The Perk (31 page)

"No, we'll proceed. The code allows me to
summarize each witness's testimony."

"Very well, Your Honor."

Beck caught the D.A. winking at Stutz.

"And we'll tape record the proceeding.
Mavis, go downstairs and get my tape recorder."

Mavis stood and disappeared behind Beck. The D.A.
wasn't winking now.

"Your Honor, the Code of Criminal Procedure
doesn't authorize tape recording this proceeding."

"It doesn't prohibit it either. Might be
good to have so my summary is accurate."

The D.A. stepped over
to the defense table; he, Stutz, Slade, and Quentin McQuade huddled like a
football team calling an audible. When Mavis returned, she placed the recorder
on the witness stand and hit the RECORD button. When she sat down, Beck nodded
at her. Mavis called out: "Cause number forty-three sixty-one,
State of
Texas versus Slade McQuade
. Aggravated assault with hate crime
enhancement. Examining trial."

"Gentlemen," Beck said, "please
make your appearances."

The D.A. stood. "Niels Eichman, Jr., Gillespie
County District Attorney, representing the state."

Stutz stood. "Judge Bruno Stutz, for the
defense."

They sat, and Beck said, "This is an
examining trial to determine if probable cause exists to refer this matter to
the grand jury. We are not here to determine guilt or innocence. Slade
McQuade, you have the right to make a statement regarding the charges filed against
you, but you cannot be compelled to make any statement. Any statement you do
make can be used in evidence against you. Do you understand that?"

Stutz nodded at Slade, who said, "Yes,
sir."

"But you must make any such statement prior
to the testimony of any witness. Do you wish to make a statement?"

"No, sir."

"Very well. Mr. Eichman, present the
state's case."

"Your Honor, the state calls Julio
Espinoza."

The Latino boy stood and came forward through
the gate in the bar. Walking into the well of the courtroom, he looked like a
sacrificial lamb. His brown skin contrasted sharply against his white shirt. He
was a slender, handsome boy. Except for the boxer's nose and several
freshly-healed scars on his face, he did not exhibit any physical evidence that
he had been severely beaten just four weeks before. Mavis swore him in.

"Do you swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?"

Julio answered: "Es."

"Mr. Espinoza," Beck said, "would
you please speak up?"

"Es!"

Beck leaned toward Julio and looked at him
closely.

"Mr. Espinoza, are your jaws still wired
shut?"

"Es!"

Julio opened his lips wide like he was trying to
grin; Beck could see wires holding little hooks on each jaw and tiny rubber
bands secured to the upper and lower hooks to hold his jaws tightly together. Beck
turned to the D.A.

"How is he supposed to testify with his
jaws wired shut?"

The D.A. shrugged. "That's why I set the
hearing for January, Your Honor. So his jaws would have time to heal."

The D.A. gave Beck a look
that said,
Now what are you going to do, Judge?
Julio reached to his
back pocket and pulled out a little notepad and pen; he acted as if he were
writing.

"You'll write your testimony?"

"Es."

Mavis tugged on Beck's robe then tapped on the
document on his desk. Julio's affidavit. Beck nodded then addressed the
court.

"Since the sole purpose of this proceeding is
to determine probable cause to refer this case to the grand jury and not to
determine guilt or innocence, I will admit Mr. Espinoza's sworn affidavit he
signed the night of the alleged assault."

Stutz stood. "Objection. That would deny
my client's right to confront the witness."

"He's sitting right there. Confront.
Objection is overruled." Beck turned to Mavis. "Mavis, please read
Mr. Espinoza's affidavit into the record."

Stutz said, "Defense withdraws the
objection, Your Honor."

Stutz did not want the affidavit read in open
court. Beck was about to have Mavis read it anyway, but Grady caught Beck's
eye. He tapped his wristwatch and nodded toward the Latino activists. The
ticking time bomb. Beck turned to Julio.

"Mr. Espinoza, is your affidavit a true and
correct account of the events of the night of September the eighth of this year?"

"Es."

"That's a yes?"

Julio nodded.

"Mr. Espinoza answered in the affirmative.
The affidavit of Julio Espinoza is admitted into evidence." He turned to
the D.A. "Any questions, Mr. Eichman?"

