Fatal Flaw (41 page)

“I have one more letter,” I said.

It was lying there, with my other papers, on the podium. Beth had two copies on transparencies, with certain of the phrases on one of them now underlined.

“Let’s have this marked Defense Exhibit Seventeen,” I said as I dropped still another copy before Troy Jefferson. “It’s just a torn piece of envelope with a message on it, and I give it to you, Mr. Cutlip, and I ask you if you’ve ever seen it before?”

I stepped up to the witness box and placed the torn piece of envelope in front of him. He was startled to see it, I could tell. He read it slowly and shook his head as he read it and said nothing.

“Have you ever seen this before, Mr. Cutlip?”

“Where’d you get this?”

“It was with the others.”

“She kept it?”

“All these years. Yes.”

Cutlip put his hand on his chest and struggled for breath. “She kept it.”

“Yes, she did, Mr. Cutlip. All those many years after you wrote it.”

“I…I…No, this isn’t…”

“This is your writing, isn’t it?”

“I don’t know.”

“You wrote this to Hailey years ago, immediately after you left Pierce.”

“I don’t…I…”

“I originally thought this, too, was written by Jesse Sterrett. The other letters were typed, but this was handwritten, so I couldn’t really compare. But now I know it was written by you. Everyone’s voice is unique—word choice, expressions. I had Ms. Derringer underline all the expressions in this letter that matched the very expressions you used in your testimony. Should I have her put it up on the screen, Mr. Cutlip? Over half the words are parts of the same sentence constructions used in your answers yesterday and today. Should I have her put it up on the screen?”

“No.”

“It’s your letter, isn’t it?”

“She kept it.”

“You wrote this, didn’t you? You wrote this to her.”

He sat there staring at the torn piece of envelope, not moving, not moving, but all the while I could see him psychologically getting closer, closer, a moth circling a flame, getting closer, closer. And then, slowly, he nodded.

Flop.

“Let the record reflect,” I said, “that the witness nodded yes.”

“Record will so reflect,” said the judge.

“Read your letter to the court, please.”

“I can’t.”

“Read it, Mr. Cutlip, read your desperate note to your fifteen-year-old niece.”

“I won’t.”

I took hold of a copy of what I had given Cutlip and read it out loud myself.

“’It’s killing me ever day, ever damn day, that we’re not together. My heart weeps in the wanting. I’m less than a man without you, a carcass already near dead, dying of lost love. You done this to me,
you stole my world like a thief. Don’t listen to what they are saying, it’s nothing but lies, lies and damn lies.’ ”

“Stop.”

“’I’m sorry for what I done but I never had no choice, I only done what I had to.’”

“Stop it, damn it.”

“’Never a love been so fierce or fearsome, never has it cost so high or been worth the entire world.’”

“She kept it, don’t that prove nothing?” he said. “She kept it, don’t that prove it all? You just a fool who don’t understand.”

“What don’t I understand, Mr. Cutlip?”

“It wasn’t like that, not something dirty. It was love, real and hard, the truest in the world. Fearsome and fierce, like I said, but also something alive, more alive than anything you’ll ever see, like it had a mind of its own. And it wasn’t my doing, it was her doing. It wasn’t me that started it, it was her that started it. She seduced me. I had no choice in it. Whatever she wanted, she got. I had no choice. She seduced me.”

There it was, the shift I was looking for, the shift of blame. I was wondering where it would fall, and I now I knew. The person he was scapegoating would be Hailey herself. I turned to look at Reverend Henson, who had prophesied what Cutlip would do. He stared back at me, his eyes glossy, but he was nodding. He had seen it, too. They all had seen it.

I turned back to that cur on the stand. I could barely stand to look at him, he disgusted me so, but still, along with the disgust I couldn’t help feel a drop of empathic pity for the man. He was right, in his way, when he said that whatever Hailey wanted she seemed to have gotten. And what girl doesn’t try to seduce her father, or the substitute that comes in to take his role? The poor fool, I almost believed it when he said he had no choice in it—almost—because there is always a choice. When you have the power, the responsibility, when you take hold of a child’s hand, there is always a choice. And he made his. And in so doing he took from Hailey Prouix something she maybe didn’t even know she had, but something she spent the rest of her life struggling again to find. “How old was she?” I said in a voice so soft the jury leaned forward
to hear. “How old was she when she seduced you, Mr. Cutlip?”

