Текст книги "Defending Jacob"

Автор книги: William Landay

Соавторы: William Landay
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27

Openings

What was Neal Logiudice thinking when he stood up to deliver his opening statement to the jury? He was keenly aware of the two unmanned cameras on him. That much was clear as he meticulously buttoned the top two buttons of his coat. It was apparently a second new suit, not the same one he had worn the day before, though today’s suit was the same hip three-button style. (The shopping spree was a mistake. He tended to preen in his new costumes.) He must have imagined himself as a hero. Ambitious, sure, but his goals matched the public’s-what was good for Neal was good for everyone, except Jacob of course-so no harm in that. There must have been a rightness too in seeing me at the defense table, literally displaced. I don’t mean to suggest there was any sense of Oedipal payback in Logiudice’s head that day. Anyway, he gave no outward sign of it. As he arranged his new coat and stood for a moment plumping for the jury-the two juries, I should say, one in court, one on the other side of the TV cameras-I saw only a young man’s vanity. I could not hate him or even begrudge him a little self-satisfaction. He had graduated, grown up, he was finally The Man. We all have felt such things at one time or another. Oedipal or not, it is a pleasure after long years to stand in our fathers’ place, and it is a perfectly innocent pleasure. Anyway, why blame Oedipus? He was a victim. Poor Oedipus never meant to hurt anybody.

Logiudice nodded toward the judge (Show the jury you are respectful…). He glared balefully at Jacob as he passed (… and that you are not afraid of the defendant, because if you do not have the courage to look him in the eye and say “guilty,” how can you expect the jury to do it?). He stood directly in front of the jury with his fingertips resting on the front rail of the jury box (Close up the space between you; make them feel you are one of them).

“A teenage boy,” he said, “found dead. In a forest called Cold Spring Park. Early on a spring morning. A fourteen-year-old boy stabbed three times in a line across the chest and tossed down an embankment slick with mud and wet leaves, and left to die facedown less than a quarter mile from the school he’d been walking to, a quarter mile from the home he’d left only minutes before.”

His eyes roamed across the jury box.

“And the whole thing-the decision to do this, the choice-to take a life, to take this boy’s life-it only takes a second.”

He let the phrase hang there.

“One split second and”-he snapped his fingers-“snap. It only takes a second to lose your temper. And that is all you need, a second, an instant, to form the intention to murder. In this courtroom it is called malice aforethought. The conscious decision to kill, however quickly the intention forms, however briefly it is in the murderer’s mind. First-degree murder can happen just… like… that.”

He began to pace the length of the jury box, lingering to make eye contact with each juror as he passed.

“Let’s think about the defendant a moment. This is a case about a boy who had everything: good family, good grades, beautiful home in a wealthy suburb. He had it all, more than most, anyway, much more. But the defendant had something else too: he had a lethal temper. And when he was pushed-not too hard, just teased, just messed around with, the sort of thing that must go on every day in every school in the country-but when he was pushed a little too far and he decided he’d had enough, that lethal temper finally just… snapped.”

You must tell the jury the “story of the case,” the tale that led to the final act. Facts are not enough; you must weave them into a story. The jury must be able to answer the question “What is this case about?” Answer that question for them and you win. Distill the case down to a single phrase for them, a theme, even a single word. Embed that phrase in their minds. Let them take it back into the jury room with them, so that when they open their mouths to discuss the case, your words come tumbling out.

“The defendant snapped.” He snapped his fingers again.

He came to the defense table, stood too close, purposely disrespecting us by invading our space. He leveled his finger at Jacob, who looked down at his lap to avoid it. Logiudice was entirely full of shit but his technique was magnificent.

“But this wasn’t just any boy from a good home in a good suburb. And he wasn’t just any boy with a quick temper. This defendant had something else that set him apart.”

Logiudice’s finger slid from Jacob to me.

“He had a father who was an assistant district attorney. And not just any assistant district attorney either. No, the defendant’s father, Andrew Barber, was the First Assistant, the top man, in the very office where I work, right here in this building.”

In that moment I could have reached out and grabbed that fucking finger and torn it off Logiudice’s pale freckled hand. I looked him in the eye, showed nothing.

