When Men Betray (36 page)

Maggie leaned across the table. “I know you're loyal to your friend, but what a horrible thing …”

Sam's presentation with the video had hit me hard as well. The slow motion and the repetition were devastating. The horror experienced by everyone present that day was palpable. How could I overcome what I'd just seen? The only positive was, I felt much more certain that what I'd thought I'd seen in the video was really there. What it
meant
was another matter.

Fortunately, Woody was returned to the holding area during the recess. I was relieved not to have to face him. I had to remind myself that I had a plan: Now wasn't the time to give up.

My folks were about the only people left in the courtroom. I took a deep breath and said in a voice they could all hear, “Okay—we've taken their best punch. Let's be ready to get back in the ring.” They all looked at me like I was crazy. “Let's leave this witness alone. I'll take the next one.” No responses, so I quietly told them what I planned to do.

When court resumed, Micki stated that we had no questions for the previous witness.

Sam rose, calling Trooper McSherry to the stand. The trooper was tall and intimidating. He'd been part of Russell's security detail and had been closest in proximity to the senator on the day of the shooting. Sam moved him quickly through the lead-up to the shooting, but didn't dwell on the details. McSherry described how he'd thrown Woody to the ground and that they'd wrestled briefly before he was able to pry away the gun. Woody wasn't strong enough to put up much of a struggle.

Sam introduced a series of still pictures of Woody on the ground, the gun, and Russell. Sam took McSherry through identifying the gun. He had him compare the records of the gun Woody had bought on Tuesday against the gun the trooper had taken from Woody and asked if they were identical. They were. He asked the trooper how many rounds were left in the gun, and the trooper answered five. Only one bullet had been fired.

Sam said, “Your Honor, we ask that the gun the trooper has identified be marked and admitted as People's Exhibit 13—the murder weapon.”

I stood. “Your Honor, we have no objection to the gun coming in as an exhibit but do object to it being called ‘the murder weapon.' It's People's Exhibit 13.”

Sam threw his hands up in mock surrender. “Okay,
alleged
murder weapon.”

I came right back. “No, it's simply Exhibit 13.”

Marshall stepped in. “All right, you two. Exhibit 13 is admitted into evidence. Let's move on.”

Nobody got it yet, but they would soon.

Sam turned to McSherry. “Officer, is there any doubt in your mind that Exhibit 13 is the same weapon that is shown in the video beside the head of Senator Robinson?”

McSherry shook his head. “No, sir—no doubt.”

“And is there any doubt in your mind that Exhibit 13 was the gun used to murder the senator?”

Again McSherry responded with, “No doubt.”

“Pass the witness.”

I felt charged up, but I didn't want to appear to be in any hurry, so I measured my steps and paused before speaking.

“Trooper McSherry, did you know the defendant before the day of the shooting?”

Following that question, I took the trooper through a series of questions designed to establish that Woody was more than just a “hanger-on” around Russell's office. The trooper was happy to confirm that Woody and then-Governor Robinson had conferred with each other all the time. They had argued in front of troopers or office staff on many an occasion, but never before had their arguments gone beyond raised voices. I also established that, during the year Russell was running for the Senate, Woody was the candidate's constant companion. The trooper admitted that his security detail met with Woody often to go over Russell's schedule and fine-tune security details. At least I was debunking the media myth that Woody was a “nut job.”

Sam was getting tired of McSherry beefing up Woody's status, so he objected, saying that all this was nice, but getting away from the matter at hand.

Marshall agreed, to a point. “I'm inclined to give counsel a little latitude given the fact he's not questioned any other defendant.”

A light rap on the knuckles. It was time to move to the day in question. I moved closer to the witness stand and asked, in a conversational tone, “Trooper, why were you there the day Senator Robinson died?”

The trooper explained that since he had been a part of Russell's detail when he was governor, he had been assigned to guard him whenever he was back in the state.

“No, I understand that you were protecting the senator. I'm asking why you were
there
. Why was
he
there? What was going on?”

