It took some people longer to come around. During the raid, a few of Little Bear’s neighbors became agitated, thinking she had put their lives in danger. However, most soon realized that was not the case, at which point they focused their annoyance on the authorities for the size of their response to a kid’s chemistry lab. They were understandably upset that the neighborhood was invaded in midwinter for what was essentially a huge training exercise. In fact, that’s exactly how the hazmat guys had described it as they packed up to leave.
So what would the DA do? The prosecutor’s behavior implied that she was trying to build a criminal case against my son. But it was not obvious to either our attorney or us what they might charge him with. A month and a half passed, with no word. By then, the story had vanished from the news and Little Bear’s street was totally back to normal.
Then, in late March, Cubby got a phone call. His friend and high school classmate Alex had been summoned to appear before the grand jury on April 1. Alex was scared, and so was Cubby. A call from the lawyer confirmed Alex was not the target of the grand jury, but that was scant reassurance, because he already knew they were after my son. He’d never been called before a grand jury—none of us had—but we knew they only investigated serious crimes. For Cubby and me, that was a chilling thought. I felt like we should be doing something to prepare to defend ourselves, but we could not attend the grand jury session or speak to the jurors, and its proceedings were secret. It was a horrible, stressful time.
I spent some of the time educating myself about the Massachusetts legal system and what might lie in store for us. The first thing I learned was that grand juries aren’t “grand” at all. Like many people, I assumed a “grand jury” would consist of leading figures in the community, people who wanted to get involved and provide the prosecutor useful guidance. Nothing could be further from the truth, at least where I live. Grand jurors are just ordinary people, selected at random from the voter rolls. Their principal qualification to serve: the ability to take time to appear in court, over a period of months, to hear a procession of cases presented by prosecutors. By state law, grand juries must approve all felony indictments, which are then tried in superior court. Of all the places Cubby might have ended up, that was by far the scariest. District court sends drunk drivers to county jail for six months. Superior court sends murderers and rapists to state prison for life.
We trusted Alex, and we knew he’d try to present Cubby in a positive light. But we didn’t know if that would matter. We had no idea what other witnesses they had called. We didn’t even know what charges were contemplated. All we knew was, Cubby had offered to meet them himself and they refused. No DA who wanted truth or fairness would have done that.
As I said, we could not attend the grand jury session, but we did get a complete transcript a few months later. I was able to review the record, and it just made me furious, the way the prosecutor presented a totally one-sided picture to a group of people, leading them to do her bidding, and return criminal indictments. The word jury implies people who consider all sides and render a decision, but our grand jury did nothing of the sort. The first witness called was Trooper Perwak, who told the jurors how Cubby first came to the attention of the police. To my surprise, Perwak said it was an informer. The person who turned Cubby in to the cops was Kevin Goyette, a surplus and salvage huckster Cubby had encountered on eBay. Cubby ordered glassware from him, and when he did, he revealed his name, e-mail address, and home address. That information was his undoing.
Goyette Googled Cubby and found his online discussion forums and the videos of his explosions on YouTube. I never understood why a glassware merchant would investigate a customer, but whatever his motives, he called the South Hadley police and told them about Cubby. The South Hadley cops looked at Cubby’s videos, but they did not have any expertise in explosives. They turned to the state police, which was how Gerry Perwak became involved in the case.
Perwak proceeded to show the jurors fifteen videos Cubby had made the year before. Most of them showed small amounts of explosive being detonated on the ground. Some of the experiments didn’t even work; all they did was fizzle and smoke. A few were more dramatic, as Cubby set off blasts underwater and geysers erupted ten or twenty feet into the air.
Perwak related all that in a very matter-of-fact way, without any embellishment. He had a reputation as a tough but fair cop, and it showed. If he thought Cubby belonged in jail, he would have said so. In fact, he did not say one word about malice, criminal intent, or property damage. To convict Cubby of any serious charges, the prosecutor would have to prove all those things.
As I read the transcript, I was deeply troubled by the prosecutor’s distorted presentation of the evidence. Grand juries are supposed to govern themselves. A prosecutor may bring in and question a witness, but a juror has the right to decide what additional questions to ask him or her. Cubby’s prosecutor ignored that rule. At one point, Perwak read some of the comments on Cubby’s videos, and a juror asked whether any of the people who discussed explosives with my son had been investigated. It was a reasonable question, but the prosecutor cut it off, dismissing the juror out of hand.
