, we expect Mr. Mandel will testify that he was told by Brian Fox that he—Brian—saw Jim Pears engaging in sex with a man. That’s relevant to the issues here and Brian Fox is certainly unavailable, thanks to Mr. Pears.
The Court: Mrs. Hart?
Hart: There’re a lot of conditions here that have to be satisfied before 1350 applies. Like—for example, the statement has to have been written down or tape-recorded.
The Court: Where is that? Oh, all right, I see it. What about that, Mr. Pisano?
Pisano: It also says it’s okay if the statement is made under circumstances that indicate its trustworthiness. That’s an alternative to a taped or written statement.
Hart: No it’s not. That’s in addition to.
The Court: Well, I tend to agree with the prosecutor on that. I’m going to let the statement in.
Hart: Defense objects.
The Court: Understood. The objection’s overruled.
Pisano: Do you remember the question, Josh?
Josh Mandel: Yeah. Brian told me he had proof that Jim was gay.
Pisano: Do you mean homosexual?
Hart: Objection, leading.
The Court: We’re wasting time. Overruled. Answer.
Mandel: Yes.
Pisano: Did he tell you what this proof was?
Mandel: Yes.
Pisano: What was it?
Mandel: He said he saw Jim having sex with some guy in a car out in the restaurant parking lot.
Pisano: How long before Brian was killed did you have this conversation with him?
Mandel: A couple of weeks.
Pisano: Now, did you ever overhear a conversation between Brian and Jim Pears regarding this incident in the parking lot?
Mandel: Well, I think. Yeah. They were talking about it.
Pisano: What was said?
Hart: Objection, hearsay.
Pisano: This is an admission, Your Honor.
The Court: Let’s hear it. Answer the question, Mr. Mandel.
Mandel: Brian was asking Jim how would he like his mother to know that he was—(Inaudible.)
Pisano: You’ll have to speak up, Josh.
Mandel: A cocksucker. I’m sorry, Your Honor, but that’s what he said.
The Court: I’ve heard worse things in this court, Mr. Mandel. Next question, counsel.
Pisano: Okay. Did Jim Pears say anything in response?
Mandel: Yeah.
Pisano: What?
Mandel: He said something like, ‘I’ll kill you before that happens.’
Pisano: And how soon before Brian’s murder did this conversation take place?
Mandel: It was two days.
(Cross-examination by Mrs. Hart)
Hart: Now you say that Brian Fox told you he saw Jim having sex with a man that night, is that right?
Mandel: Yes.
Hart: This was in a private car in the parking lot at night?
Mandel: Yeah, I guess.
Hart: Did Brian explain how he happened to be there?
Mandel: Not to me.
Hart: Well, isn’t it true that Brian Fox followed Jim and then snuck up on him?
Pisano: The People will stipulate that Brian was not asked to join in on the festivities.
The Court: Why don’t we let the witness answer, Mr. Pisano?
Mandel: I don’t know.
Hart: Now, Mr. Mandel, what words did Brian use to describe what he had seen?
Mandel: I don’t remember, exactly.
Hart: Well, did he say he’d seen Jim having sex or making love?
Mandel: No. It was more like he saw him getting a blow job.
Hart: Okay. Did you ever hear Brian Fox call Jim a faggot?
Pisano: Objection, irrelevant.
The Court: Overruled. Answer the question.
Mandel: Yes.
Hart: More than once?
Mandel: Yes.
Hart: Did you ever hear Brian Fox call Jim a queer?
Mandel: Yes.
Hart: More than once?
Mandel: Yes.
Hart: How many times did you hear Brian Fox call Jim either a faggot or a queer?
Mandel: I don’t remember.
Hart: Isn’t it true that you don’t remember because that was how Brian normally referred to Jim?
Mandel: He called him that a lot.
Hart: Around other people?
Mandel: Yes.
Hart: Now, Mr. Mandel, isn’t it true that, in addition to being a waiter at the Yellowtail, you are also a manager?
Mandel: Manager-trainee.
Hart: And isn’t part of your job to supervise the busboys on the shifts that you manage?
Mandel: Yes.
Hart: And did you ever manage a shift where Brian and Jim were working?
