PART SIX: BEING“Be ye therefore perfect, . . .”Matthew 6:48
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21. Grieving
A |
Grief was the heavy cloak I wore to ward off a penetrating chill that
had seized me the moment Lucky had been struck down. During the briefest
of time, a mere four days, he had insinuated himself into the innermost
chambers of my heart. Now he was gone, and I regretted that I had
never told him how much I loved him.
It’s not enough to love people in silence. That’s what
Lucky’s death had taught me. We must tell each other as often and
as clearly as we can, You are loved.
I would never have that chance with Lucky, and I couldn’t get
used to the empty place he had left behind. It was like an open doorway
to a frozen world.
I shivered and drew the cloak of my grief ever closer.
“I understand, Mr. St. John, that you intend to represent yourself.
Is that correct?”
I rose to reply, but I didn’t care whether he granted my request
or not. I didn’t care about anything. “That’s correct, Judge Stone.”
Stone nodded his head as if considering, then said, “I acknowledge
that you have formal training as a paralegal, as well as many years’ experience
as a defense investigator, which gives you legal skills that most defendants
lack. However, it’s a given within the legal profession, as I’m sure
you know, that not even the most experienced lawyer will undertake his
or her own representation.” He waited to see if I would retract my
request to proceed pro se.
Instead I stared out the windows, which rattled even louder in
the mounting fury of the storm.
“These are very serious charges you face, as you obviously understand.
The state claims that prior to being apprehended you assisted a former
client — one who faced murder and kidnapping charges, I might add
— in escaping custody and leaving Vermont, driving him in a stolen vehicle
across eight states.” He glanced back at the Information and supporting
affidavits, then said, “I can’t tell from this whether Donald Hall was
also arrested in Texas.”
Walter Brown rose noisily from his seat, as if to ensure we all
were watching him. “He apparently is still at large,” he announced
in his high whiny voice. I’d been wondering if they knew about Lucky
drowning. I was glad they didn’t. Let them keep wondering,
I thought.
Brown sniffed as if smelling something foul. I wondered
if he would say anything about Odysea, but he didn’t. I had no idea
what had happened to her after my arrest. Apparently they didn’t
even know about her. Relief must have shown on my face, for Brown
scowled at me as he sat down.
“Your Honor,” Larry Hughes said, his voice quavering, “if I may
interrupt for a moment . . .” Larry was standing right next to me,
and I turned to him in surprise.
“Yes, Mr. Hughes?” Judge Stone replied.
“I’d be happy to assist — ,” he paused to pull in air.
I think Larry had to make sure his lungs were full in order to speak more
intelligibly. Even so, you had to listen carefully to understand
him. “Um, as I was saying, I’d be honored to assist Mr. St. John
in defending himself, if the court permits.”
I’d known Larry for as long as I’d worked as an investigator.
We weren’t exactly friends, yet clearly we were more than acquaintances.
It often happened that we arrived at the same time in the morning at Anthony’s
Diner. We’d share a booth and eat breakfast together, chatting or
reading the morning paper in comfortable silence. Now under my breath
I said, “I can’t pay you Larry. I just don’t have the money.”
“I’ll do it pro bono,” Larry insisted, his mouth having to work
even harder to achieve a whisper.
“Why?” His offer perplexed me, for I doubted he had enough
paying clients to justify taking me on for free. There are always
smooth-talking lawyers for hire, even in a small town like St. Johnsbury,
and as a “mouthpiece” Larry was at an obvious disadvantage.
Larry’s head bobbled a few seconds, and I could sense Judge Stone
waiting patiently, not his usual modus operandi. Obviously this was
an unexpected turn of events he approved of. Judges do not like pro
se defendants for a number of reasons, including that they tend to slow
down the machinery of the court by not knowing the law, especially procedural
law — the rules by which the game is played.
Finally Larry leaned in close to answer my question. “Let’s
just say ‘I don’t like bullies.’” By the way he said it, I heard
the quotation marks around the phrase, which made me stare at him in wonder.
Then, and I don’t know what made me do it, I turned to look at
Walter Brown. He was smirking. I knew that smirk, had seen
his officious smile too often. He clearly was gloating at the prospect
of running rings around Larry.
“I accept Mr. Hughes’ offer, your Honor,” I announced to the
courtroom. I even turned around to make sure everyone had heard me.
Larry Hughes was a kind man and a diligent attorney, and I resented any
implication that his help was inferior.
It was then that I spotted Diane sitting in the rear of the courtroom.
She took my breath away. Even now.
I quickly averted my eyes, but not quickly enough. In that
brief moment she surely had seen my longing. It bothered me, but
not as much as what I’d seen in her eyes: A grief to match my own.
I didn’t understand.
I was formally charged with grand larceny of Diane’s car and with escape.
Under Vermont law, if you help a person in custody to escape, you can be
charged as a principal — as if it were you who had been in custody — which
is exactly what Brown did. Like most prosecutors, he charged maximally,
always cognizant of potential plea agreements.
I entered a not guilty plea, and Stone set bail at $50,000, a
not unreasonable amount given our jaunt to Texas. Even so, it meant
that I would sit in jail waiting for trial. It mattered little to
me.
When I turned to be led out of the courtroom, Diane was gone.
But as the sheriffs led me in chains out the front door of the courthouse,
I glanced back over my shoulder. There was Diane standing in the
hall. As they pulled me through the doorway, I saw her lips mouth
the words, “I’m sorry.”
“I’m awful sorry to wake you, Jimmy, but the judge just called.”
It was Rod standing outside the cell. I must have been dozing.
When I’d been returned from court, instead of lodging me in population
they had put me into one of the holding cells. I had assumed the
jail was overcrowded again.
No sooner did they build a new jail in Vermont than it was filled
to overflowing. It was part of the lock-em-up mentality that had
predominated in America for the past twenty-five years. At that very
moment there were over a million people incarcerated in the United States,
despite the fact that most criminologists agreed it didn’t deter crime.
In Vermont the jails were so crowded that they had started shipping inmates
out of state. Almost 300 prisoners were being lodged in other states’
jails — 20% of all inmates, which ranked Vermont number one in the nation
for that dubious distinction. Corrections officials publicly admitted
that even when the new prison in Springfield was complete, it would be
filled immediately because of the longer sentences being handed down every
day of the week.
“You’re gonna appreciate the news, though,” Rod said, then called
into his walkie-talkie to the sally port for the doors to be unlocked.
There was a buzz, and slowly the bars slid to the side. “Judge says
you made bail. He called especial to make sure you were freed tonight.
Never known him to do that before. I guess he likes you, Jimmy.”
I was groggy, and it took a moment for Rod’s news to penetrate.
This was the first I’d seen him, though obviously he was aware of my incarceration.
“I don’t understand, Rod. I haven’t posted bail.”
“Somebody did, or the judge wouldn’t have told me to fill out
the paperwork so as you could go.” Rod looked around to see if anyone
could hear him, then said under his breath, “I’m awful sorry about your
being here. I never thought we’d be standing on opposite sides of
the bars. And I’m not the only one feels that way. So let’s
get you out of here as expeditiously as the judge ordered me to do.
Okay, good buddy?”
“Rod, can I ask you a question?”
“‘Course.”
“Do you have any connection with Larry Hughes?”
“Henh, henh, henh,” Rod chuckled, then winked at me as he nodded
his head proudly. “Larry’s my brother-in-law.”
It was after seven p.m. when I stepped out of the warm jail into the
driving force of the winter storm. There was over a foot of new snow
on the ground. I had on running shoes and a light jacket. I
was dressed for Texas, not Vermont. My cabin was seven miles south
of the correctional center. At this time of night in a storm it was
unlikely I’d be able to hitch a ride. I pulled up the collar of the
jacket, stuck my un-gloved hands into its thin pockets, and trudged down
the snow-covered road that led to the highway.
I had walked along Route 5 for about twenty minutes when I saw
the headlights coming from behind me. By then my feet were numb,
my hair and beard matted with frozen snow, and I was chilled both inside
and out. I turned to face the oncoming vehicle, but was blinded by
its lights. I raised my right thumb in the air, and a Toyota pickup
slowed and stopped right next to me. I hustled to get into the cab
and out of the fierce storm.
“Thanks for stopping,” I tried to say as I pulled shut the door,
but the words came out jumbled and indistinct. A blast of hot air
from the defroster hit me in the face, and I could feel the snow that had
frozen in my hair and beard begin to melt at once.
The driver pulled back onto the highway, fishtailing a moment
before gaining traction. Then she spoke. In the darkness of
the cab I hadn’t noticed it was a woman.
“I’m sorry I was late.”
As soon as she spoke I realized it was Diane. Then I looked
at the dash filled with screwdrivers and spark plugs, the floor littered
with Green Mountain Coffee cups, and realized this was my truck.
I didn’t understand. Nor did I know what to say or do.
I sat in silence, shivering and waiting for whatever came next. The
storm battered the Toyota, making driving precarious. I stared at
the swirling snow as it whisked through the narrow tunnel of light from
the truck’s high beams. It was mesmerizing.
