The Burning Man (26 page)

"Do you have an update on Kevin Booth's condition?" the judge asked. Peter leaned forward. If Booth was too ill to testify, Peter's day would be complete.

"I spoke with Mr. Booth's surgeon this morning," O'Shay said as she consulted her notes. "Dr. Farber says that Mr. Booth cannot be transported to Whitaker without endangering the success of the skin grafts. However, Mr. Booth is metabolically more stable. His fever is down, he's gaining weight and he requires less pain medication, which makes him more coherent.

"According to the doctor, Mr. Booth will be able to testify in his hospital room in Portland by Monday. Dr. Farber is willing to postpone further skin grafts so the trial will not be delayed. It's my intention to examine Mr. Booth in Portland agreeable."

"I object, Your Hor "What are your gro "Booth's testimony is cru< ial to t states case. If the jury sees imi i i a hospital room it's going to generate a lot of sympatt y. Booth has been burned to a crisp. I'm going to look ike an ogre if I go after him.

"And how am I going to cross-examine effectively?

What happens to Mr. Harmon's right of confrontation if Dr. Farber so that I shouldn't excite Booth? And ys he's on pain medication. He'll be sedated. That means the jury won't be seeing the way he would normally react to questions."

"Your concerns are valid, Mr. Hale, but it seems to me that they are theoretical. It may be that you will be able to carry on a vigorous cross of the witness without any medical problems occurring. We'll deal with confrontation problems if the doctor tries to restrict you.

Of course, we could have a mistrial or Mr. Booth's testimony may be struck, if you are foreclosed from examining Booth because of medical problems, but that's a risk the state runs.

"As to the prejudice caused by Booth's appearance and the location where he will be examined, I plan on instructing the jurors that they may not let any sympathy caused by Booth's appearance affect their decision.

I'll draft a jury instruction to that effect and I'll give it to you to review tonight. Let me know if you want any changes by tomorrow morning, before court.

"With that in mind, I'll have a bus meet us here at seven o'clock on Monday morning. Ms. O'Shay, please notify the hospital that I plan on taking testimony at two in the afternoon.

"If there's nothing further, we'll take a short recess.

Then I'll have the clerk bring in the jury."

judge Kuffel left the bench and the guards took Gary to the holding cell so he could use the rest room. Steve Mancini walked to Peter's side as soon as Gary was out of earshot. There were dark circles under his eyes and Peter noticed nicks on his face where he had cut himself shaving. It was obvious that Mancini had not slept last night either.

"I really fucked up, didn't I?"

"What's done is done," Peter answered resignedly.

"I'll just have to call Bosco as a witness and hope that the jury buys his theory."

"I wonder what else will go wrong."

"What do you mean?" Mancini hesitated. Then, he said, "Donna left me."

"What!" Peter responded, hoping that he looked suitably surprised.

"We had a fight after you went home because I didn't tell you about Bosco."

Jeer, I'm sorry. I shouldn't have barged in like that.

I feel awful."

"It's not your fault. I don't even know why I'm burdening you with this. I guess I just needed someone to talk to."

"How serious is this?"

"Pretty serious. I feel really bad. I love her so much."

Mancini's voice caught and Peter was afraid he was going to cry. If he did, Peter didn't know if he could keep lying.

"Hey, it'll work out. It's just a newlywed spat. She loves you, too. She'll come back."

"I hope so, Pete. I can't stand being away from her. if you run into Donna, tell her I love her, will you? Ask her to call me. I'm sure everything would be all right if we could just talk."

"You bet," Peter said, but he did not mean it. He felt terrible about deceiving his friend, but he remembered Donna's pain and terror too vividly to help Maricini find his wife.

"I shouldn't have bothered you in the middle of trial."

"It's no trouble," Peter answered guiltily. "Maybe we should go out for dinner tonight..

"No. This was selfish of me. You've got to prepare your case. Gary's life is at stake. I'm just feeling sorry for myself. I'll be okay."

