He looks at me kindly but disbelieving, used to hearing protestations of innocence from a client’s relatives. “Well, they have to send the samples to the state lab in Grand Junction. And that’s once they get a sample from the victim’s autopsy. A couple of days to a week. But it really doesn’t matter, because even if the blood on his hands doesn’t match, they’ll still hold him until the preliminary hearing, which could be weeks or even months away. Because he resisted, and because of his record.”
I sink back on the hard wooden pew. The thought of my brother in jail for weeks to months brings back that claustrophobic pressure I’d felt earlier. Trying to gather my thoughts, I explain to the lawyer about the argument I’d seen Fast have with Cal prior to the brawl in the meadow. I tell him about Cal getting punched in the nose and the fire he’d almost certainly lit at the structure Fast was building on Wild Fire Peak. And I tell him that Fast had to have a good idea it was Cal who’d done it, the way Cal had strode defiantly out of the trees flicking his lighter just as Fast was leaving the meadow. “Fast has all the motive in the world to kill this guy. My brother has none.”
Allison doesn’t look convinced. “Look, Mr. Burns, I know you’re a cop, and that I probably don’t need to tell you this, but motive doesn’t mean anything. It’s not an element of any crime. The only people who care about motive are jurors, and believe me, the state will think of some motive to tell them in a year or so when this thing goes to trial.”
He looks around the still-empty gallery before he continues in almost a whisper, “And, well, if you’re going to accuse David Fast as an alternative suspect, you’d better have some serious weight behind you. That guy practically runs this town. He and his family have been around here for like a hundred years.”
I tell the young public defender, “I’m going to find the girl. Sunny, the one who we saw driving away from Cal’s camp like a bat out of hell. She should be able to tell us who the real perp is.”
Allison nods, looking distracted. He is nervously watching people come into the courtroom behind us. Undoubtedly this is turning into the biggest case he’s ever seen. “Sure. That would be a good idea.” After a second he adds, “Listen, Mr. Burns, I’d better start getting ready for the arraignment. It looks like it won’t be long before the judge comes out.”
“What’s the judge like?”
“She’s a real . . . witch.” He’d been about to say something stronger but had thought better of it.
SEVENTEEN
T
HE ARRAIGNMENT DOESN
’
T
go well.
It begins with several local reporters coming into the courtroom with their pads and pens, then swells with a swarm of curious spectators. Apparently word has gotten around. Murder has to be rare in a small town like Tomichi, and everyone wants to check out my brother, the supposed killer. There are local lawyers in their suits, ranchers in their jeans and pearl-button shirts, retirees in their jogging suits, and other assorted townspeople. In just minutes the gallery is full. Latecomers stand against the wall at the very rear of the courtroom. A clerk occasionally peeks out of a small door behind the judge’s bench. I guess she’s giving her honor updates on the size of the crowd and letting the anticipation build. Across the rail in front of me, that divides the gallery from the courtroom’s well, Tony Allison takes advantage of every spare second to scribble furiously on his pad.
The clerk finally shouts into the room, “All rise!” Everyone shuffles to their feet, including the prisoners (with some prodding from the deputies guarding them), as a pale, bony woman takes the bench.
I would guess the judge to be in her mid-forties. She’s not a pleasant-looking woman. Allison’s description of her as a “witch” had been right on. Her pockmarked face is pinched and pale; her nose is slightly hooked. All she needs to complete the image is a pointed black hat to wear over her robes. She has obviously just finished brushing her thin blonde hair—it’s artfully draped over the shoulders of the robe in what appears to be a failed attempt at a halo effect. Upon seating herself in an enormous raised chair, she nods to her clerk, who announces that everyone can sit.
Judge Carver makes no remark on the size of the crowd in her courtroom. She simply begins by calling the cases of the other prisoners chained next to my brother. Without exception, they all have either Spanish or Indian names. One by one they’re unhooked from the others in the jury box by the overweight deputy with the stun gun. The deputy recuffs the prisoners’ wrists behind their backs, then leads them to a podium between the prosecution and defense tables.
The prisoners stand there, hunched and startled by the size of the crowd behind them, as the judge reads to them the indictments, their rights as defendants, and requests that they formally make a plea of guilty or not guilty. The charges against these men are mostly petty—drunk driving, disorderly conduct, possession of marijuana, and that sort of thing.
After a quick whispered conference with Public Defender Allison, the plea is inevitably not guilty. A short bond hearing occurs next, where the prosecutor exaggerates the seriousness of the charges and expounds on each defendant’s prior record. For the four prisoners who stand at the podium before my brother’s case is called, bail is never set higher than a thousand dollars. But it might as well be a million by the dejected looks on the men’s faces.
