Try Try Again Page 12

  Not knowing when the meeting the judge had mentioned would occur, JTJ made haste to contact both Brent Nielsen and Liv Saunders. For their separate but equal reasons, each agreed to allow JTJ’s students to film the trial, provided the judge’s specific terms were agreeable to them.

  Taking advantage of having come to the attention of Brent and Liv, JTJ wangled brief interviews with each but didn’t learn much, because neither had wanted to tip their hand on trial strategies. They would open up to her, she hoped, as the trial progressed.

  Brent sent her flowers the evening before the trial, and candy. Liv didn’t. Brent Nielsen was an MCP, JTJ concluded, and one who must be in search of publicity for some lusted-after higher office. Liv was – who knows? Worth watching, certainly!

  A few days later it became known that an adjunct at the local junior college had asked Judge DuCasse to allow her students to film the trial, in the interest of educating future tele-journalists. This was still called ‘filming’, or ‘taping’ or ‘capturing it on tape’, although neither tape nor film was used to capture sight or sound or anything else anymore.

  DuCasse’s clerk contacted attorneys Nielsen and Saunders, requiring their presence at two p.m. the next day to discuss recording the trial.

  Liv got the message, and knew Brent would be in favor. He was known to be after every headline he could get, which wasn’t often, considering the vast majority of local offenses involved non-headline-producing; drinking in public, reckless driving, snatching candy bars from the local 7-11, pissing in alleys, smoking in bars, and groping females who didn’t enjoy it, or who were under eighteen and it didn’t matter if they enjoyed it or not. And here was a case he couldn’t lose.

  Judge DuCasse, she knew, was much the same. All they had to do was frown and clear their throats and look Very Responsible, and advancement was sure to follow.

  At two p.m. the next day, the three met in chambers. The Duchess looked up. “Well?” she asked, staring at them. Liv was tempted to say “black, no sugar please,” but she didn’t dare.

  While Brent made his pitch in favor of filming, Liv considered what she’d say. She’d always been opposed to televising or filming trials: circus atmosphere, string ‘em up emotions, jurors think they’re webV stars, and all that. But this time she raised no objection, hoping the publicity might surface someone who could give her a lead on ‘Art’.

  The judge told Brent he’d have to behave and not showboat this time: no arm-waving or eye-rolling, no rhetorical or hypothetical questions, no elevated eyebrows, no snotty gotchas. For once. Brent said “Yes, your honor,” without hesitation. The judge added she knew Liv would behave, because it was hard to get theatrics, or any other kind of emotion, out of her anyway. Liv smiled grimly.

  Without objection then, Judge DuCasse ruled, the trial could be filmed by students from Grantwood Junior College, subject to the conditions she’d previously set out to JTJ:

  .. Cameras must not interfere with the trial in any way, and there must be no more than three cameras, and three crew members, in the courtroom at any one time.

  .. No journalists would be allowed in the courtroom, even during recesses, except for the camera technicians themselves. But she allowed JTJ’s commentary from outside the courtroom, might provide viewers some useful context. JTJ could also be present in the courtroom as a member of the public; but one whisper into a mic and out she’d go.

  .. No part of the trial would be broadcast until the entire trial was completed.

  “Neither you, Mr. Nielsen,” she concluded, “nor you, Ms. Saunders, will play to the cameras at any time.” Brent asked how the judge would determine if he was or was not playing to the cameras at any time. The judge told him she’d know, and stop being both disingenuous and insolent at the same time.

  Brent and Liv nodded and left, coolly wishing each other goodbye and good luck and meaning only the first, long may that situation last.

  DuCasse’s admin keyed-in a memo listing these conditions and emailed it to the President of Grantwood Junior College, cc JTJ and every media outlet in the seventeenth CD. JTJ became the envy of the media throughout Central Pennsylvania, and the subject of soft feature stories herself, and occasional viewer salivation.

