Raising Cain (35 page)

Brownie nodded. “Go with
them
.”

“Well, Mr. Lawson?” Ransome was getting antsy.

Gardner stood. “I am not going to exercise my remaining strikes, but I find the jury as constituted unacceptable. I renew
my objection to the exclusion of African-Americans from the array.” There had been three blacks in the entire selection pool,
and King had removed every one with a peremptory challenge.

King started to reply, but the judge waved him down. “I’ll handle this, Mr. King,” he said. “Your objection is noted, Mr.
Lawson, but if you do not choose to exercise your remaining strikes, you accept the jury as constituted. There has been no
showing of impropriety. The section of the county this group was drawn from has a low minority population, that is true, but
the process itself was fair. Objection overruled.”

“Mr. King conspired to exclude the residents of Blocktown from the jury pool,” Gardner argued.

“What evidence do you have of that?” Ransome asked.

“The jury commissioner just confirmed that Blocktown is out of the geographic area for jury selection one week in the entire
year:
this
week. King specifically asked to begin the trial today so he could keep African-Americans off the jury. The motivation is
obvious.”

King stood up. “He agreed to the date in chambers, Your Honor. I was willing to accommodate his schedule. I cannot be held
responsible.”

Gardner felt his ears tingle. King had set him up; he had been planning to get this date all along.

“You did say that the date was acceptable,” Judge Ransome recalled. “Sorry, Mr.Lawson, your contention has no merit.”

Gardner sat down. Brownie was stuck with an all-white jury because King had pulled a bait-and-switch at the scheduling conference,
and he’d been suckered into it. So much for thinking like a defense attorney. Brownie suddenly poked his arm. “It’s okay,
Gard.”

But Gardner knew that it wasn’t. Twelve back-country whites were going to identify more with Thomas Ruth than with a black
cop.

King had laid out the facts in his address to the jury: motive, handcuffs, shoes, the sighting of Brownie with Ruth on the
day of the crime. Everything sounded so reasonable, logical, correct. But when Gardner gave his opening statement, he’d been
met with a wall of skeptical faces, callused hands clasped on denim laps, inattentive eyes. After King’s presentation, suicide
didn’t sound plausible at all.

“Call your first witness, state,” Judge Ransome ordered.

“The state calls Officer Frank Davis to the stand,” King announced. Gardner looked up suddenly. Davis was a prosecution liability.
Why would they call
him
?

“State your name and address for the record, please,” the clerk said.

“Frank Davis, officer, county police, headquarters building, Travis Road.” He was in a crisp blue uniform, his hair wet and
swept back.

“You may inquire, Counsel.”

King moved toward the witness stand. “What was your duty assignment in September of this past year?”

“Patrol, day shift.” Davis looked straight ahead, avoiding eye contact with Brownie and the jury.

“What did that entail, exactly? What duties did you perform?”

“Sector patrol, complaint response, routine police work.”

“Any other duties?”

“Investigations.”

“Did there come a time when you were asked to undertake a special investigation?”

“Yes, sir. I was instructed to look into a suspicious death.”

King glanced at Gardner, then turned to the witness. “Whose death, Officer?”

“Joseph Brown Senior. Father of Sergeant Brown.”

“Who requested the investigation?”

“I believe Sergeant Brown did originally, then Lieutenant Harvis assigned it to me.”

King turned toward Gardner and his client. “Can you point out the person you’ve referred to as Sergeant Brown?”

Davis aimed his finger at Brownie. “That man in the gray suit.”

“Let the record reflect that the witness has identified the defendant,” King said.

“So noted.”

“Now, Officer Davis, can you inform the jury what, if anything, the defendant told you during the course of the investigation?””

Yes, sir. He said he believed his father was murdered.”

Gardner glanced at Brownie. He’d never heard about this conversation.

Brownie made two fists and glowered at the witness.

“Did he say anything else?” King continued.

“Yes.”

“What?”

“He said he knew who killed his father.”

King leaned on the hardwood rail. “Who was it, according to Sergeant Brown?”

Davis turned. “Thomas Ruth.”

“Objection!” Gardner sprung to his feet.

