by Ed Gaffney
Even though seven months separated the deaths of my mother and my brother, my mom’s passing felt like it happened the day after we buried Dale. I remember feeling somewhat numb at her funeral—as if my soul hadn’t recovered sufficiently to truly feel the void that had been left.
And then, the following year, my father suffered his stroke.
Amy was an only child whose parents had died in a car accident four years earlier—shortly after she’d begun teaching. The rapid succession of family catastrophes underscored a message that had already been seared into Amy’s tender soul: The lives of your loved ones are treasures that can disappear in an instant.
So when Amy decided to put her own emergency plan into place in the aftermath of Katrina, I could hardly blame her.
I do blame myself, though. Because I was the one who failed to recognize the true potency of the venom that had just been injected into our lives. I was the one who failed to trigger the plan, until it was too late.
In retrospect, it’s hard to believe I was so naive. After all, there I was, standing in a convenience store parking lot, so suspicious of my own government that I was afraid to speak to my sister-in-law on my own cell phone. Less than twenty-four hours earlier, I had been accosted in a men’s room at gunpoint, and informed—also at gunpoint, thank you very much—that a group of very powerful people in my state and federal governments was illegally monitoring everything I did and said. And in case there was any doubt about that, less than twelve hours earlier, I had confirmed that at least one state policeman had planted a bug on me.
Yet how did I answer Amy when she asked if the world was coming to an end? With the ignorance of someone who really couldn’t believe that the institutions in which he placed complete faith were actually no more trustworthy than the people who had been elected or appointed to run them. “No, I’m sure it’s nothing like that. I’ve just got to see what’s going on, try to figure out what to do next. Just to be safe, though, I think it’s probably best if you and Erica stay away from the house for a few days—at least until the weekend. I bet things will be much clearer by then.”
Although I had no idea what I was talking about, that last bit turned out to be pretty prophetic.
TWELVE
EVEN THOUGH Hugo Bridges had thrown Judge Klay off the case, much of the rest of his decision did not help the defendant’s situation at all.
The Chief Justice specifically stated that any rulings made in the trial to that point were to remain in effect. That meant there would be no chance for a different jury, and I would not be allowed any extra time to prepare. So when I arrived at court and learned that Judge Lester Lomax had been assigned to the case, I headed for the courtroom, expecting that testimony would begin first thing that very morning.
But I had underestimated Judge Lomax. He had something he wanted to do first.
“All rise!” bellowed Sarge, as the judge entered the courtroom. Then there was the sound of several hundred people falling silent while rising to their feet. A thin, clean-shaven, silver-haired man wearing a long black robe took his seat at the front of the room. “Court is now in session,” Sarge intoned. “Be seated.”
I had read through the biographies of the possible replacements for Judge Klay the night before. According to the Superior Court’s official Web site, Lester Lomax was a graduate of UCLA Law School, and had served as a prosecutor for a few years in California before coming to Phoenix to join Bench, Barkley & Coogan, one of the largest and most prestigious firms in the city. At the age of forty-five he was appointed to the Juvenile Court Bench, and had moved to the Superior Court at fifty-two. He was now sixty-three years old.
But nothing I had read prepared me for what was to be the judge’s first official act in the case. Before even acknowledging the defendant, either attorney, the television camera, or the several hundred people who were in the room with him, the judge turned to face the jury. He broke the expectant silence by clearing his throat, and then he began to speak.
“Good morning, ladies and gentlemen. My name is Lester Lomax. I am a Judge of the Superior Court, and I have been appointed to preside over this case from this point forward.”
His voice was firm, but rich, and cordial. He wasn’t trying to intimidate anyone, but he wasn’t trying to ingratiate himself, either. He sounded like a man at ease with his position in life.
“Thanks to the kind cooperation of Judge Klay and the extraordinary efforts of our court reporter, I have been informed of the progress of this case to this point, and I can assure you that in a moment, you will be hearing the testimony of the state’s first witness.
“Before we begin, however, there is a tradition that I honor at the beginning of each of my trials. Before the first witness is sworn, I ask the jury to join me in a moment of preparation for what is to come. Our civilization rests on the strong and able conscience of the people of this great nation, and on the respect that we accord the institution of this court. As a fellow citizen, I salute your contribution to our society, and as the presiding judge of this case, I welcome you to this noble and most important undertaking and responsibility.”
In hindsight, the judge’s message reads a little stiff, a little formal. You could even call it corny. But that isn’t how it sounded when Judge Lomax said it. In that moment, we were all completely captivated.
He sat forward, placed his hands on the desk in front of him, and then said, “Ladies and gentlemen of the jury, please rise, and stand for a moment with me in silent contemplation of the task that we are about to undertake on behalf of our country.”
And then he stood. The fourteen women and men in the jury box stood as well. And for the next several seconds, the judge made eye contact, in turn, with each of the jurors in the top row. The only three female jurors over fifty years old—who coincidentally occupied seats one, two, and three—the Arizona State University graduate student with the light-colored and sparse beard in seat four, the Asian American chef in seat five, the hotel maintenance worker with the nervous cough in seat six, and the surly, overweight construction project supervisor in seat seven.
