A Killing at the Creek

by Nancy Allen

  “How did it make you feel? When he committed suicide in front of you?”

  When Monroe didn’t respond, the doctor went on. “Did you want to stop him? Looking back, do you regret that you didn’t intervene?”

  “I regretted it the minute he shit his pants. I was locked in there with that for hours, man. Disgusting.”

  Monroe leaned back again, tipping the chair and balancing it on two legs.

  “Be careful. Don’t tip over,” warned the doctor.

  “I’m good,” the boy said. “I’m good. Ain’t gonna fall.”

  Chapter 37

  EARLY IN THE morning on August 10, Elsie stood in the bathroom of her apartment, studying her appearance in the mirror. Though she masked the dark smudges under her eyes with concealer, they still showed through. She pulled out the wand again, applying a thicker coat.

  “Now I look like a raccoon,” she said aloud. She rubbed the cosmetic cream smeared under her eyes with her fingertips, reflecting that the jury might be sympathetic toward a prosecutor who looked sleep deprived.

  Because, in fact, she was. Though Elsie had fallen into her bed at three o’clock that morning, sleep eluded her, a typical pretrial occurrence. With her eyes trained on the ceiling, she ran through the testimony in her head, worried about the weak spots in the evidence, and fretted over the defendant’s youth. When her alarm buzzed at six o’clock, she hadn’t slept a wink.

  Digging through her cosmetic bag in search of a lipstick that might counteract her pallor, she thought she heard her cell phone ring. Elsie paused, turning her head toward the living room of her apartment. Because the phone was at the bottom of her purse, the ring was muted, but it was calling her.

  Groaning, she ran to grab the phone, unearthing it just as it fell silent. She checked the number of the caller: Chuck Harris. What’s gone wrong? she wondered, a seed of worry germinating in her head. Then her landline started ringing. Snatching it up, she said, “Chuck?”

  A bleak voice greeted her. “Elsie? That you?”

  “Who else would it be?” she said. “What’s up?”

  “God, Elsie, I hate to do this to you, really. I’m not going to be able to make it today.”

  Her heart began to hammer in her chest. She pulled up a kitchen chair and dropped into it. “What do you mean, you can’t make it? This is your case. We’re picking the jury today.”

  His voice came through the receiver with a plaintive note. “God, I know. I can’t believe it. But I’m sick. I didn’t sleep all night.”

  Elsie’s face hardened. No illness short of death could excuse a trial attorney from showing up for a jury trial. “What’s the matter with you?” she demanded.

  “You don’t want me to go into it, I promise. It’s diarrhea. The trots. And it’s bad.” When Elsie didn’t respond, Chuck added, “I must’ve gotten a case of food poisoning.”

  You must’ve gotten a case of cold feet, Elsie thought. She sighed, and speaking in a calm, reasonable tone, said, “You’ve got to pull it together, Chuck. Run to CVS and get a bottle of Pepto-­Bismol. That’ll plug you up. You have to be in court today; you’re doing voir dire and the Opening Statement. You’ve got direct examination for the first witness.”

  His voice growing stronger, Chuck snapped, “What is wrong with you? I can’t go to trial with food poisoning. Do you want me to sit at the counsel table and shit my pants?”

  The line fell silent. Elsie fumed on her end of the wire, cursing him in her head, with the full utilization of her extensive vocabulary. She tried to wait him out, but time was precious. Elsie spoke first, saying, “Please don’t do this to me, Chuck.”

  “Elsie, you’re just going to have to man up,” he replied, and terminated the call without waiting for her response.

  She sat frozen for a moment on the kitchen chair, absorbing the reality that she would have to go it alone. She felt light-­headed; she put her head on her knees and tried to control her breathing and bring her heart rate under control.

  She jerked up from her seat, eyes ablaze. “Man up? Man? Motherfucker. How dare you talk to me about manning up.” The reaction got her back in fighting mode. She ran into the kitchen, grabbed a can of Diet Coke from the refrigerator and stuffed it into her overloaded bag, then headed for the door.

  “Man it up your ass,” she muttered as the door slammed shut.