A rumble came from the gallery.

McSherry looked puzzled and struggled for an answer. “I think he was about to hold a press conference to announce something about the Townsend Arts Center.”

Woody looked up.

“Do you know what he was going to announce?”

McSherry looked blank and didn't answer.

Sam shot to his feet. “Your Honor, counsel is asking this witness for hearsay that's irrelevant to boot.”

Before Marshall could admonish me, I said, “I just find it interesting that we have all this hoopla going on and this big press conference, and I can't find a soul who knows what it was about. Not the Arts Center, not the senator's office, not a press release—no one can tell me what Senator Robinson was going to announce. It's a mystery.”

Marshall banged his gavel throughout my short discourse. “Enough speeches, counsel.”

McSherry shrugged at me. “Can't help you there, I guess.”

“All right. Let's move on. Trooper, you were the person standing closest to the senator and my client. Can you tell me what they were arguing about?”

McSherry was better prepared for this question. “No, sir. I could tell they were having a disagreement, but I didn't hear what they were saying.”

“So nothing you heard or saw alarmed you at first.”

He responded no, and stated again that he had seen them argue before, and that it wasn't until the gun came out of Woody's pocket that he became alarmed. He also said that when he and Woody were wrestling with the gun, Woody kept saying, “Give it to me” and “I need it.” The fact that Woody struggled for the gun cut both ways. If you
believed that Woody wanted to kill more people, it worked against him. If you believed that Woody wanted to kill himself after accidentally shooting Russell, it worked in Woody's favor.

Walking back to the defense table, I realized there was another question I hadn't asked because I didn't know the answer. I decided to violate the cardinal rule again.

“Trooper, when Senator Robinson was governor, was he guarded at all times?”

McSherry sat up a little straighter and said with pride, “Yes, sir. We protect any sitting governor wherever he is, twenty-four-seven.”

I asked a series of questions: Was he guarded when he was out of town? Asleep? On vacation?

Then I came to the key question: “Was there anywhere Governor Robinson went where he just wanted to be alone, with no protection?”

McSherry paused for a moment. “Well … oh—you mean his duck club?”

I asked him enough questions to establish the basics of “his duck club” and then asked, “Did you provide security when he was at the duck club?”

“Technically, yes. We drove him there and were always on call, but he didn't want anyone but his guests on his property. When he was through hunting, we'd come pick him up, but it was his personal retreat. He said he had plenty of guns at the club, and he and his friends could protect themselves. He let us patrol the perimeter to look for poachers, but he was on his own inside the property line. He was very insistent.”

“Did he go there often?”

“Almost every day he could during duck season, and on occasion he'd go for a long weekend.”

“Your Honor,” Sam cut in, “we're straying quite a bit now.”

Marshall was about to agree, but I said, “I'm through with this line of questioning.”

It was a little after four o'clock, but I couldn't stop yet. If I stopped now and Sam decided to rest his case, I'd risk losing before we'd gotten started. Marshall wasn't the type to let court recess early for my convenience. I looked at Maggie and Micki, who both understood my dilemma. I needed to buy some time.
What the hell
. Everyone watching
thought I was a sleazy lawyer who'd do anything to get his client off—I might as well prove them right.

I turned back to McSherry. Picking up the gun marked Exhibit 13, I asked, “Trooper, you say this is the gun you wrestled away from my client. It holds six bullets?”

He agreed.

“And, after you wrestled the gun from my client, it only had five bullets in it?”

He acknowledged that I was right again.

“Trooper, where's the sixth bullet?”

McSherry didn't answer immediately. Sam stood, but also said nothing.

“Perhaps you didn't understand my question. Was the gun fired?”

“Yes, sir, it was.”

“Then where is the bullet?”

Looking at Sam, the trooper frowned and spoke haltingly. “Um … in the senator's head, I guess.”

