Raising Cubby (41 page)

The DA’s office had chosen to go for the big score, which meant he’d either end up a felon or be acquitted. Since there were four charges, he could win or lose on each one, and any one of them could send him to prison.

As far as I could tell, few people who appeared in criminal court walked away scot-free. I studied the statistics for our state’s court system and discovered that our own county’s conviction rate was a disturbing 75 percent. That meant most defendants settled, and of the ones who didn’t, three-quarters lost. In the face of those numbers, all I could do was tell myself that broad statistics didn’t matter for Cubby and me. Our only concern was whether
we
won or lost.

We were going to do everything possible to win.

Put in context, the threat of Cubby’s experimental chemicals was trivial. A criminal with a gun presented an immeasurably greater menace to the community. Unfortunately, Perry could not see that because her mind had gotten stuck on criminality and danger, not reality. That happens when you’re in a job too long. To a roofer, every house needs a new roof. To some heart specialists, every patient they see has a heart problem. I guess it’s natural—you find what you know and what you look for.

Perry didn’t know anything, in a technical sense. Not roofing, not cardiology. Certainly not chemistry. She couldn’t evaluate Cubby as a chemist, but she felt confident condemning him as a criminal, based on the vague idea that the experimental explosives he made could have been a danger to the community. That was the essence of her argument.

For Cubby to be guilty of a felony, as she suggested, she needed to prove criminal intent, malice, and meaningful property damage. As the trial date drew closer, we remained mystified as to how she proposed to do that. Her statements during the months leading up to the trial did not hold much water. She said the peace and quiet of Amherst had been disturbed, and she characterized that as property damage. Yet it was legal for people to shoot guns in the
same woods where the explosions took place. Amherst is a rural community; people hunt here every year. If the noise of gunfire is legal, how could the sound of Cubby’s experimental explosions be a crime? It certainly wasn’t any louder.

The argument that he destroyed property by damaging the woods was similarly thin. After all, people discard trash, cut trees, and even start fires in the local woods all the time, causing very visible damage. Yet few of those people face any sort of penalty, not even a citation for littering.

Perry also said his explosions had polluted the water and soil, but that ignored the facts of chemistry. In an explosion, the explosive is converted into heat, sound, carbon dioxide, and water vapor. Therefore, Cubby’s explosives didn’t leave any significant pollutants behind. Also, the quantities of explosive ranged from a thimble full to perhaps a few chicken nuggets’ worth. No reasonable person would think a small handful of homemade explosive was a threat to the woodlands. All over America, millions of pounds of explosives are used in mining, quarrying, construction, demolition, and even farming every day. If pollution from the use of explosives were a problem, we’d surely know it by now.

We wondered if she had something up her sleeve, but try as we might, we could not figure out what it was.

For a while, I put my hopes in Judge Carhart. He’d struck me as fair during the pretrial conference, where he did his best to keep the case on track and didn’t let the prosecutor walk all over us. Unfortunately, that conference was the last we saw of him. As the schedule shaped up, Carhart had a conflict and could not see our case through to the end. The court reassigned Cubby’s case to Judge Bertha Josephson.

Josephson was fifty-five years old, with sixteen years on the bench. Before becoming a judge, she had worked in the same Northwest District Attorney’s office that was now prosecuting my son. In fact, she and DA Scheibel had worked side by side for a few years
under Judge Carhart, who also served as DA before becoming a judge. That discovery made the judges and prosecutors sound like a pretty tight little family, something I found rather unsettling as a defendant. However, our lawyer wasn’t concerned. “Most criminal court judges are either former prosecutors or former defense attorneys. And you know, some of the worst judges I’ve known were former defense attorneys. Judge Josephson is fair.”

When you hire a defense lawyer, you want him to win. Before this trial, I thought guilt and innocence were black and white. They aren’t. If there was one thing I learned from Hoose, it is that winning means different things, in different times and places. I saw that when we talked about Cubby’s guilt or innocence. “Just about everyone who appears in superior court is guilty of something,” he told us. “The person might not be guilty of all the stuff the prosecutor is charging, and there might be extenuating factors, but the fact is, most defendants did something to put themselves on trial.”

As that sank in, he continued his train of thought. “The trick is figuring out a fair and reasonable outcome in light of the facts as we see them. Most times, we don’t expect an acquittal. We bargain for some more acceptable charge, or get a continuance without a finding. But in Jack’s case we can’t do that. We can’t plead guilty to a series of felonies, and they aren’t willing to consider anything less. So we have no choice but to go for acquittal. It’s all or nothing. That’s pretty unusual.”

That was a sobering thought. My son had never disagreed that he was guilty of a small crime: being in possession of some homemade explosive. Yet somehow the prosecutor had spun that admission—which Cubby made in his initial interview and never wavered from—into a series of violent felony charges.

As the trial date drew closer there was more and more work to do. Case law had to be researched, and a defense strategy had to be formulated. We needed individual strategies with which to challenge every witness Perry would call. But before that, in November,
our lawyer tried to get the whole case thrown out. He did that by filing a motion to dismiss all charges because the state had yet to show any evidence of either malice or property damage. A hearing was scheduled at which Perry countered with the ridiculous amphibian analogy Detective Hart had offered the grand jury, and on December 4, Judge Josephson agreed to let the case go forward.

I wondered if judges would be so quick to approve crazy motions like that if they had to pick up the tab when they lost. I made that point to Hoose, who reminded me that the state doesn’t usually lose. The vast majority of criminal cases in superior court are resolved with some kind of guilty plea before the trial. From the state’s point of view, all of those are victories because they exact some kind of penalty from every poor schmo, guilty or not.