During the rest of the morning session, witnesses told the jury about the peeping incident and the pornographic magazines. Becky O'Shay started the afternoon session of court by calling Sergeant Dennis Downes to the stand. just before he started to testify, Christopher Mammon entered the courtroom. This was the second time Mammon had been a spectatorat Gary's trial and Peter remained puzzled by his interest.

Downes testified calmly and professionally about the history of his investigation and the evidence that led him to Gary Harmon. He emphasized the courtesy shown to the defendant and explained how Gary had agreed to come to the station house. Whed his narrative reached the point where the taping began, Becky introduced the tapes of Gary's interrogation into evidence and supplied everyone with a transcript of the five-hour interrogation. Then, Becky played a two-hour, edited version of the interrogation to the jury. The day's session of court ended with a recitation by Downes of his part in finding the hatchet in a storm drain near the Whitaker State College campus.

After court, Peter 'went directly to his office to finish the work on his cross-examination of Sergeant Downes.

He hoped Steve Mancini would not be working late, because he felt a little guilty about helping Donna hide from her husband. Fortunately, Mancini was not in the building.

Peter tried to work on the case, but he kept thinking about his encounter at the courthouse with Steve. Mancini seemed so sad. Maybe Donna had exaggerated when she described her beating. Mancini had definitely hit her, but based on how contrite he seemed, it was hard to believe that Steve had really meant to hurt her.

Peter was also troubled by his part in the Mancinis' marital problems. He should never have barged into their house the way he did, throwing accusations at his friend in front of Donna. He had made it sound as if Steve was intentionally sabotaging Gary's case. The more Peter thought about it, the more he decided that he owed it to Steve to tell Donna how sorry he seemed in court.

As soon as he wrapped up his work, Peter drove across town. Rhonda Kates lived near the hospital in a garden apartment on the other side of the Whitaker campus from city center. Peter rang the doorbell and noticed the curtain that covered the kitchen window move.

Donna looked apprehensive when she opened the door.

She had been afraid to go back to her house for her own clothes, so she was wearing shorts and a green tank top that belonged to Rhonda.

"I thought I'd drop by to see how you're doing."

Donna's apprehensive look turned into a smile of relief and she ushered him in.

"You all alone?" Peter asked.

"Rhonda has an evening shift at the hospital."

"How are your ribs?"

"Nothing's broken. I'm still sore, but it could have been worse."

They sat down in the living room.

"I was too upset to thank you last night," Donna said.

"Oh, hey ... "No. Some men wouldn't have wanted to get involved. Especially with the wife of a friend." She paused. "You haven't said anything to Steve, have you?

About where I am."

"No. He doesn't know I helped you. I was afraid if I said anything, he'd want to know where you are. That would have put me in the middle. I like both of you and I ... Well, I really find it hard to believe that Steve hit you like that."

"I know what you mean," Donna answered bitterly.

"Actually, Steve did talk to me today at the courthouse. He's a mess. I think he's really sorry for what he did."

"Sorry isn't good enough. I am not going to be Steve's punching bag. If you love someone.. ."

Donna left the thought unfinished. They sat quietly for a moment. Then, Donna asked, "Are you hungry?

I'm fixing some dinner for myself."

"I'm starved."

Peter followed Donna into a kitchen separated from the living room by an L-shaped, waist-high counter. Tomatoes, lettuce, an avocado and pods of fresh green peas were spread out near a large salad bowl on a co next to the sink.

I "I was going to make myself a steak and salad got another steak. Is that okay?"

"Great."

"Do you want a drink?"

"Does Rhonda have the fixings for algin and tonic?"

"Let me check," she answered as she looked in a cabinet over the stove. "You're on," she said, handing a bottle to Peter. "I saw the tonic in the refrigerator. Why don't you fix me one, too," Peter found the ice and fixed the drinks. When he set down Donna's glass on the counter, she asked, "How did the trial go today?"

