Crime And Punishment The Prequel Ch 02

This is the second part of the crime and punishment saga. I intend to write this story before, after, and through the old story. My friend John did the original edit on this part a while back. It has gone through many revisions and edits since then.

I'm sorry to see that some are not reading because they did not like how I resolved the last version. Sorry, the main point here is not BTB or happy ever after.

****

Chapter 2

Roger Hamilton was born into a family of old wealth whose fortunes were in decline. He did nothing to reverse this downward trend. The reversal of the Hamilton family's finances was taken care of for Roger by the Bush and Clinton families. They, having destroyed the American economy, set in motion events that favored wealth at the expense of work.

Thus, an arrogant and useless man saw his own fortunes increase even as millions lost their jobs and homes. Roger accepted his luck as his rightful due and behaved accordingly, as arrogantly and selfishly as he could. He was married to his wife, Shelly, before the great reversal of the American work ethic. She was the daughter of a wealthy doctor and a bit of a social climber, but not particularly smart.

Shelly was not happy to discover that her husband had a very liberal attitude regarding sex. He believed in as much sex as possible with as many as possible. But it was a lifestyle Mrs. Hamilton fell in with. Shelly was soon an inconvenience to Roger. She was not as discreet as the wife of a Hamilton needed to be, and she was no longer needed for her father's money.

On the night of her death, Shelly had gone to dinner with a large, black man. The couple returned to the Hamilton home, which was on a quiet suburban road. Sometime later, the man left the Hamilton home, and Roger returned. At 2:17 a.m., Roger called 911 to report that his wife had been shot.

The case against Roger Hamilton was very strong. He had been the principal suspect from the time the police arrived. The motive was clear. Semen still leaked from the vagina of the unfaithful wife. Roger's .38 police special handgun had been recently cleaned. Shelly was shot once, with a .38-caliber round. The bullet that killed Shelly was too deformed to match to any gun. When Shelley's autopsy came back, she proved to be about eight weeks pregnant.

Roger had both motive and opportunity. He had no reasonable explanation as to why he waited until well after 2 a.m. to call for aid. The DA was sure of a conviction—perhaps too sure.

David Warner, partner in the Rosewood & Associates law firm, passed the loser Hamilton case to Steven Fitzgerald, whose nickname, Foxy, seemed highly misleading to the overly dense Dave "the Deal Maker" Warner. Dave was a man known for bargaining down every criminal case he had. But the arrogant Mr. Hamilton would not take the manslaughter deal and insisted on risking a trial where the best he could get was murder two.

Steven's approach differed from the highly regarded David Warner. Steven decided to change the story of the Shelly Hamilton murder. He knew the prosecution's script:

Shelly took a man home for the evening arriving at the house about eight o'clock. They had intercourse, after which her lover departed. Sometime before midnight, Roger returned to find his wife freshly fucked. A fight ensued where Shelly informed her spouse that she was pregnant by another. After that, in a fit of rage, Roger Hamilton shot his wife. Before calling for assistance, Roger cleaned himself and then the gun.

To win, Steven would need a significant rewrite of that script. Just think of it as one of those Hollywood epics which don't quite have an ending that will satisfy an audience. In this case, the audience is a jury, seeking justice—just like they see on TV.

Although the Hamilton case was what is referred to as a slam dunk for the prosecution, Steven Fitzgerald did not believe in sure things. He had a story to tell; he just needed a different script. He began with a meticulous review of the evidence, considered a few possible story rewrites, and went looking for a travel agent and a landscaper.

****

"Good morning, it's Mrs. Gene McCarthy—Eleanor, right?" Steven said, turning on his smile as bright as he could.

The elderly woman was not afraid. The young man who stood before her was small by any standard, and pretty like a girl.

"Yes, that's me," Mrs. McCarthy said.

"I'm just checking that the Hamilton landscaper has been mowing your lawn."

"Oh, yes, every other week. Never misses," she replied.

The modest, two-bedroom McCarthy house stood next to the Hamilton McMansion. It had a small, three-hundred-square-foot lawn, compared to the five-acre Hamilton property. The front end of the suburban road was all modest homes. The new back mile of the road was a collection of overbuilt properties. The McCarthy home was the last of the modest houses, and it bordered the Hamilton driveway—only a narrow strip of grass separated them.