  Chapter 38

  ELSIE FORCED A smile as she walked through the door into Judge Callaway’s chambers. Billy Yocum had already arrived, and reclined in one of the leather club chairs facing the judge’s desk, his walnut brown wingtip oxford shoes stretched out before him. The shoes looked freshly spit-­shined.

  “You’re running a little late this morning, Miss Elsie,” Yocum drawled.

  The judge checked the carriage clock on his desk. “Nope. She’s right on time.”

  Affecting a breezy manner, Elsie dropped into the seat beside Yocum. “Wouldn’t dare to be late. Don’t want to give you a chance to woodshed the judge this morning, Billy,” she said.

  Billy’s eyes flamed; he sat erect in his chair.

  “Are you insinuating that the judge and I are colluding, engaging in unethical behavior?” he demanded, with his chin jutting out.

  The judge sighed. “She’s just joking around, Billy. Ms. Arnold didn’t mean any such thing. Did you, Elsie?”

  Elsie gave Yocum a cheeky wink. “Just teasing you, Billy.”

  The judge flipped his paper file open. “Ms. Arnold, where’s Mr. Harris?”

  “Judge, I can’t understand these young lawyers; attorneys of my generation would never keep the judge waiting.”

  “He called me this morning,” Elsie began, but Yocum interrupted, speaking over her.

  “I have been late to court exactly one time in forty-­two years, and it was because my car broke down between here and Mount Vernon, when I was headed over to court in Lawrence County. I hitched a ride from a farmer, and still made it to court before the docket call was over.”

  Ignoring him, Elsie said, “Chuck is sick.”

  The judge did a double-­take, while Yocum barked a scornful laugh.

  “Sick?” Yocum repeated. “Well, I’ll be dog.”

  “Is he in the hospital?” the judge asked.

  “No,” Elsie said, her cheeks aflame. It was bad enough to be abandoned by Chuck; now she would have to defend his absence. “Sounds like maybe he’s picked up a bug. Stomach stuff.”

  This time, the judge joined Yocum in his merriment. The men guffawed, exchanging a meaning look.

  “Don’t make them like they used to,” Yocum opined.

  “Billy, that’s so,” the judge agreed.

  “How many lawyers have you ever had, Judge, who called in sick on the day of a jury trial?”

  The judge thought for a moment. “Can’t think of a one. There was the time Leon Farthing needed chemo. But he came to court in a wheelchair and asked for a continuance.”

  “How many prospective jurors do we hope to have today?” Elsie asked, hoping to move on. “I’m afraid we’ll lose some on the age issue.”

  “We may. I told the clerk to round up one hundred and fifty, but we’ll see who shows. Lots of folks on summer vacation.”

  The vision of vacations past loomed before Elsie. She thought longingly of lounging poolside with an icy drink, reading the supermarket tabloids. Pushing the vision forcibly from her head, she said, “What questions will the court ask before the prosecution begins with voir dire?”

  The judge scratched notes on a piece of paper. “What do you say, Billy? I’ll get their employment history. Do you want me to ask about family and marital status, kids?”

  “Oh yes,” Billy said.

  “Ages of children?”

  “Yes, sir.”

  Elsie nodded in agreement. Both sides needed to know which jurors had teenage children.
A parent with a fifteen-­year-­old son would certainly be sympathetic to defendant, hesitant to convict a juvenile of murder.

  “Anything else, before you two take over? Want me to talk about the mental disease or defect defense?”

  Elsie looked at Yocum; the insanity issue was the defendant’s problem. She believed that jurors were still suspicious of the insanity defense, so she planned to stay away from it. The fewer prejudices uncovered in jury selection, the better for the prosecution.

  Billy made a face, wrinkling his nose as if he smelled something rotten. “Nothing jurors hate more than an insanity defense. They all think you’re trying to get that Hinckley boy acquitted for shooting President Reagan. I haven’t had an easy time with the insanity defense since 1981.”

  Elsie leaned on the arm of her chair. “Too bad you’re hanging your hat on mental disease. You ought to get that boy on the stand. He could sway the jury with his natural charm.”

  For once, Yocum did not bristle. He locked eyes with Elsie, and gave her a conspiratorial nod. “Some kids don’t appreciate good advice, you know that?”

