Raising Cubby (43 page)

“Advising all due caution, anything that contains TATP I would get out of here immediately” was his reply. “There’s only so much you can do to make it safe, and this material does not look wetted to me at all. The material in this amount is probably not going to detonate, it’s scattered out, but it’s going to create one nasty fireball if it decides it wants to go; and the person sitting in proximity to that is not going to be pleased.”

With a look of annoyance, the judge had the prosecutor call a trooper to gather up her evidence bags and carry them out of the room. I could see people in the courtroom looking at one another and whispering commentary as this went on.

With the jury back in their seats, Yeager talked about analyzing videos of explosions, including Cubby’s, and how it’s sometimes possible to evaluate the materials and the damage done in the blasts. He told the court how he’d analyzed video from the attack on the USS
Cole
, perhaps in hopes the jury would draw some kind of analogy. I listened very carefully. He said Cubby’s narrations and captions were consistent with what was shown, and the videos showed a steady increase in success and sophistication. That was especially true for the last video, where Cubby set a charge off underwater.

Yeager never mentioned a single instance of property damage.

Perhaps realizing that, Yeager tried to fill in with what might have been. “An explosion of that size could do substantial damage to a building, or even kill someone,” he said of the underwater detonation.
Of course, there were no buildings or people in sight when Cubby did his experiments.

As Hoose said later, Yeager was totally on board with prosecuting my son, but he really didn’t have anything concrete to offer the court, as Hoose established on cross-examination.

“You never went to any of the sites, did you?” he asked. Yeager reluctantly conceded his involvement was limited to looking at images and talking on the phone.

Next he addressed Cubby’s motives. “Not every kid who experiments with chemistry becomes a terrorist. Isn’t that right?” You could see the sigh as Yeager agreed. Hoose tried to get him to admit his own students at New Mexico Institute of Mining might even experiment with explosives, but he wasn’t having any of that. “Not in my classes, they don’t!” He actually sat up straighter as he said it. The vehemence of his denial said more than further questioning. Yeager was a government chemist, with zero tolerance for breaking the rules.

Next they turned to PETN. Hoose said, “PETN as it sits on a shelf is sensitive enough to scare us, but not so sensitive it can’t be handled or used.” Yeager agreed. Yeager said PETN was widely used in weapons, but he agreed that all Cubby had was sample quantities of the material. So far, nothing new or striking had come out. I kept my fingers crossed.

Of all Cubby’s chemicals, Yeager had been most critical of the TATP. Yet he said he’d made some himself in a government lab. Just experimentally, of course. In pursuit of science, not terrorism. Hearing of Yeager’s personal experience with TATP, Hoose asked if things could be done to keep it safer in the lab. Cubby had kept his TATP covered with water. Yeager agreed that storing it in water made it safer and less likely to detonate. I hoped the jurors were paying attention.

Perry sure was paying attention. As soon as Hoose finished, she popped up with more questions of her own. “Dr. Yeager,” she
began, “your college students are not allowed to perform experimental explosions, are they?” He agreed they were not. “In your lab, you take all sorts of safety precautions, don’t you?” He agreed with that too, but they couldn’t take that line of questioning much further because Yeager had never been to Cubby’s lab.

She changed tack, remembering Hoose’s point about the TATP stored underwater. “TATP stored in tinfoil would be dangerous, wouldn’t it?” Yeager agreed, but I saw some quizzical looks from the jurors. After all, wasn’t it the same stuff she had handed them, with no comment, a few hours before?

When she was done, Hoose stood up again. They were both working Yeager for all they could get. Hoose reminded him of the TATP underwater and the other precautions Cubby had told them about. “Wouldn’t you say Jack took the highest precautions possible in his experiments?” To my surprise, Yeager agreed.

With that, the prosecution rested. They had hammered us for two days with one witness after another. We had been buried in detail about what they found, where it was, and what they did with it. We had not heard anything awful, but we had been deluged with a torrent of testimony. I was reminded of the famous quote, “If you can’t dazzle them with brilliance, bury them in bullshit.” I was truly afraid the state would succeed with that very tactic.

All the gravest crimes in our area are tried right where we sat, in the Hampshire Superior Court. All those trials are open to the public. Most times, the audience consists of victims and their friends and family. There are often reporters, and sometimes families of the defendant. This was the first trial in years where there were no victims and no complaint. Consequently, the entire audience—other than the reporters—was my son’s friends and supporters. Over the past few days they’d come to fill the courtroom. Many of his buddies from school and town were there. My neighbors and my family were there. My friend Bob, his wife, and even Bob’s parents were in attendance. Everyone gathered around him as court recessed to
offer a pat on the back, a cold soda, or words of encouragement for the next phase of trial. “Now it’s your turn,” they said. “You’ll set them straight!”

That night, I did some thinking about what they had said about my kid and his chemistry. We’d heard from a slew of experts, and all of them had said the same thing: Cubby’s lab was very sophisticated. He had made a lot of different compounds, and his understanding of the chemistry of explosives went way beyond what they ordinarily saw. Of course, what they ordinarily saw was the work of criminals. They didn’t generally see the work of scientists, which was what Cubby wanted to become.

They had actually described a key difference between Cubby’s lab and that of a criminal, though they hadn’t spelled it out in so many words. In a scientist’s lab, there are many different chemicals with which the scientist can conduct experiments. Even if the lab has a single purpose, like the development of a new explosive, the scientist might explore a number of paths to find a solution. Labs like that can be found in every college chemistry department, and in the research and development area of many large corporations.

