Afraid of the Dark (11 page)

Chapter Twenty-two

T
he following afternoon, Jack returned from Washington to find a box waiting for him in his office. In it was the evidence that the state attorney had presented to the grand jury to secure an indictment for murder in the first degree. Jack was in no mood to sift through it.

Not in a box. Not with a fox.

The morning meeting at the Red Cross with Neil and Stan Haber had brought Jack no closer to proving Jamal’s alibi, and his review of the box of grand jury materials convinced him of one thing: Jamal was in deep trouble. The recording from Vince’s answering machine was especially powerful. Jack listened to it once, and when the chills stopped coursing down his spine, he played it again. At moments like these—when he was alone in his office and there was no need to hide his emotions from a judge or the jury—it didn’t matter how many murder cases he’d taken to trial. There was nothing, absolutely
nothing
, like the sound of a teenage girl struggling to name her killer as her young life drained away.

“Tell me
,
”
he heard McKenna whisper,
“am I dying?”

Jack envisioned her lying on her bedroom floor, her body limp and wrapped in a blood-soaked blanket, her vision fading as she looked up into Vince’s eyes and heard his lie.

“
No, sweetheart. You’re gonna be just fine.”

No videotape was needed to see Vince switching into cop mode, unable to save McKenna but finding the wherewithal to build the case against her killer.

“Who did this to you?”

A weak cough was her response, the end nearing.

“McKenna, tell me who did this to you.”

It took a moment, but then came the one-word answer that was the heart of the state’s case:
“Jamal
,
”
she whispered.

“Your boyfriend?”

“My first
,
”
she said, her voice barely audible. There was no rhythm to her breathing, the noise more like a gurgle of fluids in her throat. Then there was silence, followed by Vince’s emotional outburst.

Jack hit the
STOP
button, knowing how it had ended, unable to listen a second time to Vince’s efforts to revive her.

Two hours passed before Jack looked at the clock again, and it was well past dinnertime when he finally got through the rest of the evidence in the box. Jack had handled other murder trials in which the victim had been stabbed to death, but this case was very different. There were no photographs of the victim. The crime scene was literally a pile of ashes, and the forensic and investigative reports read more like a prosecution for arson than homicide. Investigators had isolated the propane tank that was believed to have caused the explosion. It was the fire marshal’s expert opinion that it was gunfire—probably an errant shot at Vince by the attacker—that had ruptured the tank. The ensuing fire had consumed virtually all physical evidence relating to the homicide, including McKenna’s body. The only knives recovered in the rubble were in the charred remains of the kitchen drawers, and there was no way to know if any of them was the murder weapon or if the killer had brought his own and escaped with it. The state’s case was built on McKenna’s own words and a detailed statement of Vince Paulo.

Jack kept coming back to the answering machine recording—as he expected the prosecutor would at trial. It was a dramatic contradiction of his client’s claim of innocence, and a jury would demand an answer to the same question that was dogging Jack:

If Jamal didn’t do it, why did McKenna say it was him?

Jack packed up the box of evidence, called it a night, and met Neil for a late bite at Cy’s Place in Coconut Grove. They sat on stools at the long mahogany bar, the television on the wall tuned to ESPN. Cy’s Place was better known for its late-night jazz than its food, but if Jack didn’t eat there at least once a week, he risked serious bodily injury at the hands of the owner.

“Try the fish sandwich,” said Theo. “The dolphin were practically jumping into the boat. I caught ’em myself this morning.”

Having spent the morning in meetings trolling for evidence to support an alibi, Jack was wrestling with another why-can’t-I-be-Theo moment. Fishing in the warm waters of the Gulf Stream was one of the many reasons to live in south Florida, especially in January, but Jack hadn’t been out since September. If it weren’t for Theo’s what’s-yours-is-mine philosophy, Jack’s boat would have rotted on the dock.

“Make it two,” said Neil. “And a couple cold drafts.”

“Cool,” said Theo. “Yours is on the house, Neil.”

“What about mine?” said Jack.

“You I charge double.”

Neil laughed, but Jack knew he wasn’t kidding. “What did I do to piss you off?”

Theo went to the tap and starting pouring. “Vince Paulo basically saved my life two years ago,” he said. “And now you’re defending the guy who blinded him.”

Jack was all too aware of that dilemma. “First of all, Neil asked me to help with the case. Second of all, he’s more convinced of Jamal’s innocence than I am. So why is his food free?”

Theo set up the beers in front of them. “Neil can’t help himself. He thinks everyone is innocent. You know better.”

“He has a point,” said Neil.

“Stay out of this,” said Jack. He tasted his beer, and an idea came to him. “I tell you what, Theo. You can bill me double for a month, if you can explain one thing to me about this case.”

“I assume you mean the month of March, not February.”

“All right. Thirty-one days.”