"No, Your Honor, you handled my case quite
well."

"Thank you. Judge Stutz, your
witness."

"No questions, Your Honor."

The D.A. called the four deputies who had arrested
Slade that night. Each testified that when they had arrived at the theater,
Slade had been beating Julio and calling him a wetback and a spic. Stutz did
not question the deputies. When the D.A. rested for the state, Stutz stood and
called his first and only witness.

"Defense calls Nikki Ernst."

The teenage girl sitting next to Quentin McQuade
stood, walked up to the witness stand, and was sworn in by Mavis. She was blonde
and blue-eyed and looked every bit the German girl she was. Stutz approached
the witness stand.

"Miss Ernst," Stutz said, "how
old are you?"

"Eighteen."

"And you're a senior at the high
school?"

"Yes, sir."

"Miss Ernst, were you at the movie theater
on the night of Saturday, September the eighth of this year?"

"Yes, sir."

"And did you have occasion to speak with
Julio Espinoza?"

"Yes, sir, at the snack bar."

"And were you previously acquainted with
Mr. Espinoza?"

"Yes, sir. We're both seniors. We have
several AP courses together. I thought he was a nice guy."

"And have you changed your mind about
that?"

"Yes, sir."

"And when did you change your mind?"

"That night."

"Would you please tell the court what Julio
Espinoza did to change your mind?"

She ducked her head as if she were embarrassed.

"He made inappropriate remarks to me …
of a sexual nature."

Stutz now had the expression of a grandfather
talking to his granddaughter.

"I know this is difficult, Miss Ernst, but
please tell the court exactly what Mr. Espinoza said."

"Well, I went up to the counter to get my
popcorn and when he handed it to me, he said I looked sexy."

"Sexy? Well, now, Miss Ernst, some girls
your age might consider that a compliment, isn't that true?"

"Yes, sir. But there was more."

"More? Please go on, Miss Ernst."

"He said he wanted to, um, have sex with
me."

"Are those the words he used?"

"Well, no, sir."

"What words did he use, exactly?"

"He used the F-word."

"Oh, my. The F-word?"

"Yes, sir."

"Please tell the judge exactly what Julio
said, in his words."

Nikki took a deep breath, as if saying the F-word
went against every fiber in her being.

"Julio said, 'I want to fuck you.' "

There was a loud grunt from the audience. Julio
was standing in the spectator section, his arms spread and a distressed look on
his face. Nikki's eyes dropped to her lap.

"Please sit, Mr. Espinoza."

Felix Delgado pulled Julio to his seat, and
Stutz continued with Nikki.

"And did Slade McQuade hear him say
that?"

"Yes, sir. Slade had just walked up when
Julio said that. I guess Julio didn't see him."

"And Slade got mad?"

"Yes, sir. Very."

"So Mr. Espinoza's statement provoked
Slade's actions?"

"Yes, sir."

"No further questions, Your Honor."

Nikki glanced at Slade; he gave her a wink. Beck
had listened to thousands of hours of testimony under oath; he knew when a witness
had rehearsed. Nikki Ernst had rehearsed.

"Mr. Eichman."

"No questions, Your Honor."

Beck stared at the D.A. "The state is not
going to question the defense's only witness?"

"No, Your Honor. Miss Ernst seems credible
enough to cast real doubt as to whether probable cause exists here."

The D.A. gave Beck a
look that said,
Get it? This is the way out.
Beck turned to the
witness.

"Ms. Ernst, why didn't you mention any of this
to the deputies that night?"

"Your Honor," the D.A. said, "may
counsel approach?"

Beck waved him up; Stutz followed. When they
arrived, Beck put his hand over the microphone.

"Judge," the D.A. whispered, "this
is the way out for everyone."

"Not for Julio."

"For the town."

Beck waved them off. Bruno Stutz glared at
him.

"Mark my words, Judge, you proceed with
this witness and that Mexican boy is going to regret it."

"Sit down." He turned to Nikki: "Ms.
Ernst, why didn't you mention this to the deputies that night?"

"I guess I was just so upset."

