“There have been case studies about retarded children and their inability to make the right decision under similar circumstances-mostly teenagers exposed to the general population of other teenagers. I remember one case in particular. A group of teenagers in Ohio had convinced a retarded student in their class that they were his friends. They took him out to a high bridge and convinced him to jump into the river below. They assured him they were all going to follow. The jump didn’t kill him. He drowned because he couldn’t swim, a fact he hadn’t thought to tell his newfound friends.
“I mention this case study in particular because it is an appropriate analogy. Young Rudy told me during our interview that he liked Detective Brume, that he thought Detective Brume was his friend. A normal person in his circumstances would definitely not share those sentiments. When you befriend an individual like Rudy, he does not have the capacity to refuse to do what you ask. He could not refuse to talk to Detective Brume once Detective Brume became his friend. I think Detective Brume knew this instinctively. From my conversation with Rudy, it became clear that Detective Brume tried to establish a friendship before ever discussing the murder.
“Under those circumstances, Rudy could not refuse to answer his questions.”
H.V. was a veteran of the game. He knew the more he said, the more ammunition he gave to opposing counsel on cross. When he had completed his expert opinion on the issue, H.V. simply shut up and waited for the onslaught.
It never came. Clay Evans had no desire to engage in a game of wits with Harold Victor Fischer-one he’d probably lose anyway. He fell back on drilling home a few fundamentals for the judge’s benefit.
“Doctor, can Rudy read and write?”
“Yes.”
“Can he distinguish right from wrong?”
“Yes.”
Clay retrieved the written confession from the clerk who was now holding the evidence. He handed it to H.V.
“Could he read and understand this document?” H.V. glanced at the confession. He had seen a copy of it in the documents Tracey had sent him.
“Read it, yes. Understand it, yes. But you’re not getting my point — ” Clay cut him off in mid-sentence.
“You’ve answered my question, Doctor. Thank you.”
Tracey couldn’t let it end there. She accepted a redirect.
“What is the point that Mr. Evans is not getting, Doctor?”
“The point is that reading and understanding are not the only questions you have to ask when you consider the issue of ‘consent’ with a person like Rudy.” This was a statement Tracey hadn’t heard from H.V. during their two-hour preparatory meeting the day before. It was new even to H.V., who had just arrived at the thought on the stand. Up to now, Tracey and H.V. had conceded that Rudy had the capacity to understand and consent, but they had planned to contend that his affable nature wouldn’t allow him to refuse to talk to someone he considered a friend. Now H.V. was about to change the issue to one of capacity itself, and Tracey could see that this would turn out to be a much better argument for the defendant. Apparently Clay Evans could bring a person to new heights even on cross-examination, she thought, trying to conceal a smile.
H.V. continued. “With a retarded person or a borderline retarded person, you must also consider the circumstances under which the confession was made. If a relationship of trust was established between the questioner and the defendant, then in my opinion the defendant would not have the capacity to refuse to speak. Therefore, he would not have the capacity to consent.”
H.V.’s intellect was in free flow now. He was having a breakthrough right on the stand. Not only was he testifying for money, he was testifying for truth. He truly believed what he was saying and he truly believed he was about to save Rudy’s life. He turned toward the judge and started speaking directly to him.
“Your Honor, if I may be permitted to make an analogy. It’s similar to a will contest where the issue is undue influence. The question is not necessarily whether the elderly person has the ability to make decisions regarding his or her property, it is whether that person has a diminished capacity because of his or her age and that fact, combined with the beneficiary being in a position of trust, a fiduciary capacity, has robbed the person of the ability to make a voluntary decision concerning his or her property.” It was a highly intellectual legal argument made very simple. Tracey was blown away. It was a perfect analogy and she had never thought of it. What was the logical argument to counter it?
One thing was for certain: The logical counterargument was not floating around in Clay Evans’s brain. He was having a hard enough time just trying to figure out what H.V. was talking about. But Judge Wentwell was going to give him a chance to dive in if he wanted to take it.
“Mr. Evans, since this issue of lack of capacity was more or less raised on redirect, I’m going to give you an opportunity to recross.” Don’t take it! Don’t take it! somebody was screaming in Clay’s brain. But Clay had been making terrible decisions his whole life-he wasn’t about to stop now. He decided to counter intelligent discussion with sarcasm and derision.
“Is this a will contest, Doctor?”
“Of course not.”
“Is Rudy an elderly person?”
“No.” It was ugly, almost stupid, but like a blind man walking in a minefield, the Fourth finally stepped on something that made a little noise.
“Is there something here I’m missing? How long did this kid Rudy know Detective Brume?”
“I don’t think they knew each other before the interview.”
“And how long did the interview last?”
“Thirty-eight minutes, according to the reports I’ve seen.”
“And in that thirty-eight minutes, you’re saying they developed a fiduciary relationship?”
“In a way, yes.”
“What does that mean, ‘In a way, yes’?” It was an open-ended question, and H.V. didn’t miss the invitation.
“It means that the detective, who clearly had the superior intellect, established a position of trust with Rudy in that interview room. He pretended to be Rudy’s friend. Rudy still believes Detective Brume is his friend. He still believes the detective is trying to help him.”
“Are you saying that Detective Brume lied to Rudy?” The Fourth asked the question with such surprise in his voice Tracey almost started to laugh out loud. H.V. was possibly the only witness who had not attested to the Grunt’s lies.
“Not at all,” H.V. responded. “He just used the situation to his advantage.” Clay took the answer as a concession. He was done but he took a moment to stare at H.V. as he had done with Benny Dragone.
“I have no further questions of this witness,” he finally told the judge, acting as if he had beaten H.V. to within an inch of his life.
“I have nothing further,” Tracey told the judge when Clay sat down. The judge looked at the courtroom clock. It was ten after two. Everybody was hungry and tired.
“Mr. Evans, do you plan on having any rebuttal?” Clay thought about it only for a second. Who would I call? The Grunt again? Del Shorter?
“No, Your Honor.”
“Why don’t we take a lunch break? Come back at three. When you return, I want to see the lawyers and the court reporter in my chambers. Ms. James, the boy’s mother can come if she wants. Court is adjourned until 3 p.m.” The judge stood and walked out of the courtroom.
Tracey and Elena ate lunch at one of the two little restaurants across the street that specialized in quick sandwiches for the courthouse crowd. Elena was very nervous and had questions she was dying to ask, but she waited patiently until Tracey had given the waitress her order and had her first sip of coffee.