Then the judge worked his way across the bottom row. Juror number eight was a pretty young woman who worked for the post office. Jurors nine and ten were the oldest members of the panel—a sixty-four-year-old retired electrical engineer, and a sixty-year-old taxi driver. Juror eleven was a math teacher at a public middle school; juror twelve was the youngest member of the group—a twenty-year-old part-time student at Phoenix Community College. Juror thirteen was a retired parole officer, and the last juror was a teller at the downtown branch of the First Bank of Arizona.
Judge Lomax spent no more than a second or two looking into the eyes of each of the fourteen, but in that half minute, the courtroom transformed itself from the previous day’s cauldron of tabloid moments into something much more solemn and appropriate—a chamber dedicated to rendering justice in the aftermath of the monstrous violence that had killed or maimed hundreds.
“Thank you,” the judge said simply, sitting and turning his attention to the prosecutor. “Mr. Varick, please call your first witness.”
And we were off.
Preston Varick had many ways he could go with his case. There were hundreds of survivors of the disaster who were potentially able to testify. And the emergency response to the explosions and injuries and the subsequent investigation had been so vast that dozens of police, federal agents, firefighters, EMTs, doctors, and terrorism experts were also available to him.
It came down to how he wanted to tell the story. Varick stood up, and in a voice that always seemed a little higher pitched than I expected said, “I call Denver Police Officer Liam Kenney.”
I have to admit that I was a little surprised—I had expected the assistant district attorney to begin with a parade of maimed burn victims to the stand. But Officer Kenney was a perfectly valid choice. He happened to be traveling on the interstate when the explosion occurred, and he was the first officer to respond.
And when Kenney came through the doors at the back of the courtroom and walked down the aisle toward us, I understood exactly why Varick had chosen him as his first witness.
It wasn’t just that the witness was a cop—the job and the uniform lent every police officer’s testimony a great deal of credibility. It was the man’s face. Unlike so many police officers who seemed maniacally intent on portraying themselves as chest-beating drill sergeant types just dying to scream something into your face, Kenney seemed quite human. He was probably only in his mid to late thirties, average height and weight, and you could see the beginnings of what were to become jowls forming at his jawline. His eyes were peaceful, and somehow, sad. He carried himself confidently, yet without the swagger that so many in authority seem to adopt.
In short, he looked completely and unquestionably believable, and utterly sincere.
And as anyone who had ever seen a television or read a newspaper over the past thirteen months knew, he was also a bona fide hero.
He took his place on the witness stand, the clerk swore him in, and after the preliminaries were out of the way, Preston Varick began the real questioning.
“Were you on duty on the morning of May sixteenth, last year?”
“Yes, I was. I was on routine highway patrol on Interstate 25 when I heard the explosion.”
Varick paused and glanced down at what must have been Kenney’s report. “You heard the explosion?”
Kenney nodded. “I was still about a half mile away from the tunnel entrance. At the time, I didn’t know what it was. It was just this hollow-sounding boom. Traffic was already slowing down, but I wasn’t able to see anything unusual. So I called in to HQ to report the delay, and to check to see if the tunnel had reported trouble.”
“I’m sorry? You expected trouble?”
The trooper smiled apologetically, and shook his head. “No. Nothing like what happened. What I meant was that when I saw the traffic backing up, I figured there must have been some kind of tie-up ahead. Usually, if there is an accident or any kind of breakdown in the tunnel, the guys in the tube put in a call so we can set up for the response.”
“Could you explain that, Officer? ‘Set up for the response’?”
“Yes, sir. Depending on what the situation is, we can provide immediate medical assistance until EMTs respond, or traffic control, or whatever might be needed.”
The witness was both humble and professional. By this time, it was impossible to believe that anyone watching harbored the least suspicion about the truth of what Trooper Kenney was saying.
“And what happened as you were making this call to headquarters?”
Kenney took a deep breath. “By this time, I had come around a bend in the road, and the entrance of the tunnel was visible to me. I could see smoke coming out of the tube, and then I saw flames, and then…”
Kenney’s voice cracked. He swallowed, blinked a few times, then said, “Sorry. I, uh, I saw smoke and flames.” He sniffed. A tear ran down his cheek, which he wiped away quickly. “And then I saw a car explode at the entrance to the tunnel. And more flames and smoke. And then I saw a, um, coming out of the smoke…”
Kenney stopped again to compose himself. It’s not often that you see a police officer break down on the witness stand. I don’t mean to be cynical in the least when I say that by now, it was clear that Preston Varick had made an exceedingly good choice of opening witness.
The cop picked up his story. “A young woman was running against traffic along the right shoulder.” He swallowed. “But a line of flames was racing along the roadway from the tunnel, parallel to her. And just as she passed one of the vehicles that was standing still in the right lane, it caught fire, and exploded.”
