Chapter 4
Wright stood for the first time, stretched, and stepped to a corner where a small cardboard box was waiting. It was white, and in a neat hand someone had printed, with a black marker, the words "IN RE: KYLE L. McAVOY et al. " Kyle McAvoy and others. Wright fetched something from the box, and with the steady purpose of an executioner preparing to pull the switch, he removed a disc from its sleeve, slid it into the drive on the laptop, punched a couple of keys, then took his seat. Kyle could barely breathe.
As the computer clicked and hummed, Wright began talking. "The phone was a Nokia 6000 smartphone, manufactured in 2003, with ETI Camcorder software installed, one-gigabyte memory card that holds about three hundred minutes of compressed video, megapixel quality at fifteen FPS, voice commands, voice activated, state of the art for the time. A really nice cell phone. "
"Owned by?"
Wright shot him a smart-ass grin and said, "Sorry, Kyle. "
For some reason, Wright thought it would be helpful to show the phone itself. He punched a key, and a still photo of the Nokia appeared on the screen. "Ever see this?" he asked.
"No. "
"Didn't think so. Here's the scene, Kyle, in case you're a little fuzzy on the details. It's April 25, 2003, last day of classes, final exams start in a week. It's a Friday, unseasonably warm for Pittsburgh, high of eighty-five that day, almost set a record, and the kids at Duquesne decide to do what all good college kids do everywhere. They start drinking in the afternoon and have big plans to drink all night. A crowd gathers at the apartment complex where you rent a place with three others. A party materializes by the pool. It's mostly Beta brothers and a few girls. You go for a swim, get some rays, drink some beer, listen to Phish. The girls are in bikinis. Life is good. Sometime after dark, the party moves inside, to your apartment. Pizza is ordered. The music, Widespread Panic by this time, is loud. More beer. Somebody shows up with two bottles of tequila, and of course this is consumed as fast as possible. Remember any of this?"
"Most of it. "
"You're twenty years old, just finishing your sophomore year - "
"Got that. "
"The tequila gets mixed with Red Bull, and you and the gang start doing shots. I'm sure you've had a few shots. "
Kyle nodded, his eyes never leaving the screen.
"At some point, clothes start coming off, and the owner of the cell phone decides to secretly record this. Guess he wanted his own little video of the girls without their tops. Do you remember the apartment, Kyle?"
"Yes, I lived there for a year. "
"We've examined the place. It's a dump, of course, like a lot of college housing, but, according to the landlord, hasn't changed. Our best guess is that the guy with the cell phone placed it on the narrow counter that separates the small kitchen from the den. The counter seems to be a catchall for textbooks, phone books, empty beer bottles, pretty much everything that passed through the apartment at one time or another. "
"That's correct. "
"So our man pulls out his cell phone and sneaks over to the counter, and in the midst of a wild party he turns it on and hides it next to a book. The opening scene is pretty wild. We've studied it carefully, and there are six girls and nine boys, all dancing and in various stages of undress. Ring a bell, Kyle?"
"Some of it, yes. "
"We know all the names. "
"You gonna show it to me or just talk about it?"
"Don't be so anxious to see it. " With that, Wright punched another key. "It's 11:14 p. m. when the video begins," he said, then hit another key. The screen suddenly exploded into a frenzy of loud music - Widespread Panic playing "Aunt Avis" from Bombs and Butterflies - and gyrating bodies. Somewhere in the back of his brain Kyle had hoped for a dim, grainy, fuzzy clip of a bunch of Beta idiots drinking in the dark. Instead, he gawked at a remarkably clear video shot from a tiny phone camera. The angle chosen by the unknown owner of the phone provided a view of almost the entire den at 4880 East Chase, apartment 6B.
All fifteen hell-raisers appeared to be very drunk. All six girls were indeed topless, as were most of the guys. The dance was a group grope with no two partners moving together for more than a few seconds. Everyone held a drink in one hand; half had a cigarette or a joint in the other. All twelve bouncing breasts were fair game for the guys. In fact, all exposed flesh, male or female, was available to everyone. Touching and clutching were encouraged. Bodies came together, hunching and lurching, then parted and moved to the next one. Some of the guests were loud and rowdy, while others appeared to be fading under the flood of alcohol and chemicals. Most appeared to be singing along with the band. Several locked lips in long kisses while their free hands searched for even more intimate places.