“Hold on,” said Neil. “You can’t discuss the case with a bartender.”

“Theo is my investigator,” said Jack. “This is a privileged conversation.”

“It’s more like a bet involving the price of fish sandwiches,” said Neil.

“Then let’s do this by the book. Theo, in accordance with the rules of criminal procedure as approved by the Supreme Court of Florida, I hereby retain you as a certified expert on phony alibis and bullshit accusations. Tell me what you think of this one.”

Theo came closer, resting his arms on the bar top. “Let’s hear it, dude.”

Jack took a minute, his smile giving way to a very serious expression. The $64,000 question that had popped from the box of evidence from the state attorney was still eating at him, and he was no longer just kidding around.

“Answer me this,” said Jack. “Why would a girl like McKenna Mays tell a cop that her boyfriend stabbed her if he didn’t?”

“Easy,” said Theo. “The guy who did it told her he’d come back and slit her throat if she named him. She’s bleeding, scared, confused, and blurts out the first name that comes into her head.”

“Doesn’t exactly line up,” said Neil. “The girl was dying. No reason to fear her attacker coming back to hurt her.”

“Maybe he threatened to come back and kill her entire family. Or maybe she didn’t know she was going to die.”

The last point had Jack and Neil exchanging glances. Lawyers could agonize over evidence for hours, days, even weeks. A former gangbanger from the ’hood who’d spent four years in Florida State Prison could look at the same set of facts and make things just so simple.

“Take it one step further,” said Jack. “It’s not that she isn’t sure if she’s going to live or die. Maybe she’s absolutely convinced that she is
going to live
.”

“Convinced by someone she knows and trusts,” says Neil.

The lawyers were silent, but Jack didn’t need ESP to know where the other legal mind at the bar was headed.

“I don’t want to go after Paulo directly,” said Jack, shaking his head.

“I can’t blame you a bit for that,” said Neil. “But you know as well as I do that trying to prove up a secret detention facility in Prague is headed nowhere fast. So here’s the thing.”

“Tell me.”

He glanced at Theo, then back at Jack. “It’s like I told you before. They got the wrong man, which means that whoever stole Vince Paulo’s sight and killed McKenna Mays is still out there. The way I see it, you’re actually doing Paulo a favor.”

Jack lowered his eyes, talking into his beer. “Yeah, a favor,” he said with a mirthless chuckle. “I’ll probably get a thank-you note from the whole damn department.”

Chapter Twenty-three

O
n Friday afternoon, Jack and Neil were back in the Justice Building. Seated between them at the nicked and scratched defense table was Jamal Wakefield, who looked almost boyish in his orange prison jumpsuit. The prosecutorial team sat closer to the empty jury box. Once again, Assistant State Attorney McCue had brought along the lawyer from the National Security Division of the Department of Justice.

“Good morning,” said the judge, and Jack did not take that as a good omen. It was three
P.M.

“Good morning,” said the lawyers, no one pointing out his error. It was an unwritten rule in Judge Flint’s courtroom: Suck up or shut up.

Bail hearings were not usually closed to the public, but this hearing was unusual for many reasons, not the least of which was the fact that in Florida there was no guaranteed right to bail in a first degree murder case. The accused could be released only after an Arthur hearing, named for one of the Florida Supreme Court’s most famous decisions of the early 1980s—which, for the record, had absolutely nothing to do with Dudley Moore, Christopher Cross, or getting caught between the moon and New York City. In theory, the burden was on the prosecution to establish that the proof against the accused was evident and the presumption of guilt was great. In
State v. Jamal Wakefield—
a case tinged with national security concerns—Jack was practical enough to realize that the defense would have to put on evidence to establish a right to pretrial release.

The prosecutor spoke first. “Judge, we have a defendant who was picked up in Somalia after the commission of the murder and is a clear flight risk. This is a frivolous motion and a colossal waste of this court’s time. For purposes of this hearing, the state of Florida relies on the evidence that it’s already presented to the grand jury.”

“Thank you,” the judge said, and his appreciation seemed sincere, as if he were still under the impression that it was morning and that he had an important lunch date. “Mr. Swyteck, the ball is in your court.”

Jack rose. “Your Honor, in due time we’ll explain how Mr. Wakefield ended up in Somalia. But first, the defense will show that the case against Mr. Wakefield is a weak one, and that he should therefore be released on bond pending trial.”

The judge groaned as he rocked back in his tall leather chair. “Let me be up front about this, Counselor. I am not going to allow you to try this case twice. Your client has a right to a speedy trial, where you can present your evidence soon enough.”

“We may need just one witness to call the prosecution’s case in question,” said Jack.

The judge seemed pleased by that announcement. “I’m going to hold you to that, Mr. Swyteck. Proceed.”

“The defense calls Vincent Paulo.”

