Enemy Combatant

by Ed Gaffney

  “Sustained.”

  The A.D.A. tried again. “When you investigated the tunnel on the afternoon of May seventeenth, what did you see?”

  “I saw several burned vehicles in the tunnel, including dozens of cars, two commuter buses, and a tanker truck that had been carrying gasoline.”

  “And these vehicles were all burned?”

  “Yes. In most cases, severely or completely burned. The windows were all broken, and in some cases, the damage was so extensive that the metal had actually warped from the extreme heat of the fire.”

  “And was the cause of the fire discovered?”

  “Yes.”

  “What was that cause?”

  I stood up again. “Objection.”

  Judge Lomax had been watching the witness, but now he turned toward Varick. “Sustained. May I see the attorneys at sidebar, please?”

  Sidebar is the official term for the end of the judge’s bench farthest from the jury box. It’s where the lawyers and the judge meet to discuss issues during the trial that are not supposed to be overheard by jurors. I’ve always been struck by the sight of a judge, a court reporter, and any number of attorneys huddled together at one end of a very long table, whispering, carefully keeping the jurors—the very people who are going to make the ultimate decision in the case—in the dark.

  Judge Lomax waited for the court reporter to get into place, and then spoke in a low voice to A.D.A. Varick. “Do you have any witnesses who can testify directly to the cause of the initial fire?”

  “No, Your Honor,” Varick replied. “Anyone who was in a position to see the tanker explode died.”

  “Well, then,” the judge said. “You’ll have to bring in someone to lay a foundation for the conclusion that the explosion of the tanker was the precipitating event.”

  “I know that, Your Honor.” Preston seemed a little agitated. “It’s just that defense counsel didn’t raise one hearsay objection to the testimony of the first witness, and I simply believed that since he knows that we all know what happened, he was waiving hearsay objections in order to move the trial along. If I have to—”

  “The reason I didn’t object before—”

  Judge Lomax quietly interrupted my interruption. “Keep your voice down, please.” I looked over at the jury. They all were looking at me. The loud guy.

  Sometimes I forget to whisper at sidebar, especially when I get ticked off. For some reason, the idea that Preston Varick would assume that I was going to waive all objections for all witnesses got under my skin. The combination of that with my hearing loss made my voice a little strident under the circumstances. I tried again. Softer.

  “The reason I didn’t object before, Your Honor, was because Officer Kenney was testifying to facts that have no direct connection to my client.”

  “Plotting the explosion that set those kids on fire seems like a pretty direct connection to me.”

  I was beginning to see why Dad didn’t like A.D.A. Varick. It was one thing to believe you knew the truth about everything, but it was quite another to expect that everyone involved in a criminal trial would accept that truth.

  “That connection is the crux of the whole case,” I whispered. “Officer Kenney’s testimony didn’t have anything to do with that. But when you get into the cause of the fire, you’re getting into an area that might have a direct bearing on my client’s guilt or innocence. And I can’t just let that go in through hearsay testimony, or without a foundation.”

  “Fine,” Varick said. “I’ll bring in those experts next week.”

  “Have you got anything more for this witness?” Judge Lomax asked.

  “Oh, yeah,” Varick replied. “He’s going to tie the defendant to the suicide bomber who started this whole thing. Esteban Cruz.”

  FIFTEEN

  IN THE BRIEF time that I had been able to look through Steve Temilow’s files, I had seen the information that had been gathered in the investigation into Esteban Cruz, and it was not good. Frankly, I wasn’t sure that it made any difference, but Judge Lomax adjourned the trial for the day, before we got into that subject. The next day, Friday, promised to be somewhat arduous.

  Before I left the courtroom, Sarge let me speak with Gomez. I had every expectation that he would be absolutely no help, and he didn’t disappoint me.

  “I got no ideas why they are even talking about Esteban Cruz,” he said. My client’s grammar might have been a little weak, but his meaning was certain as stone. He was adamant. There was absolutely no connection between him and Esteban Cruz, despite all of the evidence I had seen.

  “What about your sister?” I asked. “Didn’t you say she was from Colorado Springs?”

  “So what?”

  “So, Esteban Cruz lived between Denver and Colorado Springs,” I said. “Is there any connection there?”

  Gomez looked at me hard. “I thought you were on my side.”

  At the time, I didn’t recognize the true absurdity of the situation. I had been assigned to represent the man accused of killing one hundred thirteen people in the worst terrorist attack on U.S. soil since 9/11. In a mere forty-eight hours, my work on his behalf had gotten me ridiculed on national television, assaulted and threatened at gunpoint, and illegally spied on by as yet unknown forces connected with any number of governmental law enforcement agencies.

  And now he was questioning my loyalty.

  “Of course I’m on your side,” I said.

  “Then stop trying to prove there’s something between me and this crazy man who blew up that tunnel,” he said.

  A moment later, Sarge came over and took Gomez away.

  Naturally, I had no desire to uncover a link damning my client. I was merely trying to piece together a better understanding of the situation in an effort to prepare myself for the following day’s debacle. Contrary to what my behavior over the previous few days might imply, being an effective criminal defense attorney involves more than putting on a suit and tie and running up and down staircases.