“I got nothing more to say.”

In a voice still soft, weary with resignation, I laid out the charges. “You were jealous of Jesse Sterrett, weren’t you, Mr. Cutlip? And you weren’t going to let him take Hailey away from you, so you killed him.”

“I want to go home.”

“And you tried to kill Guy for the same reason, because he was taking Hailey away from you, and also to quiet his complaints about the money.”

“I’m sick, I’m dying.”

“And by accident, by tragic mistake, the killer you sent, your man Bobo, ended up murdering Hailey Prouix instead.”

“Whatever Bobo done, I had nothing to do with,” said Cutlip.

I stopped and turned to the jury. I watched their eyes as they watched him. It is often hard to read a jury, but I could read those eyes.

“Will the court reporter please read back that last answer?” I said.

As the reporter was reviewing the tape spit out by her stenographic machine, Cutlip spoke up.

“Maybe I want a lawyer,” he said.

“One moment, Mr. Cutlip,” said the judge as she waited for the court reporter.

The court reporter read from her tape in a halting monotone. “Question: ‘And by accident by tragic mistake the killer you sent your man Bobo ended up murdering Hailey Prouix instead.’ Answer: ‘Whatever Bobo done I had nothing to do with.’”

“I ain’t saying nothing no more without a lawyer,” said Cutlip.

“You are refusing to answer any more questions?” said the judge.

“I want a lawyer. I got rights. I’m asking for a lawyer. I’m not saying nothing no more without a lawyer. Do I get a lawyer or not?”

“We’ll see, Mr. Cutlip,” said the judge. “We will see. This court is in recess. Bailiff, keep an eye on Mr. Cutlip and see that he does not leave the courtroom. Counsel, in my chambers. Now.”

51

“IMAGINE,” SAID
Judge Tifaro, leaning back in the chair behind her desk, sucking on the earpiece of her reading glasses, “all this from a failure to agree on a stipulation.”

“We were set up,” said Troy Jefferson.

“Yes, you were, Mr. Jefferson. And I must say, Mr. Carl, it was far easier to believe you were screwing up royally out of sheer incompetence than to believe you cleverly arranged everything so you could grill this Mr. Cutlip on the stand.”

“Thank you,” I said, “I think.”

The judge shook her head with a disgusted admiration. The two sides had fully assembled in the judge’s chambers, not a wood-paneled old-school type of place but, instead, a soft, pleasant room filled with country French furnishings. Beth sat with me. Along with Troy Jefferson and his other lawyers were the tag team of Breger and Stone. The court reporter had set up her machine just to the left of the judge and was taking down every word for posterity.

“Do you have any more questions for this witness?” said the judge.

“Yes, Your Honor.”

“Do you think you’ll get any more answers?”

“No.”

“Neither do I. I am going to appoint a lawyer to represent Mr. Cutlip, and my expectation is that he will be advised to say nothing more and will follow that advice. So what do we do now?”

“Put him back on the stand,” I said. “Let me ask the questions and let him plead the Fifth in front of the jury. That’s what we ask.”

“Of course you do. Mr. Jefferson?”

“We are asking instead,” said Troy Jefferson, “on the record, that Cutlip’s entire testimony be stricken.”

“He was your witness, Mr. Jefferson.”

Jefferson turned and frowned at Breger. “Yes, he was, but you repeatedly ignored our objections and allowed Mr. Carl to run roughshod over the rules of evidence while dredging up a death and unsavory happenings of fifteen years ago that have nothing, nothing to do with the present case. Reading letters into evidence without proper foundation; using the threat of extrinsic testimony to badger the witness into all manner of confession, even knowing such extrinsic testimony to be not admissible; using a comparison of scrawl marks sixteen years apart to authenticate documents—all of this is contrary to the spirit and letter of the rules of evidence. With all due respect, you were wrong to permit it over our objections, Judge. Allowing in this inflammatory and irrelevant testimony was hugely prejudicial to our case. The testimony should be stricken and the jury instructed to ignore everything they heard.”

“I don’t think that would be possible, do you, Mr. Jefferson?”

“Then we ask for a mistrial. A mistrial based on misconduct on the part of the defense so that jeopardy does not attach and we can try this sucker again.”

The judge turned to me. “Mr. Carl?”

“If the question of the trial is who killed Hailey Prouix, then I could hardly imagine any testimony more relevant, Your Honor.”

