Clifford Irving's Legal Novels - 01 - TRIAL - a Legal Thriller (40 page)

"Don't sit well," Jim Dandy said.

"What's your problem? You can tell me."

"I spent the money."

"'Course you did. You ain't got no savings account in the bank, so you spent it. No one gives a flying fuck. Unless of course you don't come up to Houston."

Jim Dandy kept rubbing his hands as if to warm them. He kept throwing quick random glances at Warren and then out the window at the women in the yard. "I can't do it," he said.

"Then you're in the deep weeds, pardner. Then the law might want to know what you did with the money."

"How's the law gonna find out I ever had it?"

"I'd tell them," Warren said.

"You'd do a rotten thing like that, hoss?"

"I might. I've got a man facing the death penalty."

"How'm I gonna get up to Houston?" Jim Dandy asked.

Warren laughed. "With me, today. And I run a kind of little hotel up there. Got a couple of amigos bunked down there already. You're invited, free of charge. Free beer until the day you testify, free eats as long as you stay."

Jim Dandy looked Warren up and down, frowning. "I won't eat nothin' that jumps, crawls, or climbs trees. And I won't put nothin' in my mouth that I can't identify."

"Supermarket's right around the corner. You can shop. I pay."

"What about Kitty Marie?"

"She'll be here when you get back. She ain't going anywhere, is she?"

"Well… I done 'bout lived myself to death down here, and you seem like a fair man. Okay."

Warren rose immediately from his chair. "Getcha tail up, kiss that woman goodbye, tuck the rest of that beer under your arm, and let's go party."

On the drive north to Houston, with Jim Dandy in the back seat and the windows open to release some of his body odor, Warren asked him, "Why'd you go back to the dry cleaners and pick up those clothes?"

"Got drunk," Jim Dandy said. "Seemed like a good idea at the time."

"They fit?"

"Sort of. Little small."

"Got stolen from you, I heard."

"Hell, no. I sold 'em for ten bucks," Jim Dandy said. "They was too fancy for me, and I allow they was bad luck clothes. Fella that bought 'em from me got shot full of holes. Killed real dead right there in the mission. I done a lot of things in my life I guess I shouldn't have did, and most of 'em I was so drunk I can't even remember. I figured old fate was catchin' up, maybe somebody'd been lookin' for
me.
That's why I left town and come back to Beeville."

At a few minutes past eight o'clock on Monday
morning, July 31, Warren stood before Melissa Bourne-Smith's desk in the 299th District Court. "We're doing final argument today in the 342nd," he told the court coordinator. "Will you please tell Nancy Goodpaster and Judge Parker that as soon as the jury reaches a verdict, I'm ready to pick up where we left off in
Quintana.
The judge may want to get word to the jurors. And to Mrs. Singh."

"The judge is in chambers," Bourne-Smith said. "You can tell her yourself."

"I haven't got time now. Ask her to leave a message on my machine. Her Worship have a nice vacation?"

"Says she did." Bourne-Smith couldn't help laughing.

Warren found an empty courtroom on the seventh floor and spent forty-five minutes going over the notes he had made on Sunday. Then he stuffed them into his briefcase; he would not refer to them again. At nine o'clock sharp he appeared in the 342nd. Judge Bingham nodded his appreciation. Everyone rose in the huge courtroom as the jury filed in to take their seats.

Judge Bingham read the charge. Johnnie Faye Boudreau stood indicted with the offense of murder. "Under our law a person commits the offense of murder if he, or she in this case, intentionally or knowingly causes the death of an individual. Ms. Boudreau has admitted to causing the death of Dr. Clyde Ott and has pled not guilty by reason of self-defense. An accused cannot be found guilty of any offense if she engaged in the proscribed conduct because she was compelled to do so by the threat of imminent death or serious bodily injury, provided that she did not provoke the victim into so threatening or attacking. Our law, in addition, requires that anyone who feels she is facing such a threat has a duty to retreat, if retreat is possible, before taking action against the threatening person. If you find beyond a reasonable doubt that Ms. Boudreau provoked the attack, or that she had the opportunity to retreat and did not do so, and willfully caused the death of Dr. Clyde Ott, you will return a verdict of guilty. If you find that she exercised her duty to retreat, or found it impossible to do so, and did not willfully cause the death of Dr. Ott, you will acquit the defendant and return a verdict of not guilty."