“I meant to pick you up at the correctional center, but it took
longer than I thought to arrange bail, and then I got a DWI call just as
I was walking out the door.”
I didn’t know what to say or even if I could speak at all.
I closed my eyes and tried to focus my mind, but all I could see was the
blizzard raging in the night.
When we reached the road that led up Barnet Mountain to Milarepa and
my cabin, Diane didn’t hesitate. She floored the Toyota and barreled
up the steep snow-filled track. The truck’s underbody was snowplowing
the whole time, and we made it about half-way before the snow accumulated
into a solid wall through which we couldn’t pass. When the Toyota
stopped and stalled, Diane left it in first gear, pulled up the emergency
brake as far it would go, then turned off the headlights.
“I’m sorry you have to walk the rest of the way, but we don’t
seem to have any other choice. I just wish I had been able to take
care of everything sooner. This isn’t how I wanted it to be.”
She climbed out of the cab and came over to my side. The
snow was up to her knees, and she nearly fell. Opening my door, she
reached in and took me by the hand. I couldn’t speak or think, and
I didn’t know what was wrong with me. I felt numb all the way through.
I was trembling with cold, and when she noticed she said, “We’d better
get you to the cabin right away.”
She took off her winter coat and wrapped it over my shaking shoulders,
though I tried to tell her not to. I don’t know how we managed to climb
through the deep snow in the blinding wind. I slipped and fell twice,
and Diane struggled to get me back up. By the end she was bearing
most of my weight.
Inside the cabin, which surprisingly was warm — someone had started
the fire in the wood stove earlier that day — Diane lit the kerosene lamps
and put the kettle on top of the stove. She took off my wet clothing
until I was naked, then helped me climb to the loft. I got under
the blankets. The flannel sheets felt cold to the touch but quickly
grew warmer. She piled on an afghan and an old torn quilt, then went
back to the first floor. I heard her filling the stove with wood
as I shook with cold beneath the mound of blankets. Above me the
metal roof rattled in the storm.
A few minutes later she came back up with a steaming cup in her
hand. “Drink this,” she said, helping me to sit up. She held
the cup to my lips as I sipped. It wasn’t tea as I had expected,
but miso soup with finely diced garlic.
I finished as much of the soup as I could, then lay back down.
Diane stripped off her own wet clothing until she was naked. She
climbed under the covers and lay directly on top of me. The wind
howled, the roof rattled, the whole cabin creaked and moaned. I could
hear the snow beating against the windowpanes. I don’t know how long
I shivered beneath Diane’s warming flesh, but eventually I must have fallen
asleep.
I felt myself floating on a soft warm sea, rising and falling on its
gentle swells as the hot sun baked my salty flesh. I was sucking
something sweet and tangy, getting more and more aroused at its succulent
feel on my lips. I felt myself grow hard, deliciously, erotically
hard, and my hips began to undulate in a fluid way. I heard a moan,
a low growl of desire that told me I was not alone. I heard it, felt
it, saw it, sensed it — all the doors of perception flung open at once,
yet I couldn’t tell if I were dreaming or if the pliant soft flesh against
my lips were real.
Then I realized a woman was opening her legs to me. I slipped
inside her, or was it that she wrapped herself around me? No, it
was simpler than that: She was wet and I was dripping, and we met
in that moist place. It was a joining so mutual that it didn’t happen,
it just was. More like magic than sex, we were drawn by something
deeper than lust, more profound than eroticism, more mystical than romance.
I awoke one notch more to find us riding each other, rising and
falling, rising and falling. I felt the slippery world grow firmer
until my mind put a name to the body responding to mine: Diane.
At that moment I also knew we were about to climax together, but just before
we did I felt her relax and pull back, waiting for one delirious moment,
waiting for me to come to her. I pulled back too, floating over the
edge of a high waterfall. Suddenly we met, our most vulnerable and
naked selves revealed, and I knew her in a way I’d never imagined possible.
How can I say this so that it makes sense? It’s very difficult
for me to describe mystical feelings. We were having sex but it was
no longer sexual. I didn’t even care whether she was female.
Or beautiful. Or desirable in any worldly way. I cared for
one thing and one thing only — the essence of her, the core of who she
was and would always be.
Then the falls sucked us over the edge, and as we poured together,
I spilling into her, she into me, I promised aloud I will love you forever.
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22. Loving
I |
When I had run to the car to call for help on the cell phone, Odysea
had started scanning the flood waters for any sign of Lucky. What
she saw terrified her: The entire river valley was raging with yellow
and gray and brown water that tore at trees and ripped up cacti as if they
were dead blades of grass. She knew no one could survive long in
that thrashing maelstrom.
Then she thought she saw something waffling in the waters above
the flooded ridge a short way down river. At that point the flood
had reached up the side of the ridge until it covered a low tree with thick
branches. Somehow Lucky had latched onto one of those branches, from
which the driving force of the flood kept trying to snatch him. Yet
he held on. Odysea ran along the top of the ridge until she had reached
the spot above the tree. Fortunately by then the flood had started
to ebb, or she herself would have been sucked into it.
She stood frozen for a moment, unsure what to do. Slowly
the flood began to recede. This gave her the chance she needed.
There was a long branch that lay on the ground along the ridge. She dragged
it to the water’s edge. Immediately the current sucked it towards
the tree from which Lucky dangled. Odysea held on to one end and
shouted, “Grab the other end!”
She had no idea whether he could hear her, and for a few moments
she thought he couldn’t. She yelled again, then saw him reach one
hand out to the dead limb. Yet with his other hand he wouldn’t let
go of the branch of the live tree.
“Let go, Lucky!”
Still he held on.
“Let go!”
Then she saw him raise the arm that held onto the tree in a shaking
motion, as if trying to dislodge something. He did it two, three
times more until finally whatever it was came free, and he grabbed the
dead limb with both hands.
It was at this point that the real danger set in, for now not
only was he at risk of washing down river, but it was possible that Odysea
could be pulled into the flood waters with him. The flood was subsiding,
yet it was far from safe.
She felt Lucky’s weight yank the tree limb with enough force
to knock her off her feet. She was being dragged straight towards
the water when she pulled her knees up to her chest and heaved with her
feet, regaining an upright position. Later she would say it was like
roping a young bull.
As soon as she was upright again, she began running as fast as
she could along the ridge, angling uphill and away from the river.
It took her longer than she’d hoped, and by the end her jeans and the skin
on her legs were cut and torn from running over and through the cacti,
but finally she dragged Lucky to the edge of the flood waters.
She dropped the limb and ran straight to where he lay half-in,
half-out of the now calming river. He was nearly drowned, but alive.
She rolled him on his back, and as he opened his eyes he held up his right
hand. Laying upon his now-open palm was the red clay goddess.
It was then that Odysea realized what saved him: The pregnant
goddess. Its thong had caught in a branch of that tree, and it had
stayed caught until he had managed to shake it free.
As Lucky handed the goddess to her, Odysea saw the sun split
the storm clouds to the west and a perfect rainbow appear upriver.
She said that when she saw the rainbow, she knew firsthand the absolute
perfection of life. It was a blissful moment of pure samadhi.
Odysea and Lucky lay on the quickly drying ridge for a long time, slowly
regaining their strength. When at last they were strong enough to
hike back to the parking lot, Odysea finally started wondering what had
become of me.
It took them a long time to reach the lot. They both needed
to rest often, especially since Odysea had to support Lucky most of the
way. He was young and strong, but he had been tested to the very
limits of his endurance.
Just as they gained the lot, a tow truck was hitching up the
Audi. Odysea approached the man operating the winch and asked him
what had happened. He didn’t know much, only that the driver had
been arrested and that he was supposed to impound the vehicle. It
was enough for Odysea. She and Lucky quickly returned to the riverbank
and waited until dark to hike out of the park. She wouldn’t risk
either of them being seen.
It took them hours to walk to Henly, then hitch a ride towards
Lone Woman Mountain and Salina’s ranch. But they made it.
In the weeks that followed Odysea kept trying to find out what
had happened to me. She called all the jails and detention centers
in central Texas, but none of them claimed to have me incarcerated.
Finally she put out the word through the lesbian community that she needed
help from anyone who had connections with law enforcement or corrections.
A woman named Lilith responded. Lilith worked in communications at
the Bexar County Sheriff’s Office in San Antonio, and after Odysea told
her about searching for me, she found who she thought must be me listed
as a John Doe. Lilith said this John Doe had been shuffled back and
forth between several different jails, though she couldn’t imagine why.
When Odysea tried to visit me that night, she was told that I
had been returned to Vermont that afternoon.
That’s when she called the St. Johnsbury Public Defender Office
and got Diane.
That night over dinner Diane told me that she had left Bob. “When
you hung up after I’d told you about having been an erotic dancer, I was
totally distraught. I’d never in my life been so hurt by anyone.
Bob came home and insisted I tell him why I was sobbing. He was very
sweet to me and very angry at you.”