“This defendant-”

He withdrew his finger, raised it above his shoulder as if he were testing the wind, then he wagged it in the air as he moved back to the jury box.

“This defendant-”

Do not refer to the defendant by name. Call him only “the defendant.” A name humanizes him, makes the jury see him as a person worthy of sympathy, even mercy.

“This defendant wasn’t some clueless kid. No, no. He’d watched for years as his father prosecuted every major murder in this county. He’d listened to the dinner table conversations, overheard the phone calls, the shop talk. He grew up in a home where murder was the family business.”

Jonathan dropped his pen on his notepad, emitted an exasperated hissing sigh, and shook his head. The suggestion that “murder was the family business” came awfully close to the argument Logiudice had been barred from making. But Jonathan did not object. He could not appear to be obstructing the prosecution with technical, legalistic defenses. His defense would not be technical: Jacob did not do it. Jonathan did not want to muddy that message.

I understood all this. Still, it was infuriating to watch such contemptible bullshit go unchallenged.

The judge eyed Logiudice.

Logiudice: “At least, murder trials were the family business. The business of proving a murderer guilty, what we’re doing right here right now-this was something the defendant knew a little about, and not from watching TV shows. So when he snapped-when the moment came, the last deadly provocation, and he went after one of his own classmates with a hunting knife-he had already laid the groundwork, just in case. And when it was over, he covered his tracks like an expert. Because in a way he was an expert.

“There was only one problem: even experts make mistakes. And over the next few days we’re going to uncover the tracks that led right back to him. And only to him. And when you’ve seen all the evidence, you’ll know beyond a reasonable doubt, beyond any doubt, that this defendant is guilty.”

A pause.

“But why? You’re asking, Why would he kill a boy in his eighth-grade class? Why would any child do this to another child?”

He made a perplexed gesture: eyebrows raised, big shrug.

“Well, we’ve all been in school.”

His lips began to curl up into a smirk, conspiratorial. Let’s be naughty together and have a laugh in the courtroom.

“Come on, we’ve all been there, some of us more recently than others.”

He gave a crocodile smile which was, to my amazement, returned with little knowing grins from the jurors.

“That’s right, we’ve all been there. And we all know how kids can be. Let’s face it: school can be difficult. Kids can be mean. They tease, they horse around, they poke fun. You’re going to hear testimony that the victim in this case, a fourteen-year-old boy named Ben Rifkin, teased the defendant. Nothing especially shocking, nothing that would be a big deal to most kids. Nothing you wouldn’t hear on any playground in any town if you left this courtroom right now and drove around a bit.

“Let me be clear about something: it is not necessary to make a saint out of Ben Rifkin, the victim in this case. You’re going to hear some things about Ben Rifkin that maybe aren’t too flattering. But I want you to remember this: Ben Rifkin was a boy like any other boy. He was not perfect. He was a regular kid with all the flaws and all the growing pains of an ordinary teenager. He was fourteen years old-fourteen! – with his whole life stretched out in front of him. Not a saint, not a saint. But who among us would want to be judged only by the first fourteen years of our lives? Who among us was complete and… and… and finished at fourteen?

“Ben Rifkin was everything the defendant wanted to be. He was handsome, cool, popular. The defendant, on the other hand, was an outsider among his own classmates. Quiet, lonely, sensitive, odd. An outcast.

“But Ben made a fatal mistake in teasing this strange boy. He didn’t know about that temper, about the defendant’s hidden capacity-even desire-to kill.”

“Objection!”

“Sustained. The jury will disregard the remark about the defendant’s desire, which is complete speculation.”

Logiudice did not look away from the jury. He stood stone-still, shirked the objection, pretended he had not even heard it. The judge and the defense are trying to keep it from you, but we know the truth.

“The defendant made his plans. He got a knife. And not a kid’s knife, not a whittling knife, not a Swiss Army knife-a hunting knife, a knife designed for killing. You will hear about that knife from the defendant’s own best friend, who saw it in the defendant’s hand, who heard the defendant say he meant to use it against Ben Rifkin.