  But unbeknownst to me, that better understanding of the situation was going to have to wait until the coming weekend.

  As I packed up my briefcase, I looked back into the gallery. It was entirely cleared out, except for Sarge’s partner, Mike, who was standing by the doors, waiting for me to leave before locking up. I took a minute to enjoy the relative calm before moving toward the exit. I was looking forward to getting home, maybe chopping some wood for Henley’s stove, doing some reading for the case, and getting a good night’s rest.

  But before that, I was going to have to run the media gauntlet. Undoubtedly, every reporter in the Western Hemisphere was waiting to ambush me on the courthouse steps. I wondered what they’d want to ask me today.

  Mr. Carpenter, do you have any comment on the New York Times/CBS News poll that shows ninety-six percent of Americans believe your client should be executed?

  Mr. Carpenter, if you win this case, do you think the United States will be a better place?

  Mr. Carpenter, if your brother had survived the war against the very terrorists you are trying to defend, do you think he would be proud of you?

  I knew it wasn’t going to be that bad. My imagination was just running amok. Or at least loping around at a pretty good clip.

  Still, I really didn’t want to bother with that whole scene, so I took the elevator down to the basement, toward the exit that Trooper Landry had shown me yesterday.

  The same Trooper Landry who was standing right in front of the doors when they slid open to let me out.

  “Hey! Counselor! I was just coming up to see if you were still here! I was hoping to talk to you.” He stepped aside to let me out of the elevator. “Going out through the garage? Great. Who needs those television nut jobs, huh?”

  The perpetual smile that hung on the young policeman’s face seemed less genuine today. I wasn’t sure whether it was because I now knew that he had been lying—or at least misleading me—when he gave me that panic button and told me it was for my
protection.

  As we walked down the hall, he put his hand on my left shoulder. I managed not to flinch.

  About a year after I met Cliff, we played on a softball team together, and as a result of colliding with Big Eddie Samson in right center field, I managed to break my collarbone in three places near where it connected to my left shoulder. The doctor said that it had healed stronger than it was before the break, but ever since that injury, it had never seemed the same. And Landry’s hand resting up there felt very unpleasant.

  “So, Counselor, how do you think it went today?”

  I have to admit that for a second, I had no idea what he was talking about. It took me a moment to realize that he was inviting me to gossip about the case. And given what I’d learned about the cop, his motivation was anything but innocent.

  Every interaction with Landry seemed to confirm the warning from Beta—the man in the bathroom. That was not particularly comforting for any number of reasons, chief among them the fact that I didn’t want to be stalked by an amoral state trooper with an agenda I couldn’t begin to guess. But I also was not anxious to learn that the paranoid ravings of the masked man who had accosted me two days earlier weren’t paranoid at all.

  “Oh, you know how it goes. It’s hard to say. So much of this stuff was already reported on the news.”

  Landry didn’t seem to notice that my answer was entirely nonresponsive. As if he were just waiting for me to finish speaking before it was his turn to talk, he said, “I was wondering whether you thought it was such a good idea to object to Captain Francona’s testimony. You know. When he started talking about what started the fire.”

  I looked over at him, and the smile was still in place. But now it looked more like the expression of an animal baring its teeth before striking its prey. A crazy person with a gun to my head had told me that Trooper Landry would illegally spy on me, and that he was ruthless. So far, he had gotten the bugging part right. I didn’t want to test the rest of the prediction.

  “It’s always a judgment call,” I said carefully. “I’ve got to represent my client’s best interests, of course—”

  “Of course,” my genial companion chimed in. “You’re a lawyer. You’ve got to watch out for your client’s best interests.”

  “So I need to make sure the state follows the rules as it tries to prove its case.”

  Landry nodded, as if acknowledging something very important, and wise. “But everybody already knows that Cruz spilled the gas and blew up the truck to start the whole thing. I mean, unless this jury was living on Mars, they know what happened.” He stopped walking. His hand was still on my shoulder, and it would have been awkward for me to go on without him, so I stopped as well, and turned to face him as he said, “Isn’t it possible that it’s not in your best interests to give the prosecution a hard time when all they’re doing is telling a story we’ve already heard a hundred times in the news?”

  It was not lost on me that Trooper Landry’s free hand was very casually resting on his holstered service revolver. His words were cloaked in innocence, but his message was laced with threat. The abandoned basement corridor was suddenly ominous. We were still out of sight, and well out of earshot, of the personnel stationed at the courthouse exit.

  I had to get out of there. I didn’t know exactly what was going on, but whatever it was, I didn’t like it. I had been a lawyer long enough to know that confrontations with bad cops never went well.

  “I hear you,” I said. There was no need to fake the expression on my face. I was sure that it resembled that of a man considering some very serious information, because at that moment, that’s exactly what I was. “You’ve got a point, there.”

  I just wasn’t considering the information in the way Trooper Landry was hoping.

  “Well,” he said, breaking the mood, as we started to walk again toward the exit. “I bet you can’t wait to get back home. How’s your father doing, by the way?”

