Injustice (38 page)

I've never been a witness. I never get to see the courtroom from this perspective. I'm usually sitting at counsel table, or watching
from the gallery, or standing addressing the jury. It's different from here in the front, looking out into the room. It's what the judge sees (though his view is more elevated).

I look at the jury, but none of them looks directly back at me. Their eyes avoid contact with mine. They might note my proportions, my appearance, my demeanor, but they go no further. To them I'm an exotic, not unlike something at the zoo. To be fair, they're little more than cattle to me: I see them for their usefulness, their willingness to convict, but I find nothing else of interest in their presence.

I look out into the gallery. It is full. I see reporters, and I see Kyle's parents with the entourage who came to the earlier hearings about Daryl Devaney. I see Peggy Devaney. Of course she'd be here; she knows full well that Daryl's fate is inversely linked to Henry's. I see Arthur Cunningham. I see Lizzy. This surprises me; I don't know whether she came the past few days, unobtrusively slipping in and out, or if she's just here today for my testimony. Either way, I feel something unexpected when I notice her in the crowd. I feel relief, as if, in sitting here with the eyes of so many spectators on me, I almost forget I'm not the one being judged. To see her trusting face among all those looks of skepticism and curiosity and contempt (how could I possibly once have been Henry's friend?) is energizing. I sit straighter. I feel confident in my ability to field whatever Monica hurls my way.

I look around the room—the hardwood doors and wainscoting and decorative molding, the elaborate bench for the judge, the polished rails corralling the spectators apart from us, the impeccable orderliness of it all. I have said that as a prosecutor, I am a gladiator and this is my coliseum. But glimpsing it now as a witness, imagining for a second that I'm the defendant, I can see how crushing it might be. Henry entered in chains before the jury was brought in, and he'll depart in chains once they leave. Bailiffs stand ready to pounce. The jury is ready to judge, the judge is ready to decree, and the spectators are ready to cheer—to rise up in jubilation at the slaughter. All these bits of splendid formality are props to make it seem legitimate: the robes, the oak rails, the finials, the polish, the
hush, the flags, the gavel, and yes (though not visible from here), there are those walls of diplomas and certificates in Gregory's office, and Monica's, and the judge's, and mine—props for creating legitimacy, just like those powdered wigs of old.

Don't get me wrong, I believe in this. My career has been about promoting the orderly prosecution of crime and about rejecting the anarchy of vigilantism. But sitting here, deprived for once of my elite position in this room, and despite my hatred for him, I can't help but think of how it all must feel to Henry. How must it feel to be so (deservedly) despised? How might it have felt to Daryl Devaney to be so wrongfully accused?

Something I know from my years as a trial lawyer is that every defendant who has ever sat here feels less guilty than his accusers accuse him of being. Maybe a few really
are
innocent. But all the rest—the multitudes who've actually done something—know in their hearts a million reasons they're not as vile as we think. They were provoked; they were goaded; they were abused; they were cheated; they had an unscratchable itch, an unquenchable thirst; they bore the scars of violence and abuse and deprivation and subjugation. They were merely leveling the field that, owing to their disability or limitations of intellect or opportunity or poverty or self-esteem, had been tilted against them. They were acting at the behest of their voices or their demons, or maybe they were reacting instinctively to the incessant and inescapable complexity of life. Even the ones who've sat here hating themselves for what they've done must believe on a subconscious level that if we knew the pain of their own self-loathing, we'd loathe them less.

The oppressive authority of this court, its massive fascistic weight, must taunt them. It is the final card in a rigged game. It is the smooth walls of the arena, which, when the gate is raised to release the lions, turn out to be unscalable.

Is this how Henry feels? Does he feel less guilty than he is? Does he blame his biochemistry, his genes, his scars, his fucked-up childhood? Does he believe that if we only knew what he knows, we'd
loathe him less? I look right at him now. If he looked at me, I'd meet his gaze with this question:
Do you feel less guilty than you are?
But he doesn't look up.

I find Lizzy in the crowd again. How wonderful it is to see her here.

The sidebar ends. I have been declared a hostile witness. Monica can ask me leading questions and, if she chooses, try to impeach anything I tell her.

She goes to the lectern and flips through her notes. “Back to where we were,” she says. “Mr. Davis, did you originally feel that in his investigation of Lydia Trevor's murder, Detective Philbin was overly focused on Henry Tatlock as a suspect?”

I'd love to deny this, but I think I expressed that view to many people early in the investigation, including Lizzy.

“Yes,” I say. “I thought he should broaden his investigation.”

MS. BRILL:
To the best of your knowledge, did Detective Philbin ever broaden his investigation?

MR. DAVIS:
Not until we came up with Smeltzer.

MS. BRILL:
Oh, right, let's talk about that.

She leads me through an explanation of the Smeltzer diversion. Then she circles back around:

MS. BRILL:
It was you who came up with the Smeltzer theory. Is that right?

MR. DAVIS:
For the most part, yes.

MS. BRILL:
And it's your testimony that until Smeltzer, Detective Philbin was focused exclusively on Henry as the perpetrator?

MR. DAVIS:
Yes. I guess so.

MS. BRILL:
And you tried to get him to look elsewhere?

MR. DAVIS:
Yes.

MS. BRILL:
Without success?

MR. DAVIS:
Not until Smeltzer.

