Defense for the Devil (43 page)

“Please,” she said, “make yourselves comfortable.” She poured coffee for them all and handed out the cups before she spoke again.

“As you know,” she said then, “I spoke with the jurors yesterday after we recessed. The foreman, Mr. Tomlinson, speaking for them all, made an unusual request. He asked if it would be possible to conclude the trial today and give them the case to deliberate by tomorrow afternoon. He said they quite definitely do not want to disrupt another holiday and have to return after the first of the year, and the others agreed with him, without exception. I told them I would have to think about it, and discuss it with counsel.”

Before anyone could speak, she held up her hand. “I questioned them in a group, and then individually, to try to determine whether they have been discussing the testimony, and I don’t believe they have. This is simply a unanimous decision they have reached. They want to be done with this.”

“They’ve made up their minds,” Roxbury said in a grating voice.

“It could become a mistrial,” Barbara said slowly. “Have they been reading the newspapers, watching TV news? Talking to people outside?”

“Perhaps,” Judge Waldman said, “although they denied it. If they’ve made up their minds, they gave me absolutely no sense of how they intend to go with the evidence. I believe Mr. Tomlinson. They want to be done with it. They want to enjoy a remnant of the holiday without the trial hanging over them.”

Her turn, Barbara thought then, sipping her coffee. She put the pretty little cup down and said, “I can be finished by the end of the day today.”

Barbara was aware that she would be cutting her defense short, aware also that to do otherwise would risk alienating the jury even more. A jury already in rebellion could jump erratically. She looked at Roxbury, who was gnawing on his lip, frowning. He appreciated the problem as much as she did, she knew. If he was the one to drag it out beyond the close of the day, would the jury retaliate? The jury might already blame the prosecution for the many delays, for ruining their Christmas and now threatening their New Year. He knew that Ray Arno would take the stand that afternoon. How much tough questioning had he planned for Ray? How short would he have to cut that? No one spoke as they waited for his response.

“I have to say that I never heard of a jury dictating terms. Not like this.” His tone suggested that the judge could shape them up, keep them in line if she chose. “I’ll go along. If she can close the defense today, the state will go along as much as possible, but no guarantees that we won’t go overtime.”

“I’ll explain that to them,” Judge Waldman said. “Now, for the closing arguments. I propose one and a half hours for each side; I’ll need at least an hour for my instructions, and they can have the case by the lunch recess.” She looked at Barbara and Roxbury in turn. “Is that acceptable?”

Barbara thought of the pages and pages of closing argument she had already prepared; she suspected that Roxbury had at least as many pages ready. Cut it down to one and a half hours. She glanced at Frank. He nodded and she did, too. “I can handle that,” she said. Then she thought, poor Shelley; she had planned to take all day with her character witnesses.

“Half a day!” Shelley cried. “Just half a day! Good heavens! Who can I leave out?”

“Look at it this way,” Frank said, “you don’t leave out anyone so much as you leave out a few selected tidbits. Let’s have a look at your list and your questions.” He sounded as comforting as a family doctor who knew panic when he saw it and could put an end to it before anyone else even recognized it as panic. He sat down with Shelley at the defense table, and they looked over her list. Barbara went to speak with Ray, who was already in the holding room at the courthouse.

Shelley’s last witness before they recessed for lunch that day was Michael Conroy, a thirty-year-old high-school teacher. He had testified that Ray Arno took four boys at a time out fishing, that he taught them how to fish, and something about responsibility, about life, loyalty…. “He changes their lives,” he said.

“How do you know what he does with them out fishing?” Shelley asked.

“Because I was one of four he took responsibility for fourteen years ago, and they tell me about it now. It’s the same thing that I experienced with him then. Of our four, two of us became teachers, one’s still in graduate school, a postdoctoral physicist, and one’s a cook in a very good restaurant. But we were all headed for trouble when he took us in hand. So are the kids he takes in hand today. His boys, those he guides, don’t get into trouble.”