“Grounds, Counsel?”

“Hearsay.…” Gardner was still reeling from the comment. Brownie maintained he’d never discussed his suspicions about Ruth
with anyone.

“It’s not hearsay,” King interjected. “Statements of the defendant are admissible.”

“A moment, please, Your Honor.”

Gardner bent close to Brownie’s ear. “Did you ever say that?”

Brownie’s head turned slowly. “
No
. He’s lying.”

“Anything more, Mr. Lawson?” Ransome asked impatiently.

Gardner straightened up. “The defendant did
not
make that comment, Your Honor. I object!”

“It’s a dispute of fact, Mr. Lawson,” Ransome replied. “You can cross-examine or present contradictory evidence in your case
if you wish, but the statement itself is admissible. Objection overruled. Next question, Mr. King.”

Gardner sat down hard. The trial was barely under way, and King had already drawn blood. He eyed the jury, four women and
eight men. They were eased back in their chairs, relaxed. Davis was one of these people, one more farmer on the hayride.

“Relax,” Brownie whispered.

Gardner stretched his collar. The room was getting hotter. And the prospects for relief didn’t look good.

Jennifer left the courthouse and drove toward the Heights. She had watched helplessly as King revved up the prosecution machine
and aimed it at the defense. They were in trouble, that was obvious. Between the jury, the judge, and the prosecutors, Gardner
and Brownie were overmatched. And the trial had barely begun.

The sun was trying to break through the dense clouds as Jennifer chugged up the slope and parked by the log retreat.

Judge Thompkins opened his door. “Jennifer. Please come in.”

She was bundled in a down overcoat, her nose red. “Thanks. Hope I’m not disturbing you.”

“Of course not.”

Soon they were sitting by the fire. “Gardner’s got a problem,” she said.

Thompkins nodded. “I’ve been following the case in the news.”

“King is about to chop him to bits.”

“Why do you say that?”

Jennifer warmed her hands over the hearth. “He can’t win with the suicide defense.”

Thompkins puffed on his pipe. “You have another idea?”

“Yes. I know, or rather I have a strong suspicion as to who may have committed the murder. “

“Do you have actual proof to that effect?”

Jennifer shook her head.

“Is the prosecution suppressing proof to that effect?”

“No. They didn’t pursue the suspect from the beginning. They singled out Brownie and dropped other leads. But this person
is a real possibility.”

The judge lowered his pipe. “You have no concrete evidence?”

“Correct, but I have a very good theory. It explains Brownie’s behavior, the murder, everything. It is even consistent with
King’s case. I think Brownie’s younger brother did it.”

“Brother?”

“Paul Brown. He was in the county the night Ruth died. He had motive and opportunity. The brothers had a falling-out a long
time ago, but even then, Brownie protected him from prosecution in a vandalism case.”

“That mess at the high school in the late seventies?”

Jennifer nodded.

“That was a bad situation, a racial thing, as I recall.…” Thompkins touched his chin. “Does Gardner know about this?”

“I told him, but he won’t pursue it.”

“I can understand his reluctance.” The judge leaned back in his chair. “Brownie wouldn’t approve.”

“Right.”

“So they compromised. Suicide was a defense they could both live with.” Thompkins relit his pipe.

“Do you think they stand a chance proving Ruth killed himself?” Jennifer asked.

“Maybe, if they use Dr. Sand. He’s an effective witness, has an excellent track record.”

“But he had more to go on in his other cases. Gardner has nothing. He doesn’t even know who Ruth really was, and he needs
background information to show mental instability.”

“I saw the
Fugitives
piece on TV the other night. That should shake out something Gardner can get his teeth into. He’s very resourceful, you know.”

“But I’ve got to help.”

Thompkins raised a finger. “I don’t think you can, Jennifer, not the way you want. You must accept the facts as they are.
You cannot bend reality to suit your own purposes. You have to play by the rules. Defending a case is a different process
than prosecuting one, quite different.”

“What are you saying?”

“The truth is absolute, and so are the rules. You chose to switch sides. You can’t play defense attorney by prosecution rules.
That’s what you’re trying to do, and that’s what is causing you aggravation.”