It’s a rare case where the defendant wins, hands down, but that was our only option. Anything else was just unthinkable. After the holidays, the clerk of the court set a preliminary trial date of March 16, 2009. Our anxiety built as the date drew closer. Then we got a call from our lawyer.

“The DA wants to move the trial,” he said. “They have a schedule conflict with Kirk Yeager.” I could not believe what I was hearing. Perry was actually bringing in the head of the FBI explosives lab to testify in a case about a teenager’s chemistry experiments in the woods. Yeager was the guy who had been assigned to investigate the Oklahoma City bombing case.
Didn’t the FBI have more important things to do?

The prosecutor asked for a new date, April 6, but they moved that too, when Yeager had to investigate a real crime on the day he’d planned to be here in court. Finally, after everyone had had enough of continuances, the judge set a firm date of May 21. If Perry couldn’t get her witnesses together by then, she would have to try the case without them.

We were ready to rock and roll.

Like most trials, this one started with opening arguments. That’s the part where the two lawyers tell the jurors what they are about to hear and why. The prosecutor went first.

As I expected, Perry tried to scare the jurors right away. She described Cubby as “a teenager with a frightening amount of explosives who likes to videotape himself setting them off.” She told the jury Cubby had many chemicals in his basement lab, and that one of them was so volatile it could be set off by static electricity. “A gram of TATP in the cap of your Sharpie could blow off your hand … This is not about firecrackers,” she said. When I heard that, it was all I could do to stay quiet. I hoped at least one juror had worked in an emergency room. Anyone who’s spent time in an ER knows that firecrackers shred people’s hands up all too often. Like Cubby’s TATP, they are harmless when they’re on the ground but bad news indeed if they go off in your hand.

When Hoose’s turn came, he began with a simple statement. “This case is very much about who Jack Robison is; it’s about his life in many ways.” He let the jury know that it was up to them to
decide whether my son was the dangerous criminal the state would have them believe he was, or a precocious teenager who loved chemistry. Then he told the jurors about Cubby’s gymnastics and his years as a Cub Scout and Boy Scout. I wondered what jurors were making of the contrast between Hoose’s remarks and the prosecutor’s portrayal.

When he got to my son’s education, he said, “Jack Robison dropped out of Amherst Regional High School at the end of eleventh grade. Now let me be clear with you, ladies and gentlemen, that Mr. Robison didn’t drop out because he was not doing well in school or because he was failing, he didn’t drop out because he wasn’t smart enough, he didn’t drop out because he didn’t like learning. Mr. Robison is one of those young people for whom public school just wasn’t working for him. In fact public school kind of bored him. He is, what my kids and perhaps yours would say, wicked smart.”

He let the jury know that Cubby had a girlfriend as well as plenty of friends, some of them in the courtroom. At that point Hoose gestured to the gallery, and the jurors looked back at Cubby’s supporters. At least a dozen friends were in the audience that morning. They’d all gathered around him and fussed over his appearance before walking into court. It was both sweet and funny to watch—a pack of geeky teenagers, all uncomfortable in nice clothes, standing around my son and squaring up his tie, touching up his hair, and making sure his shirt was tucked in smoothly. A few jurors smiled, and I took that as a hopeful sign. Psychologists say many seemingly complex decisions are made unconsciously, and I wondered if we’d won those jurors to our side already.

Hoose told the jury that Jack developed an interest in model rockets that led to a passion for chemistry. “A young man sixteen, seventeen years old, as you know from those of you who had children,… start thinking about careers, some boys at that age still have the fantasy that I’m going to pitch for the Boston Red Sox,
some of them think I’d really like to be a police officer, some may want to be a firefighter, some may want to be a schoolteacher.… Jack Robison knew what he wanted to do: go to UMass and become a Ph.D. chemist.” He explained to the jury that during visits to Mexico with his mother, Jack had been exposed to firecrackers, “which are legal down there,” and that he’d come back and started experimenting.

He told the courtroom that all the chemicals Cubby had can be legally obtained. He said Cubby’s own videos would show that he was careful to detonate his explosives at the Amherst landfill or on his father’s land, where they would not harm property or people.

Hoose concluded by saying, “You won’t see anything, ladies and gentlemen, to suggest that Jack Robison had any political aims, any anti-government aims, anything that would be of a nefarious nature, it’s not there. What you’ll see is just the opposite, just a kid who is experimenting and learning from something that is unquestionably potentially very dangerous, but you’ll also hear that this is a young man that never did anything without educating himself, without learning about the substance he was dealing with and following through on his knowledge to do things in a safe manner.”

With that, the trial was under way. The prosecution was up first, with Trudi Romonovitz of the South Hadley Police. She talked about getting the call from Kevin Goyette, the huckster who’d turned my son in to the police. It was Goyette who pointed her toward Cubby’s online videos. She watched them and then called Gerry Perwak of the state police. He met her, and they drove around looking for the areas shown in the videos. They didn’t find anything.

At the time, she didn’t know anything about Cubby. He’d never had any dealings with the police. She did a little digging and learned that his mom and I were divorced. Finding out that I lived in Amherst, she called the police there and asked them for help figuring out where the videos were made. They had a little more
luck. Knowing my house backed up on the old landfill, they looked out there and found a shed that had been visible in the background of one video. It was something a resident had abandoned, decaying quietly in a corner of the town landfill.

As she was beginning her investigation, Cubby was continuing his experiments. On February 4 he uploaded a new video, showing a larger test explosion in water. She was worried because the newest video showed he was still active, and it showed a bigger explosion than the ones before. She didn’t know where it was or what it meant. She then handed the matter off to the state police.