“Now it’s my turn to apologize,” I said. I took her hand
in mine and looked directly into her green eyes. “I want you to know
that I love you. I’m sorry I couldn’t say it that night. There
are so many things I haven’t been able to say to people. I’ve been
held hostage by my own secrets. For thirty years all my energy has
gone into protecting myself. I want to do things differently now.”
She looked at me and said, “So do I.” Then she leaned over
and kissed me, a tender kiss that was over too soon. I tried to pull
her back but she said, “Wait, I have to finish telling you what happened.
The next morning without my permission or knowledge, Bob met with Walter
Brown and revealed everything. About your taking the car, about Lucky
being with you, about my ordering you to turn him over to the police.
That’s when they started tracking calls made from the cell phone, which
of course is how they found you in Texas.
“When I got home that night Bob told me what he’d done.
I was furious with him. He had no right to do it! I know he
was trying to protect me, but it was wrong. I walked out on him and
came here to your cabin. I didn’t know where else to go, and I needed
to be with you, even if only to stay in your empty home.
“As the weeks passed and I didn’t hear from you, I felt lonely
for the first time in my life. I missed your company terribly.
You’d been there for me every day for a year, and during that time I’d
come to count on you in ways I was only beginning to realize. Why
didn’t you love me? I had tried to be the woman I thought you wanted
— a savvy street lawyer who fought tooth and nail for our clients — and
still you rejected me. Was it Little Lori you couldn’t accept?
I began to doubt myself in ways I never had. That and the loneliness
forced me to start looking at my life, to examine how I had lived and why.
The first thing I saw was the multiple layers of subterfuge.
“I was living a lie by being married to Bob. Bob is one
of the finest men I’ve ever known. He’s decent, strong, very stable
and self-assured. And he’s safe for me because he’ll never force
me to be anything other than what I already am.
“I understand why both of us created this phony marriage, but
it hasn’t been good for either of us. I’m filing for divorce.
Of course Bob feels very threatened by my decision — it means he has to
make some hard choices, too — but it’s time for me to stop hiding.
I’m not Little Lori and I’m not his wife. I’m not even a good lawyer.
I put my own interest above those of my client. I know now that’s
what you were trying to tell me about Lucky. I hate to admit it,
but he scared me. I wanted to get rid of him and the horrifying charges
he faced and his inability to communicate with me. It was just too
hard.”
“You’re right, it was hard, and I wish I had convinced you to
ask for help instead of confronting you the way I did. The Defender
General would have found co-counsel for you as a matter of course.
I should have reassured you.” Then I remembered something.
“I’m curious whether you ever talked to Robert when I asked you to give
me and Lucky another 72 hours?” Robert was the Defender General,
our boss, or at least hers since I’d given verbal notice of quitting.
“I called him right away, and he confirmed what I already knew.
He told me that by failing to report you I was implicating myself in criminal
activity, which automatically dissolves the protections of the attorney-client
privilege. But I wanted you to have that 72 hours even though I didn’t
know why you needed it. In the end when I balanced what I wanted
and what the law demanded, I understood that I was no longer willing to
be an attorney.” She turned to me and smiled. “Yesterday was
my last day as the Caledonia Public Defender.”
I was shocked. “You love legal defense work.”
“It’s true, I do love it. But I love you more, and I couldn’t
turn you in. Besides, there’s something wrong about the law and lawyering.
I feel like it’s just another way of controlling and manipulating people,
something the culture encourages and rewards. I don’t know who I
am, but I do know that I want to stop being manipulative, and if that means
giving up the law, then that’s what I’m willing to do.”
“I guess it’s no accident that we arrived at the same place,
though for different reasons. I decided to leave the law not because
it brought out the worst in me, but because I don’t want to pretend that
my work makes a difference. All I ever accomplished was to make a
bad system look fair when it isn’t.”
“I understand what you’re saying, Jimmy, but I think you did
much more than that. First and last, you treated our clients with
respect. For some of them, it was the only time anyone afforded them
personal dignity. It’s what made me fall in love with you.”
“I don’t know how to say this, but . . . it’s hard for me to
believe that you do love me.”
“Why do you still doubt yourself? Or is it me you doubt?”
“It isn’t you. I stopped doubting you last night when I
saw into you, into who you really are. You’re right about not being
Little Lori or Bob’s wife or a public defender. Those are things
you’ve done, not who you are.” I grew silent, considering what I’d
just heard myself say. “No, it’s not you I doubt, it’s me.
I’ve always felt inadequate. I’ve never quite belonged. And
when I compare myself to other men, men like Bob who are handsome and accomplished
and sophisticated, I feel totally inadequate.”
“Look at me, Jimmy.” I must have had my head downcast,
for she lifted my chin until I was looking right into her eyes. They
were wonderful eyes, clear and sparkling with life. She smiled, then
said slowly and deliberately, “You are the most beautiful man I have ever
known.” I thought my heart would burst with gratitude, yet at the
same time I felt humbler than I ever have. “You have a gentle heart
that inspires me. Your mind is open and accepting of others, their
faults and their gifts. You are faithful to those you love.
And I am so grateful to be among them.”
She put a hand on either side of my face and kissed me.
It was the sweetest kiss I could imagine. I felt loved, truly loved.
It was a new feeling, one I very much wanted to keep in my life for as
long as I lived.
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23. Girding
P |
If things had been different, Larry and Diane and I might have followed
the normal scenario of pretrial motions and lengthy depositions of the
State’s witnesses. Instead, we wanted to go to trial as soon as possible.
Every day Larry or Diane pressured Lucy Miller, the Caledonia District
Court Clerk, to set an earlier date for trial. Normally the quickest
one could get a trial date in Caledonia was six weeks after arraignment.
That happened rarely, and then only when neither side filed motions and
other cases didn’t take precedence. To complicate matters for us,
the winter holidays were approaching, which meant the entire system would
come to a grinding halt, causing additional delay.
We couldn’t wait six weeks or more. Odysea and Lucky were
in hiding in a cabin in the northeastern-most corner of Vermont.
They were surrounded by miles of forest, moose and black bear, and few
people. Even so, every day they were at risk of being discovered.
Our only hope was to expedite the trial, which we planned to use to expose
Trooper Smalley, thereby saving me and Lucky both.
Did we know how to do that? Not really.
We were taking an enormous risk, one that lawyers never take
going into trial. The golden rule of trial practice is “Do unto others
what they already expect you to do,” not “Go fish!”
We couldn’t get at Smalley any other way. I had tried every
way I knew to discover what he had been doing on Barnet Mountain the night
he had burned Lucky. I had tried and failed. Two of the potential
witnesses had died in the crash, and Lucky didn’t know what was behind
the torture. The Masonic lead that Big Rod had offered wasn’t going
anywhere. The Masons in Vermont were just what they appeared to be
— law abiding, hard-working men who served the community and occasionally
yukked it up at the lodge. Though we talked with Lucky at length
about his having snatched the baby at the mini-mart, he seemed unable to
explain any more to us than he already had. It was obvious that he
was terrified. Smalley had a hold on him that we couldn’t break or
penetrate.
We could have deposed Smalley, dragged him into Larry’s office,
put him under oath, and gone fishing. But he was a seasoned law enforcement
officer who’d been deposed in countless cases. He knew the law, he
knew lawyers, and he knew how to respond in ways that sounded reasonable
and revealed nothing. All we would have accomplished would have been
to alert him to our suspicions.
Surprise was our only ally, which is why we didn’t give notice
of intent to rely on a defense of necessity. In a necessity defense,
also called the defense of justification, the accused admits to the facts
but claims there were extenuating circumstances that compelled the illegal
activity. In my case, I would admit to helping Lucky escape but claim
that I had no choice given the imminent danger he faced had I returned
him to custody.
Diane and Larry and I argued over whether to pursue that defense.
Larry believed it was our only option, Diane was on the fence, and I was
opposed. “The necessity defense rarely works,” I pointed out.
“Usually you can’t even get a judge to instruct the jury on it. And
without great instructions, a jury will never buy it.”
“There was a case in Burlington,” Larry countered, “where protestors
against U.S. policy in Central America were charged with trespass when
they refused to leave a Senator’s office. They claimed necessity
and were acquitted.”
“That was the one exception, and I think it was because of Judge
Mahady.” Mahady, now deceased, had been a firebrand on the bench,
an avid defender against the excesses of the state. “I did the research
yesterday at the law library in Montpelier and found dozens of cases nationwide
involving activists that went the other way. In State v. Warshow
the Vermont Supreme Court established a multi-pronged test, one prong being
that there isn’t any other legal option by which to avoid the harm.
All Brown has to say to the jury is, ‘If the defendant seriously believed
local law enforcement was corrupt, he should have taken his client to the
FBI for protection.’”
“Jimmy,” Diane said, “I think you’re too close to this to see
it clearly. A necessity defense works not because the perpetrator
acted logically at the time, but because circumstances were such that anyone
would have reacted in the same way. You have to put the jury in your
shoes when you found Lucky. If we can do that, they’ll acquit.”
“Maybe I am too close to this, Diane, but the fact is that the
only successful use of this defense in Vermont happened in Burlington,
not St. Johnsbury. How can we seriously suggest to a Caledonia jury
that they nullify the law? And Judge Stone is no Mahady.”