The judge ended by telling the jury that after they retired they were to select a foreperson, and during their deliberations they were to communicate with the court only in writing, which they would give to the bailiff.

He said, "Mr. Blackburn, you may open for the defense."

===OO=OOO=OO===

Stepping forward, Warren thanked the jurors for their patience and attention during testimony. "I want to remind you," he said, "what Judge Bingham told you during voir dire. Under our law, the state has the burden of proof. Johnnie Faye Boudreau was not required to prove to you that she was not guilty in the death of Dr. Clyde Ott. She was not even required to prove to you that she pulled the trigger in self-defense — although she did, of her own free will, swear under oath and give unflinching detail in the face of vigorous cross-examination that in fact she did so. The state was required to prove to you that she was guilty of willful murder. And they must prove it to you beyond a reasonable doubt. You would abandon your oath as jurors if you didn't keep that in mind all the while during your deliberation."

Briefly he summarized the facts from the defendant's point of view: a stormy relationship between lovers, a history of abuse by the victim — "a man whose death some may indeed mourn but whose way of life certainly doesn't seem worthy of praise. Cathy Lewis, one of his girlfriends, told you he knocked out her teeth and gave her $25,000 as hush money. Mrs. Patricia Gurian told you that he tried to take advantage of her sexually in his office and then, when she wanted to leave, tried to detain her. Judith Tarr, another patient, told you that he did the same thing, and she was forthright enough to admit that she succumbed. Johnnie Faye Boudreau herself has told you of beatings and hospital treatment. Dr. Ott was not a kind man, as we hope and pray our physicians will be, and as they usually are. He was a brute."

And the son of a bitch needed killing.

"As for the defendant, she is a worldly woman — make no mistake about that. She runs a topless nightclub. But I remind you she is not on trial for that. By her own admission, she is capable of what she calls 'a foul mouth' — but she is not on trial for that either. She owned three handguns. That is not a crime. She practiced with them at a pistol range. That is not a crime. All of us, even if we don't have personal knowledge, understand what it means to be an attractive single woman in a major city where crime threatens every citizen. And even Mr. Morse, a witness brought to you by the prosecution, said that you can't bear arms safely unless you know how to use them.

"Mrs. Lorna Gerard, a subsidized stepdaughter of Dr. Ott, quoted Ms. Boudreau as having said, after yet another volatile argument, 'When he gets mean and drunk, I could cut his throat in his sleep.' Are we meant to take that seriously?" Warren smiled with a certain delicate intimacy and pointed an idle forefinger back and forth among the jurors. "How many of us have used the words, 'I could kill him for that'? Did we really mean them? Have any of us killed?" He waited a moment for the concept to register in the jurors' minds. "Dr. Butterfield admitted that his friend Clyde Ott said to the defendant, after she had thrown a drink at him, 'You bitch, I could happily kill you for that.' He also told you that Clyde Ott had a quick temper. But Dr. Butterfield took great pains to point out that of course his friend didn't mean his remark literally. Well, which is it? Do we take such angry statements at face value, or do we accept them as part of human frailty? I think you know the answer."

He stopped in midflow and moved from the well of the courtroom back to the defense table, close to Johnnie Faye Boudreau, who wore gray.

"Beyond that, you have listened to the defendant under oath. You have listened to a brave and independent woman, and a sad woman. She loved Clyde Ott. Not wisely, perhaps, but for a long time. She tried to get him to cut down on alcohol, whose excessive intake reduced the doctor to the level of a rabid cur. Tried to get him off drugs, which surely were destroying his mind. Clyde Ott was rich, but Johnnie Faye Boudreau had a job and she paid her own rent. She never took advantage of Dr. Ott's considerable wealth. Whether or not she wanted to marry him and
he
was reluctant, or he wanted to marry her and
she
was reluctant… who cares? Your experience should tell you that these areas are never cut-and-dried. The fact is, she lived as an independent single woman. I think that takes a certain amount of guts, even in this age where women are struggling for rights and status equal to that of men.