“You guess, but you don't know, do you?” Before he could answer, I started firing questions. “Did you find a slug anywhere? Did you do a ballistics test on the gun? Why don't you have the bullet?”

McSherry was literally speechless. I wanted to take him apart, but my instinct told me to back off. Last night, I had noticed that the bullet wasn't on the exhibit list. Nor had Sam produced a ballistics test or a report from the medical examiner on the cause of death. These reports are routine in any murder case. I figured that, in their hurry, Sam's deputies had accidentally left the coroner or medical examiner off the witness list and forgotten about the bullet and lab work. Now, Sam would have to admit the mistake and produce them tomorrow, but I would gain the precious time I needed.

Oddly, Sam remained silent. With no other plan in mind, I decided to continue, rethinking my approach slightly.

“Trooper, I apologize. I know it wasn't your responsibility to secure the crime scene or to search for clues or bullets. You performed a heroic act, and I'm sure you were in shock. But the truth is—you don't know where the bullet is, do you?”

He shook his head no.

“I'm sorry—is that a no?”

“Yes, sir. That is … no, I don't.”

“And the truth is, you don't know whether a bullet exited the senator's head, whether the bullet is still lodged there, or whether a medical examiner removed it. Is that right?”

He agreed again. “I didn't find a bullet. I didn't run any tests, but I did take the gun away from the defendant. It had been recently fired, the barrel was warm to the touch, and only five bullets were left in the chamber when I examined it.”

“You're not a doctor, correct?”

“No, sir, I'm not.”

“You're not a medical examiner?”

“True.”

“You didn't examine the senator's head?”

He gave me an uneasy grin. “God, no.”

I had what I wanted, but I'd pay for it. “Pass the witness.”

Sam looked thoughtful and said he had a few questions.

“Trooper, you saw the defendant put the gun identified as Exhibit 13 up to Senator Robinson's head and pull the trigger, didn't you?”

Surprisingly, the trooper didn't agree. “Well, to the head, yes, but I didn't actually see him pull the trigger.”

“But the gun went off, and he died almost immediately, right?”

I could have objected for leading but didn't.

McSherry said, “Yes, sir, the senator was definitely dead.” He sighed with relief, as if to say, ‘I finally got it right.'

“Any more questions, gentlemen?” Marshall asked in a frosty tone.

Looking worried, Sam asked if counsel could approach the bench. Marshall put his hand over the microphone so our conversation couldn't be overheard.

“Your Honor, we believe we've established probable cause right now, but Jack's questioning leads me to believe that he might argue we haven't proved that the bullet from the gun was the cause of death. To go forward with such proof will take additional time and is, frankly, absurd.”

Having bought the day I needed, I said helpfully that I had no problem waiting a day for the medical examiner's testimony.

Sam didn't look happy. “A day is not the issue.”

Marshall realized there was something going on that required more than a bench conference. He dismissed the witness and brusquely ordered us back to his chambers.

Marshall had barely closed the door when he snapped, “Okay, Sam. What's the problem?”

Looking at his deputies, Sam took a deep breath. “Your Honor, as you know, I opened my mouth yesterday and announced I was ready to have the preliminary hearing today. I believe we have produced sufficient evidence to establish probable cause to bind Mr. Cole over for trial on all charges. But from Jack's questioning of Trooper McSherry, it's clear the defense is unwilling to stipulate to the obvious fact that Exhibit 13 is the murder weapon or even the cause of death. Normally, I'd enter into evidence the bullet and a ballistics test, and put a medical examiner on the stand to testify that the bullet from Mr. Cole's gun caused his death. However, last night, I learned that the bullet hasn't been found in the rotunda, assuming it exited the senator's head. Unfortunately, we don't have a report from the medical examiner. It turns out that an autopsy was not performed on Senator Robinson.”

“I'll be damned,” I whispered under my breath.

Marshall dropped his pen and rumbled. “You can't be serious.”

I noticed Micki literally sitting on her hands, her right leg jiggling up and down. Sam's deputies were doing their best to be invisible.