  Liv visited Charley three more times before the trial. He half-heartedly repeated he acted alone, as if knowing no one believed him any longer. “But I did it,” he told her, “I shot him. So what does it matter if I had help?”

  Liv returned to her office to consider what kind of deal she could strike. What would happen if she could convince the jury Charley was a dupe, a cat’s paw, not really responsible, under the control of a mastermind?

  But even as she framed those words, she knew that angle was hopeless for two reasons. First, if she couldn’t tell a convincing story of what kind of person or organization might have hired Charley for the job, it just wouldn’t fly.

  Even worse, if she managed to convince the jury he was working for someone, that would hardly be exculpatory, indeed it would make matters worse because it would exclude less-criminally-responsible motives. And the jury would be more apt to ‘throw the book at him’ if they thought he killed a Congressman for money, than if he had done it for some personal reason. You kill, you die. Or at least life without parole.

  She began to worry about Brent’s evasive reply to her question about his seeking the death penalty. He was ambitious: a capital conviction in this state would be big news. But if she could get Charley to give up the person who hired him, that would be a bargaining chip she could use to persuade Brent to ask for twenty years, plus or minus, not forty years to life, and not death. Murder-two at worst, perhaps, not murder-one.

  But she’d been pressing that thought on Charley and he hadn’t budged. Every day she grew more firmly convinced (based on his behavior and closed-mouthedness) Charley was ordered or paid to assassinate Barnes, and the price of talking was somehow worse than the price of a long prison sentence. Otherwise what he did made no sense.

  On her final visit before the trial, she told him that if he would name whoever paid him, she could make a deal with the prosecution so they would ask the judge to knock off a few years, even though it would probably not get his conviction down to manslaughter. Perhaps he could get his freedom back before he died.

  “If you tell me more,” she said, “even manslaughter might be a possibility. If not, you’ll go to prison for at least twenty years, or maybe life without parole. Or worse.”

  But Charley was silent.

  Liv went back to her law office and sat, elbows on a blotter innocent of ink, head in hands. What would happen now? She listed the probabilities:

  .. Charley Dukes would be sentenced to prison for a very long time and would probably die there, given his age and the brutality of the place.

  .. The identity of the person who had bribed or forced Charley to kill Ezra Barnes, would never be known.

  .. She would lose her job with Holmes & Epperly, and be unemployed.

  Chapter 15: Four Months After the Assassination

  The trial of Charley Wayne Dukes for murder opened on a snowy, windy day in central Pennsylvania: generally depressing, as Liv reflected. In a selfie-interview as the trial opened, JTJ stated on-air that a second-degree murder verdict was likely, in the case of the State v. Charley Wayne Dukes. She predicted that Dukes would make a deal, resulting in a speedy trial and a verdict that few parties would object to. Some of those who posted comments online praised this common-sense forecast as if it were already a fact; others called her ignorant and a disgrace to Central Pennsylvania and she should just go hang herself. And yet another responded with his own special recipe for barbequed scrapple.

  Liv wondered who’d been feeding JTJ her broadcast ideas. It couldn’t be Brent, because she figured he’d be asking for first degree. And she knew it wasn’t herself. Could it be The Duchess? So much for propriety, and much more for speedy and efficient trials and a more-probable-now promotion to the State Supreme Court ben
ch at some future time.

  People approaching the courthouse on the first day of the trial would later speak of a “circus atmosphere,” even though the circus consisted only of fifty to sixty members of the press milling around and looking for “insights” as they called them, from other reporters and the occasional passer-by.

  JTJ’s three cameras had been set up in the courtroom earlier, and the cameramen coached on behavior. Any kind of incident would get them promptly ejected, with nothing to film but other reporters. The camera crew even wore blazers and slacks as opposed to their usual photographers’ vests and jeans, in honor of Her Honor.

  The clerk announced the Honorable Harriet DuCasse All Rise, as if ‘All rise’ were part of her name. All rose.