Peter told Donna about judge Kuffel's decision to keep out evidence of the other murders. Then he recounted the testimony concerning the sex magazines and the peeping incident and Gary's reaction to it. The heat in the apartment caused sweat to bead on Donna's body. While Peter talked, she picked up the cold glass of gin and touched it to her forehead. With her hair in casual disarray, she looked attractive even with her split lip and bruises. The cruel reminders of Steve's beating made Peter want to protect her from any further harm.

When he realized that he was staring, Peter averted his eyes, hoping that Donna had not noticed.

"Poor kid," Peter finished. "Here he is facing a death sentence and all he can think about is your mom knowing he's been reading Playboy."

"How do you think the jury reacted to the books and the peeping?"

"Tough to say. A couple of them looked upset about the peeping. I don't know what they thought about the magazines. I did see a couple of kindly looks when Gary started bawling.", "Give Gary my love, will you. Tell him ... tell him I have to go out of town for a few days so he won't wonder why I'm not in court."

"I will."

Donna paused. She looked worried.

"If I ask you a question, will you give me an honest answer?"

"Of course," Peter said.

"Is Gary going to be convicted?"

Peter's first thought was to assure Donna that he would win Gary's case, but he found that he could not lie to her.

"I don't know, Donna. I wish I could assure you that he'll be okay, but I just don't know."

Chapter TWENTY-ONE.

Peter began his cross-examination of Dennis Downes by asking, "How well do you know the Harmon family, Sergeant?"

"Not all that well. I know them to say hello to, but we don't socialize."

"Have you met Gary Harmon in a social setting?"

"No' "Are you aware that Gary is mildly retarded?"

"I never heard that."

"But you knew he was slow?"

"Well, I knew he wasn't a scholar."

"That's obviously true," Peter said, "because you would have had some trouble convincing a scholar that he had supernatural powers, wouldn't you?"

Downes shrugged uneasily and Peter did not press him for a verbal answer.

"In fact, you had a pretty easy time convincing Gary that he had psychic powers, didn't you?"

"I guess."

"That's because he trusted you, didn't he, Sergeant?"

"I suppose he did."

"There's no doubt in your mind about that, is there?

After all, when he was arrested for peeping at that girl at the college, you fixed it so he wasn't charged."

"I did."

"You must not have felt Gary was very dangerous, or you wouldn't have let him go, would you?"

Downes suddenly saw where Peter had led him. He hesitated before answering "No" and Peter noted with satisfaction that several of the jurors took notes when they saw Downes hesitate.

"Let's discuss Gary's supernatural powers, Sergeant.

Until you came up with that idea, didn't Gary insist that he knew nothing about the murder of Sandra Whiley?"

"No, that's not true. He said he saw her and the killer by the park entrance."

"That's not really accurate, is it?" Peter asked as he walked across the courtroom and handed the witness a two-volume transcript of the interrogation. Sticking out of several ages were yellow Post-its with numbers on p them. Peter carried his own copy of the transcript with similarly marked Post-its.

"Let me direct your attention to the page marked by the Post-it labeled number one. Have you got that?"

Downes nodded.

"What Gary told you initially was that he had seen a man and a woman hugging in the park, did he not?"

"Yes, but later ..

"I'm not concerned with 'later,' Sergeant. I'm concerned with what Gary told you at first. And that was simply that he had seen a man and a woman hugging."

C61 guess he did."

"He had no idea who they were?"

Downes scanned the page, then agreed.

"He did not say the man was killing the woman?"

"No.

"Not until you started this business about the subconscious mind."

Downes did not answer.

"In fact, it took you a long time to convince Gary that he had seen Sandra Whiley in the park."

"I didn't convince him of anything. "Oh, didn't you? Look at number five. What is Mr. Harmon's response when you tell him "There's a good chance that you saw Sandy and her killer when you walked by Wishing Well Park'?"

Downes scanned the page until he found the question and answer.

"He said, "All I see is them two hugging,"' Downes answered reluctantly.

