William Bernhardt - Hate Crime

Back at the defendant’s table, Johnny held his head in his hands. “I can’t believe this.”

“Shhh,” Ben whispered. “The jury is watching.”

“But-he’s a brother! Why would he turn on me like this?”

Because he has a conscience? Ben thought. He couldn’t believe what he was hearing, either, but for entirely different reasons. Why would Drabble risk putting one of Johnny’s friends on the stand, just for this? All this grotesque braggadocio had been related by the police witnesses. Another version wasn’t necessary. There had to be something more.

“How long were you at the bar?” Drabble continued.

“About an hour. Maybe a little more. By that time, Johnny and Brett were starting to wind down, and I thought I could leave without taking any grief from anyone. I started to go and others followed my lead-and that’s when the police moved in.”

“Were you questioned?”

“For a time. They eventually let me go. Johnny and Brett were the only ones they arrested.”

Drabble closed his notebook, gripped the corners of the podium, and leaned forward, an earnest expression on his face. “Now, Mr. Scholes, I’m going to ask you another question, and this is very important, so please take your time before answering. During this entire sordid conversation-the bragging, the reenacting, the laughing and joking-did Johnny ever say that he had killed his victim?”

“No. He never used that word.”

“Did Brett?”

“No. They talked about how bad they hurt him, but never said they killed him. In fact, early on, I remember specifically hearing Brett saying, ‘We shoulda just killed him.’ Which of course suggests that they didn’t.”

Ben and Christina looked at each other, eyes widening. What was going on here? Why was Drabble making their defense for them? Christina seemed faintly pleased, but Ben knew Drabble would never intentionally have his witness buttress a defense theory, even if it was the truth. There had to be more to this. And whatever it was, he felt certain he wasn’t going to like it.

“Was there any reaction when Brett made that statement?” Drabble asked.

“Yes. Johnny fell strangely silent, for the first time. He seemed to kind of withdraw inside himself. His head drooped.”

“What did you make of that?”

“Well, at first I just thought the booze was wearing off. You know-he was coming down from the buzz. Then, out of nowhere, I heard him say, real quiet like, ‘Brett is right.’ ”

A buzz rose from the gallery of the courtroom, a mixture of whispers and scratched pencils and shuffling and craning. All eyes were fixed on the witness stand.

“He said that?”

“Yeah. And I said, ‘What are you talking about?’ He answered right away. He said, ‘We should’ve killed that filthy faggot. I should take care of that myself. I should go back and finish what we started.’ ”

The buzz grew. Eyes widened all around the courtroom.

“Objection!” Ben said, not because he had any grounds but because he thought he had to. “This is hearsay-”

“Admission against interest,” Drabble said calmly.

“-and was obviously invented by the prosecution to counteract our defense. This testimony does not appear in any of the witness’s prior statements!”

“I just remembered a few days ago,” Scholes said. “When I read in the paper that Johnny was claiming he didn’t kill that kid.”

“The objection is overruled,” Lacayo said.

“But your honor,” Ben continued, trying to break the spell these deadly words had cast over the courtroom, “this is an eleventh hour switch obviously concocted to-”

“You’ll have a chance to expose any perceived faults in the testimony during cross,” the judge said firmly. “The objection is overruled. Proceed.”

“It’s not true,” Johnny whispered, as Ben retook his seat. “I don’t remember saying anything like that.”

Ben motioned for him to be silent. The last thing they needed was for the jury to see him desperately protesting his innocence. Stay calm, he mouthed.

Drabble resumed his questioning. “And what if anything did the defendant do after he made that statement?”

“Nothing at first. But about a minute or so later, he got up, with this really weird expression on his face-and left the bar.”

Now the noise in the gallery was so intense Judge Lacayo had to clap his gavel a few times and order silence. Sitting behind the defense table, Ellen Christensen’s eyes closed, her face contorted in pain.

“He left?” Drabble said, acting surprised, although Ben knew perfectly well he wasn’t. “For how long?”

Scholes tossed his head to the side. “Hard to say exactly. Maybe fifteen minutes.”

“And this would be when?”

“Around 11:10, I think.”

Ben felt a cold chill grip his spine. Eleven ten-still within the window of the coroner’s estimated time of death.

“And how long does it take to get from the bar to your fraternity house?” Drabble asked.

“Only a few minutes. You can walk it in five.”

“So let me get this straight. At 11:10, the defendant says, ‘I should finish what we started,’ leaves the bar for fifteen minutes, then returns.”

“Objection, your honor,” Ben said. Thank God he finally got an opening. “He’s leading the witness.”

“True enough,” Lacayo replied. “Sustained.”

“What’s more, I object to this entire line of questioning. It’s all supposition based on hearsay. The witness can’t testify about what my client did after he supposedly left the bar. This evidence isn’t probative of anything.”

Drabble arched an eyebrow. “Then it shouldn’t pose any threat to you.”

“I move to strike,” Ben continued, advancing toward the bench. Drabble joined him. “In fact, I move for a mistrial.”

“On what grounds?” the judge asked.

“On the grounds that this speculative and irrelevant testimony has permanently tainted this jury.”

“Tainted them with the truth?” Drabble asked.

“The mere fact that the man left the table for a little while doesn’t prove he killed anybody.”

“And I’m sure you’ll make that point on cross and in closing,” Lacayo said. “Anything else?”

“Yes! At the very least, I move that the jury be instructed to disregard this line of questioning.”

“That will be denied,” Lacayo ruled.

“Your honor, he’s lying!”

“That’s why God made cross-examination, counsel.”

“If nothing else,” Ben pleaded, “strike the testimony on grounds of fundamental fairness. The prior defense attorney interviewed the witness extensively, but he didn’t hear anything about this.”

“Maybe he didn’t ask the right questions,” Drabble said.

“That is another issue you can address on cross,” the judge added.

“What’s more,” Ben said, glaring at Drabble, “the prosecution has a legal obligation to come forward during the pretrial period with any damaging evidence they intend to use at trial. But we never heard about this.”

“We gave them the witness,” Drabble said. “Good grief, do we have to give them a list of questions to ask? We can’t lead them by the hand every step of the way.”

“Defendants are supposed to be tried by evidence, not by ambush.”

“Gentlemen, please!” Lacayo held up his hands, clearly indicating he wanted the discussion to end. “I’m sympathetic to what you’re saying, Mr. Kincaid-and I know the appeals court will rip me a new one if I allow anyone to be tried by ambush. But I don’t feel this one detail varies that much from what you already knew the witness was going to say-”

“It destroys our entire defense!”

“-and you did have access to the witness beforehand. It would be different if he lied to you, but there’s no indication before me that he did-only that you failed to cover an important area of potential testimony. We can’t do everything for you, you know. Sometimes counsel has to stand on their own two feet.”