“I think you’re underestimating people,” Larry said, “and that’s
a serious mistake to make. Still, you’re the one who has to do the
time.”
Diane shook her head, “I don’t know, I just don’t know.
We should be able to come up with something better. It feels like
we’re going in naked and asking the jury to pretend we’re wearing the righteous
armor of St. Joan.”
“Not St. Joan,” I quipped, “St. John.” Neither of them
laughed, but finally they agreed that a surprise attack might shake loose
the truth, whatever the truth was.
“Thanks,” I said to both of them. I knew it was a terrible
trial strategy, the worst I’d ever seen. I also knew it was all we
had.
We finally got a break the week before Christmas. There was a
trial scheduled that would have lasted right up until the 24th, but the
defendant got cold feet and decided to accept Brown’s plea offer.
As it happened, Diane and I were in Larry’s office when Lucy
called. Larry took the call, listened a moment, then said, “Yes,
I know I’ve been after you to expedite the trial date, but one day’s notice
is simply not enough.” Diane and I stared at him in disbelief.
Both of us made frantic gestures that proclaimed loudly, Take it!
Larry hemmed and hawed some more, and just as I was sure Lucy would hang
up in exasperation, he said, “Okay, we’ll do it.” As he hung up the
phone, he turned to us with a wicked gleam in his eye, “You can’t let these
court clerks run you ragged!” Then he winked and said, “Get out your
Sunday-go-to-meetin’ clothes! Tomorrow morning at 9 a.m. we draw
a jury.”
The trial was as boring as any I’d ever witnessed, despite the fact
that it was my fate that hung in the balance. Larry and I shared
the voir dire of the jury, disagreeing on only one potential juror.
I didn’t like the way she looked at my pony tail, as if I were some kind
of alien. Larry insisted I was overreacting, but the judge removed
her for cause when she admitted that she didn’t believe in the presumption
of innocence.
Her honesty was rare. Most jurors automatically nod their
heads when asked that question. It’s like being asked in church,
do you believe in God the Almighty? Everyone nods their heads, though
secretly many have grave doubts.
We picked the jury that morning, and right after lunch Walter
Brown delivered his standard opening statement. As Brown would be
the first to admit, he is a creature of habit. He follows precise
patterns that never vary. For his opening, he first walks back and
forth in front of the jury, then takes two steps back, folds his arms across
his chest, and begins. He always recites the basic facts, then strikes
a bargain with the jury: “I will do my job to provide you with credible
evidence if you will do yours to convict on both counts.”
I think I groaned aloud. I’d heard his spiel too many times,
and Larry had to shush me. “And please stop scowling,” he hissed.
When it was our turn, we waived our opening until the start of
our own case. It was not standard practice, but we wanted to see
what was up before trying to influence the jury’s perception of the facts.
Brown called four witnesses: Trooper Derrick Smalley, to
establish that Lucky had been arrested on felony charges; Sheriff Don George,
to describe the wreck of the transporting vehicle and Lucky’s disappearance;
Robert Ashley-Warner, to confirm that I had stolen the Audi; and Diane
Ashley-Warner, to prove Lucky’s presence when she and I had conversed via
the cell phone. Brown also produced phone records to establish the
location of the Audi during our calls.
It was as cut-and-dry a case as any I’d ever seen. Had
I been a juror, I would have told the judge to dispense with the defense
because it didn’t matter what they said, I was voting for conviction.
Larry did a credible job with Trooper Smalley. He poked,
he jabbed, he politely insinuated. It made no difference. Smalley
didn’t give away anything.
“Did you know Donald Hall before you arrested him?”
“I did not.”
“You never had any connection, official or otherwise?”
“No.”
“When you arrested Donald Hall, did he have any unusual marks
on his body?”
“One half of his face is discolored with a birth mark.”
“I mean other than that.”
“If he did, I didn’t notice at the time.”
And on and on it went.
As Smalley stepped off the witness stand, I looked at the jury.
All seven women and five men were smiling at him as if they wanted to shake
his hand for protecting them from vicious criminals like Lucky and me.
I tried to shake up the Sheriff about how odd it was for his
deputies to be driving down the back side of Barnet Mountain in a snow
storm when they should have been heading to Waterbury.
“I’m embarrassed,” he readily admitted. “They were derelict
in their duty, and if they had survived the accident, I would have fired
them.”
“But what were they doing on Barnet Mountain?”
“One of the men lived in Barnet Village and obviously had wanted
to stop at home.”
“Is that standard operating procedure in your department?”
“Definitely not.”
There wasn’t a lot I could do to counter his testimony, though
I kept trying until Brown objected.
“Sheriff George has already answered that question several times!”
Stone sustained.
Larry kept his cross-examination of Bob brief and to the point:
“Isn’t it true that title to the Audi is in your wife’s name as well as
your own?”
“Yes.”
“Thank you, Mr. Ashley-Warner.”
Before Diane testified, we skirmished with Brown over whether
she was protected by her attorney-client relationship with Lucky.
As we expected, Judge Stone ruled that she would have to answer Brown’s
questions on the narrow issue of Lucky’s presence in the car because she
had failed to report my illegal actions, thereby waiving the privilege.
Larry formally objected and preserved the issue for appeal.
Diane did a great job of trying to save me on the larceny charge,
but Brown skillfully got her to admit to our “liaison,” as he called it.
Even I could see that she would lie to save me. It didn’t matter
that she actually was telling the truth, what mattered was the look in
her eyes whenever she glanced my way from the witness stand. It was
pure and unadulterated love, the kind that you can’t hide no matter how
much you might like to.
So much for beating the larceny conviction.
That was day one.
The next morning we began with Larry asking Judge Stone to dismiss the
case because the State had failed to meet its burden of proof. It’s
one of those ritual motions one must make or forfeit certain appellate
rights.
Stone automatically said, “The defendant’s motion for judgment
of acquittal is denied,” then he told Winston Foley, the bailiff, “Please
bring the jury up.”
We were using the upstairs courtroom, a large and airy space
with high ceilings and ornate scroll-work. There always were a few
spectators for major felony trials, but today the courtroom was packed.
The local legal community had turned out in record numbers to see their
own do battle. Plus David Rintell, a tall man with sensual lips who
was the local crime reporter, had written a dramatic piece that had gotten
picked up by a wire-service. It had drawn the attention of the national
print media, mostly because of the connection with Lucky’s alleged crime,
which had been front-page news.
Linda Penniman, the public defender office manager, kept coming
in whenever she could get away from the office. She wanted to be
sure I knew she was there. “I believe in you, Jimmy,” she told me
as we waited for the jury to come up the front stairs.
She gave me a hug, which I appreciated. “Thanks, Linda,”
I said as I hugged her back. It was then that I glanced into the
rear of the room. There was a middle-aged woman who was huddled on
the back bench. She looked ghostly, so thin as to be emaciated.
Her skin had the pallor of the seriously ill or dying, and though the courtroom
already was too hot, she kept her heavy winter coat buttoned to the top.
Even so, she was shaking with cold.
When she saw me studying her, she quickly got up and walked out
the back door. There was something about her, something I recognized
but couldn’t define.
“Do you know that woman who’s leaving the courtroom?” I asked
Linda. Linda had a great memory for faces and names. I thought
the woman might have been a former client.
“Never seen her before,” Linda answered.
As the woman opened the door to leave, Diane was entering from
the stairs. They nearly collided, and Diane reached out a hand to
steady the frail woman. As she did, the woman flinched. I’d
seen that flinch before, and in a flash of memory I realized where — Lucky!
The woman looked exactly like Lucky when he pulled back in fear.
“Wait!” I called out to her.
She looked at me in alarm and quickly shoved by Diane.
I watched as the woman started to descend the stairs, then bolted after
her.
The jurors were entering the front of the courtroom, taking their
seats in the jury box.
As I reached Diane, she said, “Jimmy, stop, the jury is almost
seated.”
“Hold them off anyway you can,” I said. “That woman is
Lucky’s mother!”
Contents | Top | Home |
24. Fighting
W |
“I’m not a religious person,” I began. “But perhaps like some
of you, when I’m troubled I turn to the god I first met as a child.
“I’m troubled now, and so naturally I’m thinking about Jesus.
In particular I’m remembering a section of the Gospels where he advises
us to agree with our adversaries when we’re in the way with them, or else
they might turn upon us and deliver us to the authorities. I don’t
recall the exact words, but it’s something like, lest they take thee before
a judge, who delivers you to the officer, who casts you into prison from
which you will not escape until you have paid the highest price.
“This morning I stand before a judge. And I am ready to
pay whatever price I must for what I have done. But before you decide
my fate, and clearly that is what you are here to do, I want you to look
inside yourself and consider the meaning of Good and Evil.
“Too often we think we know what those words mean. Too
soon we judge those who appear evil without giving ourselves a chance to
see the good inside them. We’re also quick to assume that those who
wear the mantle of Good are therefore incapable of doing Evil. Today
I am asking you to put aside those easy preconceptions and do the hard
work of finding the deeper truth about who is Good and what is Evil.”