  After being seated and motioning everyone else to sit down also, Judge DuCasse announced that five days had been set aside for the trial (as everyone knew by now), owing to a crowded court calendar and the fact that the defense was, apparently, not contesting the basic facts of the case. Neither Liv nor Brent objected to this.

  Charley was accused of murder in the first degree. Liv pleaded him guilty of manslaughter, which brought forth a few snickers from those lucky enough to get seats for the trial. These were quickly extinguished by the Duchess’ gaze and gavel.

  There were the usual routine motions, including move for dismissal, which was routinely denied, then prospective jury members were called in and seated.

  Voir dire ensued, but only two jurors were dismissed, the rest being bland enough neither Prosecution nor Defense could find any reason to challenge them.

  Brent’s opening statement took almost two hours. He led the jury through all the events of that somber day, emphasizing Charley Dukes’ attempts to cast blame on others: the Congressman himself as a supposed drug buyer, what a shame even a habitual criminal would stoop to such a thing, and then a terrorist group that turned out to be completely fictitious. Neither of these stories, he said, had the traditional shred of truth, nor did the story of the Harrisburg gang and its phone number – which turned out to be the Greyhound bus station.

  There was a dramatic pause, during which Brent sneaked a smile at one of the cameras and was admonished by Judge DuCasse, who’d been expecting something just like that from the prosecutor.

  Concluding, Brent told the jury he would be asking them to impose the death penalty. Most of the reporters present had heard rumors he would, but there were gasps anyway, followed by gavel-gavel-bang-bang.

  Yes, he continued, it was highly unusual in this state, but permitted by law. Lethal injection, painless and humane, of course, nothing like some of those southwestern states where people were executed at the slightest provocation and in inhumane ways.

  And in Pennsylvania, the decision of life or death was up to the jury.

  Brent spoke at greater length about the death penalty, without making any additional real points. JTJ, in that evening’s broadcast, said he was doing an “accustoming,” getting the jury over their shock regarding a possible death penalty, before proceeding with a foretaste of the prosecution’s case.

  At last he gave his summary of the witnesses and evidence that would be presented, and underlined the fact the defendant had confessed, not only to killing a promising, bright young member of Congress in the flower of his youth, but doing so with premeditation. Yes, ladies and gentlemen of the jury, etc. etc. and so on until he was finished and sat down.

  Olivia Saunders rose slowly from the defense table and looked at the jury with sorrowful eyes. “You’ve heard what the prosecution intends to prove, and that’s all very well. The basic facts in this case are uncontested. However: There may be witnesses, but there is no motive. There is a defendant, but the prosecution has nothing to say about his mental state, about his ability to understand the consequences of what he did, or to foresee them.

  “The defense will show the defendant, Charley Wayne Dukes, is handicapped, mentally deficient. That does not mean you should judge him to be not guilty. But it does mean the degree of his guilt does not rise to murder in the first degree or even murder in the second, because Mr. Dukes is incapable of the kind of premeditation and planning, and awareness of the consequences of his act, that these verdicts require. His strange behavior when arrested, alone, is enough to convince you something is deficient in his mental make-up.”

  Liv went on, but she didn’t mention the possibility of a conspiracy or murder for hire. To do so might give the jury the idea Charley was indeed capable of planning, cunning, and a serious amount of cold-blooded premeditation.

  She had the beginnings of a good argument, but lacked the one thing that would nail it: testimony from a mental health professional, who would have examined Charley with the sure eye of a psychologist, would have assessed him with statistically infallible tests, and would have found him to be, well, the word “idiot” wasn’t acceptable anymore, but otherwise might have been a plausible diagnosis.

  The problem was, Liv hadn’t been allowed to spend any of the firm’s money on expert witnesses of any kind. “Belle” Epperly herself had given Liv a flat “no,” and an appeal to Marty Holmes brought an even louder “no.” Liv dared again to raise the possibility of an appeal based on inadequate defense, and was basically told to leave the room and stand in a corner and never say that again, to anyone, ever.