MS. BRILL:
You've testified, Mr. Davis, that until the results of the DNA analysis in the Kyle Runion case, you continued to believe Henry was innocent of Lydia Trevor's murder. Is that right?

MR. DAVIS:
Yes.

MS. BRILL:
So is it fair to say that you, a federal prosecutor, didn't feel there was compelling evidence against Henry for Lydia's murder?

MR. DAVIS:
Yes, as far as I was aware.

MS. BRILL:
And as far as you knew, all the evidence was either vague suspicion or merely circumstantial?

MR. DAVIS:
Many convictions are made on circumstantial evidence.

MS. BRILL:
Yes, I'm glad you mentioned that.

Monica puts aside the legal pad she is using and picks up another. She flips through and finds the place she wants.

MS. BRILL:
To the best of your knowledge, has Henry Tatlock been charged with Lydia Trevor's murder?

MR. DAVIS:
No. I mean yes. Yes and no.

I describe how, after the DNA results came back in the Runion case, Gregory charged Henry with Lydia's murder.

MS. BRILL:
And can you tell us why Mr. Nations picked that moment to charge my client?

This elicits an explosive objection from Gregory Nations. Gregory and Monica and the judge talk openly for a minute, then they talk in sidebar, and then Judge Ballard allows Monica to lead me through
a lengthy controlled explanation of how it appeared to me that Gregory charged Henry in Lydia's murder because it would keep Henry detained in jail while the DNA results were authenticated and while Gregory got his ducks in a row for charging Henry in Kyle's murder.

Monica continues:

MS. BRILL:
And to the best of your knowledge, how was the case against Henry for Lydia's murder resolved?

MR. DAVIS:
It was dismissed by the state.

MS. BRILL:
By which you mean the DA, Gregory Nations himself, dismissed the charges.

MR. DAVIS:
Yes.

MS. BRILL:
And is it fair to say the charges were dismissed for insufficient evidence?

Gregory objects again.

I still can't figure out what Monica is doing. Obviously, she wants the jury to see how flawed the case is against Henry for Lydia's murder. But no amount of weakening that case can make up for the damage of the jury knowing about the murder to begin with. Monica could have kept the whole thing from them if she wanted to.

And all the stuff about Philbin: Maybe he
was
going off half-cocked. Maybe he was responding too much to his hunch and not enough to any real evidence. This would all be relevant if Henry were being tried for Lydia's murder, but bringing it up in this trial seems nonsensical. I'm willing to bet, though, that Monica knows exactly what she's doing. It makes me uneasy.

Gregory's objection is sustained.

“Let's talk a little more about Tony Smeltzer,” Monica says. She asks a series of questions to fill out what the Bureau learned about him and why they, and I, decided he wasn't a threat. I never admitted going to meet him at Fog City Tap. Nobody knows about that. Monica asks if it's expected that Tina, as a former prosecutor, would
have people wishing her harm. I tell her it's not
unexpected.
Monica shows the photo of Tina and Lydia to the jury for them to see how much they looked alike. And then she's done.

Gregory cross-examines me, but it's hard for him to know where to go because it's so unclear where Monica has been. If Henry were being tried for Lydia's murder, Monica's strategy might have been okay. She got me to say that I thought Philbin's investigation was biased and inept. And with her questions about Smeltzer and about disgruntled defendants in general, she could allow the jury to believe that someone else
could
have killed Lydia. But it's hard for me to imagine what she might have up her sleeve that would be better than the jury never knowing about Lydia's murder to begin with.

The most common way of defending against DNA evidence is for defense counsel to hire its own scientist to attack the state's analysis. It's seldom successful, but at least it's something. Monica has hired no expert.

Gregory finishes with me quickly. Trial is over for the day.

I have an evening meeting with Chip, Isler, Upton, Sabin, and Philbin at the Rain Tree. I'm the first one here, and I manage to snag the table in an alcove that gives us the most privacy. There's a candle lamp on the table, and Steve dims the overheads. The lunch crowd is long gone, and the dinner crowd is sparse. Maybe this is when average Joes have PTA meetings, or replace faucet washers in the bathroom, or pick up a bottle of Shiraz to go with the pot roast, or maybe even agree—after dodging for weeks or months or years—to watch the DVD of
On Golden Pond
with the wife. Whatever: They're not at the Rain Tree.

Outside, I notice that ice lines both sides of the river, but there's open water out in the middle. Steve has installed a floodlight aimed at the dam, and the blackness of the water is smooth and golden where it falls over the lip, reminding me of Lizzy's hair when it has just been brushed. I wish I were going home to pot roast. Or I wish Tina were meeting me here: wine; dinner; home to put Barn to
bed, kiss him good night and linger a second, my lips on his cheek, breathing in the little-boy innocence of his breath. Then up to bed with Tina for sleepy snuggling and the sexy sweetness of
her
breath.

I dig my phone from a jacket pocket.
I miss you? I love you?
I don't have it planned out yet; I call her and hope the right words will come. But her phone goes right to voicemail without ringing. “Hi, this is Tina. Leave a message, I'll call back.” She's either on the phone or has it turned off. She used to call me every afternoon. We used to plan dinner or talk about the day. Sometimes we'd “carpool,” which was what we called it when we talked on the phone together as we drove, each of us in our own car.