I paused for a moment to let them ponder what I’d just asked
them to do. I had been standing in front of the judge’s bench.
I now took a few steps closer to the jury box, stopped in front of the
prosecutor’s table, and turned to look at Walter Brown.
“As you heard from the State’s Attorney, I was until recently
a criminal defense investigator. Mr. Brown made special mention of
my knowledge of criminal law, pointing out that I could not have acted
in innocence when I helped a former client escape from custody.
“He’s both right and wrong about that.”
I turned back to face the jury.
“Yes, I knew I was breaking the law. Yet I did so in complete
innocence.
“The law as I understand it is a very rigid thing. It insists
on clarity under cloudy circumstances, on precision when a rule of thumb
is the best we can do, on decisions in black-and-white terms when shades
of gray are more fitting. Perhaps you, like me, understand that the
choices we must make in life are rarely as cut and dried as the law would
have them be.
“The law wants to know Who, What, When, and Where, but rarely
if ever Why.
“It is the Why that I am asking you to consider today.
“The basic facts in this case are so simple that they require
little of your attention. They can be reduced to a few direct questions.
Namely, did I take without permission the car belonging to the Ashley-Warners?
“The answer is clear: No, I did not. Diane, my former
boss and a married woman whom I have loved since the first moment I saw
her, has already testified that she gave implied consent.
“What she didn’t tell you is that even if she hadn’t, I would
have taken the car. I let her know that in no uncertain terms.
“I know I’m not supposed to admit such a thing, that my co-counsel
Larry Hughes is probably squirming in his seat right now.”
I turned to look at Larry, who was indeed squirming. Most
of the jurors chuckled at that, which was good. It helped to break
the tension I felt was getting too intense.
Walter Brown didn’t laugh. He was frowning at me.
I could tell he was considering whether to object. The most serious
breach of courtroom etiquette is to interrupt opposing counsel during opening
or closing arguments. Yet I knew Walter was tempted, for I had slipped
once or twice over the edge of the broad discretion permitted during opening
statements. You aint’ heard nothin’ yet, Walter, I thought as I turned
back to the jury.
“The second question is even simpler: Did I help Donald
‘Lucky’ Hall escape from custody? The answer is No, I didn’t help
him, I actually made the decision for him.”
There was a shocked murmur from the spectators in the courtroom.
Obviously no one expected me to admit so fully to my guilt.
“That’s right. I did it without his knowledge. He
was asleep or unconscious when I arrived at the proverbial crossroads.
I didn’t ask for, nor did I receive, his consent. Which is why it
makes perfect sense to me that I be charged as a principal in the crime
of Escape.”
I paused for a moment, studying the effect my admission of guilt
had on the jury. They were neither stunned nor shocked, but seemed
to take it in stride, which is what I had hoped for.
Now I stepped right up to the jury box, actually put both hands
against the rail, and leaned towards the jurors as closely as I could without
losing those seated at either end of the box. I dropped my voice
as low as I could, making it confidential. As I spoke I could feel
the rest of the courtroom lean forward to hear me better.
“Now I’m going to tell you the Why. But there are certain
people in the courtroom I don’t want to hear this. One of them is
the State’s Attorney, who may object to my confidence. Another is
Trooper Smalley.” I pulled back from the rail and turned directly
to Smalley. He met my gaze as if he had nothing to hide. Moral
rectitude radiated from him. I almost laughed out loud. Instead
I shouted, “Don’t you pretend for one second you don’t know what I’m referring
to!”
Brown jumped from his seat, “Objection!”
Judge Stone sighed audibly, then asked counsel to approach the
bench. It took Larry a little longer to reach the spot where Brown
and I stood. When he had, we huddled close as Stone said, “Mr. Brown,
you know as well as I that Vermont allows wide discretion in opening remarks.
If you interrupt Mr. St. John again, I’m going to be most unhappy.”
Then he turned to me, “And Mr. St. John, I am permitting you even greater
latitude than I would a member of the Bar, but I will be listening with
less patience from this point on. Please wrap it up and stay within
the reasonable limits of the law.”
I nodded agreeably while thinking, Sorry, I just can’t comply.
Brown said, “Just for the record, I want to object to what’s
starting to sound like a defense of necessity. I was never notified
that they would rely upon that defense.”
“Is that what you’re about to do?” Stone asked.
“No, it isn’t,” Larry said. “Our understanding is that
we’re free to ask the jury to nullify the law without claiming a formal
necessity defense. Isn’t that correct, Walter?”
Reluctantly, he agreed.
Judge Stone said, “Okay, but if you come back later asking for
jury instructions on necessity, you’re not going to get them.”
“Fair enough,” Larry said, then took me by the arm to get me
out of earshot. “I don’t know where you’re going on this, Jimmy,
but you sure got our attention!”
“As I was saying a few minutes ago, I’ve come to that point in my opening
statement when I want to address why I made the choices I did. It’s
most important to me that you understand what motivated me to go beyond
the law.
“I believed then, and I am even more certain of it today, that
if I had turned my client over to the police after the accident, he would
have suffered great harm.
“What I am about to tell you is a bitter pill to swallow, especially
here in the Northeast Kingdom where most of us believe that the men and
women who work in law enforcement are honest and upright. In fact
we can’t imagine the kind of police corruption that is taken for granted
in cities like Philadelphia or New Orleans. Nor can we conceive of
police brutality like that heaped upon Rodney King in Los Angeles.
We expect a high standard of behavior from our police and sheriffs, who
are people we instinctively trust and respect, rightfully so.
“But there are exceptions to every rule and rotten apples in
every profession.
“When I helped Donald ‘Lucky’ Hall escape, it was because I saw
first-hand irrefutable evidence that he had been tortured by the very men
into whose care this court had entrusted him.
“Torture is a word I don’t use lightly.” I turned and looked
at Smalley. He was completely calm and unperturbed.
“But torture is what was inflicted upon Donald Hall.”
I paused, waited until the entire courtroom had stilled into
silence, then announced loudly, “I call my first witness, Donald ‘Lucky’
Hall.”
The courtroom buzzed with anticipation, and I could see reporters
rushing out the back doors to call in the unexpected appearance of “the
Dog.”
Diane rose and walked to the back of the courtroom where on either
side there were doorways to the attorneys’ rooms. She opened the
door to the defense room on the right, and Lucky walked into the courtroom
flanked by federal marshals. Close behind them came Odysea.
Their entrance couldn’t have been more unexpected or dramatic.
Diane, who had kept Lucky as a client when she’d resigned as
public defender, had arranged for the protective custody of the federal
marshals. Lucky had been delivered into their care at 8 am that morning.
She’d spent all week on the phone with a former classmate at Vermont Law
School who now worked at the Department of Justice in Washington.
For years Justice had been ignoring the civil rights violations of local
law enforcement, and only recently in the wake of widely publicized cases
like Rodney King’s had they begun paying lip service to federal intervention.
She made sure they would do more than palaver when it came to Lucky.
She threatened and needled and whined until she secured a promise that
federal marshals would escort Lucky into the courtroom and keep him beyond
the reach of Trooper Smalley.
Justice first had declined to act, then relented when Diane said
she would file a 1983 Civil Rights action in federal court, making Lucky
a material witness in a federal case. She’d had the paperwork delivered
by courier that morning, naming as respondents Trooper Smalley, the deceased
sheriffs, and the heads of their respective agencies, all the way up to
and including Governor Howard Dean.
Every eye in that courtroom took in the presence of the federal
marshals, every eye except Trooper Smalley. He looked straight ahead
as if nothing unusual or unexpected were taking place around him.
Contents | Top | Home |
25. Witnessing
T |
Before Larry could begin his direct examination of Lucky, Judge Stone
wanted to make sure our star witness knew that he didn’t have to testify.
After all, the last time Stone had seen Lucky, he had ordered him evaluated
for competency. “I want you to understand that you have the right
to refuse to testify, either about the alleged escape or about anything
concerning the other charges you face.”
Of course we had anticipated this, had prepared Lucky for Stone’s
questions. “Just answer yes or no when he asks you a question.
If you’re not sure, ask him to repeat the question. You have to give
your answer out loud because the tape recorder can’t see you nod.”
That made him smile, so we knew he understood.
Lucky tried, oh how he tried, to reply verbally to each question
that Stone posed. He’d lean forward as if to respond, his lips would
pucker and shake, but no sound was forthcoming. I could feel everyone
in the room willing Lucky to answer, but he couldn’t no matter how hard
he tried.
The best he could do, and then only when Stone persisted, was
to nod his head to questions like, “Did your lawyer explain to you that
you are not on trial today?”
I expected Judge Stone to lose his patience, but he remained
calm. Perhaps the presence of the jury explained why, for even the
most irascible judges want jurors to perceive them as wise and patient.
Stone smiled several times at the jury as he questioned Lucky, then sighed
benevolently before saying, “For the record, I want it noted that Mr. Hall
has responded non-verbally to my questions by nodding his head in the affirmative.