  Any doubt that I was being threatened was rapidly disappearing into the ever-thickening cloud of insincerity that was enveloping us. I had never mentioned my father to Landry. Although it wasn’t any particular secret that I lived with and cared for the man, it certainly wasn’t something that I expected to discuss at my workplace with a relative stranger in our second conversation.

  “Pretty well, I guess,” I replied. About forty feet down the corridor we’d make a right turn, and we’d be at the exit. But the cop stopped me again.

  “Hang on just a sec, Counselor. You know, everyone around here thinks the world of Henley Carpenter.” It was getting harder and harder to pretend I believed anything that Landry said. All I needed was forty more feet, and this would be over. “Listen. We’ve been hearing some pretty scary things at headquarters. Nothing definite. Just enough to keep us on our toes.”

  And once again, I had returned to the state of almost total ignorance that I seemed destined to inhabit for the foreseeable future. What danger could Landry possibly be warning me of?

  “I had a grandmother who had a stroke once, so I know how vulnerable people with partial paralysis can be. If you see or hear anything, and I mean anything, that you think seems out of the ordinary, especially around your house, use that panic button right away. You’ve still got it with you, don’t you?”

  I smiled and patted my briefcase. I tried to look confident, or at least reassured. I felt neither. “Right here,” I confirmed. “And thanks. I will.”

  “Seriously,” Landry persisted. “If anything happens to you or your father, I will feel personally responsible.”

  By now, I had managed to start moving again toward the exit. But the effect of Landry’s words, whatever the intent, had been to usher Henley into the coils of terror that seemed to be closing around me with each second that passed in the cop’s presence.

  The idea that this thug would even think to whisper the vaguest threat involving my incapacitated father was so heinous that I instantly came to a complete stop. In fact, I was about a half a breath away from blowing up in his face when my brain mercifully sent me a reminder—a quick flash of déjà vu. Suddenly I was back in front of Judge Klay after blowing up in her face, and getting appointed to the trial which had led me, well, right here.

  I chose my words with care, hoping to maintain whatever illusion remained that I trusted this man. “If anything happens to my father, I will come to you.” I paused there. If he could be ambiguously threatening, then so could I. “And I will expect you to help me find whoever was responsible. And then, I’ll do what I have to do.”

  If Landry was terrified by my little speech, he hid it well. He merely nodded, giving me a friendly pat on the arm as I left the building. “Understood,” he said. “See you tomorrow, Counselor.”

  On my way home, the part of me that remained optimistic made a quick call to Amy on my old cell phone to make tentative plans for a picnic on Saturday with her and Erica if everything went well.

  And the other part of me called Cliff to let him know I might need someplace safe for my father if everything didn’t.

  SIXTEEN

  WHEN I GOT home that day, Henley was napping. The more exciting news was reported by Liana: He had spent the afternoon working on the manuscript of our book.

  From the first time that my father took me to work with him, back when I was eight years old, I was fascinated with the drama of the courtroom. But that was before I went to law school and started studying the theories behind the rules that governed that drama. Then, my fascination began to wane.

  Our system’s method of establishing the truth behind a disputed event is to have twelve disinterested people get together and agree on it. That seems, on its face, to be reasonable. But in practice, how do we give these twelve people the information they need to make this vital determination? By sitting them in a box, talking to them in language that is centuries old, and forcing them to watch silently while two parties holding diametrical viewpoints—often based on financial considerations—verbally at
tack each other, and present testimony from pre-selected witnesses which will only support their position in the dispute.

  And as if that weren’t bad enough, we further handcuff the process by applying laughably complicated evidentiary rules which usually serve only to keep information from the decision-makers that they would probably love to have. They don’t get to ask questions, they don’t get to choose witnesses, they don’t even get to decide what would be useful in making their decision.

  Henley and I were talking about it one night, and decided right then and there that we would write a book—a father-son, prosecutor-defender volume which would turn the criminal justice system on its head, suggesting radical changes to criminal procedure, such as the mandatory sharing of information between parties, and allowing jurors to choose and question witnesses.

  And oh, did we ever have big plans for the hearsay rule, thanks to the case of Arizona v. Charles Jackson.

  Simply put, hearsay is a statement—spoken or written—made outside of the courtroom. And the general rule is that no witness can testify to hearsay, because the maker of the out-of-court statement isn’t subject to cross-examination. But thanks to piecemeal analysis and badly outdated logic, the rule and its exceptions have become nothing more than ways for clever lawyers to block the jury from those facts which hurt their cause. The idea of getting at the underlying truth has all but been forgotten.

  And in the case of Mr. Jackson, the hearsay rule helped put an innocent man in jail.

  I didn’t know that Charles Jackson was innocent when I was assigned to handle his appeal. His innocence was conclusively proven by a DNA test done after he’d served five years of his twenty-year sentence. Naturally, Charles had claimed that he and his father, Henry, didn’t commit the armed robbery that had left a local business nine hundred fifty-six dollars poorer and a grocery store clerk in a coma, but as I’ve mentioned before, I hear such claims from almost every one of my clients.