William Bernhardt - Hate Crime

“Yes. He specifically mentioned using a Taser. In fact, he showed it to his friends. He talked about cutting him. And he talked about swinging a hammer. His exact words were-pardon me, your honor-’we broke that little cocksucker’s legs into a million pieces.’ ”

Several members of the jury gasped-literally gasped. In a split second, Ben knew that the “magnitude of hate” about which Drabble had spoken in his opening had been transformed from the theoretical to the all-too-real.

“Did he seem regretful or remorseful about what he had done?”

“Objection,” Ben said. “This is a fact witness, not a psychiatrist.”

The judge frowned. “Well, the witness can describe the defendant’s demeanor or emotional state, as he witnessed it. Perhaps you should rephrase, Mr. Prosecutor.”

Drabble nodded. “Did you hear the defendant say anything that suggested that he showed any remorse about what he had done?”

“No. As I said, he was bragging. He and his buddy were proud of themselves. That was evident. The whole group was laughing it up.”

Ben felt the eyes burning his way-and past him-to Johnny. He knew what the jurors had to be thinking. What kind of monster was this?

“How long did you listen to the conversation?”

“As long as we could. As far as I was concerned, it was the easiest way to obtain rock-solid evidence. Sit in a chair and listen while the perp inadvertently confesses in front of three police officers. But after a while, one of them started to leave. That’s when I moved in.”

“What did you do?”

“I put the defendant and his friend Brett Mathers under arrest. We had heard more than enough to justify it. Pursuant to the arrest, we searched them.”

“Find anything?”

“On the defendant, we found the Taser. His friend had the hammer in his car. They both had split knuckles with blood smeared on them. Later tests showed that-”

“Objection,” Ben said. It was an easy win. The jury would have to wait and hear from a forensic expert what the later tests showed-namely, that the blood and skin fragments under Johnny’s nails came from Tony Barovick.

“Did you participate in the later custodial interrogations of the defendant?”

“Yes, I did. Christensen was tight-lipped at first, didn’t want to talk. Used his phone call to contact his mother, denied doing anything wrong. Claimed he’d been lying to his friends, that it was some sort of hazing game they played to scare new members. But he cracked pretty quick. Before the sun came up, he’d begun confessing. He admitted to participating in the assault on Tony Barovick. Using the knife, the Taser. Shattering Barovick’s jaw. Helping his buddy with the leg fracturing. Pretty much everything.”

“Thank you,” Drabble said solemnly. “Pass the witness.”

Small gains, Ben reminded himself as he approached the podium. That’s what you strive for. This was the prosecution’s case, not his, and Drabble wasn’t putting people on the stand to make Ben happy. If he could accomplish any little thing, it was a successful cross.

He didn’t waste any time. He knew a police witness would never warm up to him-they were specifically trained not to-so there was no point in trying to win him over.

“You testified that there were six men sitting around the table where you eavesdropped. But you only arrested two of them, right?”

Sasser was nonplussed. “Jonathan Christensen and Brett Mathers were the only two who talked about assaulting the victim. The other four were just the audience. They seemed to think it was a wonderful thing the boys had done and a great cause for merriment, but they didn’t admit to participating.”

“Did you ever consider the possibility that Johnny Christensen might have been exaggerating?”

“That he might be claiming to have hurt the victim more than he really did? Why would he?”

“You said yourself that his audience seemed to enjoy this talk. Maybe he was trying to impress them.”

Sasser shook his head. “You know, counsel, I might be willing to go along with you on that-if I hadn’t seen the corpse upon which every disgusting act they described had been perpetrated.”

Ben knew better than to let a cop witness take the ball away from him. “Sergeant Sasser, you’re supposed to be testifying as to what you saw and heard-and nothing more. And you didn’t see Johnny Christensen strike Tony Barovick, did you?”

“No.”

“And the fact that he talked about it afterward doesn’t prove that he did, does it?”

“Well…”

“Have you ever heard anyone say something that wasn’t true?”

“Sure, but-”

“Especially when they’re trying to impress someone, right? You might’ve told a lie or exaggerated details on occasion to make a good impression yourself.”

“I never bragged about pummeling someone with a five-pound hammer. That’s for damn sure.”

Well, Ben told himself, I certainly opened the door for that one, didn’t I? He tried to press on quickly.

“Did you overhear anything that would indicate where the beating took place?”

“Not that I recall. I might’ve forgotten. Since we’d already found the body, there didn’t seem to be much question-”

“You’re assuming the beating took place at the fraternity house, where the body was found. But wouldn’t that be a rather odd place to attack and kill someone?”

Sasser shrugged. “Not especially. I assume they lured the boy there or forced him to come. It would afford privacy. They could turn up the stereo to drown out the screams.”

“And wouldn’t it be even stranger to leave the body there? Where the crime would certainly be traced back to them.”

“I never claimed these guys were geniuses. I expect they thought they had some time before they had to dispose of the body.”

“So you’re saying they killed the man right there, in their own home, left the body in the den, and went out for a beer?”

Sasser started to get agitated. “You can’t judge these people by normal standards. Anyone capable of doing what those two did clearly does not think like a normal person.”

This was getting him nowhere, Ben realized. Time to shift gears.

“You’ve admitted that the late Brett Mathers was also involved in this alleged beating, right?”

“Right. He’d be sitting at your table now, too, if he were still alive.”

“How can you know exactly what Johnny did and what Brett did?”

“I can’t. And fortunately the DA tells me it doesn’t matter.”

“Objection. What is the relevance of this questioning?” Drabble asked, addressing the bench. “We all know that when the commission of a felony results in a homicide, felony murder charges may be brought against all participants. And the last I heard, beating someone with a sledgehammer was a felony. So what difference does it make who did what?”

A huge difference, Ben thought, if not now, then for sentencing purposes. But he couldn’t argue that. “The point, your honor, is that two people were involved, and the prosecution doesn’t know which of the two-if either-actually killed Tony Barovick.”

“I’ll allow further questioning on this point,” Lacayo said. “But I warn you, Mr. Kincaid, that I will be instructing the jury on the elements of felony murder at the conclusion of the evidentiary phase, and if your client participated in any felony that resulted in a death, he is liable on this charge.”

Ben nodded, then returned his attention to the witness stand. “You mentioned your initial questioning of Johnny Christensen. I’ve had the pleasure of reading the transcript of that interrogation several times. Did Johnny ever confess to beating Tony Barovick with a hammer?”