“You will hear that the defendant thought it all out; he planned the murder. He even described the murder several weeks later in a story that he wrote and even brazenly posted on the Internet-a story in which he describes how the murder was conceived, planned in detail, and executed. Now, the defendant may try to explain away this story, which includes a detailed description of Ben Rifkin’s murder, including details known only to the actual murderer. He may tell you, ‘I was only fantasizing.’ To which I say, as no doubt you will, What sort of kid fantasizes about a friend’s murder?”

He paced, allowing the question to hang.

“Here is what we know: when the defendant left his house and set off for Cold Spring Park the morning of April 12, 2007, as he walked off into the woods, he took with him a knife in his pocket and an idea in his head. He was ready. From that point, all that remained was the trigger, the spark that made the defendant… snap.

“So what was that trigger? What was it that converted a fantasy of murder into the real thing?”

He paused. It was the central question to be answered, the riddle Logiudice simply had to solve: how does a normal boy with no history of violence suddenly do something so brutal? Motive is an element of every case, not legally but in the head of each and every juror. That is why motiveless (or undermotivated) crimes are so hard to prove. Jurors want to understand what happened; they want to know why. They demand a logical answer. Apparently Logiudice had none. He could only offer theories, guesses, probabilities, “murder genes.”

“We may never know,” he admitted, doing his best to shrug off the gaping hole in his case, the very strangeness of the crime, its apparent inexplicability. “Did Ben call him a name? Did he call him faggot or pussy, as he had in the past? Or geek or loser? Did he push him, threaten him, bully him somehow? Probably.”

I shook my head. Probably?

“Whatever it was that set the defendant off, when he met Ben Rifkin in Cold Spring Park that fateful morning, April 12, 2007, around eight-twenty A.M. -where he knew Ben would be, because the two of them had been walking to school through those woods for years-he chose to put his plan into action. He stabbed Ben three times. He punched the knife into his chest”-he demonstrated with three sword-fighter thrusts of his right arm-“ one, two, three. Three neat, evenly spaced wounds in a line across the chest. Even the pattern of the wounds suggests premeditation, coolness, self-control.”

Logiudice paused, a little uncertainly this time.

The jurors appeared unsure also. They watched him with expressions of concern. His opening statement, which had started so strong, had foundered on this all-important question of why. He seemed to want it both ways: at one moment Logiudice was suggesting Jacob had snapped, lost his temper, and murdered his classmate in a sudden rage. A moment later, he was suggesting Jacob had planned the murder for weeks, deliberated coolly over the details, used the lawyerly expertise of a prosecutor’s son, then waited for his opportunity. The trouble, obviously, was that Logiudice himself had never quite been able to answer the question of motive, no matter how many theories he threw at it. The murder of Ben Rifkin just did not make sense. Even now, after months of investigation, we were asking, Why? I was sure the jury would sense Logiudice’s problem.

“When it was done, the defendant disposed of the knife. And he went off to school. He pretended to know nothing, even when the school was put in a lockdown and the police were frantically trying to solve the case. He kept his cool.

“Ah, but the defendant ought to have known, this son of a prosecutor, from his own long apprenticeship, that murder always leaves a trace. There is no such thing as an immaculate murder. Murder is messy, bloody, filthy work. Blood sprays and spatters. In the excitement of killing, mistakes are made.

“The defendant had left a fingerprint on the victim’s sweatshirt, pressed into the victim’s own wet blood-a print that could only have been made in the immediate aftermath of the murder.

“And then the lies begin to pile up. When the fingerprint is finally identified, weeks after the murder, the defendant switches his story. After denying for weeks that he knew anything about the murder, now he claims he was there but only after the murder.”

A skeptical look.

“A motive: an outcast schoolboy with a grudge against a classmate who had been teasing him.

“A weapon: the knife.

“A plan: detailed in a description of the murder written by the defendant himself.

“The physical evidence: the fingerprint on the victim’s body, in the victim’s own blood.