"I believe that's you with the sunglasses," Wright said smugly.
"Thank you. "
Sunglasses, yellow Pirates cap, off-white gym shorts drooping low, a lean body with pale winter skin in need of sunshine. A plastic cup in one hand, a cigarette in the other. Mouth open to sing along. A drunken fool. A twenty-year-old lunatic on the verge of another blackout.
Now, five years later, there was no nostalgia, no longing for those rowdy and carefree college days. He didn't miss the hell-raising, the hangovers, the late-morning wake-ups in strange beds. But at the same time, there was no remorse. Kyle felt a little embarrassed that he'd been caught on tape, but it was a long time ago. His college days had been pretty typical, hadn't they? He'd partied no more and certainly no less than virtually everyone he knew.
The music stopped for a moment, between songs, and more shots were prepared and passed around. One of the girls fell into a chair and appeared to be done for the night. Then another song began.
"This goes for about eight more minutes," Wright said, glancing at his notes. Kyle had no doubt that Wright and his gang had analyzed and memorized every second, every frame. "As you will note, Elaine Keenan is not present. She says she was next door, drinking with some friends. "
"So she's changed her story again. "
Wright ignored this and said, "If you don't mind, I'll fast-forward a little, to the point where the police show up. Remember the cops, Kyle?"
"Yes. "
The video scrambled forward for a minute or so, until Wright pressed a key. "At 11:25, the party comes to an abrupt halt. Listen. "
In mid-song, and with most of the fifteen still in view, dancing and drinking and yelling, someone off camera clearly yelled, "Cops! Cops!" Kyle watched himself as he grabbed a girl and disappeared from view. The music stopped. The lights were out. The screen was almost completely dark.
Wright continued: "According to our records, the police were called to your apartment three times that spring. This was the third time. A young man by the name of Alan Strock, one of your roommates, answered the door and chatted up the officers. He swore that there was no underage drinking. Everything was fine. He'd be happy to turn off the music and keep things quiet. The cops gave him a break and left with a warning. They assumed everybody else was hiding in the bedrooms. "
"Most of them fled through the back door," Kyle said.
"Whatever. The cell phone video was on voice activation, so it clicked off after sixty seconds of near silence. It was at least twenty feet from the front door. Its owner ran off in the panic, forgot about it, and in the melee someone knocked things around on the counter, the cell phone got bumped, so the picture got adjusted. We can't see as much as we could before. About twenty minutes pass and all is quiet. At 11:48, there are voices and the lights come on. " Kyle moved closer to the screen. About one-third of the view was blocked by something yellow. "Probably a phone book, the yellow pages," Wright said. The music started again, but at a much lower volume.
The four roommates - Kyle, Alan Strock, Baxter Tate, and Joey Bernardo - were walking around the den, in shorts and T-shirts, and holding drinks again. Elaine Keenan walked through the den, talking nonstop, then sat on the edge of the sofa, smoking what app
eared to be a joint. Only half of the sofa was visible. A television, unseen, was turned on. Baxter Tate walked over to Elaine, said something, then put his drink down and yanked off his T-shirt. He and Elaine fell into a pile on the sofa, obviously making out while the other three watched television and milled about. They were talking, but the music and TV drowned out their words. Alan Strock walked in front of the camera, pulling off his T-shirt and saying something to Baxter, whose view was blocked. There were no sounds from Elaine. Less than half of the sofa was visible now, but a tangle of bare legs could be seen.
Then the lights were turned off, and for a second the room was dark. Slowly, the glare from the television focused and bounced off the walls to provide some illumination. Joey Bernardo came into view, also pulling off his shirt. He stopped and stared at the sofa, where some manner of frenzied activity was under way.
"Listen," Wright hissed.
Joey said something that Kyle could not understand.
"Did you get that?" Wright asked.
"No. "
Wright stopped the video and said, "Our experts have studied the audio. Joey Bernardo says to Baxter Tate, "Is she awake?" Tate is obviously having sex with Elaine, who's passed out drunk, and Bernardo stops by, takes it all in, and wonders if the girl is actually conscious. You want to hear it again?"