Then, after lunch, Barbara had Ray tell about the past summer, when Mitch showed up at his house, what happened afterward. Ray was a good witness for himself, careful, just emotional enough, transparently truthful.

“Mr. Arno,” Barbara asked, “did you consider it your duty to protect Maggie Folsum last summer?”

“No,” he said. “She’s a very capable young woman who is quite able to take care of herself.”

“But you felt it your duty eighteen years ago to protect her? Is that right?”

“Yes. She was defenseless, with an infant of her own, and little more than a child herself, and my brother had threatened her, had even hurt her. I felt responsible for my brother’s actions and for ensuring that he didn’t hurt her again. I felt it my duty then to get between my brother and my sister.”

“When you spoke to Maggie Folsum after you returned home and found that Mitch had left your house, did she tell you about the vandalism done to her bed-and-breakfast inn?”

“Yes.”

“Did you assume that Mitch had done the damage there?”

“Yes.”

“What was your reaction? Did you vow to get even with him, to punish him yourself?”

“No. I talked to my father, and we agreed that if Mitch turned up again, if he actually had wrecked her inn, we would have him arrested and charged. I told Maggie to stay with other people, not be alone at the inn, just in case he returned.”

Barbara led him through the past years, the spring he and his brothers had worked on the boat at the coast, his engagement to Lorinne, when he went into business for himself, the problem with the warehousing of merchandise before his own space was available. She showed him the pictures of Stael and Ulrich and asked if he had ever seen either of them; he said no. Quickly she went over the state’s case with him, and he denied being on the bridge the morning Marta Delancey claimed to have seen him; he denied ever being near or in the Marshall cabin….

She had allowed herself two hours with Ray, leaving the same amount of time for Roxbury. At the end of her time, she asked, “How long were you with your brother Mitch after your father left him at your house?”

“Ten minutes at the most. I showed him through the house, told him to clean himself up, to help himself to food, and that I would be back on Monday, probably around noon, and we would have plenty of time after that to talk.”

“Did you see him alive again after that?”

He shook his head, and in a low voice said, “No. He was gone when I returned home.”

“Did you fight with him?”

“No.”

“Did you kill your brother?”

“No!”

That night both Shelley and Barbara were glum, and no amount of reassurance from Frank could lift their spirits. “Look,” he said, “you both did a bang-up job today. Shelley, you had your witnesses so primed that if you’d cut them off in half the time you took, they still would have put the halo in place and lighted it. And, Bobby, they crowned him with a halo, and you showed that it was a perfect fit. No more could have been asked of either of you if you’d taken a week.”

“Well,” Barbara said after Shelley left, “I’ll go take an ax to my closing argument. An hour and a half! God!”

But she found it hard to concentrate. Trassi had vanished in Denver. His plane had arrived there on time, apparently, but Trassi had not arrived in New York. No one had followed him past the departure gate in Eugene; there had been little reason to do so, and the Major Works men who were keeping an eye out for him in New York said he had not been aboard the continuation of the flight. Denver was one of the big hubs; he could have taken off in any direction from there. Later, the Fredericks woman had driven Palmer to Portland, where he had caught his nonstop to New York alone. Now, with the whole Palmer crew gone, Barbara should have been able to relax and concentrate, she kept telling herself. But, instead, she was as tense as a prima donna waiting for the curtain call.

She then stared at her computer screen filled with pages of closing argument.
Everyone goes away,
she thought.
Disappear without a trace, one and all.
She closed her eyes hard when she realized she was no longer thinking of Trassi or Palmer, either. Then, furiously, she began to red-line her prepared text.

40

Sunday morning. Everyone
looked sleepy and tired, and except for the Arno clan, the courtroom was nearly empty when Roxbury started his closing argument.

“Ladies and gentlemen, no oratory today, no flowery speeches, or appealing to your sympathy; today the facts will be sufficient, and just the facts. You have been attentive and patient throughout this ordeal of a trial, and now I ask only for your attention for a short while longer. The facts will demonstrate that the defendant, Ray Arno, in cold blood and with malicious intent to inflict the greatest pain possible, murdered his brother.