Criminal labs are very different. Criminals are not interested in esoteric experimentation. They are interested in producing a particular substance. A criminal lab is not a vehicle for discovery and understanding; it’s a factory for the production of banned chemicals. Whether those chemicals are recreational drugs, explosives, or something else does not matter.

A chemistry professor would not have been at all surprised by the variety of chemicals Cubby had on hand. Many of them worked with the same compounds on a daily basis. I heard that many times, getting ready for the trial. That’s what experimenters do. Unfortunately, there were no chemistry professors involved in Cubby’s investigation, only policemen of various sorts. None of them seemed able to escape the criminal lab fixation.

Not one of the investigators said, “This is a really smart kid.
What could we do to help him find a place where he could develop his talents?” Instead, in essence they said, “This is a really smart kid. What can we charge him with, to put him in prison?” I suppose you can’t blame the investigators for thinking that way. After all, they investigate criminals all day, so everyone they see probably looks like some kind of criminal, or a potential criminal, after a while. But what about their bosses? Couldn’t one of them have seen the path they were on?

Cubby had not been convicted of anything—yet—but it was already obvious how our society’s misjudgments could turn good kids into criminals. Whether we won or lost, none of us would ever see the criminal justice system in America the same way again. I felt very sad.

We’d been hopeful in the beginning of the trial, when the witnesses were all on Cubby’s side. However, the tide had turned with the later witnesses and the state’s hammering on the idea of hazard and danger and threat. Cubby and I now had to consider what we’d do if he lost.

If he were found guilty, the next step would be a sentencing hearing. The problem was, any superior court conviction would leave my son with a felony criminal record, which would close many doors for him forever, no matter the sentence. I wasn’t sure that we wanted to stick around for that outcome.

Cubby had the same thought I did. “We should leave the country and go somewhere we’d be welcome,” he said. I wondered where that would be. Canada had welcomed draft dodgers in the sixties, but I doubted they’d welcome a teenage felon today. We pondered our options, none of which looked appealing.

The only clear thing was that we were in this together. If we lost this case, our lives as we knew them were over. Wherever we ended up, western Massachusetts would be left far, far behind.

After two days of prosecution witnesses telling a totally one-sided story, it was our turn to tell the truth about Cubby. The first witness our lawyer called was Alex Turner. Alex talked about meeting my son at Amherst High, going to school together, and doing the things teenagers do. Things like playing video games, surfing the Internet, and hanging out with friends at my house.

Alex also described some things most teenagers don’t do, like watching TV while Cubby mixed chemicals or read chemistry texts. He talked about walking through the woods and looking for places they could safely set off test explosions, far from people or houses. With a trace of pride, Alex said he was present for several of Cubby’s explosions. He made a particular point of looking at the jurors and telling them that no one and nothing was damaged. When he said that, the prosecutor looked downright venomous. He said Cubby just loved chemistry and science and wanted to learn more. Perry objected, and then it was her turn to question Alex.

When she stepped up to cross-examine Alex the whole tone of the courtroom changed. Until then, both sides had been respectful. Perry had been almost pleasant with her own witnesses, and our
attorney had approached them politely, speaking in a friendly and conversational tone of voice. But as soon as the defense’s first witness was on the stand, Perry attacked, with a hard, mean look and an edge to her voice that we hadn’t heard before.

“You remember talking to Trooper Perwak last year, right?” Alex said he did. “Things got a little heated, and you had to apologize. Do you remember that?” Of course they had gotten heated. Perwak had tracked Alex down at school and questioned him aggressively in order to build a case and charge his friend with a crime. What teenager wouldn’t get scared and maybe a bit heated over that? Alex was pretty uncomfortable, but he stood his ground for his friend, both when questioned originally and at the trial.

Two of our next witnesses spoke of Cubby’s peaceful nature: Steve Roberts, his scoutmaster, and Mark Moriarty, one of his high school teachers. Bringing them in to testify hadn’t been easy. When we listed them as witnesses, Perry challenged us, and we had a minitrial to decide if they could appear in the regular trial. According to her, Roberts and Moriarty had nothing relevant to say because they weren’t there for Cubby’s chemistry experiments or the raid. However, Hoose made a passionate argument for Roberts and Moriarty. “The reputation evidence [Jack] wants to introduce is essential to a fair trial,” he said. “The state has done its utmost to portray a serious student with an interest in chemistry as a terrorist-in-training. This is a vindictive perversion of his character that can only be countered by the insight of people in the community who know him.” That was a fine turn of phrase, I thought.

I’d been feeling down because the last few rulings had gone against us, but this time the judge ruled in our favor. “Malicious explosion is a violent crime, so the testimony of local residents is indeed relevant,” she said.

We were counting on that very thing. For us, Cubby’s reputation was the heart of his defense. We needed respectable people to say
he was peaceful, nonviolent, and interested in science. If the jury agreed, there was no way he’d be convicted of the state’s charges.

Steve Roberts was Cubby’s first character witness. He’d known my son half his life and spent many hours with him. As scoutmaster, he’d counseled Cubby through all the levels of scouting, from cub graduation to Life Scout. If it weren’t for the stress of the raid, we were all sure Cubby would have made Eagle Scout too.

“Jack was a popular patrol leader, and he earned sixteen merit badges, including one in chemistry. In fact, after earning his own badge, Jack taught the chemistry merit badge course to other scouts.” Roberts told the court about the National Scout Jamboree, which Cubby attended the year he turned sixteen. He talked about community service, and how Cubby helped the other scouts and other people in town.

“Jack was always peaceful. He didn’t get into fights or serious trouble,” Roberts testified. As a scout leader, he made it clear it was his business to know which kids he needed to watch, and Cubby wasn’t one of them. He spoke with great certainty, in a calm, measured voice.