Each case is a dilemma for Allison. He has to know that all of these men will eventually be offered pleas to reduced charges, with a sentence of time served, probation, and a fine. His problem is that the wheels of justice turn slowly, and that it could be a few weeks before the prosecutor studies the case and comes around to make the offer. In the meantime these indigent men will sit in jail, lose their jobs if they have them, and maybe even their wives and families. Yet Allison can do nothing to speed it up. If he were to advise them to plead guilty now to whatever charges the prosecutors have written up in the indictments, Allison could be disbarred from the practice of law even though the men would end up serving much less time in jail. Legal ethics require him to wait for the prosecutors to at least give him the discovery (witness statements, alcohol test results, etc.), to analyze each petty case, and to take a case to trial months from now if he thinks he can beat the charges or show that the police gathered the evidence illegally. Like so many other aspects of life, in the legal system, the poor get screwed.
No one in the gallery, however, is paying any attention to the mini-drama of each case the judge calls. They’re all waiting for the magic words—“The People v. Roberto Burns.” The spectators around me whisper to one another as they stare at my brother in the jury box. A couple of women in the pew behind me giggle as they compare him to various movie stars.
“He looks kinda like Tom Cruise with long hair. He’s too good-looking to be in prison,” one of them whispers. “Maybe I can talk the judge into bailing him right into my bedroom.”
“You mean
balling
him,” her friend giggles.
The center of attention, Roberto sits slumped in his chair in the jury box. His eyes are half-closed, hiding the spectacular azure color of his irises. He doesn’t appear interested in what’s going on with the other prisoners. Every now and then he glances my way, lifts his lids, and rolls his eyes. One time the women behind me catch him doing this and titter, “Did you see his eyes? My God!” I have to restrain myself from turning and telling them to shut the fuck up.
The judge slowly works her way through the lesser cases before calling my brother’s. She takes the time to lecture or berate some of the defendants, and sounds like that annoying radio talk-show host, Dr. Laura. The judge is clearly showboating for the packed courtroom.
“The People v. Roberto Burns!” she finally calls out when she can delay no longer.
All the whispering in the gallery is cut off as if every vocal cord in the room were suddenly severed with a knife. All eyes are on my brother, studying him when he rolls to his feet and throws his broad shoulders back in an abbreviated stretch. I can hear the rattle and clank of the handcuffs and leg irons as Roberto is led to the podium. Even chained, he moves with a predatory grace.
“Tony Allison of the Public Defender’s Office appearing for the defendant, Judge,” Allison says for the record, just as he had with each of the previous cases. But there is a new tension in his voice. He’s feeling the excitement, too.
“Roger Acosta for the People, your honor,” the Tomichi County DA says, stepping in front of the younger deputy prosecutor who handled the other cases. The DA wants this one for himself. He is an older man, small and perfectly groomed. He wears his thinning hair in a long sweep over the dome of his head. His suit is an expensive double-breasted blue, cut so as to make his prominent belly look prosperous and respectable. The folded white square of a silk handkerchief peeks from his breast pocket.
Allison says, “Your honor, I expect that this might take longer than the other cases. Would it be possible to have Mr. Burns’s handcuffs removed?”
Hearing that, I like the young man even more.
“The prisoner will remained chained, Mr. Allison. You know the policies of this court.”
And I like the judge even less.
The judge begins by reading out the charges against my brother. As we do in Wyoming, the Colorado DA has only charged him initially with the most easily provable charges—manslaughter and resisting arrest. They will save the bigger charges, like murder, until they have enough evidence to explain the intent requirement. They are allowed to add charges almost right up until the day of trial.
Roberto stands at the podium, still handcuffed and with the young public defender at his side, as the judge explains the full elements of manslaughter in strict legal terminology that must be utterly incomprehensible to most defendants.
“A person commits manslaughter, Mr. Burns, if such person recklessly causes the death of another person or such person intentionally causes or aids another person to commit suicide. ‘Recklessly’ is defined as a person consciously disregarding a substantial and unjustifiable risk that a result will occur or that a circumstance exists. ‘To aid’ includes knowingly to give or lend money or extend credit to be used for, or to make possible or available, or to further the activity thus aided—”
“Are you saying I lent this guy some money to beat himself to death?” Roberto interrupts, making his voice slow and stupid with a strong south-of-the-border accent. He’s mocking the small town and the court. The prisoners watching him from the jury box snicker.
The judge looks up from the fat book she’s been reading from. She glowers at my brother. “Hold your tongue until I’m finished, young man.”
Roberto shakes his head, acting perplexed, while the judge continues reading. “Manslaughter is a class 4 felony,” the judge concludes, giving Roberto another hard look over her reading glasses. “If convicted, you may be incarcerated for one to twelve years in the Colorado Bureau of Prisons and fined up to $500,000. Now, Mr. Burns, do you have any questions?”