“Ladies and gentlemen, the evidence is overwhelming. This is a mountain of evidence. It leaves no room for doubt. When this trial is over and I have proved all the things I have just described to you, I am going to stand right here before you again, this time to ask you to do your part, to say what it obviously true, to draw the only conclusion you can: guilty. That word, guilty, will be hard to say, I promise you. It is hard for anyone to judge another. All our lives we are taught not to. ‘Judge not,’ the Bible tells us. It is especially hard when the defendant is a child. We believe fervently in the innocence of our children. We want to believe in it; we want our children to be innocent. But this child is not innocent. No. When you look at all the evidence against him, you will know in your heart of hearts there is only one just verdict in this case: guilty. Verdict, from the Latin for ‘say the truth.’ That is all I am going to ask you to do, say the truth: guilty. Guilty. Guilty. Guilty. Guilty.”

He gave them a look that was determined, righteous, imploring.

“Guilty,” he said again.

He bowed his head mournfully, then returned to his chair, where he slumped down, apparently drained or lost in thought or grieving the dead boy, Ben Rifkin.

Behind me, a woman in the audience whimpered. There were sounds of footsteps and the swinging door as she rushed out of the courtroom. I did not dare turn around to look.

My sense was that Logiudice’s opening had been quite good. It was by far the best I had ever seen him deliver. But it was not the home run he needed. There was still room for doubt. Why did he do it? The jurors must have sensed the weakness in his case, the doughnut hole at its center. That was a real problem for the prosecution, since there is no time in a trial when the state’s case looks stronger than in the opening statement, where the story is pristine and uncontradicted, before the evidence has been dinged up by the realities of a trial, bumbling friendly witnesses, expert hostile witnesses, cross-examination, and all the rest. My impression was that he had left us an opportunity.

“Defense?” the judge said.

Jonathan stood up. It struck me at the time-and still does now, when I see him-that he was one of those men whom it is easy to imagine as a boy, even in his gray-haired sixties. His hair was perpetually mussed, his coat unbuttoned, his tie and collar always a little askew, as if the whole getup were a boys’ school uniform that he wore only because the rules required it. He stood before the jury box and scratched the back of his head and his face became perplexed as he thought it all over. For all anyone knew, he had not prepared a thing to say and needed a moment to compose his thoughts. After Logiudice’s long opening, which somehow managed to seem both rehearsed and rambling, Jonathan’s rumpled spontaneity was a breath of fresh air. Now, I admire Jonathan and I like him too, so I may be placing a thumb on the scale for him, but it seemed to me, even before he opened his mouth to speak, that he was the more likeable of the two lawyers, which is no small thing. Compared with Logiudice, who seemed unable to draw a breath without calculating how it would be seen by others, Jonathan was all naturalness, all ease. Slouching in the courtroom in his lousy suit, distracted by his own thoughts, he looked as at home as a man in his pajamas in his own kitchen eating over the sink.

“You know,” he began, “I think about one thing he said, the lawyer for the government.” He waved his arm behind him in the general direction of Logiudice. “The death of a young man like Ben Rifkin is awful. Even among all the crimes, all the murders, all the terrible things we see here, it’s just tragic. He was just a boy. And all the years this boy had in front of him, all the things he might have become, the great doctor, great artist, the wise leader, it’s all lost. All lost.

“When you see a tragedy as enormous as that, you want to make it right, you want to fix it somehow. You want to see justice done. Maybe you feel angry; you want to see someone pay. We all feel these things, we’re all only human.

“But Jacob Barber is innocent. I want to say that again so there’s no misunderstanding: Jacob Barber is completely innocent. He did nothing at all, he had nothing to do with this murder. This is the wrong man.

“The evidence you just heard about, it all turns out to be nothing. The moment you scratch the surface, the moment you look at it, you understand what really happened, and the state’s case blows away like smoke. That fingerprint, for example, which the government lawyer made so much of. You will hear how that fingerprint got there, just as Jacob told the policeman who arrested him, the moment he was asked. He found his classmate lying on the ground wounded, and he did what any good person would do: he tried to help. He rolled Ben over to check on him, to see if he was okay, to help him. And when he saw Ben was dead, he did the exact same thing many of us would do: he got scared. He did not want to get involved. He worried that if he told anyone he’d seen the body, let alone touched it, he would become a suspect, he might be accused of something he did not do. Was that the right reaction? Of course not. Does he wish he had been braver and told the truth right from the start? Of course he does. But he is a boy, he is human, and he made a mistake. There’s no more to it than that.

“Don’t-”

He stopped, looked down, considered his next sentence.