"And at nine, when you tell him to relax and let it come, doesn't Mr. Harmon tell you, "It's no good, I didn't see anything new'?"

"Yes."

",Amd at ten, what does Mr. Harmon tell you when you ask, "Is it Sandy?"?"He says, "I can't say for sure."

"That's right. Now, you had Mr. Harmon believing he was some kind of detective, didn't you?"

"What do you mean?"

"Look again at ten. I'm quoting. "You know, Gary, you might be a natural at this stuff." And Gary says, "I just want to get this guy." He thinks he's helping the police, doesn't he?"

"Or foolig the police."

"He figured that out with an IQ of sixty-five?"

"Objection," O'Shay said. "Sergeant Downes has no way of knowing what was going on in the defendant 2s head during this interview."

"Sustained," Judge Kuffel said.

"Very well, Your Honor," Peter answered. "Sergeant Downes, isn't it true that you told Mr. Harmon to guess at what happened in the park?"

"They were pretty good guesses. "Oh, really? Like the guesses about where the blows fell on Miss Whiley's head?"

"That was accurate."

"It was?"

"Yes, sit. He described right where the wounds were."

"Let's look at twenty-two. Read that to the jury, if you please, starting at line thirteen."

"I said, "Let it flow, Gary. First hit. Where was it?" and he said, "Top of the head,' which is where the first hit was."

"Go on."

"I said, "This is great. Then what?" and he started swinging his arm and said, "Another to the right side.

And another."

"

"Sto there, Sergeant. You are aware, are you not, p that Dr. Guisti testified that the killer struck his blows to the left side of Miss Whiley's head?"

"Yes, but..

"Yes or no?"

"Yes Peter did not let the jury see how elated he felt. If he could convince the jurors that Downes had taken advantage of Gary's low intelligence to trick him, he would destroy a major part of the state's case.

"When you questioned Mr. Harmon, did he appear sleepy to you?"

"We were both tired by the end."

"How long did the interrogation last?"

"About seven hours from the time we got him to the station house."

"So, there are two hours of interrogation that are not on the tape?"

"Yes.

"It was during that part of the interrogation that you had Officer Robert Patrick play a little trick on Mr. Harmon, wasn't it?"

"I don't understand the question."

"What is a black light, Sergeant?"

Downes colored. "A, uh, black light is like a flashlight, but it shoots out an ultraviolet light beam."

"Did you have Officer Patrick dust a Coke can with an invisible powder that shows up orange under ultraviolet light?"

"Yes."

"After Gary handled the can, did Officer Patrick, on your orders, shine the black light on Gary's hands?"

"Yes," Downes answered uncomfortably.

"Did officer Patrick then tell this young man, who has an IQ of sixty-five, that the orange splotches on his hands were the blood of Sandra Whiley?"

Yes.

"That was a lie, wasn't it?"

Downes looked as if he was going to say something else at first, but ended by simply agreeing.

"Where did you learn your 'projection transfer' technique, Sergeant?"

"Nowhere," Downes answered proudly. "I made it UP."

"Made it up?" Peter responded incredulously.

"Yes, sir."

"Are you aware that the technique you used on Mr. is Harmon i identical to the technique used by hypnotists to in duce a trance?"

"Objection," O'Shay said. "That question assumes facts that are not in evidence."

"We intend to offer such evidence, Your Honor," Peter told the judge.

"Very well. With that assurance, I will order the witness to answer."

"I don't know what technique a hypnotist would use, Mr. Hale."

"Whether you knew or not, isn't it true that you led Mr. Harmon to give those answers that you wanted to hear?"

"No, sir. That's not true."

"Look at Marker seventeen. Don't you suggest that the man and woman Mr. Harmon said he saw kissing in the park might be doing something other than kissing, despite the fact that Mr. Harmon told you several times that was the activity in which they were involved?"

suggested that they would not have been kissing if the couple was Whiley and her killer."