“Yeah, I do. What the hell are you talking about? I didn’t do none of that stuff.” He’s still talking like some illiterate farmhand.
Snickering again erupts from the prisoners. Even some of the spectators around me chuckle. I want to lean over the rail and tell Roberto to shut up. I know he understands all this and is just being a clown, but I keep still. The judge bangs the gavel on her desk. “There will be no swearing in my courtroom! You apologize, young man.”
Roberto looks around at the crowd behind him, wide-eyed and startled. “Shit, I’m sorry, Judge. But I didn’t know ‘hell’ was a curse word. Those preachers say it all the time, don’t they?”
The public defender steps over to Roberto and hisses something at him.
Judge Carver stares at my brother nastily, intending to intimidate him. Her pale face is red and pinched with anger. My brother just smiles back. After more earnest hissing on the part of the public defender, which Roberto listens to with a cocked head, unwilling to break the judge’s stare until he’s conquered it, Allison says, “Your honor, my client, Mr. Burns, apologizes for any inappropriate language. He understands the charge against him.”
“You do?”
“Well . . .” Roberto smiles.
The public defender again quickly answers for him, “He does, your honor.”
Speaking with exaggerated slowness and simplicity, as if talking to an idiot, the judge tells Roberto, “I am now going to explain your rights as a defendant to you. Do you understand what I’m saying?”
“I guess.”
“You have a right to an attorney, Mr. Burns. That means a lawyer. One will be provided for you if you cannot afford to hire your own.”
“
Bueno
,” Roberto says, “I need some help with my taxes and shit like that.”
The judge pretends to ignore him but her face turns an even darker shade. The book she’s reading from trembles in her hands.
“You have a right to a trial on the charge or charges against you. You are presumed innocent until proven guilty—”
“Hold on, Judge. If I’m innocent, what am I doing in cuffs? Why you got me in your jail?”
“Because the police and the prosecutor say you committed a crime—”
“But you just said I’m innocent.”
“Mr. Allison, control your client,” she snaps, slapping the legal book down onto the bench. “Mr. Burns, from now on you direct your questions to your attorney or else I’ll have you gagged.”
“But—” Roberto is still playing the wide-eyed role.
“Mr. Burns, I won’t tolerate any more of your impertinence! Now let’s move on to the issue of bail. Your attorney can explain your rights to you some other time.”
Allison pulls Roberto over to the defense table and pushes him down in a chair.
I see a bit of genius in what my brother’s doing by antagonizing the judge. He’s trying to screw up the court record, so that even if he is someday convicted, an appeals court years down the road can consider whether or not he was properly advised of his rights. The law requires the judge to get him to acknowledge his rights on the record, something she’s clearly failing to do. If all of this weren’t so unbelievable, I might be proud of him.
The district attorney stands and folds his hands behind his back. He speaks from behind the prosecution’s table, wisely not going near either the podium or my brother, who sits just a few feet away from it. “Your honor, Roberto Burns is a felon. In 1995 he was convicted in federal court of felony vandalism and the defacement of public property. I’m told by the authorities in Durango that he’s a well-known drug addict down there and has been arrested innumerable times for crimes including possession of narcotics, assault, disorderly conduct, and resisting arrest. Last night he beat a young man to death and may have injured a young woman as well.”
“Bullshit,” Roberto interjects.
“The woman is still missing, but was last seen with blood on her face fleeing the scene. Mr. Burns tried to fight with officers who approached him for questioning. They had to use considerable force in detaining him. Subsequently, a large amount of blood was discovered on Mr. Burns’s hands and clothes. As you’re aware, your honor, the charge against him is quite serious and my office anticipates filing a charge of murder in the first degree once the investigation is fully under way. We also anticipate filing an arson charge for the destruction of property in the same general area on the previous evening. I believe Mr. Burns is a danger to both himself and the community. I also believe he is a flight risk—I’m told he has family in Argentina. I ask that bond, if any at all is granted in this case, be set at a half million dollars. Cash only.”
The judge turns to the young public defender. “Do you have anything to say, Mr. Allison?”
“Your honor,” he answers, his face flushed by the force of the judge’s disdainful tone. “Well, I, uh, a half million dollars is ridiculous—”
“So are the fucking charges,” Roberto prompts him, now back in his normal voice.
“Yes, as are the charges, your honor.” Allison picks up his legal pad and starts reading. “My client and I are convinced that as soon as more investigation is conducted, Mr. Burns will be exonerated. He shouldn’t have to sit in jail until that happens. There is absolutely no evidence that I’m aware of that even ties Mr. Burns to this crime other than that he was camping with a group of people a mile or so away from where the young man was found dead.” Up on the bench the judge is writing something, not paying attention, but the public defender continues on.