“So what am I supposed to do?
Ignore
the fact that Brownie’s brother might be the real killer?”

“If pursuing him is incompatible with the defense, yes. You must ignore it.”

“That’s exactly what Gardner said.”

“He is right. Not in an absolute sense, but within the rules of the game. Prosecutors are practitioners of the absolute. Defense
attorneys pursue the relative. That’s what makes the system work, believe it or not.”

Jennifer stood up.

“What are you planning?” Thompkins asked.

“Don’t know yet.” She buttoned her coat.

“Let it go, Jennifer. Accept the suicide theory, and give it all you’ve got. Forget the brother.” Thompkins put his arm around
her. “Gardner needs you on the team. You’re good people, both of you. You belong together.”

Jennifer eyed him with surprise.

“Give it a try,” Thompkins said with a fatherly squeeze. “You all make a powerful combination. You can beat King at his own
game if you stick to the plan. Remember the rules.”

“Right,” Jennifer whispered. Then she stepped out the door, into the biting wind.

King drew out the direct examination of Frank Davis for another twenty minutes, reinforcing a morose and moody image of Brownie
in the days following his father’s death. The spectators were riveted, but the jurors seemed bored, as if their minds had
been made up during opening statements. Finally, King was finished. “Your witness, Counsel,” he said to Gardner as he sat
down.

Gardner approached the witness stand with a look of contempt in his eyes. “Officer Davis, did you in fact investigate the
death of Joseph Brown?”

“To a certain extent.”

“Is that a yes?”

“I did conduct an inquiry.”

Gardner began pacing beside the witness stand. “What role, specifically, did you play in the investigation?”

“I went to the scene.”

“What did you find?”

“There was no evidence of a struggle or anything like that. Mr. Brown apparently fell in the road after he had the coronary.”

“Did you explain this to Sergeant Brown?”

“I put it in my report.”

“Did you discuss that report with Sergeant Brown?”

Davis tried to catch King’s eye, but Gardner blocked his view. “I may have.”

“You testified that you discussed the investigation with the defendant. You remember that?”

“Yes.”

Gardner faced the jury. “When was that conversation?”

“Don’t remember, exactly.”

Gardner lifted a copy of the report and turned around. “Do you pride yourself on being thorough, Officer Davis?”

“I try to be.”

“So you document
everything
that’s important during the course of an investigation.”

Davis shifted in his seat, still trying to see King. “Yes….”

Gardner handed him the report. “Show me where you noted in this report that Sergeant Brown told you he knew who killed his
father.”

“Objection!” King was on his feet.

“Overruled.”

“Show me, Officer Davis!” Gardner flicked the report with his thumb.

“It’s not in there,” Davis said softly.

“It’s not in there because the conversation never took place!”

“Objection!” King was up again. “Argumentative.”

“This is cross-examination. Overruled.”

“He did tell me that,” Davis protested.

Gardner stood by the rail. “Really? Where?”

“In the station.”

“
Where
in the station?”

“The hall, outside the lab.”

“Who was present?”

“Just us.”

“Just
you
.” Gardner grabbed the report and turned to the jury. “There were no witnesses to the conversation, you don’t remember
when
it occurred, and you didn’t note it in your report.”

“We’ve been over this,” King objected again.

“Move on, Mr. Lawson,” Rollie advised. “We get the point.”

Gardner raised his eyes to the ceiling, then returned to the witness. “You were personally familiar with Thomas Ruth, the
deceased. What contact did you have with him in the days prior to his death?”

“Objection!” King was up like a shot.

“Approach the bench,” said Judge Ransome.

The parties moved forward.

“What’s the problem, Kent?” the judge asked.

“Mr. Lawson is about to inject an inconsistent line of inquiry into the proceeding. He informed the jury that Ruth killed
himself, but he’s about to suggest that this witness may have done it. That’s not relevant under his defense theory.”

Ransome looked at Gardner. “What’s he talking about?”

“I can prove that Davis harassed Ruth before he died.”

“He’s been cleared of any wrongdoing,” King interjected. “Lawson knows that. The man has been exonerated.”