Jack’s voice carried across the empty seats in the public galley and almost echoed off the rear wall, a bit too loud for a courtroom with no observers. The double doors in the back of the courtroom swung open, and Sergeant Paulo entered. He wore a business suit and tie, his eyes hidden behind a pair of dark sunglasses. In his right hand was a white walking cane. His wife was standing at his left, a strong and beautiful woman, which made it seem all the more tragic that Vince could no longer see her. Vince tucked away the cane and laid his hand in the crook of her right arm. Together they came down the aisle, though it seemed to Jack that Vince could have done it without assistance. In a moment of uncontrollable defense-lawyer cynicism, Jack wondered if the prosecutor had told Vince to bring his wife, make himself look more helpless—and make the judge hate Jack even more for attacking the cop that his client was accused of blinding.

“Do you swear to tell the truth . . .” said the bailiff, administering the familiar oath.

“I do,” said Vince. He climbed into the witness stand and settled into the chair.

Jack stepped forward and, to his surprise, felt at a decided disadvantage before he’d even started. The key to effective cross-examination—and this
was
cross, even though technically the defense had called Paulo to the stand—was to control the witness. In the courtroom, control was like any other form of communication: Least important was what you said, more important was how you said it, and most important of all was body language. Out of habit, Jack planted his feet firmly on the courtroom floor, squared his shoulders to the witness, and stood tall, but Vince was unflappable, impervious to the nonverbal cues.

“Good afternoon, Mr. Paulo.”

Vince showed little expression. “
Sergeant
Paulo,” he said.

“Sergeant,” said Jack. “First, let me say that I regret having to subpoena you to appear in court today. I know—” he started to say, then stopped himself, thinking of their phone conversation. “I can only imagine how difficult this must be.”

Vince did not reply, and for Jack the silence was somewhat unnerving.

Jack continued. “I’ve read the sworn affidavit of your testimony that the prosecutor presented to the grand jury. I’ve also listened to the recording of your last words with McKenna Mays on the day she died. I understand that you were a police officer at that time, but just to be clear, you were not on the scene in response to a call for help, were you?”

“No, I was not.”

“I believe you stated in your affidavit that Mr. Mays was out of town, and you went to the Mays residence to check on McKenna.”

“Actually, Mr. Mays told me that he was concerned about—”

“Excuse me, Sergeant. Judge, what Mr. Mays told the witness is inadmissible hearsay.”

The prosecutor rose. “Is that some kind of objection?”

Even without a jury—judges were human, too—Jack couldn’t let the witness testify that McKenna’s father feared Jamal might come around while he was out of town. “Your Honor, what I’d like is simply an answer to my questions.”

“The witness will answer the questions asked,” said the judge, “without mention of what others may have told him.”

“Let me restate it,” said Jack. “You went there to check on McKenna, but not on official business.”

Vince shifted in his chair, and it obviously pained him not to be able to take a shot at Jamal. “Basically, yes.”

“You and McKenna’s father were friends?”

“Yes.”

“How long?”

“At that time, I’d say about seven years.”

“Since McKenna was in elementary school, then?”

“That sounds right.”

“Would you describe your relationship with McKenna as close?”

“She used to call me Uncle Vince, if that answers your question.”

“Would you say that she regarded you as someone she could trust?”

“Of course,” said Vince.

“Someone she could rely on?”

“There was nothing I wouldn’t have done for McKenna.”

“Someone who would tell the truth?”

“Objection,” said the prosecutor, rising.

“Overruled. The witness will answer.”

Vince paused, but Jack didn’t read it as any kind of confusion as to courtroom procedures. It was the question that had given him pause—Vince’s acute awareness that defense lawyers didn’t ask questions without a hidden agenda. “She certainly had no reason to think I was a liar,” said Vince.

“Exactly,” said Jack. “McKenna Mays had no reason to believe that her uncle Vince would lie to her. Correct?”

Again he hesitated, but Jack had left him little wiggle room. “I would say that’s true.”

Jack faced the judge. “With the court’s permission, I would like to play the answering machine recording of McKenna Mays. It’s the key piece of evidence in the state’s case against my client.”

“No objection,” said the prosecutor.

“All right, let’s hear it,” said the judge.

Neil came forward to help the judicial assistant find the CD among the grand jury materials. She marked it, inserted it into the player, and then waited for Jack’s cue.

“Just to set the stage,” said Jack. “Sergeant Paulo, can you tell us exactly where you were at the time of this recording.”

Vince was slow to respond. “I was in her bedroom,” he said, his tone forced, as if it were a struggle not to get emotional.

Jack knew that these were painful memories for him, but seeing his reaction—and knowing that he had no choice but to take him down this road—was almost equally painful for Jack. “Where was McKenna?”

“On the floor,” he said softly. “I knelt at her side, and raised her head up.”

Jack wished he didn’t have to ask the next question. “How was McKenna doing at this point?”