I am satisfied that he understands, and knowingly waives, his legal rights
in this regard. Please proceed, Mr. Hughes.”
We had decided that Larry would lead Lucky through direct examination.
Our fear was that if I questioned him, the jury might think Lucky were
being unduly influenced. Fortunately, Lucky had immediately taken
to Larry, who was able to put him at ease.
Larry now stood in front of the witness stand, supported by his
walker. His head, which often seemed to bob and shake as if listening
to music only he could hear, was cocked sideways so that he could see both
Lucky and the jury. His thick eyeglasses were slightly askew, but
otherwise he was impeccable, dressed as always in brightly colored slacks
and a plaid jacket. Larry was a bit of a Beau Brummell.
By contrast, Lucky wore faded jeans and a blue denim work shirt.
We had tried dressing him up, but he was stiff and unnatural in a tie and
sports coat. “It’s better for him to wear his regular clothes,” Diane
finally insisted. She had been right, as I now saw. Yet wearing
his own clothes or getting encouraging looks from Larry wasn’t enough.
Lucky was trembling with fear, which made his head flutter up
and down in an insistent tremor. The right side of his face — the
side without the strawberry — was highly flushed. The knuckles on
both hands were turning white from gripping the side of the armchair in
which he sat.
It took Larry longer than usual to begin. I think he was
as nervous as Lucky. I could hear people fidgeting throughout the
courtroom. Even the jurors shifted in their seats. Finally,
after taking several deep breaths, Larry commenced to speak in his halting
fashion.
“Please tell us your name and where you lived before your arrest
in October of this year.”
Lucky stared at a spot on the carpet several feet in front of
him. He seemed to be struggling internally, waging a battle that
was tearing him to shreds. He didn’t even try to reply, nor did he
look up at Larry.
“Let me ask again if you will tell us your name.”
Lucky kept staring, then I saw him raise his head and peer into
the courtroom. His eyes were drawn directly to Trooper Smalley.
I shifted slightly in my seat and could see the side of Smalley’s face.
Probably to anyone else, Smalley’s expression remained unchanged.
Yet to me, and most certainly to Lucky, there was the subtlest shift in
the musculature of his jaw. It tightened, just enough to convey his
message: Say one word, just one single word, and I’ll burn you to
ashes!
Lucky began to whimper.
I turned directly behind me to face Odysea who was sitting with
Diane in the front row. Odysea nodded her head slightly to let me
know that she, too, had witnessed Smalley’s evil threat.
“Your Honor,” I said too loudly, shattering the silence and nearly
knocking over my chair as I jumped out of it. “May we approach the
bench.” I looked at Brown, who frowned before accompanying me.
“What you’re proposing is highly unusual,” Stone said when I had finished
speaking.
“It’s an affront to the dignity of the judicial system,” Brown
objected. “It’ll turn this courtroom into a Bread and Puppet circus!”
Larry was unperturbed by Brown’s rhetoric. “The Americans
with Disabilities Act imposes upon the criminal justice system an affirmative
duty to provide reasonable accommodation to people with disabilities.
What we are asking may be unusual, but it is not unreasonable. The
witness, as this court knows, suffers from a disability as real and obvious
as my own. If I asked for a physical device that would aid me, you
would grant it, wouldn’t you?”
“Of course,” Stone admitted, “but this isn’t the same.”
“Yes it is,” I argued. “When Lucky feels threatened, he’s
unable to communicate through speech. If he were deaf, he’d be provided
with an interpreter. Why not do the same for someone who is mute
for emotional reasons?”
Stone considered a long moment, then finally nodded his head
in agreement. “Okay, we’ll try it.”
Brown bristled, but there was nothing he could do.
Stone briefly explained to the jury what was about to happen.
“This is a bit of an experiment,” he said, “so please bear with us a few
moments. Bailiff Foley, I want you to set up a folding chair right
in front here.”
As she sat in the chair that Foley had placed just below the
witness stand, Odysea smiled warmly at the jurors. As a group they
smiled back, instantly charmed by her relaxed and friendly manner.
Courtrooms are very solemn places, yet Odysea was dressed in white cotton
pants and a brilliantly colored smock that had been made in Guatemala.
Her prized goddess hung on a newly woven thong the color of a Texas sunrise.
Against the deliberately dark and somber backdrop of the courtroom, she
looked like the first crocus of spring breaking through frozen ground.
Everything about her was at odds with the prevailing atmosphere, and the
jury obviously approved.
Brown hadn’t been far off track when he had compared what was
about to happen to a performance by Bread and Puppet Theater. This
was as extraordinary an event as any I’d encountered in a Vermont courtroom.
“I’m ready,” Odysea said to Judge Stone.
“Then by all means begin,” Stone graciously replied. I
was starting to think he was as intrigued by this as everyone else in the
room.
Lightly, and then with more force, Odysea began to tap out a
rhythm on the djembe, which was cradled between her knees. I recognized
the rhythm at once. It was the same song she had played the night
I had brought Lucky to my cabin following the accident.
I looked at Lucky, who this entire time had been whimpering quietly
and staring at the carpet in front of the witness stand. The cavernous
courtroom reverberated with the sound of the drum, slowly drawing him out
of his exile of fear. He looked up and saw Odysea, then noticed me.
I was standing a few feet in front of him, having switched places with
Larry (who had insisted “this is your show from here on, Jimmy”).
“Lucky,” I said above the beat of the drum, “will you please
tell us your name.”
I could see that he wanted to, that he truly was trying to reply,
but the fear that had gripped him continued to hold him hostage.
I nodded at Odysea, and immediately the beating of the drum grew
louder and more compelling. Then she began to chant:
Djembe! it sings the song
Now you know it won’t be long.
Djembe! it weaves the tale
Makes you move and makes you wail.
Djembe! Djembe! Djembe!
She repeated the chant, and with each repetition Lucky became more energized.
I remembered how he had danced that first night, how the circle of his
movement had expanded as he filled the whole cabin, prancing wildly and
rattling his chains like a tambourine, until the drumming and the dancing
were as one.
Suddenly the drumming ceased and Odysea repeated the final line
of the chant in an hypnotic drone. The air in the courtroom vibrated
with it.
“Djembe! Djembe! Djembe!”
I thought I heard a second, deeper voice join hers. I looked
at Lucky and saw at once that the voice was his.
The droning stopped, but the vibration lingered while Odysea
and Lucky gazed at each other in open admiration. Lucky beamed at
her, a giant grin pasted to his face. She nodded encouragingly, then
resumed tapping lightly on the djembe.
“My name is Donald Allen Hall,” he said, “but really I’m Lucky.”
The spell of fear had been broken, and from that moment on Lucky told
his story as if he was telling one of his myths.
We worked our way backwards in time, starting with the accident.
He described the sheriff’s car going out of control as they drove down
Barnet Mountain in the snow storm. He must have blacked out before
impact, because he didn’t remember striking the cedar that had prevented
the car from careening into the river. Nor did he have any idea how
long he’d been waiting when I had rescued him from the wreck.
“But why had the deputies taken you to Barnet instead of to the
State Hospital in Waterbury?”
“They said my old friend wanted to talk to me first.”
He told how he had been marched in chains by the deputies until
they met Trooper Smalley in a field beyond the funeral monument near Karme
Choling. He said Smalley didn’t speak at first, just stared at him
as the snow swirled about them. Suddenly Smalley took a burning cigarette
from his lips and held the glowing coal against Lucky’s wrist, repeating
it in a pattern. Lucky had screamed in pain and tried to pull away,
but the deputies had restrained him.
I asked Lucky to hold up his left wrist so the jury could see
the burn marks. Plain as day were two lines, one an inverted V, the
other a capital L on its side.
“Do you know what the symbol represents?”
“No,” he answered.
“Why did he do this to you?”
“I think to scare me.”
“Why would he want to scare you?”
Lucky mumbled something inaudible.
“Can you please repeat that?”
“Because of the baby.”
Now things got hard again, and I was afraid Lucky would revert
to his earlier state of fear, but Odysea kept playing and I kept asking
simple, direct questions to lead him through the nightmare he described.
Smalley had appeared one night in late summer at Lucky’s camp
beneath the Portland Street Bridge. He had threatened to arrest Lucky
for Trespassing unless Lucky did him a favor.
“What favor did he ask you to do?”
“To take a baby.”
“What do you mean, ‘take a baby’?”
“He told me a baby was being hurt by her father, and he wanted
me to rescue the baby and bring her to him.”
He went into detail about waiting at the mini-mart as Smalley
had told him to do. “Every day around three o’clock I’ve seen the
mother stop at the Mobil Mini-Mart,” Smalley had said. “She always
leaves the baby in the car seat. Just wait until you see her go inside
the building to pay,” Smalley had ordered. “Then open the car door
and take the baby out of the car seat and bring her back here to your camp.
When the mother calls the police, I’ll know to come to the camp.
Do you understand?”
Only things had gone wrong, very wrong. Unknown to Smalley,
the baby had a seizure disorder and needed regular doses of Phenobarbital.