The landscaper had realized that to mow the strip between the Hamilton driveway and the McCarthy property efficiently, he would need to mow part of the McCarthy property. Having seen the nice, older woman in residence, the young landscaper had simply done the whole yard in three extra swipes of his wide lawn tractor.

When Steven interviewed the landscaper, this fact had been mentioned, along with what was found amongst the rose bushes. No one had ever interviewed the landscaper, a hard-working young man whose English BA had not gained him any white-collar employment in the difficult economy. His secretary wife had just given birth to a cute little daughter; he had pictures—but mostly, he had debts.

"That's good. Mr. Hamilton asked me, especially, to check. I'm his lawyer, and because they refuse him bail, he was unable to check that the landscaper was still attending to your property," Steven said.

It was a total lie. If Roger Hamilton knew of his landscaper's largess, he had never mentioned it to Steven.

"Well, please thank him for me, and say how sorry I am for his troubles."

"I will—and can I bother you for a glass of water? It's a very warm day," he said.

Of course, he was more than welcome, and, in fact, he had a glass of iced tea, a kindness he returned two days later with a plate of homemade muffins.

"When I told my wife of your kindness, she insisted I bring you some of the muffins she made this morning," Steven said to Mrs. McCarthy.

Susan did not and could not bake. The farmer's wife two miles up the Old Altamont Road had a roadside farm stand with several dozen homemade blueberry muffins each morning. It got Steven in the door again for another visit with the woman he planned to make his star witness. By his third visit, they were discussing the Hamilton case.

Mrs. McCarthy was an elderly widow with one son, and he had a wife and three boys of his own. She was a bit on the lonely side. She was close to only a few of the older residents on the road. Her son and his family visited every other weekend, but mostly she was alone with her recipe collection and her TV.

"Jay Leno's my favorite. I don't know what I will do when he retires," she said.

"You watch him every night?"

"Every night but Thursday. That's bingo night, the Thompsons from up the road—you know, the house with the green and white trim— well, we go to the bingo together and after to the Old Loudon Diner for the Thursday Night Special. It's usually turkey or ham," she said.

"So, you miss Jay Thursday night," he said.

"Oh, no—I tape him. My son got me this special DVV thing," she said.

"A DVR for the cable TV," he said inspecting the setup that sat in the living room, "looks complicated."

"Yes, too much for me, but my son has it set. If I mix it up, when he comes, he resets it," she said with a laugh.

"Give you much trouble, does it?" he said, checking every detail, looking for the flaws in the old woman's testimony. He had read her statement a dozen times. The police had done the interview. The sloppy DA's office had never actually interviewed what they saw as a minor, barely necessary witness.

"Well, it is just a one-button push, but I seemed to be always asking my son to reset things," she said.

"Well, you said on the night that Mrs. Hamilton died that you were watching Jay, and when the show ended, you saw Mr. Hamilton walk up the driveway."

"Yes, he was carrying the garbage cans in. They always have two, and Friday is pick up day. When he comes home, he puts his fancy car in the garage and then walks the cans back up to his house."

"And you saw this from your kitchen window?" he said.

"Yes, the window looks right out on the driveway."

"But why were you in the kitchen if you were watching Jay?'

"Well, Jay had just ended which is how I knew it was 12:35. His show ends five minutes late because they run an extra five minutes of sports on the eleven o'clock news," she said.

"But why did you go right to the kitchen?" he asked.

"Oh, it was Friday, and my son and his family were coming on Saturday for dinner. I was making my special pot roast with the wine and carrots. You know, the recipe I gave you for your wife."

"Oh yes, it's delicious. She is baking you something as a thank you," he said without a trace of the lie in his face. He had concocted a version of Susan Fitzgerald especially for Mrs. McCarthy.

"You are very lucky. Young women today are all 'my career this' and 'my career that.' They have no time for making a home for their families," she said.

"Yes, I'm a very fortunate man...but, you went to the kitchen to make a pot roast?"

"Oh, no, silly, I was merely taking the meat out to defrost."

"I see, but—why don't you run through the process step-by-step, so I can understand. You need to be careful. I hate to say this, but people in my profession are often out to trick people and try to trip them up. I don't want to scare you, but when you testify, you need to be very careful," he said.