"Ms. Ernst, have you previously discussed
your testimony with Mr. McQuade or Judge Stutz?"

"Slade's dad?"

"Or Slade? Or his lawyer?"

She glanced over at Slade and Stutz.

"Ms. Ernst, don't look at the defendant or
his lawyer for an answer."

"Well … we maybe talked some … a
little."

"Did anyone suggest to you to testify that
Mr. Espinoza provoked Slade?"

"
Suggest?
Well, I don't know …"

"Ms. Ernst, will you graduate this
year?"

"Yes, sir."

"And what are your plans? College?"

"Yes, sir, at UT."

"You've been accepted?"

"Yes, sir. Top ten percent."

"You're in the top ten percent of your
class?"

"Yes, sir."

"So you're a smart girl?"

"I guess so."

"What are your career plans?"

"I want to be a doctor."

"A doctor?"

"Yes, sir."

"College then medical school?"

"Yes, sir."

Beck grabbed the Penal Code and thumbed through
the pages.

"Ms. Ernst, you're eighteen, correct?"

"Yes, sir."

"So you understand that even though you're
still in high school, the law regards you as an adult?"

"Uh … yes, sir."

"Ms. Ernst, do you know what perjury
is?"

"Not exactly."

"It's lying under oath in a court
proceeding. Like today."

"Oh."

She bit her thumbnail.

"Ms. Ernst, the Penal Code states that a
person commits perjury if he or she makes a false statement under oath. And
it's aggravated perjury if that false statement is material, which means the testimony
will determine the result of the proceeding. Aggravated perjury is a third-degree
felony punishable by a prison term of two to ten years. Do you understand that
if it is subsequently discovered that you lied about Julio's statements to you
that night, you could be charged with perjury?"

"Uh … no, sir … I mean, yes,
sir."

She now had both hands in front of her mouth;
her teeth were nibbling on her nails so hard Beck could hear the sound.

"And if convicted, you could be sentenced
to prison for two to ten years?"

She stopped nibbling and turned to him.

"
Prison?
"

"Yes, Ms. Ernst. The women's prison in Huntsville."

Her face went ashen. "No one said anything
about prison."

"Ms. Ernst, this isn't a game. This isn't
about doing what Slade wants you to do. This is about your future. You're a
smart girl. Think before you throw your future away by lying to this court. A
person convicted of perjury doesn't go to college and medical school. She goes
to prison."

Nikki was now staring at Slade. When she turned
back to Beck, she had tears in her eyes. And he had her.

"Ms. Ernst, do you know what the word
'retract' means?"

"Yes, sir. To take something back."

"Exactly. The penal code also states that
if the witness who made a false statement retracts it and tells the truth
before completion of his or her testimony, he or she does not commit the crime
of perjury. Do you understand what that means?"

Almost a whisper from Nikki: "If I tell the truth right now,
I won't go to prison?"

"Yes, that's exactly what it means. Now, Ms.
Ernst, before I dismiss you, is there anything about your testimony that you would
like to correct?"

Nikki had gone back to biting her nails. Her
hands were in front of her mouth and her head was down, almost as if she were praying.
Perhaps she was.

"Ms. Ernst?"

She finally raised her head and glanced at
Slade. She shook her head. Then she turned to Beck.

"Yes, sir, I would like to correct
something."

"And what is that?"

"Julio, he didn't say any of that stuff to
me. He's a good guy. We're friends." She looked at Julio in the
audience. "Or we were. But Slade, he's insanely jealous. At first I
liked that, but then it became … kinda scary, you know?"

"You bitch!"

Nikki recoiled in the witness chair; her hands
flew up as if to block a blow. Slade was standing at the defendant's table.

"Mr. McQuade—sit down!"

Slade glared at Beck, but when Grady stepped to
the defendant's table, Slade sat down. Beck turned back to Nikki.

"Ms. Ernst, what do you mean, Slade's
jealousy became scary?"

"Uh, nothing."

"Look at me, Ms. Ernst."

The girl turned in the witness chair until she
was directly facing Beck. He rolled his chair as close to her as the bench
would allow; he leaned over. They were no more than three feet apart. He
wanted her to focus only on him.