Mandel: Yeah.
Hart: And during one of those shifts did you hear Brian call Jim a queer or a faggot?
Mandel: I’m not sure. Maybe.
Hart: But you never stopped Brian, did you?
Mandel: I don’t remember.
Hart: In fact, isn’t it true that you also called Jim a faggot once?
Mandel: I don’t remember.
Hart: Isn’t it true that you told Jim to start acting like a man?
Mandel: That was just because he was letting Brian get to him.
Hart: Then shouldn’t you have talked to Brian?
Mandel: Yeah. (Inaudible) I’m sorry, Jim.
Hart: I have nothing further, Your Honor.
(Examination by Mr. Pisano of Andrea Lew, a cocktail waitress at the Yellowtail.)
Pisano: Who was working at the Yellowtail between eleven-thirty p.m. and midnight on the night Brian was killed?
Lew: It was just me and Frank—that’s the bartender—and Jim was the busboy.
Pisano: Besides the bar was any other part of the restaurant open?
Lew: No, the kitchen closes at ten.
Pisano: How many people were in the bar at that time?
Lew: Not many. It was Monday, you know. Slow night. Maybe a dozen.
Pisano: Between eleven-
thirty and midnight did you see anyone enter the bar?
Lew: Just Brian.
Pisano: Now, would you have noticed if anyone else had come in?
Lew: Well, yeah, because you have to cross in front of the bar to get to the dining rooms or the kitchen.
Pisano: Was Jim Pears in the bar when Brian came in?
Lew: Yes.
Pisano: Did he see Brian?
Mrs. Hart: Objection, calls for speculation.
The Court: Sustained.
Pisano: Okay. Was Brian working that night?
Lew: No, just Jim.
Pisano: Do you know what he was doing there?
Lew: (Shakes head.)
Pisano: You’re going to have to answer yes or no for the reporter.
Lew: No.
Pisano: Did you see Brian leave the bar at some point?
Lew: No, but he was gone.
Pisano: Did you see Jim Pears leave the bar?
Lew: Yes.
Pisano: When was this?
Lew: Maybe around midnight.
Pisano: Where did he go?
Lew: Back toward the kitchen.
Pisano: Did you also go back to the kitchen at some point?
Lew: Yes.
Pisano: Why?
Lew: There’s a movie theater next door and around midnight the last show gets out. Some people came in for a drink and Frank needed some more ice so he told me to have Jim bring him up some.
Pisano: Where is the ice kept?
Lew: In the walk-in—that’s the refrigerator—in the kitchen.
Pisano: About what time was it when you went back into the kitchen?
Lew: A quarter after twelve.
Pisano: Did you see Jim back there?
Lew: No.
Pisano: What did you do?
Lew: It’s hard … I …
Pisano: One step at a time, Ms. Lew, and we’ll get through this. He wasn’t in the kitchen. Then what?
Lew: I looked in the locker room. I looked outside, out the back door, but he wasn’t there.
Pisano: Was the back door unlocked?
Lew: Yeah.
Pisano: Okay. He wasn’t in the kitchen, the locker room, or outside. Then what did you do?
Lew: I looked in the walk-in. He wasn’t there. That left, the only place was the cellar. That’s where I went.
Pisano: I want you to describe the cellar, Ms. Lew.
Lew: There’s a big room where the wine’s kept. Then there’s two little rooms, one for the manager’s office. The other one is where we keep the hard liquor.
Pisano: Did you go into the cellar?
Lew: Yes.
Pisano: What did you find in the big room?
Lew: Nothing. I called Jim but he wasn’t there.
Pisano: What did you do then?
Lew: It was kinda creepy down there. I was going to get Frank’s ice myself but then—
Pisano: We’re almost done, Ms. Lew.
Lew: I’m sorry. The manager’s office was closed up. I saw that the door to the liquor room was open a little and the light was on. I went over and then—there was this noise, like a whimper. Like a puppy makes. I thought maybe Jim was lifting boxes and hurt himself so I went in.
Pisano: What did you see?
Lew: The first thing was just Jim. He was kinda hunched over and leaning against some boxes. There was a funny smell, like a bottle of liquor got broken so I looked down at the floor. That’s when I—saw him.