“Don’t let it happen twice. One boy is dead. Don’t destroy another innocent boy to make up for it. Don’t let this case become a second tragedy. We’ve had enough tragedy already.”

The first witness was Paula Giannetto, the jogger who discovered the body. I did not know this woman but I recognized her from around town, from the market or Starbucks or the dry cleaner. Newton is not a small town, but it is divided into several “villages” and within these neighborhoods the same faces keep popping up. Oddly, I did not remember seeing her jogging in Cold Spring Park, though apparently we both ran there often around the time of the murder.

Logiudice led her through her testimony, which dragged on too long. He was over-thorough, anxious to get from her every last ounce of detail and pathos there was to be got. Ordinarily, for the prosecutor a funny transformation takes place with the first witness: after standing center-stage for his opening statement, the prosecutor now steps out of the spotlight. The focus shifts to the witness, and the rules require the prosecutor to be almost passive in his questions. He steers the witness or prods her along with neutral questions like “What happened next?” or “What did you see then?” But Logiudice was quite picky about the details he wanted from Paula Giannetto. He kept stopping her to probe about this or that. Jonathan never objected to any of this, since none of the testimony tied Jacob to the murder even remotely. But again I sensed Logiudice fumbling his case, not by some grand strategic blunder but inch by inch, in a thousand little ways. (Was this wishful thinking? Maybe. I do not pretend to be objective.) Giannetto was on the stand for the better part of an hour relating her story, which was essentially unchanged since she first told it the day of the murder.

It had been a cool, damp spring morning. She was running along a hilly section of trail through Cold Spring Park when she saw what seemed to be a boy lying facedown on a leaf-strewn embankment, which sloped down to a tiny algae-skinned pond. The boy wore jeans, sneakers, and a sweatshirt. His backpack had tumbled down the hill near him. Giannetto was jogging by herself and she did not see anyone else near the body. She had passed a couple of other joggers and kids walking to school (the park was a common route to the McCormick School, which abutted it), but she saw no one near the body. She had not heard anything either, no cries or sounds of a struggle, since she had been listening to music on her iPod, which she wore in a holder strapped to her upper arm. She was even able to name the song that was playing when she saw the body: “This Is the Day” by a group called The The.

Giannetto stopped, removed the earbuds of her iPod, and looked down at the boy from the trail above. From just a few feet away, she saw the bottoms of his sneakers, his body foreshortened. She said, “Are you okay? Do you need help?” When she got no response, she went down to check on him, sidestepping carefully down the hill because of the slippery leaves. She was a mother, she said, and she could not imagine not checking on the boy, as she would expect others to do for her kids. She had it in her head that the boy had passed out, maybe from some sickness or allergy, maybe even from drugs or who knew what. So she got down on her knees beside him and jostled his shoulder, then jostled both shoulders, then rolled him over by his shoulders.

That is when she saw the blood that soaked his chest and the reddened leaves under him and all around him, still wet and glistening, draining out of the three vent-holes in his chest. The boy’s skin was gray but there were small splotches of pink on his face, she said. She had a vague recollection that his skin was cold to the touch but she had no specific memory of touching it. Perhaps the body had shifted in her hands so that its skin brushed her hand. The head fell back heavily, the mouth gawped open.

It took her a moment to process the surreal fact that the boy in her arms was dead. She dropped the body, which she had been holding under the shoulders. She screamed. She slid away from it on her butt, then turned and managed to scramble over the leaves on all fours back up the hill to the trail.

For a moment, she said, nothing happened. She stood there, alone in the woods, staring at the body. She could hear the music still playing faintly in her earbuds, still playing “This Is the Day.” The whole thing had not even lasted the three minutes it takes to get through a pop song.

It took a ludicrously long time to bring out this simple story. After such a lengthy direct examination, Jonathan’s cross was brief almost to the point of comedy.

“You never saw the defendant, Jacob Barber, in the park that morning, did you?”

“No.”

“No further questions.”