“It is a fact disputed by no one that Ray Arno attacked his brother in a vicious fight eighteen years ago, and at that time threatened his life if he ever returned to the area….”

He laid out his argument with cool precision. “There is no need to speculate about mysterious strangers with mysterious motives; the facts speak for themselves,” he said. “Ray Arno was incensed that people were talking about his wife and his brother. Did the defendant find his brother in his own bed, using his belongings as if he had a right to them? Did Mitchell Arno intend to move back into the family circle and give new cause for more gossip? We’ll never know what transpired between the two brothers on that fateful Monday when the defendant returned from the coast and found his brother usurping his place…. He buried his brother and put various items in the plastic bag to dispose of them—the lead pipe murder weapon, his brother’s clothing. But then fate stepped in and a witness saw him on the bridge. We know she saw him that morning; she identified him positively, and she pointed out where he had thrown the plastic bag. And we found it.

“We found the plastic bag exactly where it had to be, where it had been for months.”

He took his full hour and a half, and finally summarized: “The defendant beat up his brother years ago, and threatened to kill him if he returned. He admits to feeling responsible for the safety of Maggie Folsum, to feeling responsibility for the actions of his brother. We all know that in many families, protecting the honor of a sister, a niece, a mother is the prime responsibility of the males of the family, especially the oldest son. I suggest that Ray Arno feels this responsibility to an extreme. He alone had the opportunity to commit the murder. He had a motive. He was the last person known to have been with Mitchell Arno, and he killed him and tried to hide the crime.”

After a ten-minute recess Barbara stood up. “Mr. Roxbury is quite right in that there is no need for oratory this morning,” she said. “You have heard the testimony and you have seen the evidence, but there is a difference in our approach to that testimony and evidence. Mr. Roxbury would have you examine and consider only the evidence that supports his case, and I want you to examine and consider all of it. It happens, ladies and gentlemen, that the same evidence often yields more than one interpretation. When it was generally believed that the earth was flat, the only evidence most people saw supported that assumption. Evidence to the contrary was there; it was simply not recognized. And so it has been with this case; the evidence is there and for a long time it went unrecognized, its meaning lost. Today, I want you to consider all the evidence.

“First, let’s examine the state’s case.”

She pointed out that one witness had not been able to pick out Ray’s car from others that were more or less similar. And she reminded them of the witness who had confessed to speeding past the corner of Stratton and River Road in another similar car. “When most of us look at a flock of birds, unless we are avid birdwatchers, we might say they were simply little gray birds,” she said, smiling faintly. “To a real bird-watcher, they might be sparrows and finches, wrens and juncos, and so on. To most of us one little gray bird is very much like another; to most of us one little gray car is very like another. And we know who did drive past the corner that morning.”

Another witness, she went on, could not have seen Ray in his cell, not at two in the morning, and he could not have heard him praying and confessing, since he suffered a severe hearing loss that had been demonstrated in court. A third witness had misinterpreted what she had seen when Lorinne got into a car with Mitchell Arno eighteen years ago, and misinterpreted what she had heard on the telephone.

One by one she demolished the state’s witnesses, and then she came to Marta Delancey. “It happens that we sometimes misinterpret what we hear or see,” she said slowly. “We hear what we expect to hear and see what we expect to see, and there is no sinister intent; it is a simple human failure. However, there are times when misstatements are harder to understand or explain. Mrs. Delancey said positively that she saw Ray Arno in his shop, that she studied his face to the point of embarrassing him, that her husband commented on the name of the shop displayed on the window, that she browsed through the merchandise and picked up and put down items there. None of this could have happened. Ray Arno did not yet have his shop. By the time his shop opened in December of 1978, Mrs. Delancey’s first husband was dead. Her testimony was that she returned to Eugene only to visit her mother, never to do any shopping, and especially she would not have had an occasion to visit a sports shop. This cannot be put down to a misinterpretation of what she saw or heard.” Barbara read from her testimony, all positive statements about Ray, and his shop, and the visit there with Joel Chisolm.