Enemy Combatant

by Ed Gaffney

What stood out about Charles Jackson’s trial was that the case contained absolutely no physical or direct evidence of guilt. The store’s surveillance video showed that the robbers wore masks, and revealed only that both were black, and one had graying hair. Apparently the jury believed the two eyewitnesses who said they saw Charles and his father, two black men, one with graying hair, running quickly down the street, away from the store, at about the same time as the robbery.

  So the verdict was guilty. Despite the fact that eyewitness testimony is notoriously inaccurate. Despite the fact that Charles and Henry had worked steadily, six days per week, for the eight years prior to the robbery, at Henry’s auto repair shop, five blocks away from the store. Despite the fact that Charles testified that he and his father were at the shop late on the night of the robbery, working on a car that had to be ready the next day. Despite the fact that Henry Jackson had a badly arthritic hip, walked with a severe limp, and hadn’t run anywhere, at any speed, for years.

  But the thing that really made me nuts was that Henry’s dying words were not allowed in as evidence, because of the hearsay rule.

  See, the police were initially stumped by the robbery. They didn’t have any suspects. And the eyewitnesses hadn’t been able to identify anyone from the mug shots they had been shown.

  But then, just by chance, an off-duty police officer pulled into Henry Jackson’s shop to replace a headlight. Both Charles and his dad were working at the time, and when the officer saw two black men, one with graying hair, within five blocks of the robbery, he decided to bring the eyewitnesses down for a look.

  One was eighty percent sure they were the pair he’d seen running away from the grocery store. The other was one hundred percent sure. And that was that.

  The only reason Henry wasn’t charged with the crime was because when the police came to arrest him, he got so upset he had a heart attack on the spot, and died right there.

  But before dying, in the midst of the agony of a massive coronary, he tearfully pleaded with the police to believe him when he said that he and his son had nothing to do with the robbery. He confessed that the only crime he had ever committed was failing to report that he had accidentally broken the taillight of a parked car when he was learning to drive, fifty years ago.

  And with that mea culpa, he left this earth.

  At trial, the defendant’s attorney argued that the statement should have been allowed into evidence. The prosecutor argued that it was hearsay. The defense lawyer countered that the “dying declaration” exception allowed out-of-court statements into evidence if made by people who knew they were dying. The theory behind the exception was that such statements are overwhelmingly likely to be true because of the circumstances under which they are made.

  What the defense lawyer had forgotten was that the dying declaration exception applied only to statements identifying whoever it was that killed the person who made the statement. Nothing else.

  To add insult to tragic injustice, the judge correctly mentioned in an aside that it was too bad the defense couldn’t use Mr. Jackson’s statement about the taillight, because there was an exception allowing that kind of hearsay as evidence, since the statement had the potential to get Mr. Jackson into trouble, either with the law, or financially.

  Seriously. Look it up. It’s in the rules of evidence.

  That kind of nonsense drove my father and me crazy.

  But Henley and I had only reached chapter three in our book when the stroke got him. We had been on hiatus ever since—one that I thought was permanent.

  I closed the door quietly behind Liana as she left, and softly stepped into the living room. My father was asleep in his wheelchair. A legal pad was resting on a laptop desk that Henley occasionally used. I was surprised to see he had made some handwritten notes. My dad had all but given up writing, because his left hand was so slow and clumsy. I couldn’t read what was written, but I didn’t care. I was just happy he was getting back into it. It didn’t matter to me if my father was stuck in a wheelchair for the rest of his life. I’d push or carry him wherever he needed to go, if it came to that. I just wanted him to still be able to do things that he loved. And he loved trying to make the legal system better.

  I changed my clothes, grabbed a beer from the kitchen, and went out the back door to the pyramids of cut wood I stored about fifty yards from the rear of the house.

  To me, this area was far more than just a bare patch of earth featuring tall stacks of split logs. When I stood on the far side of the piles of firewood, I was at the edge of the pine-and-mesquite-covered mountain that rose above our house. Dale, Henley, and I had cleared paths into the woods, and we’d spent many summer afternoons climbing up to the top of the hill. When the weather was good, you could see the entire valley. I remember regularly bringing my new binoculars up to catch the setting sun as it hit the colorful rock formations next to the monastery on Goat Head.

  Dale thought I was just up there to check out Suzie Rios sunbathing by her parents’ pool.

  And while I freely admit that the valley’s beauty was undeniably enhanced by Suzie’s outstanding bathing suit collection, I still spent far more time at the base of the hill, at the woodpile. It became my sanctuary, my place of meditation.

  And on that Thursday evening, while Henley napped, I put down my beer, rolled into position one of the sections of mesquite trunk that I’d cut up earlier that year, grabbed my ax, and got started.

  There’s a rhythm to the chopping of a good cord of wood.

  I position my right hand just below the blade, and grasp the handle at the other end with my left hand. I hoist the ax head high above my shoulders, slide my right hand along the handle to where my left is anchored, and then I pull down hard, cutting into the waiting log with a soul-satisfying thunk. Hoist, slide, pull, thunk. Hoist, slide, pull, thunk.