"And so we come to the tragic events on the night of May 7. And they are tragic — Ms. Boudreau doesn't believe otherwise. She is sorrowing. You could see it. She did not mean to kill Clyde Ott. She meant to defend herself and keep him from killing her or inflicting grave bodily harm. She has told you what happened. That is the truth. She did not threaten deadly force. There is no other truth. The state has provided not a single witness to say otherwise. They have provided a fingerprint expert who testified that there were no palm prints on the poker with which Clyde Ott threatened the defendant. But the defendant herself has admitted that she picked up the poker after Clyde Ott was dead and, no doubt, in what we can clearly understand was a semi-hysterical state, inadvertently destroyed some of the prints on that poker. Destroyed evidence that would have completely exonerated her! Can she be blamed for that? Blamed for her actions at a moment that would have made you, or me, or anybody, a victim of genuine shock and horror? I point out to you that if she were guilty of murder, ladies and gentlemen, she didn't have to tell us
anything
about the poker! If indeed she were guilty of murder, she could have wiped that poker clean, because her prints were on it. But she didn't do that! She told us the full story!"

He moved back to the jury box.

"You have heard from Judge Bingham about what our law calls 'the duty to retreat.' I will ask the men among you: if a raging, two-hundred-and-twenty-pound drunken man came at you with a heavy iron poker, and said quite clearly that he was going to kill you with it — what would
you
do? You might try to get away. Would any of you do that? I doubt it. You might try to reason with him, although we all know what it's like to reason with an angry drunk — you'd be risking your life on a bad bet. You might try to grapple with him, strike him with your fists, wrestle him to the ground. Some of you might be brave enough to do just that. Some might not. Or, if you had a pistol in your possession, you might do what Johnnie Faye Boudreau did."

Warren paused before the jury, studying the intent faces.

"And now I will ask the women among you: would
you,
because you are women, beg for mercy? Would you have tried to run away? Ms. Boudreau couldn't. The archway and the vestibule were wide — God knows the prosecutor has given us their dimensions until we've got them memorized. But the reason she can't get through that wide space, ladies, is that she is on the sofa, backed against a wall! There could have been a football field behind Clyde Ott — he could have been standing in front of Tiananmen Square in Beijing and it wouldn't have made any difference to Ms. Boudreau's ability to get away. So, under those circumstances, I ask you: would you fight back with your woman's body? I don't think any of us believes that Ms. Boudreau could have done that. Would you, because you're 'only a woman,' try to reason with him and pray to God that the man with the poker wouldn't splatter your brains on the carpet or leave you a blank-eyed idiot for the rest of your life?" Warren's voice rose in volume. "Because that's the only kind of retreat that was possible! Take the beating or fight back! That's all she could do!"

You have no duty to retreat.

"Johnnie Faye Boudreau fought back. She shot him, and the shots killed him. She didn't mean to, but that's what happened. And so I ask you men and women on this jury if the state has taken up its proper burden and proved beyond a reasonable doubt that willful murder took place. I ask you if we, as Texas men and women, are meant to grovel and beg or accept death or probable disfigurement when we are flatly threatened. And as a reply to those two questions, I ask you to find Ms. Boudreau not guilty by reason of self-defense."

Warren sat down.

That was my best, he thought. I did it. I had to do it.

===OO=OOO=OO===

Occasionally, at various law schools in south Texas, Bob Altschuler taught classes in trial theory and practice. "By the time you get to final argument," he lectured, "the jury's sat through an awful lot of boring shit. Now they want drama. Give 'em what they crave for."

In practice, during final argument, at least once or twice he would bellow with the sort of anger associated with drill sergeants facing recruits on the parade ground. He was a big man and the jury tended to be impressed. Forty-nine times in a row such stagecraft had been the prelude to victory.

Today he snapped and scolded from the moment he got to his feet and faced the jury. "Today," he bawled, "there's one important man who isn't in this courtroom! One man we need to hear from, and we can't, because he's dead! Shot twice — once between the eyes, and once right here!" Altschuler placed his right hand in the region of his heart. "Clyde Ott —
Dr.
Clyde Ott, a medical man and healer, no matter what ludicrous tales we've heard in this courtroom — is a man from whom we could learn a great deal of fact. Folks, you must be sick and tired of the way that doctor's memory has been scorned and defiled!" He pointed a rigid finger at Johnnie Faye Boudreau. "This woman who runs a topless nightclub shot him down in cold blood! Don't you know that? Don't you feel it in your heart of hearts?"