They talked another good hour, and he convinced Mrs. McCarthy that she had seen Hamilton with the garbage pails around 1:15 a.m.

He had arisen to leave when he slipped in the question, which was at the very center of this plan.

"Do you by any chance remember the guest that night on Jay's show?"

"Oh yes, it was the cute little girl from the big acting family. She is kind of wild these days, but she is still a good person. I just love her," Mrs. McCarthy said.

"You mean Sigourney Weaver?" he asked, a bit perplexed.

"No, I can't stand her... it was, you know, the ET girl."

"Drew Barrymore? You're sure?" he questioned.

"That's it, I can never remember her name, but she is so nice."

"Just so I understand, you fell asleep that night and woke up to the Thompsons' dog barking. You think the dog woke you up but are not sure. Then you turned on Jay, and he started right up, and when he was done, you shut the TV off and went to the kitchen," he said.

"Yes, that's it. You certainly are a thorough young man."

If Mrs. McCarthy had been a bit more observant, she would have seen that, for the first time, she had actually shocked Steven Fitzgerald. But he quickly recovered and realized just where the mistake he had been searching for had been made. Why the timeline never quite fit, and where a good prosecutor would have nailed his case down. It was the kind of mistake an older person who lives alone would make. A simple bit of confusion and nothing more.

****

They started the Hamilton trial on a sunny day. The reporters blocked the small street that ran past the courthouse with their broadcast trucks. They set up their cameras and microphones for the morning, noon, and evening updates, but they missed the slow erosion of the prosecution's case.

In the normal course, the prosecution opened with its expert witnesses, producing what they assumed would be damning forensic evidence. Usually, this went unchallenged, but not in this case. The defense grilled each witness.

Attorney: "You say you found wool fibers?"

Witness: "Yes."

Attorney: "What kind of wool?"

Witness: "Consistent with the defendant's jacket."

Attorney: "Please answer the question. What kind of wool?"

Witness: "Wool, wool—like from a sheep."

Attorney: "You're

sure

of that? From a

sheep

?"

Witness: "Yes! A sheep."

But the longest cross-examination was of the coroner. It went into a second day. The highly respected Jerry Tocci, who had thirty years plus in the coroner's office, had become frustrated by the end.

Attorney: "You say the time of death was fixed, by a number of separate factors, at around 11 p.m."

Witness: "Once again. Mr. Fitzgerald, I said approximately, but it could have been as early as 9 or as late as 1 a.m."

Attorney: "So, you could be wrong about the time?"

Witness: "No, I am saying once again—between 9 p.m. and 1 a.m."

Attorney: "But maybe earlier or later?"

Coroner Tocci turned to the jury, gave a bit of a knowing smile at the stupidity of the defense attorney, and said very emphatically, "I am saying about 11 p.m. but not before 9 or after 1 a.m."

Attorney: "You're absolutely certain not before 9 or after 1? You're sure?"

Witness: "Yes, to a scientific certainty!"

After the last expert witness, the prosecution felt very confident, but it was necessary to show motive and put the defendant at the scene. Consequently, they turned to their eyewitnesses. Their first was the restaurant valet parking attendant who swore that Shelly Hamilton walked into McGuire's, an upscale restaurant, on the arm of a large, black man. The couple appeared very intimate. But on cross-examination, he admitted the woman was dressed rather provocatively, and the man appeared very possessive. The prosecution could barely contain their glee at the poor job the defense was doing.

All good things come to an end, and the defense's trap sprang when the prosecution called Lori Lafave. All the prosecution wanted from Lori was a simple recitation of the victim and her date having a romantic dinner, but, apparently, Lori had other ideas.

"He had one hand up her skirt, and the other on her breast. Acted like he owned her. I mean, it's a respectable place," she said.

"Yes, thank you. No further questions," said the male assistant prosecutor.

There were two ADAs, one an older male and the other a young woman. The DA had vanished after the first day, planning his dramatic return for the

coup de grâce

on the summation.

As Steven rose, he drew the covering cloth from the easel that had been stationed at the defense table. It had tantalized all in the court from the first day. What lay beneath the covering? Now all could see, and a hush fell over the Courtroom.