Pisano: Saw who, Ms. Lew?
Lew: Oh, God, I didn’t know at first. His face was all—but then it was the clothes Brian was wearing in the bar. There was blood. I looked back at Jim. He was holding one of the kitchen knives and his hands were bloody. There was blood on his shirt and his pants like he tried to wipe the knife clean.
Pisano: Did he speak to you?
Lew: No. I don’t know. I ran out of there and started screaming for Frank as soon as I was upstairs.
Pisano: Then what happened?
Lew: Frank came to the back and there was some other guys with him, from the bar, I guess. I told them what was downstairs. We piled things up against the cellar door and called the police.
Pisano: And when did they arrive?
Lew: Five, ten minutes. It seemed like forever before I heard the sirens.
Pisano: That’s all, Ms. Lew. Thank you.
The Court: Cross-examination, Mrs. Hart.
Hart: I have no questions of this witness.
The bloody images of Brian Fox’s murder remained with me even after I set the transcripts aside and made myself another cup of tea. Coming back to my desk, I picked a looseleaf binder out of the folder Larry had given me and opened it up. Inside were press accounts of the Pears case from the day Jim was arrested to the day after he’d been held to answer. I flipped the pages until I came to a story that had a picture.
The headline proclaimed “The Tragic Death of Brian Fox.” Beneath the headline was a black-and-white of Brian that startled me for no better reason than his youth. I had cast someone older and sleazier for the role of the boy who tormented Jim Pears. Instead, I found myself looking at a handsome boy with light hair whose features had not yet set on his slightly fleshy face. His half-smile revealed either shyness or surprise. There was a caption beneath the picture: “His mother called him golden boy.”
I read the story. It consisted of lachrymose interviews with Brian’s mother, teachers, and fellow students. You’d have thought he was in line for sainthood, at least. I looked back at the face. No hint of sainthood there. Maybe the twist of the smile was neither shyness nor surprise. Maybe it was sadism. I wondered, would a jury buy that? Probably not.
I went back and read the stories in chronological order. Jim had not fared nearly as well as Brian. The only picture of him showed him lifting his handcuffed wrists to his face as he was led into court for arraignment. The first spate of stories were more or less straightforward accounts of what had occurred at the Yellowtail that night. They tallied with the cocktail waitress’s testimony.
Subsequent stories, ignoring the possibility of Jim’s innocence, dwelt on his motive for killing Brian. Much was written about what were termed Brian’s “teasing” remarks about Jim’s homosexuality. There were inaccurate reports of the parking lot incident. According to one paper, it was Brian himself to whom Jim offered sex. Another paper got most of the details right but the reporter termed Brian’s activities a “prank.” The upshot was that Jim was a psycho closet case with a short fuse that Brian accidentally ignited.
The last batch of stories was the worst. Oddly enough—or perhaps not—Jim’s father, Walter Pears, was responsible for these stories. Jim’s parents had resisted the media until just before the prelim. Then his father had talked. Walter Pears’s explanation for Jim’s crime was “demonic possession.” He announced that since Jim was apparently in the thrall of Satan, the best that could be done was, as the elder Pears said repeatedly, to “put him away for everyone’s good.”
The press took up the notion of satanism. There were rumors about the alleged disfigurement of Brian Fox’s body. A priest made the connection between homosexuality—an abomination before God—and worship of the devil by whom, presumably, such practices were tolerated. At length, the coverage grew so outrageous that the chief of police himself felt constrained to deny that any evidence of devil-worship or demonic possession existed in the case.
I reached the end of the binder. A first-year law student could predict the result of this case. Jim’s trial would merely be a way station on the road to prison. Keeping him off death row would be as much victory as anyone could reasonably expect. It was nearly three in the morning. I finished my tea and got ready for bed.
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This is a work of fiction. Names, characters, places, and incidents either are the product of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, businesses, companies, events, or locales is entirely coincidental.
Copyright © 1986 by Michael Nava
cover design by Angela Goddard
978-1-4532-9774-2
This edition published in 2013 by Open Road Integrated Media
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New York, NY 10014
www.openroadmedia.com
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