With the next witness, Logiudice misstepped. No, more than that. He stepped in shit. The witness was the Newton P. D. detective who had headed up the investigation for the local department. This was a standard, pro forma sort of witness. Logiudice had to begin by running a few witnesses up there to establish the essential facts and the timetable of that first day, when the murder was discovered. The first-responding cop is often called to testify about the state of the murder scene and the critical early moments of the investigation, before the case is joined-and taken over-by the State Police CPAC unit. So this was a witness Logiudice had to call, really. He was just following the playbook. I’d have done the same thing. The trouble was, he did not know his witness as well as I did.

Lieutenant Detective Nils Peterson joined the force in Newton just a few years before I started at the DA’s office, fresh out of law school. Which is to say, I had known Nils since 1984-when Neal Logiudice was in high school struggling to maintain a busy schedule of A.P. classes, band, and compulsive masturbation. (I am speculating. I cannot say for sure that he was in the band.) Nils had been handsome when we were younger. He had the sandy blond hair you might imagine based on his name. Now, in his early fifties, his hair had darkened, his back was a little stooped, his belly thickened. But he had an attractive soft-spoken demeanor on the stand, with none of the abrasive, cocksure bluster some cops exude. Juries swooned for him.

Logiudice took him through the basic facts. The body had been found lying on its back, face up to the sky, having been flipped over by the jogger who discovered it. The pattern of the three stab wounds. The lack of obvious motive or suspects. No signs of struggle or defensive wounds, suggesting a sudden or surprise attack. Photos of the body and the surrounding area were entered into evidence. In the first minutes and hours of the investigation, the park had been sealed and searched, with no results. Several footprints were found in the park but none in the immediate area of the body and none that were ever matched to a suspect. In any case it was a public park-there were probably thousands of footprint traces, if you cared to look for them.

And then this.

Logiudice: “Is it the usual procedure that an assistant district attorney is assigned to direct homicide investigations right away?”

“Yes.”

“Who was the assistant district attorney assigned to the case that day?”

“Objection!”

Judge French: “I’ll see counsel at sidebar.”

Logiudice and Jonathan went to the far side of the judge’s bench where they talked in low murmurs. Judge French stood tall above them, as was his habit. Most judges wheeled their chairs over to the rail or leaned in close, the better to whisper with the lawyers. Not Burt French.

The sidebar conference took place out of the jury’s hearing and mine. The next few paragraphs I have cut and pasted from the trial transcript.

The judge: “Where are you going with this?”

Logiudice: “Your Honor, the jury is entitled to know the defendant’s own father was in charge of the early stages of the investigation, particularly if the defense is going to suggest anything was handled improperly, as I suspect they will have to.”

“Counselor?”

Jonathan: “Well, our objection is twofold. First, it is irrelevant. It is guilt by association. Even if the defendant’s father should not have taken the case and even if he mishandled it in some way-and I’m not suggesting that either is true-it still doesn’t say a damn thing about the defendant himself. Unless Mr. Logiudice means to suggest the son was involved in a conspiracy with his father to cover up evidence of the crime, then there is no way to construe evidence against the father as having anything to do with the son’s guilt or innocence. If Mr. Logiudice wants to indict the father for obstruction of justice or some such thing, then he should go ahead and do it and we’ll all come back here someday and we’ll have a trial on that. But that’s not the case we’re trying here today.

“The second objection is that it is improperly prejudicial. It is guilt by insinuation. He is trying to poison the jury with the suggestion that the father must have known the son was involved and therefore he must have been up to something improper. But there’s no evidence either that the father suspected his son-which he certainly did not-or that he did anything improper when he was leading the investigation. Let’s be honest: the prosecutor wants to toss a stink bomb into this courtroom to distract the jury from the fact that there is virtually no direct evidence against the defendant. It’s-”

“Okay, okay, I got it.”

Logiudice: “Your Honor, how important it is, that’s for the jury to decide. But they have a right to know. The defendant can’t have it both ways: he can’t argue that the cops screwed up and then conveniently leave out the fact that the cop in charge was the defendant’s own father.”

The judge: “I’m going to allow it. But Mr. Logiudice, I’m warning you, if this trial gets sidetracked into a discussion of whether the father screwed up, intentionally or not, I’m going to cut it off. The defense has a point: that’s not the case we’re here to try. If you want to indict the father, do it.”

The transcript does not record Logiudice’s reaction, but I remember it well. He looked across the courtroom directly at me.