  I started chopping wood in high school, to try to strengthen the muscles in my upper body. I was on the baseball team, but I was skinny, and I didn’t feel like I had enough power to be any kind of a serious hitter. I was wrong about a lot of things back then, including the correlation between swinging an ax and swinging a baseball bat. But even though the exercise bore limited results on the baseball diamond, it wasn’t long before I began to find pleasure in the chore itself.

  Over the years, I got really good at it. My strength built steadily, and my eye-hand coordination became so developed that not only could I bring the blade of the ax down, in a full swing, onto a spot less than one inch wide, but I could actually throw the ax as a weapon over a short distance.

  On that Thursday evening, the last one I was to spend there chopping wood for my father, the physical effort in my arms, shoulders, and back morphed into spiritual relaxation. It wasn’t long before the day had slid into that magical time, where just enough light still hovered in the air for chopping, but sounds seemed to be gently muffled by the slowly falling darkness. That time when it becomes easier to believe that life really can be lived one breath at a time. One moment, one glance, one kiss, one laugh at a time.

  It’s tempting to look back on the serenity of that evening as the calm before the storm. But I think rather that it was a combination of things: the happy surprise of Henley’s return to our book, the realization that in only a couple of days, I’d be seeing Amy and Erica again, and the emergence of a fundamental belief that the Juan Gomez trial was only temporary. When it was over, I was going to return to my life. Until then, if I needed to move my father for his safety, I would. If I had to protect myself, I would.

  Come what may, I would manage. I would endure.

  Hoist, slide, pull, thunk.

  I put down the ax, finished my beer, and went inside. It was time to make dinner, talk to Henley about the idea of taking him somewhere else if that became necessary, and prepare for tomorrow’s testimony.

  I have forgiven myself for many of the mistakes I made during that disastrous week, but I have yet to come to peace with what I did, and what I did not do, for Henle
y on that day. I am mortified that despite Landry’s threats, I only vaguely warned Liana that I might need to come home early and take my father somewhere safe. I am aware that it would not have made a difference, but I am still ashamed that I did not act sooner to protect him.

  Even now, with a full understanding of the evil that was to strike at my family’s heart that day, I have to admit that Friday morning was one of the most beautiful I can remember. Everything around me seemed to be in perfect color and contrast as I drove in to Phoenix. The trees and three tiny, cottony clouds were sharply outlined against a peaceful blue heaven. The cool mountain air was touched by the gentlest breeze, and even as I made my way down through the warmer valley and into the less idyllic city, it was hard to lose that feeling of hope that had flowered in me the day before.

  The first indication that the content of the day was going to be considerably different from its attractive packaging was the envelope bearing my name, peeking out from beneath the legal pad that I had left with a few books on the defense table the night before. I saw it as soon as I began to unload my briefcase. I struggled against the dread that was pushing its way into my breast, hoping it was a perfectly innocent note, possibly from the clerk or the court reporter, perhaps about an administrative detail that needed to be taken care of for the case.

  It was a note, but it was neither innocent, nor about a minor issue. The small, single sheet of paper read,

  Go to the location of our first conversation. There’s something for you on the floor near the wall. You’ll need it to know what to do. Use it. DO NOT GO TO THE COPS. You heard what Landry said yesterday. Your father’s life depends on it.

  It was signed with the letter B. For Beta.

  I resented it all. The feeling that in a matter of only four days, my world had transformed itself from someplace peaceful and safe to a place where tranquillity was regularly assaulted by fear and suspicion. The belief that going to work was little more than submitting myself to a fusillade of threats against my family. The knowledge that aside from Amy and Erica, Henley, Cliff and Iris, I could trust no one.

  I placed the last file folder from my briefcase on the table, put the note in the case, closed it, and took it with me into the hallway. There were still a few minutes before the trial was to resume. I’d go to the bathroom, get whatever it was that Beta had left for me, and make it through the day.

  One step at a time. One breath at a time.

  One threat at a time.

  I was a tall and athletic kid all through my childhood, so I never experienced the anxiety I’ve heard that children face when going to the bathroom in some of the tougher middle schools and high schools. On the rare occasions during my teens that I ran into something or someone unusual in a school bathroom, I never felt nervous.

  But as I stood at the door to the men’s room at the end of the hallway that Friday morning, fear flooded through me. I didn’t expect to get jumped again, although I realized that was a possibility. I just couldn’t imagine what I might have done or not done to deserve another pistol in the face.

  But then again, I still didn’t understand why I’d been threatened in the first place. And I still couldn’t imagine why Landry had bugged me. Or how Beta knew about yesterday’s veiled threat—if that’s even what it was—against my father.

  I was running out of time—I had to get back to the courtroom. Steeling myself for whatever I might face, I pushed through the door, just as Preston Varick was pulling it open. I was startled, naturally, as was he. “Morning,” he said, rather gruffly I thought, as he hurried past me, before I even had a chance to respond.

  I let the door swing closed behind me as I entered. The bathroom was empty, so I went over to the sink where I had been first accosted, and looked down at the floor near the wall. There was nothing there, except a discarded matchbook.