No sooner had Lucky gotten the baby back to his camp than she had begun
shaking violently. He had tried but couldn’t stop the child’s seizure.
When Smalley arrived, she was dead.
“What did Smalley do?”
“He took her in his hands and started shaking her, cursing me,
and shaking her and shaking her. Then he hit me and threw the little
baby against a tree trunk. He wouldn’t stop. He kept thrashing
her body against the trunk until it broke apart in pieces.”
I could feel the courtroom fill with revulsion at the scene Lucky
described. He looked pale and drained, and I thought he was going
to be sick, so I backed off for a few moments.
The djembe filled the silence with a staccato rhythm like a heart
breaking.
“What happened next, Lucky?”
“He told me to leave, to go far away and never come back.”
“Did you?”
“No, I had no where to go.”
A few days later, Smalley showed up with several other cops at
the riverside camp to arrest Lucky. When Lucky had tried to run away,
Smalley had tackled him and begun beating him. That’s when Lucky
bit him.
Walter Brown began his cross examination by ordering Odysea to stop
drumming. “Believe me, it won’t be necessary. I’m going to
be very, very brief.”
She looked at me, and I shrugged. She resumed her seat
next to Diane.
“Now let me get this straight,” Brown said. “You say Trooper
Smalley tortured you because he wanted to scare you so that you wouldn’t
tell anyone that he had asked you to steal a baby. Do I have that
right?”
“Yes,” Lucky said, though it was more a whisper than said aloud.
“That he wanted you to save it from its father, who was hurting
the child?”
Lucky nodded, then remembered to speak aloud. “Yes.”
“And you believed him?”
“Yes.”
Here Brown paused for effect, looked at the jury, then said in
a stage whisper, “Why?”
“Why?” Lucky repeated.
“That’s right: Why? Why would you believe such a
ridiculous story? As I understand it, you’ve been in foster care,
isn’t that true?”
“Yes.”
“Then you certainly know that there is an extensive network of
social workers who protect children from abuse. Why would a Vermont
State Trooper ask a homeless young man to rescue a baby from child abuse?”
Lucky murmured a reply only Brown could hear.
“You say ‘you don’t know.’ You don’t know a lot of things,
do you? For instance you don’t know what the burns on your wrist
mean. Isn’t it true that the reason you don’t know these things is
that you made up the entire story?”
Lucky dropped his head and stared at the carpet again.
“We’re not playing story time, young man, though I admit you’re
quite good at it. But you’ve gone too far by making these outrageous
accusations against a respected law enforcement officer who has risked
his life on more than one occasion to protect the people of Vermont.”
Brown shook his head in disbelief. “How can you expect us to take
you seriously?” He had asked the question rhetorically, never expecting
Lucky to respond. Brown turned away from Lucky in disgust and returned
to his seat.
“Lucky, I know this is hard for you,” I said on re-direct examination,
“but I want you to answer Mr. Brown’s last question. I’m going to
phrase it a little bit differently, though. What do you know about
Trooper Smalley that no one else knows?”
Lucky refused to answer. I hadn’t expected otherwise.
I knew Smalley had a hold on Lucky, a hold so strong that only one other
person in the world could break it, and to Lucky that person was dead.
“Lucky, please look at me.”
Slowly he raised his head and met my eyes. “I want you
to keep looking straight ahead for a moment and think about my question.”
I stepped to the side, giving Lucky a clear view to the back of the courtroom,
then walked directly to the bar in front of Trooper Smalley. I nodded
my head once. Lucky’s mother stood up quickly, smiled at Lucky and
mouthed the words, “Tell the truth.”
At the same time, I repeated my question, “What do you know about
Trooper Smalley that no one else knows?”
Lucky laughed joyfully, an odd sound in the total stillness of
the waiting courtroom. I knew what that laugh meant — that he had
seen his mother, knew that she was still alive when he had thought her
dead, that finally he had permission from her to reveal the truth that
had been tormenting him for the past six years since she had dropped him
off at the rest area on I-91.
Lucky laughed with joy and I leaned close to Smalley and whispered,
“It’s all over, Jim.”
“He’s my father!” Lucky said clearly into the courtroom.
Then deja vu struck with the force of lightning as Smalley’s
fist swung straight at my nose, which broke for the second time in six
weeks, knocking me to the floor.
As he connected I noticed the ring on his fist as it came flying
at me. There, once again, was the Masonic seal. And then I
saw what I should have seen all along, that the pattern of Lucky’s burn
was a crude rendering of a compass and framing square, the twin tools in
the Masonic seal. So Rod had been right after all.
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26. Beginning
T |
It took months for the full story to emerge, but when it finally did
I was not surprised to learn that Derrick James Smalley, Jr. — a.k.a. “Jim”
to close friends and family — had been involved in an international conspiracy
of kidnapping for adoption. It had started five years earlier in
London, England, when a police inspector named Peter Laws had uncovered
an illegal adoption service that was realizing enormous profits by selling
street children from Brazil to wealthy London couples who asked no questions.
Instead of exposing the operation, Inspector Laws had made himself
a full partner, intending from the start to expand throughout Great Britain.
A longtime Mason, Laws recognized at once what a perfect training ground
“the Brotherhood” made. Not only was secrecy inherent in the Masonic
Order, but there was the ready-made code that Big Rod had overheard — phrases
like “taught to be cautious” and “on the level” — which immediately identified
Masons to each other. Laws’ insidious plan was to recruit law enforcement
officers who also were Masons. They would act as brokers, giving
the illegal adoption service the appearance of legality, while exploiting
their Masonic connections to locate childless couples desperate enough
to adopt at any price. An additional inducement to potential brokers
was the spurious claim that they would be rendering a public service in
the Masonic tradition, both to the homeless children and the childless
couples.
In fact Trooper Smalley had been approached by a Canadian police
officer at the Masonic Lodge in Newport, Vermont, which shares Lake Memphremagog
with Quebec. When he’d learned that Smalley was a Vermont Trooper,
the Canadian had taken him for a ride on his spiffy new metallic red speedboat.
Once on the lake he had described the operation to Smalley, inviting him
to become a broker to Vermont couples. Smalley saw the potential
at once but deferred until he could “look into the matter.” Then
he undertook his own research project.
He learned about Georgia Tann, who during the 1940s had been
considered an expert on adoption in Memphis, Tennessee. Just before
Tann’s death she was embroiled in scandal and alleged to have been a kidnapper
who had made a fortune selling babies. Tann had started with legal
adoptions, but apparently discovered she could make more money by shipping
kids to New York and California where wealthy couples paid handsomely.
Tann was assisted by her friend Camille Kelley, a Shelby County Juvenile
Court judge nationally known for her unconventional practices. After
the scandal broke, Kelley was portrayed as having coerced parents seeking
public assistance into relinquishing parental rights.
Smalley also discovered an article in Time magazine about American
kids being adopted by childless couples in Australia, Canada, and Europe.
The article pointed out that the United States had no exit-visa requirements.
Unlike the states, which have strict legal procedures for domestic adoption,
the federal government didn’t regulate foreign adoption.
Smalley combined what he’d learned into a pernicious plan to
steal children who were suspected victims of child abuse, then ship them
out of the country with phony papers via his Canadian connection.
Like Judge Kelley, he chose kids from poor families, assuming they would
make easier targets. Like Inspector Laws, Smalley convinced his cohorts
that they would be improving the abused children’s lives by placing them
in the homes of the affluent.
Of course he knew about domestic abuse firsthand, having victimized
Lucky and his mother for years until he finally had abandoned them to return
to Vermont.
“Jim always hated Donald,” Lucky’s mother, Marion, told us that
night at a dinner Larry Hughes hosted at Anthony’s Diner. “He refused
to marry me when I got pregnant. He called me a whore, said Donald
wasn’t his child. It wasn’t true, I’d never loved anyone but Jim.”
She looked around the table at each of us as if needing to make sure we
understood how deeply she had loved him. “Then when Donald was born
with the birth mark on his face, Jim said it was proof of his bestial origins.”
She quickly looked at Lucky, saying, “Of course it wasn’t true.
It was just the meanest thing he could think to say.” She turned
back to us. “He felt trapped by me and the baby. He was working
in a factory on the night shift and complained bitterly about his deadbeat
life. I wasn’t that surprised when he finally disappeared with our
dog. He always loved that dog more than anything.
“I knew he’d go back to Vermont. I hoped one day he’d send
for us. But he never did. Ten years passed and then I got very
sick. I found out I had AIDS. I thought I was going to die
right away. I didn’t want Donald to watch me deteriorate, so I brought
him to Vermont. I was afraid to take him straight to Jim, which is
why I left him at the rest area when I knew Jim would be on call.
I always thought Jim would accept him eventually . . .” She broke
down crying, then said the last thing she had wanted for Lucky was for
him to be raised in foster care. She had been a foster child, and
her memories of being sexually abused by her foster father had haunted
her for her entire life.
When Lucky had been arrested on murder and kidnapping charges,
Marion had seen an article about it in a Hartford, Connecticut, newspaper.
She’d come to Vermont right away, only to discover that she couldn’t find
her son.