  After Liv’s defense statement, Judge DuCasse noted the day was late and the jury had quite a bit to think about before the prosecution made its case. That said, she adjourned the trial for the day.

  As the courtroom was emptying, Liv stepped to the prosecution table and asked Brent Nielsen if he’d like a beer, or perhaps something stronger.

  “Just social?”

  “It’s never just social.”

  They pushed past a mob of reporters, no-commenting frequently. Brent disappeared around a corner and Liv went to a nearby bar frequented by lawyers, called The Defense Rests, colloquially known to members of the bar as “The Defense Will Have a Bourbon, Double.”

  Liv had a bourbon, double, and waited. After half an hour, Brent joined her and ordered an IPA. He waited patiently to hear what Liv wanted and, after two more swallows of whiskey, she began.

  “Look, Brent. I don’t want the death penalty here. I think you’re overreaching, maybe just to be a hero of the people of some kind.”

  “Well,” said Brent, “I’ll continue to express my opinion to the jury and argue for it. But death was never likely anyway. Pennsylvania hasn’t had more than four executions in the last forty-five years.”

  “So you just want the publicity of asking for it.”

  “Something like that. But in this case, a popular Congressman, an unsympathetic defendant, and no apparent motive…Yes, I suppose perhaps the jury might be so inclined,” said Brent carefully.

  Liv offered an insincere smile. “You can head it off by telling them the prosecution has no interest in the death penalty here – in fact, the prosecution opposes it. ‘After further review’ and all that.”

  “And why would I tell them that?”

  “For two reasons,” Liv continued. “First, I’m arguing for reduced capacity – Charley is, as I’m sure you’ve observed, not very bright. Borderline mentally deficient.”

  “That’s stretching it, Liv. He’s just a little slow.”

  “The jury might decide something different. Might decide he’s not criminally responsible.”

  “Doubt it, but that’s their privilege. Anyway, what’s your second reason?”

  Liv paused. Now to approach this? How to tempt Brent with such a thin reed of hope?

  “Because I have something for you; something a lot bigger than Charley Dukes.”

  “Not that ‘he was hired,’ thing again, Liv. You know that just makes defending him tougher, and the death penalty more inviting.”

  “You know,” Liv said, “I’ve thought all along Charley had been hired to kill Barnes, and I know you think so too, based on our conversations; you just won’t say it in cour
t.”

  “Hey; I’m on your side here,” Brent said. “Murder for hire? You sure know how to argue against the death penalty! Let’s both tell the jury that. – But without a who, and a motive, and some evidence there was money on the table or some comparable persuader, well…” He shrugged.

  “I’ve been to the bar where Charley hung out, you know, the Stirrup.”

  ”Yeah. The FBI told me about the bar, and that you were seen there. They didn’t find out anything except Charley used to drink with a guy named Art that nobody can find.”

  “I’ll bet the FBI didn’t buy the locals drinks – or drink with them – like I did.”

  Brent laughed. ”No, I guess they didn’t drink on duty. And you found evidence – that everybody was too drunk to lie? Or maybe you were too drunk to remember what they said? Or bought some great testimony for a jigger of Old Grandpappy?” He was enjoying himself, now, Liv thought. On a roll. And he was being cruel, almost accusing her of being a drunkard.

  “Some evidence, yes.” Liv tried to stay calm. “You know what I’m telling you is true. You just want a fast murder conviction, wham bam thank you judge and jury and it’s over.”

  Brent perked up. “Yes, that’s about it. And when are you going to disclose this ‘evidence’ of a conspiracy? How about now? By now everyone knows all about Charley’s dumb stories, the drugs and the Arabs and all that, and the more he talked the more fantastic it got. So, do you have something new? Another new story we can all laugh at?”

  Liv looked down at the table. “No,” she said slowly, “nothing I can present to a jury. Yet.”

  There was a moment of silence as both sipped their drinks. Liv sat back and looked at Brent. “Wouldn’t you like to have ‘Art’ to try in court?” she said.