The judge and jury had the best view, and their eyes were fixed on the much-enlarged photograph of a man's face. It might have been a driver's license photo, but, in fact, that picture had showed the man smiling in an amicable way. Steven had, thus, discarded the license photo in favor of a city school district work ID. In this photo, the subject, Leroy Johnson, a senior maintenance employee, wore a scowl.

Leroy had been mentioned only as a black man to this point in the trial. Failing to identify him was a deliberate action on the part of the prosecution, since no witness who could apparently identify Leroy was on the defense witness list.

Leroy had an assault record. Leroy's record was old and minor, but legal wisdom said never raise any issue that does not support your case. Since the defense seemed silent, the prosecution would remain the same. But the defense witness list had, in fact, been a shameless trick.

Steven turned to Lori on the witness stand. He was aware that every eye not on the photograph was on him. He could see the slight smirk on Lori's lips as she thought, What a slick bastard this man is.

"Lori, do you recognize the man in this photograph?"

"Yes, he's Leroy Johnson," she said, just the way she had rehearsed it with Steven the evening before.

"Objection," shouted the male ADA.

The male prosecutor, having done the direct, had, by custom and courtroom etiquette, the exclusive right to object. His actual gripe was that the defense was using his witness, but he had fallen into the snare.

The judge turned to the witness, "I believe the prosecution would like to know, as I would, how you know Mr. Johnson, whoever he may be."

"Oh, he's the man we've been talking about in the restaurant with Mrs. Hamilton."

"I see," said the judge, "but how could you know his name?"

"It was on his credit card when he paid for dinner."

"Well, counselor, if you wish, on rebuttal, you can enter evidence to the contrary," the judge said, knowing that the prosecutor would not. The defense had slipped one over. The judge would need to watch this young man appearing for the defense. This attorney was not what he seemed.

"Now, can you tell me what Mr. Johnson was wearing that night?" Steven said.

"Yes, a pair of banker's gray slacks and a blue wool sports jacket."

"Objection."

"Overruled," the judge said, "I'm sure Mr. Fitzgerald is about to tell us how she knows what the jacket was made of."

The jurors tittered with the general laughter in the room.

Steven's voice dropped an octave, and he asked, "How do you know?"

"I have three jobs. Two are waitress jobs because they want to keep you part time, and, my third, I work in a Big and Tall men's clothing store. I recognized the jacket as one we sell, an all-wool, medium-weight, husky-fit blazer."

"No further questions," Steven said.

"May we have a moment?" the prosecution said.

The judge gave them a brief recess to get their act together, and, as he did, he gave Steven a grave, but amused stare. The boy might not win, he thought, but it would not be for being dull.

"Ms. Lafave—or should I call you Mrs. Mendez?" the prosecution began, on re-direct.

Lori was a very white, Anglo-Saxon appearing woman. She had, though, had a brief marriage to a Mexican man, who had been deported as an illegal immigrant. She had three children, all by different fathers, and was hard up for money. The prosecution was about to undertake to impeach their own witness—a difficult courtroom problem. After throwing some mud at Lori, the prosecutor got to his real point.

"How do you know Mr. Fitzgerald?"

"Other than from here? Well, he does frequent McGuire's with a tall, attractive brunette by the name of Susan Singleton. I know that because it's the name on her credit card. She pays," Lori said, wagging a disapproving finger at Steven.

The courtroom erupted in laughter. Steven waited for it to slack, just a bit, before delivering his line.

"She's my wife! I swear!" he said in a desperate tone, as more laughter erupted.

The judge let it play a moment and brought the court back to order. The carefully rehearsed little play between Steven and Lori had done its job. The prosecution was knocked off balance. They jumped to the defendant's jacket.

"Can you identify this jacket?" the prosecutor said, believing the witness would stumble and admit she could not—but there was no stumble.

"Not likely; you don't find cashmere in a Big and Tall shop," she said, just as she had rehearsed.

"What?" the perplexed prosecutor said.

"You know, that expensive cloth that comes from Asia, some kind of goat. Wool is much cheaper, comes from sheep," she said, all innocence.

The prosecutor turned to the jury, who were looking back at him rather confused. The fibers on the victim could not have come from the defendant's jacket. They must have come from elsewhere. From Leroy's jacket...

The prosecutors huddled and decided to give it up before this witness destroyed their case. Better to brush it aside and forget it. After all, their next witness was a piece of cake.