“I kept calling all the jails, but no one knew anything about
Donald.”
“That’s exactly what happened to me in Texas,” Odysea said.
“I’ve been thinking about this ever since you told me,” Diane
said. “I suspect Trooper Smalley didn’t want Lucky apprehended.
He did everything he could to avoid it, first by keeping news of his escape
out of the media — which actually gave you time to get out of Vermont —
then by hiding Jimmy under the John Doe so that you couldn’t find him in
Texas.”
“Smalley is very cunning,” Larry said.
“And very evil,” I added.
“What he did was evil,” Odysea said, “but I’m not sure we have
the right to condemn him as evil.”
“‘Judge not, that ye be not judged,’” Larry quoted.
Lucky spoke for the first time. “Sometimes I think maybe
all of us are evil, that it’s part of being human, just like being good.”
“I agree,” Diane said. “We’re constantly choosing what
we’ll bring into the world each day.”
Odysea nodded, “Yes, it has so much to do with intentions.”
“Sometimes even the best of intentions result in bad things,”
Marion added. She reached out to Lucky who gently took her hand in
his.
I fell silent, thinking about my own intentions and the evil
I had made manifest in my life. It was a very sobering thought.
Then Marion told us that when she finally had learned that Lucky
had escaped custody, she decided to stay in St. Johnsbury in the event
he should be re-captured. “I’ve made some wonderful friends through
Vermont CARES, the AIDS service organization. They’ve helped me in
every way.” It wasn’t until my trial that she dared to hope she might
see her son again.
“Marion, do you have any idea why Jim had Lucky brought to Barnet
the night of the storm?” I asked.
She flushed in embarrassment, then nodded her head. “The
field called Sunnyside is where Lucky was conceived.”
Once again I recoiled at Smalley’s evil. He’d been so afflicted
by hatred for his son that he’d had him returned to the scene of his conception
to be ritually abused one last time. Was it some kind of weird exorcism?
Or a final act of dominance? With a man like Smalley, it probably
was both.
“I have to do this, Diane,” I told her later that night.
“No you don’t,” she replied bitterly. “You’re doing this
to avoid being with me.”
“It’s not true. Being with you is exactly why I have to
turn myself in. I don’t want to spend the rest of our life together
being haunted by my past. Besides, I brought evil into the world.
I took the dynamite from someone who trusted me and gave it to people I
loved. It killed them. It’s that simple.”
“Nothing is that simple!” she shouted at me. “They used
you, Jimmy. You weren’t a person to them, you were their working
class hero!”
“I don’t believe that. Maybe it started out that way, but
in the end we were friends. Besides, it’s not the point.”
“Then what is the point?”
“If that dynamite hadn’t blown up when they accidentally crossed
the wrong wires, it might have killed others. I’ve read the news
reports. They were part of the Weather Underground. Only two
weeks before the townhouse explosion, they were suspected of having set
off a bomb at Judge Murtaugh’s house because he was presiding on the Panther
21 case. When that bomb did little damage, they decided to put nails
in the new bombs, intending to seriously hurt people.”
“You didn’t know anything about that.”
“No, I didn’t. But I do now, and I can’t pretend anymore.
It’s time to pay the price, whatever that price is, for the role I played
in that tragedy.”
“You’ve already paid that price, a million times over!
It was a horrible time, Jimmy, and they were just kids, very desperate
kids. The government wasn’t listening to reason, so in total desperation
they resorted to violence thinking it would spark a revolution that would
usher in a panacea. You know that.”
“Yeah, I know all about the promise of that revolution.
It’s exactly why I’m turning myself in. I believe in justice, Diane,
in fairness, in truth, and, as odd as it may sound, in the American way.”
I looked at her and was grieved by her sadness. “I’m sorry, but before
I can be free, I have to wipe clean the slate of my past.”
The next morning broke gray with a clear threat of snow. Diane
wouldn’t talk to me, and though I tried to kiss her goodbye, she wouldn’t
respond. “I’ll be back,” I promised, “and while I don’t expect you
to wait, I want you to know that I love you, I’ve always loved you.”
She continued to face away from me in accusing silence.
I walked out the cabin door and down the path to my truck.
When I climbed in and turned the key, it groaned, then died.
I pumped the gas pedal once, tried again, but all I got was a clicking
sound.
I didn’t get angry, didn’t swear or strike the steering wheel
with my fist. I just got out of the truck and walked down the road
to Route 5. If I had to, I’d walk all the way to Manhattan.
It gets dark in Vermont very early in late December, and night rose
quickly as I waited at the entrance ramp to I-91 in Wells River.
I’d been standing across from the P&H Truck Stop since late morning
as the snow fell around me. Semis with license plates from every
New England state and Quebec drove out of the P&H lot and down the
on-ramp. I waved at the drivers, most of whom waved back. I
figured one of them eventually would pick me up.
A giant Freightliner had gone down the ramp when I heard its
brakes hiss. I turned to see if it were stopping for me, but noticed
right away that it was picking up speed to merge with the southbound traffic.
When I turned back, there was a powder blue Mercedes stopped right next
to me. I opened the door and climbed inside.
Diane was driving.
“Could you use a good lawyer?” she asked.
“As long as it’s you!” I said, beaming.
She threw her arms around me. “I love you, Jimmy!
Now let’s get on with our life.”
We kissed for a long time until a semi blared its horn at us
for blocking the ramp.
Diane put the Mercedes in gear and took off.
“How did you convince Bob to let you borrow his prized possession?”
“I didn’t exactly ‘convince Bob’ . . . and I didn’t exactly ‘borrow’
it.”
“What do you mean?”
“I mean he doesn’t know I have it.”
“Diane, are you telling me you stole his car?”
“Actually I left a clear message of intent on his answering machine.”
“What did you say?”
“I played this Sheryl Crow song.” She pushed in a tape
and turned up the volume, and the music blared out of the speakers:
Took your car
Drove to Texas
Sorry, honey
But I suspected we were through
And I can’t cry anymore
She was singing with Sheryl, a perfect harmony as usual. Suddenly
I noticed other voices singing from the back seat. I turned around
and found Odysea, Lucky, and Marion grinning at me as if it were my surprise
birthday party.
Diane laughed and said, “Larry sends his best. He asked
me to tell you that he wanted to come, too, but someone has to stay in
Vermont to keep an eye on the cops.”
“I don’t understand,” I blurted out, totally flummoxed.
“We’re on our way to Texas!” Lucky said, more animated than I’d
ever seen him.
“I can’t go to the Texas, I’ve got a long overdue appointment
with the Manhattan District Attorney’s Office.”
“They’re not interested, Jimmy,” Odysea said. “And Salina
wants you return to Texas and stay at Lone Woman Mountain. She’s
expecting all of us in three days.”
“What are you people talking about!”
That’s when Diane told me about going back to her and Bob’s house
on the Peacham Road. She’d gone to borrow a vehicle since mine wouldn’t
start. When she walked in the house, she heard music playing on the
stereo, so she assumed Bob was home. She kept walking through the
house until she came to the exercise room. When she looked outdoors
to the hot tub, she found Bob and a friend in the middle of a very passionate
embrace. She quickly turned to leave, but not in time to escape notice.
“And that’s when he admitted that he knew about your past.
He even gave me this letter from the Manhattan District Attorney.”
Diane handed me a letter typed on official stationary dated two weeks prior.
As I scanned the page, I was startled to read that “while the
FBI conclusively matched the fingerprints you’ve provided with those of
Robert Joseph Santoro, the State of New York is no longer interested in
pursuing indictments for his alleged role in the townhouse explosion.
Those indictments were based upon illegal wiretaps and other FBI malfeasance,
which this office has never condoned. The case has been considered
closed for many years.” It concluded by expressing appreciation for
the assistance offered in the matter. I looked at the name of the
addressee. All along I had thought Diane had been talking about Bob.
Instead, the letter was addressed to Bob’s new lover, the Honorable Walter
Brown, Caledonia State’s Attorney.
“There’s something else you should know, Jimmy,” Diane said.
I looked at her and she motioned me to come near. I undid
the seat belt and slid over next to her. She reached up and pulled
my head close to her mouth, then kissed me before saying, “What would you
like to name our new baby when it’s born this summer in Texas?”
I didn’t know what to say — it was too much good news all at
once. Tears streamed down my cheeks, and I felt a great weight lift
from me. It was as if I were being born again, starting over fresh
and free.
As the blue Mercedes purred down I-91 towards Lone Woman Mountain,
I put my past behind me where it belonged. Then I took up the present
moment, filled with promise and new beginnings for us all.
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Lucky’s Dream
I |
This is what you shall do:
Love the earth and sun and the animals, despise riches, give alms to everyone that asks, stand up for the stupid and crazy, devote your income and labor to others, hate tyrants, argue not concerning God, have patience and indulgence toward the people, take off your hat to nothing known or unknown or to any man or number of men, re-examine all you have been told at school or church or in any book, dismiss whatever insults your own soul, and your very flesh shall be a great poem. |
I am lonely, but I am alive. And where there is life there is breath and hope and wonder.
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