No one gave the jurors any perspective on what they were seeing and hearing. No one pointed out that any Massachusetts resident could drive over the line into New Hampshire, where fireworks are legal, and buy far more explosives than Cubby was accused of making. Thousands of people do that every Fourth of July. They return home, crack open a cold beer, and start lighting ’em up. They drop fireworks in the water and toss them on the ground. Some folks even throw them at people, and blow up whatever they can find. Yet those individuals don’t become the subject of grand jury investigations.
Even today, a YouTube search for explosion videos produces half a million hits. Cubby is far from alone in his interest. But no one told the jurors that. His handful of homemade videos were presented as if they were unique in the world.
After Perwak stepped down, Alex took the stand. He told the jurors about making one of the videos Perwak had just shown them. “We had walked out behind Jack’s father’s house … through a patch of woods next to the landfill, no other houses nearby. Jack had this little thing, probably about that big.” With his hand, he indicated that it was about the size of a golf ball. “It was for a fuel air experiment. He had taped it to a tree and set it off. It smoked and didn’t really work, as you can see in the video.”
The prosecutor then asked Alex about Cubby’s lab, and he said, “Yes, I knew about the lab he had in his mother’s basement. He was willing to try a few things out and he, of course, now regrets it being that he is in so much trouble, but this was simply just a test of chemistry.” Alex was nervous and a little rambling, but he stood by Cubby with every word.
Perry got a more useful witness in the form of Frank Hart, another state police detective. He eagerly described the chemicals in Cubby’s lab. Unlike Perwak, who stuck to the facts, Hart happily supplied a terrorist purpose for every substance he mentioned. Ammonium nitrate was no longer just fertilizer. It became the material that “wiped out” the Alfred Murrah Federal Building and “killed 168 and injured 800 people.” Triacetone peroxide, or TATP, became “the weapon du jour of terrorists,” as well as “Mother of Satan, the type of device that Richard Reid, the Shoe Bomber, was trying to ignite on an airplane.”
By analogy, if Hart had discovered a jug of gasoline in someone’s garage, he would have said that it’s known far and wide as the principal ingredient in Molotov cocktails. That might be true, but it’s an awfully misleading way to describe unleaded premium.
When Hart told the jurors about Cubby’s ammonium nitrate fertilizer, he forgot to tell them it was still in its original packaging, the very same bags in which it’s sold to gardeners all over the world.
“Fifty pounds of ammonium nitrate” sounds a lot scarier than “a sack of 34–0-0 lawn and garden plant food.”
Then Hart focused on the hazards in Cubby’s lab. With great
relish, he told jurors how his technicians put on Kevlar bomb suits and “walked very slowly” to carry Cubby’s TATP out of his basement lab. He told them how they carefully loaded it into a “huge total containment vessel” and carried it to the landfill for destruction. He said, “We had to put people in there at the risk of life or limb to remove this stuff,” which sounds very brave. He didn’t say that my teenage son had offered to carry it out for them, but the bomb techs declined because they preferred to “handle the situation with standard procedures.”
The small amount of TATP Cubby had could have been detonated right on the basement floor with no hazard, but Hart didn’t say that either. At first I thought he was being deliberately deceptive, but I concluded he just didn’t know. He was a lawman, not a scientist. He had no idea how powerful the explosives were, so he put on a bomb suit and hauled them away in a two-ton containment vessel. That’s a lot of special handling for the explosive power of a pack of firecrackers.
Perry pressed Hart about property damage—a necessary thing for serious criminal charges. She said, “Based on your training and experience, would the explosions that you witnessed cause property damage or damage?”
Hart hadn’t witnessed any explosions, he’d just watched the online videos. But with no defense attorney to object to his speculation, Hart said, “Oh, yeah, without a doubt.”
Later in the testimony, an inquisitive juror asked, “You said that the explosions that you saw in the same videos that we saw, that they did do property damage?”
“Mm-hmm,” Hart said.
“What was the damage?” I found myself liking this juror.
Hart stumbled a moment and said, “Well, the woodlands and who knows what, you know, that water system, that water supply system what, you know, the contamination from those chemicals and so on and so forth. If you were an amphibian in that water I would think you’d say it was definitely property.”
Clearly, at least one juror was dubious of the property damage claim. But there were twenty-three of them, and they did not need to be unanimous in their opinion. They began their deliberations, and a short while later, the jury foreman gave the prosecutor what she wanted: the go-ahead to indict my son.