"Yes. "
Wright reset the video, then replayed it. Kyle leaned down, and with his nose six inches from the screen he watched hard, listened even harder, and heard the word "awake. " The detective shook his head gravely.
The action continued, with the music and the television as a backdrop, and though the den of their apartment was dark, figures could be seen in the shadows. Baxter Tate finally got off the sofa, stood, appeared to be completely nude, and walked away. Another figure, Joey Bernardo, quickly took Baxter's place. Some of the sounds could barely be heard.
A steady clicking arose from the scene. "We think that's the sofa," Wright said. "Don't suppose you could help on that one?"
"No. "
And before long there was a high-pitched heaving sound, and the clicking stopped. Joey moved from the sofa and disappeared. "That's pretty much the end of the movie," Wright said. "The video goes on for another twelve minutes, but nothing happens. If the girl, Elaine, ever moved or got off the sofa, then it's not on the video. We're almost certain that Baxter Tate and Joey Bernardo had sex with her. There's no evidence that either you or Alan Strock did. "
"I did not. I can assure you of that. "
"Any idea where you were during the rapes, Kyle?" Wright asked the question, then pressed a key and the screen went blank.
"I'm sure you have a theory. "
"Okay. " Wright was again armed with his pen and legal pad. "Elaine says she woke up several hours later, around three in the morning, naked, still on the sofa, and suddenly had a vague recollection of being raped. She panicked, wasn't sure where she was, admits she was still very drunk, eventually finds her clothes, gets dressed, sees you fast asleep in a recliner facing the television. When she sees you, she realizes where she is and remembers more of what happened to her. There's no sign of Strock, Tate, or Bernardo. She speaks to you, shakes your shoulder, but you do not respond, so she hurries from the apartment, goes next door, and eventually falls asleep. "
"And doesn't mention rape for four days, right, Detective, or has she changed her story again?"
"Four days is correct. "
"Thank you. Not a word to anyone for four days. Not to her roommates, her friends, parents, no one. Then suddenly she decided she was raped. The police were very suspicious of her story, right? They finally showed up at our apartment, and at the Beta house, and they asked questions and got very few answers. Why? Because there was no rape. Everything was consensual. Believe me, Detective, that girl would consent to anything. "
"How could she consent if she was unconscious, Kyle?"
"If she was unconscious, how could she remember being raped? There was no medical exam. No rape kit. No evidence whatsoever. Just the blacked-out memory of a very confused young woman. The cops dropped the case five years ago, and it should be dropped now. "
"But it's not. It's here. The grand jury believed the video proves there was a rape. "
"That's bullshit and you know it. This isn't about rape; this is about money. Baxter Tate's family is filthy rich. Elaine has found herself a greedy lawyer. The indictment is nothing but a shakedown. "
"So you're willing to risk the spectacle of a trial, and a conviction? You want the jury to see that video? You and your three roomies drunk out of your minds while a young woman is taken advantage of?"
"I didn't touch her. "
"No, but you were there, very close by, less than ten feet away. Come on. "
"I don't remember it. "
"How convenient. "
Kyle slowly got to his feet and walked to the bathroom. He filled another plastic cup with tap water, drained it, refilled it, and drank it. Then he sat on the edge of the bed and buried his head in his hands. No, he did not want the jury to see the video. He had just seen it for the first time and prayed it would be the last. He had a visual of himself and his three pals sitting in a crowded courtroom, lights dimmed, judge frowning, jurors gaping, Elaine crying, his parents stoic in the front row as the video is played to a rapt audience. The scene made him sick.
He felt innocent, but he wasn't convinced the jurors would agree.
Wright ejected the disc and placed it carefully back into a plastic case.
Kyle stared at the industrial-grade carpet for a long time.
There were sounds in the hallway, muffled voices, feet shuffling, maybe the Fibbies were getting restless. He really didn't care. His ears were ringing and he wasn't sure why.
Each fleeting thought was chased away by the next, and he found it impossible to concentrate, to think rationally, to focus on what should and should not be said. Decisions made at this ugly moment could reverberate forever. For a moment he settled on the three Duke lacrosse players who were falsely accused of raping a stripper. They were eventually cleared of everything, but only after an excruciating trip to hell and back. And there was no video, no link whatsoever to the victim.