  “I’ll bet your client falls in that category.”

  “But what am I to do? Miss Elsie, the prosecution’s own expert, the good Dr. Salinas, determined that my client suffers from a mental disease. Both the doctors for the prosecution and defense agree that young Mr. Monroe is just not right.”

  “Antisocial personality disorder. That doesn’t excuse him from criminal responsibility,” Elsie insisted. She and Billy had gone around and around on this point since Dr. Salinas submitted his report.

  “Well, I expect that will be for the jury to decide.”

  “It certainly will,” said Elsie.

  “Although it seems to me, Miss Arnold, that the responsible position for the prosecution to take would be to accept the insanity plea. Bearing in mind the tender age of the defendant.”

  “Billy, I can’t. You know that.”

  Yocum sighed, and leaned over to pick his satchel. “Judge, do I need to file a motion in limine? May I remind the prosecutor that she is not to mention the suppressed statement of my client?”

  The judge gave Elsie a warning look. “Ms. Arnold, don’t say anything about the defendant’s statement. I don’t want any trouble on that score.”

  As Yocum stood, he added, “And I don’t want to hear anything about the suicide of that unfortunate boy in Juvenile Hall.”

  Callaway nodded his assent. “That’s right. Ms. Arnold, be sure you remain within the confines of admissible evidence. Don’t stray into questionable areas.”

  Elsie pinched her lips together. We’ll just see about that, she thought. I’ll be keeping my options open.

  Chapter 39

  ELSIE PULLED OUT her standard jury selection presentation, writing madly in the margins as she added the particular questions Chuck had intended to ask the prospective jurors. She knew they had to cover the age question; it was crucial that they uncover and ferret out any jurors who would be reluctant to penalize the defendant on account of his youth. She needed to suck the poison on the DNA evidence as well; the jury shouldn’t be surprised to learn that a forty-­year-­old woman had intercourse with the boy. Elsie needed to let them know that up front.

  Pausing, she shook her head to clear it; what else had they decided to ask? Her pen was poised over the notes as the courtroom door opened and the jury panel filed in.

  She heard a woman gasp as she entered, and saw her turn to the man behind her and ask, “Is the air-­conditioning broken in here?” The man shook his head with an expression of disbelief. Elsie kept her face neutral. If you think it’s hot now, baby, just wait till the afternoon sun beats in, she thought.

  The men and women on the jury panel filed in behind Emil, filling all the seats in the jury box and the gallery. More jurors waited outside, because the room accommodated only sixty or so. Elsie scoured them with a keen eye; some jury panels were better for the prosecution than others. As a rule, she knew that her best jurors were blue-­collar males, between thirty and sixty years old. In her experience, they were law and order types, not inclined to fall for defense attorney tricks and unlikely to vote based on sentiment. In her early trials, she had learned the hard way that she could not pack the jury with women and hope to win. Women jurors, as a rule, were more sympathetic to the defendant and more inclined to return a “Not Guilty” verdict.

  The jurors were a mixed group, containing both elderly panelists and young ­people in their twenties, she noted with displeasure. She’d get rid of the young ones. They were always pro-­defense, and with a defendant as young as Tanner Monroe, they would be much too likely to identify with his plight. And the old-­timers could be problematic as well; they might tend to be too merciful in spirit, as they approached their own Judgment Day.

  The judge entered. “All rise!” said the bailiff, and everyone stood. Settling into his seat, the judge greeted the jury with exaggerated cheer. Judge Callaway was up for reelection soon, and as the trial judges in McCown County, Missouri, were still picked by popular election, jury trials provided the candidate with excellent opportunities for face time with the public.

  Elsie glanced over and surveyed Yocum and his client at the defense table. She had to hide a smirk; Tanner Monroe showed a marked change in his personal appearance. He had obtained a haircut at the county jail, but the look did not flatter him; Elsie suspected that the jailer who provided the trim had placed a mixing bowl on the boy’s head. Terrible, she thought, but that’s Yocum’s problem, not mine.