"Thus planting that suggestion in a mind susceptible LEM to suggestion both because of Mr. Harmon's fatigue and IQ."

"Objection," O'Shay said. "Mr. Hate is making a speech."

ASJ "Sustained. Save the oratory for closing, Mr. Hale."

"Sergeant Downes, did you not lead Mr. Harmon to say that the man he saw in the park was holding a weapon after Mr. Harmon repeatedly told you that he had not seen a weapon in the man's hand?"

"Gary brought up the hatchet."

"Look at marker twenty-nine. Read the top few lines on that page, please."

"I ask, "Did you see anything shiny, Gary? It would probably have been right then. In that split second." And he says, "Shiny?" and I say ..

"Stop there. You were the first person to mention the word 'shiny,' weren't you?"

"Yes," Downes said, after a moment's hesitation.

"And it is you who mentioned that the weapon wou probably be in the killer's right hand?"

Downes read the page, stopping to reread one sentence.

"I ... I may have mentioned that first."

"You put those words in Mr. Harmon's mouth."

"No, sir. I just asked the questions and he supplied the answers."

"Only some of them were your answers, weren't they?

"Nothing further, Your Honor," Peter said before O'Shay could object.

"I only have a few questions on redirect, Sergeant."

The deputy district attorney sounded undisturbed by Peter's cross. "Mr. Hale pointed out that the defendant described the hatchet wounds the killer inflicted as being on the right side of Miss Whiley's face, whereas the wounds were actually on the left side."

Yes.

"When Mr. Harmon was describing these wounds verbally, was he also demonstrating the strikes?" -Yes, ma'am. I gave him a ruler to hold and I told him to pretend this was the weapon. Then I stood in front of him and dipped down a little, so I would be more like Miss Whiley's height. Then I asked him to act out the blows." -Were the defendant's physical actions consistent with what he said?"

"No, ma'am, they were not. See, while he was talking I stood opposite him.

Now Mr. Harmon had that ruler in his right hand and he was saying the blows were landing on my right side, but really, with me facing him, it was on his right, but the left side of my face. See what I mean."

"I'm certain the jurors understand," O'Shay said.

Peter also understood with sickening clarity that he had lost one of his major points.

"Mr. Hale asked you if you had Officer Patrick shine a black light on the defendant's hands after a powder had been transferred to Mr. Harmon's hands from a Coke can," O'Shay said.

Yes.

"This powder then showed up orange on Mr. Harmon's hands under the ultraviolet light, is that correct?"

"Yes.

"What did Mr. Harmon do when Officer Patrick told him that the orange glow was Sandra Whiley's blood?"

"He stared at his hands and began wringing them in an effort to scrape off the blood."

"Now, Mr. Hale asked you if you led the defendant to say that the man in the park had a weapon."

"Yes."

"Did you ever suggest that the weapon used by the person who murdered Sandra Whiley was a hatchet?"

"No, ma'am. When I was talking to Gary we didn't know what was used to kill her, other than it was a sharp-bladed instrument."

"Who is the first person to say that the murder weapon was a hatchet?"

"Gary. The defendant."

"And, lo and behold, the murder weapon did turn out to be a hatchet, didn't it, Sergeant?"

"Yes, ma'am. Much to my surprise, it certainly did."

Chapter TWENTY-TWO.

Dr. Leonard Farber, Kevin Booth's treating physician, had thinning brown hair, clear blue eyes and an easy smile. His cheerful disposition seemed odd when you considered that he spent his days with people who were often in horrible pain. While he walked with Becky O'Shay, Farber explained that his patient had recovered enough to be moved out of isolation in the burn ward to a regular hospital room. O'Shay showed no emotion when the doctor described Booth's injuries and the process of grafting human skin and pigskin onto areas that had been horribly burned, but listening to a scientific explanation of the effect of ignited lighter fluid on human skin was not the same as seeing a person who had been set on fire.