One of the jurors gasped. Number eight, the postal worker, was sitting back in her chair, covering her mouth with her hand. The expressions on the rest of their faces ranged from anguished to horrified.
“The woman who was running just, I don’t know. She just disappeared right in front of my eyes. It was like she just vaporized.”
Next to me, I heard Juan Gomez shift in his seat. I looked over at him. My client was crying.
“At that point, what did you do?” Preston asked.
The witness went on. By now, a curious emotional compromise seemed to have worked itself out within him. Tears continued to run down his cheeks, but his voice came under control. “I told the dispatcher that we had a major incident in the tunnel, with explosions and multiple serious injuries. Then I pulled off onto the right shoulder, turned on my emergency lights, and drove toward the entrance to the tunnel.”
“You drove toward the tunnel?”
“Yes, sir.”
He said it like it was the most natural thing in the world to plunge headlong into an ever-growing, life-threatening inferno. For me, it felt like I was in the presence of the spirit of the hundreds of police and firefighters who had run into the World Trade Center on September 11.
“And as you approached the tunnel, what else did you see?”
Kenney took a sip of water that had been offered to him by the clerk. “By that time, so much thick, black smoke was pouring out of the tunnel that it was impossible to see the entrance. I saw several other cars explode. It looked like the interstate itself was on fire, at least back from the tunnel to about the quarter-mile marker. I stopped my cruiser there, got out of my vehicle, and started banging on cars, telling people to evacuate their vehicles and run to safety.”
Although Kenney stopped speaking at that moment, it didn’t really look like he had completed his thought. His mouth remained open slightly, and his attention seemed to be focused on something beyond Preston Varick, possibly something at the back of the courtroom.
Varick filled the silence with another question. “And again, where were you by this time?”
Instead of answering immediately, Kenney continued to just sit there, staring off into the distance. Then he said, softly, “That’s when I saw a little girl get out of a burning car three vehicles ahead, and start running toward me.
“She was on fire.”
THIRTEEN
NO MATTER HOW many rules we try to impose on ourselves as we tinker with the machinery of criminal trials, we always run into the fact that we are human beings, not robots. Sometimes, rules don’t anticipate what large groups of real people need to do when they are processing experiences like the one Officer Kenney was describing to us on that first day of testimony.
Technically, Assistant District Attorney Varick should have been guiding his witness through the series of events of that morning in small increments of time, instead of letting the testimony go on and on about the story of his actions that morning in Denver. Technically, when Kenney said things like, “I heard somebody say,” or “I found out later,” he should have been instructed to confine himself to telling us only those things that he did and that he saw, not what other people had said or concluded. But there was no way that Judge Lomax or Preston Varick was going to interrupt this witness from telling us what we all needed to hear.
And there was no way I was going to object, either.
“The little girl was on fire. She was screaming, and running with her arms extended, like if I could only pick her up, or something, I could help her. So I ran toward her, took her in my arms, and raced off the road toward the grassy area beyond the right shoulder.”
To be honest, I cannot say with complete assurance that my choice to remain silent during Trooper Kenney’s testimony was based entirely on a determination that it was the best thing for my client. In retrospect, I believe that it was. We all had seen and read the news reports of what had happened that day. Whether Varick used one witness or one hundred to tell the stories of courage and tragedy wouldn’t have made a difference. If I had tried to get in the way by forcing the prosecutor to follow strict evidentiary protocol, it could have reflected badly on Mr. Gomez. It might have seemed like I was trying to prevent the truth from coming out.
“As soon as I reached the edge of the shoulder I dove into the field there, spinning so that my back would hit the ground first. That way, I didn’t crush Sheniqua—it turned out she was an eight-year-old named Sheniqua—by falling on top of her.”
Because of the arrangement of the courtroom, it was impossible for me to see anyone in the spectators’ gallery without turning around in my seat. But even though I didn’t see them, I could feel the steady gaze of the survivors of the attack who had made the trip to be at this trial, especially those who bore the scars of the burns that they had suffered. My clothes, my seat, in fact the entire defense table at which I sat with my client, grew slightly, but uncomfortably, warmer.
“I rolled over and over in the grass with Sheniqua in my arms. I was hoping to put out the fire. I don’t know how long we were down there together. It seemed like a long time, but somebody told me later that it was only about fifteen or twenty seconds. Anyway, after we rolled around for a while, I stopped, and got up off of her. She was lying on her back in the grass, and her clothes were still smoking, but there were no more flames. She was coughing, and still crying a little. I didn’t want to leave her, but I felt like I had to get back to the road to see if there was something else I could do.
“Anyway, I told her to wait there and that more help would be coming. Then I turned and started to run back toward the other cars, but I heard her call out after me, ‘Mister!’”
I stole a quick look at the jury, and as I suspected, they were transfixed. Most of us had read of Liam Kenney’s actions on that day, and we knew what was coming, but we were all engrossed.
“I stopped running and turned around. Sheniqua had gotten up, and was chasing after me. She was saying something about saving her little brother. Turns out her brother, Edwin, was in the car, too.”