  Had the note been wrong? The location of our first conversation. I eyed the stall I’d been dragged into. Technically, that was where our first conversation, such as it was, had taken place. I went in, closed the door, and looked down at the floor near the wall to the left of the toilet. There was nothing there. Nor was anything to the right of the toilet.

  I couldn’t see directly behind the toilet, so I bent down and reached around. Sure enough, I felt something that had been taped to the floor back there. It was one of those small manila envelopes. Inside was a smaller plastic sandwich bag, which contained what looked like a hearing aid.

  You’ll need it to know what to do. I took a good look at it. It was obviously designed to fit inside an ear canal, just like a hearing aid. Unless I was very wrong, this thing was a radio receiver of some kind. Beta wanted me to wear it instead of one of my hearing aids, so he could talk to me in the courtroom, during the trial.

  Whether or not I was right, I certainly wasn’t going to worry about it now. If it was a receiver, and Beta started to talk to me, I could always ignore him, unless what he was saying was actually useful.

  And if it wasn’t a receiver, what was the harm of using it to replace one of my aids? A slight reduction in my hearing, I supposed. I took the aid out of my left ear, placed it in my jacket pocket, and replaced it with the miniature receiver.

  Later, Cliff would admonish me for failing to realize that it could have been a remote-controlled explosive device. While no doubt the high drama of an ear bomb would have been a perfect addition to the already mounting tension of the situation, I am happy to report that with all of the disastrous scenarios running through my mind as I headed back into the courtroom, having my head simply explode was not one of them.

  My client was already seated at the defense table by the time I returned. Before I could say anything more than “Good morning,” a voice came through the tiny receiver and into my left ear.

  “If you can hear this, fit down, sock free books in a pile in front of you, and then push them off to the side of the table.”

  The voice was unrecognizable—it was probably being processed by some electronic device, and it was soft. I suppose that a person with normal hearing might not have struggled with it, but I had to resist the urge to plug my ears with my fingers in order to make the words out more clearly. Fit down, sock free books?

  No. Sit down. Stack three books.

  I sat. I followed the instructions.

  The voice said nothing more than “Good.”

  And then Sarge walked into the room, and bellowed, “Court’s in session. All rise.”

  SEVENTEEN

  CAPTAIN FRANCONA was back on the stand. The courtroom, as it had been since the beginning of the trial, was packed. The little red light on top of the Judicial Broadcasting System’s television camera was on.

  It was time to hear the official and formal version of the story behind the actions of the nation’s most recent monster: Esteban Cruz.

  “Captain Francona, can you describe for us what you saw when you were finally allowed to enter the tunnel?”

  From the wording of the question, and the confident look of the witness, it was clear that A.D.A. Varick had spent some time preparing Captain Francona, instructing him on just what he could say in court without provoking me to object.

  “Yes. I entered the tunnel from the north. As you might remember, traffic in that tube was traveling from south to north, so after the fire began, traffic backed up beyond the south end of the tunnel. But those vehicles that were not affected by the fire exited the north end of the tunnel.”

  “So was the north end of the tunnel clear?”

  “Essentially, yes. The tunnel is approximately one quarter mile long, and the northern half of it was empty. However, even before I reached the first vehicles that had been damaged by the explosions and fire, I saw that smoke had left a sooty residue on the ceiling and the walls of the tunnel. And there was a strong smell of smoke in the air, as well.”

  Preston was standing with his hands clasped behind his back. He looked quite composed. “I see. When you did reach that part of the tunnel that contai
ned burned vehicles, what did you find?”

  The witness looked up, as if it would help him remember. I didn’t get the sense that he was faking it, but on the other hand, it was hard to believe that he wasn’t already one hundred percent sure of exactly what he was going to say.

  “The first six vehicles I saw were five cars and a van. I was facing the south, so in the west lane—the lane to my right—there were three vehicles. All relatively small cars. The driver of each car had been burned to death in the driver’s seat.

  “The eastern lane, the one to my left, also had three vehicles. But only two were cars. The other one was a passenger van.

  “Again, each of the vehicles had been badly damaged by fire and/or explosions. The windows were all broken in each. And again, the occupants of all three vehicles had been burned beyond recognition. In the two cars, there was just a driver. But besides the driver of the van, there were two other passengers. Both wheelchair-bound. The van was registered to a nonprofit organization which was funded in part by the city to provide transportation to disabled persons to doctors’ appointments, therapy, that kind of thing.”

  The gruesome details of the tunnel bombing had been thoroughly hashed over by the media in the weeks and months following the disaster. It looked like Varick had chosen to deliver the testimony of the catastrophic human toll in small doses, rather than in a mind-numbing avalanche of corpses. I thought it was a smart move. Clearly, the jury was his to lose. There was no need to antagonize them, or appear to insult them, with redundant and ghastly detail.

  “After your inspection of those six vehicles, what did you do next?”

  “About one hundred feet to the south of those six vehicles was a destroyed fuel tanker truck, sitting in the middle of a scene of tremendous damage to the roadway running through the tunnel. Much of the pavement had been melted and/or exploded away, leaving a hole—actually, something like a shallow crater—in which the truck was lying.