Dr. Farber had arranged for Booth to be temporarily placed in a hospital room that was big enough for the judge, the court reporter, the attorneys and the jury. A policeman stationed outside Booth's door looked up as the doctor and the D.A. approached.

"We're set for two, right?" Farber asked.

"You should probably be here a little before two. Say, one forty-five. just in case the judge or Harmon's attorney has any questions."

"See you then," Farber said and he headed back to his office The police guard opened the door to Booth's room as soon as he checked Becky's ID. Booth was sitting up in a hospital bed that had been elevated so he could watch television. The set was showing a game show. As soon as the door opened, Booth turned off the set.

J O'Shay kept her poise when Booth turned his head toward her. His face was covered with silver sulfadiazine, a white, greasy cream. The right side of the face looked normal, but O'Shay could see bright red circles and blobs of healing outer skin through the cream that covered the left side. In addition, Booth had an eighthof-an-inch tube in his right nostril through which supplemental nutrition was administered. O'Shay also noticed that Booth's left eyebrow was gone.

Booth was wearing a short-sleeve hospital gown. The gown bulged in numerous places where bandages covered the grafts. On the back of Booth's left arm and hand were square patches of pinkish-purplish skin. A clear yellow serum oozed out of numerous perforations in the skin. O'Shay felt light-headed, even though Booth did not look as bad as she had imagined.

"How are you feeling, Mr. Booth?" O'Shay asked as she sat next to the bed on a gray metal chair.

"Bad," Booth managed. His speech had a harsh, rasping quality that startled O'Shay. The word was said so softly that she had to strain to hear it. Dr. Farber had explained that Booth had suffered a minor inhalation injury when he breathed in smoke from the beddin that burned in his cell. Booth's pain medication had also been withheld so he would be clearheaded for his testimony.

"You'll feel better when you're through testifying and I let the U.S. Attorney know how much I appreciate your help."

O'Shay could see that Booth was frightened.

"Don't worry, Kevin. This won't take long. The doctor will be here. The judge will let you take breaks, if u'll do fine.

you need toyo -We don't start for a while. I'm here because I want to tell you the questions I'm going to ask you, so you won't be surprised by them. Okay?"

Booth nodded and O'Shay rewarded him with a smile. For the next half hour, O'Shay went through her direct examination with Booth. For the most part, O'Shay let Booth answer without comment, but every once in a while, she would advise Booth to phrase an answer differently so it would have a greater impact on the jurors. By the end of the half hour, Booth seemed to be flagging, so O'Shay decided to wind up their meeting.

"That was great, Kevin. I wanted to go over one more thing, then I'll let you get some rest. Do you think you can hang in there for a few minutes more?"

Booth nodded slowly. His eyelids fluttered with fatigue.

"Jurors are impressed by details. Little things that lend authenticity to what a witness says. There are a lot of good details in your account of Harmon's confession, but there's one thing I realize we've never talked about.

Something Gary Harmon may have told you that only the killer would know."

"What ... thing?"

"You told me that Harmon said that Sandra Whiley wore a good luck piece around her neck. A small, silver medallion on a chain. Did Harmon ever mention anything else about this necklace to you?"

"What ... would he ... have said?"

"The necklace was found in some bushes near the entrance to the park. By those stone pillars. We think that the killer tore it off of her neck while they were struggling. Did Harmon ever mention anything about that?"

"I ... I'm not sure."

"Try and remember. I don't want you to testify about anything Harmon didn't tell you. I don't want you to make up anything. But it would be important, if Bar mon did say it. Why don't you think about it while you rest."

Booth nodded. O'Shay stood up.

"I'll come by before everyone else arrives and you can tell me if you remember anything about the necklace or anything else of importance."

Peter Hale and Becky O'Shay sat on either side of Judge Kuffel on the left side of Kevin Booth's bed. Behind them, against the wall, sat the jurors. Dr. Farber and the court reporter sat on the right side of the bed. Gary Harmon sat behind Peter. Two guards stood against the wall. Another policeman was stationed outside the room in the hospital corridor.