“Not well,” he said, and the words hit Jack sharply, as if Vince had reached inside his tormented self and told Jack, “
Up yours for asking.”

“She’d been stabbed?”

“Several times,” Vince said. His voice almost cracked, but he drew a deep breath, and he sounded like a cop again. “She had defensive wounds on her hands, and a large puncture wound to her rib cage that was spewing bloody foam from her lungs. She was also bleeding heavily from a slash across the left side of her neck. Her pulse was weak. When I called her name, her eyes opened, but her body was going cold. I pulled a blanket from the bed and covered her, tore a sheet into bandages and applied them to the wounds. It didn’t do much good.”

“Was that when you dialed nine-one-one?”

“Redialed. I had already called once, and the second time was to find out what was taking so long. Then I noticed that McKenna was trying to say something.”

“So you hung up and dialed your answering machine?”

“At this point . . .” He paused and gathered himself. “It looked bad for McKenna. My law enforcement instincts took over. If she was going to tell me what happened, I wanted to have a record of it. I was in no position to take notes and didn’t have a recording device. The idea popped into my head to get it on my answering machine. So that’s what I did.”

Jack gave him a moment, then signaled to the judicial assistant. “Let’s listen,” said Jack.

The assistant hit
PLAY
, and after brief static, there was noise on the line, probably the sound of Vince holding the phone to McKenna’s lips. Then in a faint voice, the victim spoke:

“Tell me
,
”
she whispered.
“Am I dying?”

“No, sweetheart
,
”
said Vince.
“You’re gonna be just fine.”

Jack paused the recording.

“That’s the first time you told her she was not going to die—correct, Sergeant?”

Vince seemed momentarily confused, as if he hadn’t expected the question. “Yes,” he said.

“Thank you,” said Jack, and then he glanced back at his client. Jamal was staring at the carpet, his forehead resting on the table’s edge, as if it were all unbearable. The recording resumed.

“Really?”
said McKenna.

“Who did this to you?”
said Vince.

“Am I going to die?”

“No, McKenna. You’re going to be fine. Who did this?”

Jack paused the recording again. “Sergeant, am I correct that this is the second time you told her she was not going to die?”

“Yes.”

“Thank you,” said Jack, and the recording continued with McKenna’s ever-weakening voice.

“You really think I’m going to be okay?”

“Yes, it’s not your time. I saw much worse than this in Iraq, and they’re all fine. Tell me who did this to you.”

Jack hit
PAUSE
once more.

“Sergeant Paulo, that makes three times that you told her she was not going to die.”

“Yes.”

“In less than a minute.”

Vince swallowed hard, seeming to sense where this was headed. “I . . . yes.”

“And after you gave her those three separate assurances, you asked her, ‘Who did this to you?’ ”

“I believe so.”

“And her answer was ‘Jamal.’ ”

“That’s correct.”

Jack glanced over his shoulder at his client, and their eyes met. Jamal looked scared, terrified, really. Jack wasn’t sure if he looked innocent, but he didn’t look guilty, either. If he had, Jack wouldn’t have found the strength to go on.

He took a step closer to the witness. “Your intention was to make McKenna believe that she was not going to die,” said Jack.

“She was scared. So scared she couldn’t even talk.”

“Scared of dying, right?”

“Yes.”

“So you told her she was not going to die.”

“Right.”

“Three times.”

“Only so she wouldn’t be scared.”

“And your words removed her fear.”

“Objection,” said the prosecutor. “How would the witness know what was in the victim’s head?”

“Your Honor, based on his own perception, Sergeant Paulo just testified that the victim was too scared to talk. I’m entitled to an answer, again based on his own perception: Did his words allay her fears?”

“I strongly object,” said the prosecutor.

The judge frowned with thought. “There’s no jury here. I’ll allow it. The witness may answer.”

Vince considered it, then said, “I’m sure it helped.”

It wasn’t a perfect answer, but this was unpleasant work for Jack, and he had pushed Vince as far as he cared to push.

“Your Honor, at this time . . .”

His voice halted, and Jack was suddenly at war with himself. Again, he glanced over his shoulder.
What if Jamal is guilty?

The question gnawed at his soul, but Jack fought through it, reminding himself that he wouldn’t have come this far if Jamal hadn’t passed a polygraph examination. If McKenna’s own father hadn’t expressed doubts about Jamal’s guilt. If the government hadn’t pushed back so hard against Jamal’s alibi. If the witness who had flown all the way from the Czech Republic to support the alibi hadn’t died so mysteriously at Lincoln Road Mall.

If the message scrawled on Jack’s napkin hadn’t read “
Are you afraid of The Dark?”

“At this time,” Jack continued, “the defense moves to exclude the answering machine recording as hearsay.”

The prosecutor was on his feet. “It’s admissible as a dying declaration,” he said, noting one of the oldest exceptions to the hearsay rule.