"Is she awake?" Joey says to Baxter. How many times would that question echo around the courtroom? Frame by frame. Word by word. The jurors would have the video memorized by the time they retired to consider the verdicts.
Wright sat patiently at the table, hairy hands folded again and motionless on his legal pad. Time meant nothing. He could wait forever.
"Are we at midfield?" Kyle asked, breaking the silence.
"Past midfield, around the forty and driving. "
"I'd like to see the indictment. "
"Sure. "
Kyle stood and looked down at the folding table. The detective began a series of movements that were immediately confusing. First, he pulled his wallet out of his rear left pocket, removed his driver's license, and placed it on the table. He produced his Pittsburgh PD badge and laid it on the table. From a box on the floor he pulled other cards and other badges and began arranging them in line on the table. He reached for a file, handed it to Kyle, and said, "Happy reading. "
The file was labeled "INFORMATION. " Kyle opened it and removed a stack of papers stapled together. The top one looked official. A bold title read: "Commonwealth of Pennsylvania, Allegheny County, Court of Common Pleas. "
A smaller heading read: "Commonwealth versus Baxter F. Tate, Joseph N. Bernardo, Kyle L. McAvoy, and Alan B. Strock. " There was a docket number, file number, and other official markings.
Wright produced a pair of kitchen scissors and methodically cut his driver's license into two perfect squares.
The first paragraph read: "This prosecution is in the name of and by the authority of the Commonwealth of Pennsylvania against the above-named defendants - "
Wright was cutting some of the other plastic cards, all of which
appeared to be either driver's licenses or credit cards.
"Who, within the jurisdiction of this court - "
Wright ripped his bronze badge from its leather wallet and bounced it on the table. "What are you doing?" Kyle finally asked.
"Destroying the evidence. "
"What evidence?"
"Read page two. "
Kyle, who was at the bottom of page one, flipped to page two. It was blank, not a word, letter, period, anything. He flipped to page three, then four, then five. All blank. Wright was busy removing other badges. Kyle held the bogus indictment and gawked at the detective.
"Have a seat, Kyle," Wright said with a smile as he waved at the empty folding chair.
In an effort to say something, Kyle managed only a dying whimper. Then he sat down.
"There is no indictment, Kyle," Wright proceeded as if it all made sense now. "No grand jury, no cops, no arrest, no trial. Nothing but a video. "
"No cops?"
"Oh, no. This stuff is all fake. " He waved his hands over the pile of destroyed identification. "I'm not a cop. Those boys across the hall are not FBI agents. "
Kyle rolled his head back like a wounded boxer, then rubbed his eyes. The indictment fell to the floor. "Who are you?" he managed to grunt.
"That's a very good question, Kyle, one that will take a long time to answer. "
In disbelief, Kyle picked up one of the badges - Ginyard's, FBI. He rubbed it and said, "But I checked this guy out online. He really works for the FBI. "
"Yes, these are real names. We just borrowed them for the night. "
"So, you're impersonating an officer?"
"Certainly, but it's just a small offense. Not worth your trouble. "
"But why?"
"To get your attention, Kyle. To convince you to come here and have this little meeting with me. Otherwise, you might have run away. Plus, we wanted to impress you with our resources. "
"We?"
"Yes, my firm. You see, Kyle, I work for a contractor, a private one, and we've been hired to do a job. We need you, and this is how we recruit people. "
Kyle blew out a chestful of nervous laughter. His cheeks were getting warm, the blood was beginning to circulate. There was a rising thrill at the relief of not being prosecuted, of having been rescued from the firing squad. But the anger was beginning to boil.
"You recruit by blackmail?" he asked.
"If necessary. We have the video. We know where the girl is. She does indeed have a lawyer. "
"Does she know about the video?"
"No, but if she saw it, your life could get very complicated. "
"I'm not sure I follow you. "
"Come on, Kyle. Rape has a twelve-year statute of limitations in Pennsylvania. You have seven years to go. If Elaine and her lawyer knew about the video, they would threaten criminal prosecution to force a civil settlement. It would be, as you say, nothing but a shakedown, but it would work. Your life will go much smoother if you play along with us and we keep the video buried. "
"So you're recruiting me?"
"Yes. "
"To do what?"
"To be a lawyer. "