  But the look was so very dated and jarring, Elsie wondered whether it might lend an air of pathos to the defense, and touch the heart of someone on the jury. The boy was dressed in an old suit and tie, undoubtedly borrowed from Billy Yocum’s closet, with pants and sleeves that were far too long. It added to the image of youth and immaturity.

  Tanner pushed at his sleeves, revealing the jailhouse tattoos on his hand. Squinting at the marks, Elsie was determined to see whether the tattoos on his fingers spelled out a message or contained a code. She craned her neck for a closer look. She had suspected in the past that the tattoos on his hand had spelled “LP.” If he was creating a grudge list, she needed to know. It could be a basis for a cross-­examination question, if she played her cards right.

  The juvenile turned his head toward her, and as if he could read her mind, he splayed both hands on the counsel table, so she could see them plainly at last.

  Elsie stared at the fingers of his hands; each digit bore a letter. The left hand spelled out: “FREE” The right said: “METM.”

  What the hell, Elsie thought; is he advertising free meth? She leaned in for a better look. The right hand was within her sight; his four fingers read: “METM.”

  Okay, Tanner, Elsie thought. Got it. A letter to the jury, signed by Tanner Monroe. “Free me, T. M.”

  She glanced sidelong at the boy, to gauge his mood. He was laughing at her. While she watched, he wiggled his middle finger on the table.

  Right, she thought. Well, fuck you, too.

  Judge Callaway commenced his general voir dire questions, and Elsie transferred her attention to the jury panel, jotting notes onto a chart she’d made on her legal pad. At length, the judge finished, and turned to Elsie.

  “Ms. Arnold,” Judge Callaway said with gravity, “you may proceed.”

  Elsie stood, her knees just a touch wobbly. “If it please the court.”

  The judge inclined his head and she walked to a wooden lectern, setting her jury selection file on it and sending a warm smile around the courtroom.

  “Ladies and gentlemen, as Judge Callaway told you, I’m Elsie Arnold, assistant prosecutor of McCown County. The defendant in this case is Tanner Monroe, and he has been charged with the felony of murder in the first degree.” She turned to the defense table and shot Monroe a long look. He met her eyes with an innocent expression,
and lifted his shoulders in a shrug.

  She returned her attention to the jury panel. “This part of the trial is called voir dire. The attorneys—­-­Mr. Yocum and I—­will ask you questions. And I want you to know, it’s not our intent to be nosy, or pry into your personal affairs. It’s just that we have to conduct this kind of inquiry to obtain a fair and impartial jury, a jury that will be fair to both sides.”

  A man sitting in the back row of the jury box, sporting a striped tie, listened intently, nodding. Elsie made a mental note: she wanted the guy with the tie. He was tuned in, and taking the matter seriously.

  “In our American system of justice, all defendants are innocent until proven guilty.” Elsie wanted to cover the presumption of innocence so Billy Yocum couldn’t pretend that he’d invented it. “It’s the state’s job—­my job—­to prove him guilty by calling witnesses and putting on evidence in this trial, which I will do. Does everyone understand that the fact that defendant has been charged with a crime is not evidence? Evidence will be provided by witnesses who sit on the stand and testify. Do you understand that all defendants are innocent until proven guilty? If not, please raise your hand.”

  Please don’t please don’t, Elsie begged silently. Please don’t raise your hand.

  Some of the jurors looked around, waiting to see how others would respond. She saw several men and women sit with their eyes downcast, and a few who looked bored or disgruntled. But not a single hand was raised.

  She walked through standard questions on the burden of proof and the jury’s obligation to follow the court’s instructions of law. She covered the DNA bombshell, though when it didn’t garner any major fireworks, she wondered whether she had soft-­balled the issue. She was approaching the big question: the elephant in the living room. But she led up to it gradually.

  “In this trial, it will be your job to find this defendant guilty or not guilty.” She tried to convey sobriety and understanding in her voice. “There are some ­people who, because of personal sensitivity or religious or philosophical reasons, just aren’t comfortable with the prospect of serving on a jury in a criminal case. Who just aren’t certain they could find someone guilty of a crime even where the state proves its case beyond a reasonable doubt. Is there anyone in here who feels that way? That they just can’t sit in judgment on their fellow man?”