“Testimony about abuse of the victim a decade and a half ago at the hands of this witness?” said Jefferson.

“Yes.”

“Testimony about the death of that boy in that quarry?” said Jefferson.

“Absolutely.”

“It all seems rather distant, Mr. Carl,” said the judge.

“Exactly, Your Honor,” said Jefferson.

“Still, Mr. Jefferson, the question of relevancy is solely a question of whether the evidence makes some fact of consequence more or less likely to have occurred. Do you think that the testimony of Mr. Cutlip has no bearing on the question of whether it was the defendant who killed Miss Prouix?”

“No, Your Honor.”

“Really. The testimony raised no doubts?”

“Not reasonable doubts, Judge. And as to the question of prejudice—”

“The question is not prejudice, Mr. Jefferson, but unfair prejudice. My guess, Mr. Carl, is that your new theory is that Mr. Cutlip, out of fear of Mr. Forrest’s complaints regarding the money, and with the added spur of jealousy, sent…Bobo, is it?”

“Yes, Judge.”

“Sent Bobo to kill Guy Forrest and that Bobo, by mistake, because of the low light and the comforter covering the whole of the victim’s body, killed Hailey Prouix instead. Will that be your theory in closing?”

“Yes, Judge.”

“What about the mysterious lover?” sneered Jefferson.

“A minor detail wrong,” I said.

“I find there is sufficient evidence to support that argument,” said the judge. “I also find the testimony of Mr. Cutlip relevant to the new defense theory and, though certainly prejudicial to your case against the defendant, not unfairly prejudicial in any way. I also find that a sufficient foundation was laid for the introduction of the letters read into testimony, foundation based on the testimony of the prosecution’s own witness. My only question, Mr. Jefferson, is why aren’t you bringing this Bobo in for questioning right now?”

“We’re looking for him, Judge,” said Detective Breger. “He has apparently disappeared from his home in Henderson. The Nevada police have put an APB out on his car.”

“The white Camaro.”

“Yes, Judge. The white Camaro.”

“If you want a warrant to bring him in, I’ll sign it.”

Just then there was a knock on the door, and the judge’s secretary poked her head into the office. “There’s a phone call for Miss Derringer.”

“Excuse me,” said Beth as she stood. We all watched as she left the office.

“Telemarketers,” I said. A soft spurt of nervous laughter died at the judge’s impatience.

“Mr. Jefferson, my expectation is that you will immediately put this witness into police custody and inform the proper officials from the state of West Virginia of what happened in court today. At the same time I will have an attorney appointed for his benefit. I will not, however, put this witness back on the stand simply to plead his Fifth Amendment privilege.
That
would be unfairly prejudicial. I suppose we’ll have to wait to see exactly what his new lawyer advises before continuing. Now, Mr. Jefferson, one more question.”

“Yes, Your Honor.”

“Do you really think, after hearing what they heard, the jury will convict Mr. Forrest of murder?”

“The evidence against Mr. Forrest remains very strong.”

“You think so, do you?”

“He was the only one in the house, it was his gun, his fingerprints are on the gun, there is a strong monetary motive—”

“Yes, yes, yes, but what about Mr. Cutlip’s admissions?”

“I believe that Mr. Carl is a skilled attorney, practiced in the arts of deception and trickery, who was able to badger and twist an old man to say pretty much anything he wanted the man to say.”

“Thank you,” I said, “I think.”

“Maybe your opinion of Mr. Carl’s skills is higher than mine,” said the judge, “but I don’t think that old man said anything he didn’t want to say. You haven’t yet closed, your case is still not complete, and Mr. Carl here can always screw things up, I have no doubt, but you understand that a certain threshold has to be met before I can even allow a case to go to the jury.”

“I understand the law, Your Honor. We believe we have already met that threshold.”

“I suppose you’ll find out for certain when the defense makes its motion at the close of your case.”

The door opened, and Beth came back into the chambers, but instead of returning to her chair, she stood at the door. “Can I see you for a moment, Victor?” she said.

Judge Tifaro nodded. I stood and walked to her and leaned over, letting her whisper in my ear as all watched.

“Judge,” I said, “could you excuse us? Something has turned up to which we need to immediately attend. Mr. Jefferson and the detectives will want to come along, too. It might be better if we just recess everything until tomorrow morning.”

“What is it, Counselor? What have you found?”

“Bobo.”