Our lawyer had asked to be notified as soon as the DA’s office made a decision. That seems like the courteous thing to do. Nevertheless, on April 2, Perry called a press conference, at which she charged Cubby with three counts of malicious explosion, without so much as a heads-up to our attorney.
Federal agents had concluded he was just a smart kid who wasn’t a threat to anyone. The ranking state trooper at the scene had not seen fit to arrest him. But the district attorney—who was never at the scene, and never met my son—had decided to go for the big score.
The next step was Cubby’s arraignment. It was scheduled for April 8, just after lunch. Arraignment is a court proceeding, generally open to the public, in which the prosecutor and the defendant appear before a judge. The prosecutor briefly describes the case, and the charges are spelled out. Then the defendant tells the court how he wants to plead: guilty or not guilty. We felt fortunate to be arguing before superior court judge Judd J. Carhart, one of the most respected jurists in our state’s court system, with a reputation for fairness.
Perhaps because there were reporters in the audience, prosecutor Perry seemed intent on getting as many inflammatory statements as possible on the record, whether they were true or not. She used the same scare tactics Trooper Hart had used before the grand jury—relating every chemical Cubby had to some kind of terrorist attack, even though there was not a shred of evidence that Cubby had any interest in, or connection to, terrorism. For example, she said that my son possessed the same explosive used in a 2005 terrorist attack in England and videotaped himself blowing up a flag bearing a Jewish symbol.
When I heard her words, I was so mad smoke sizzled from my ears.
Cubby had never blown up any flags, and certainly not any Jewish symbols. What he did do was make a matchstick figure, less than two inches tall, that he called a “suicide bomber.” He blew up his construction on camera. Stupid kid behavior? Certainly. Offensive to some? Sure. But blowing up a flag bearing a Jewish symbol? Absolutely not.
Psychologists say boys with Asperger’s tend to lag several years behind their peers in the realm of social judgment. That was a good example. It was nothing like what the prosecutor described.
Perry continued in the same vein as she described and “interpreted” the chemicals found in Cubby’s lab. In addition to listing explosives, many of whose names she could not pronounce, she claimed Cubby’s lab also contained the makings of lysergic acid amide (LSA), a chemical compound she likened to the hallucinogenic drug LSD.
In fact, there was no LSA seized from Cubby’s lab, nor were any makings for illegal drugs seized. LSA is a Schedule III narcotic, so if any had been found, it would surely have led to additional criminal charges. I could not believe a sworn officer of the court would stand before a judge and state something that was patently untrue, but there it was, plain as day.
On four separate occasions, Carhart asked Perry to stop rambling and stick to her requests and recommendations. But she couldn’t seem to switch it off. “Enough!” Carhart shouted in exasperation at one point. “This is a simple arraignment. We’ll try the case later.”
Finally, the charges against Cubby were read and filed. My son was formally charged with willfully placing explosives near property and with three counts of maliciously creating an explosion. Without a moment’s hesitation, he pleaded not guilty to all the charges.
That took us to the next part of the hearing—what the lawyers call “bail or jail.” At arraignment, the judge accepts the defendant’s plea and decides what to do with him until trial. Most defendants are permitted to post bail, to ensure they don’t just take off. Other defendants—the most dangerous ones, and those with no bail money—are held in jail till the trial. Cubby didn’t go to jail. As a local kid with no prior criminal record, the judge let Cubby live at home with me until the case was resolved.
After a brief verbal scuffle between Hoose and Perry, Judge Carhart set some conditions. He decided Cubby had to stay in my house, not his mother’s, which was no surprise. He ordered Cubby to check in with the probation department weekly. Next he said Cubby could not possess chemicals of any kind. That suggestion was nuts, and totally unreasonable and unenforceable. Toothpaste is a chemical. A CO2 (carbon dioxide) cartridge to make fizzy water is another. We all use chemicals. Then he said, “No Internet.” In today’s world, there is no such thing as a college student who doesn’t use the Internet, all the time. It took another hearing to get those last two points clarified and made workable. Cubby could be around household chemicals, but he had to keep his lab packed away. He could use the Internet, but only for school. He had to stay clear of chemical and explosive forums.
Even those conditions were aggravating, but they could have been worse. Still, on Hoose’s orders, we didn’t complain. Our lawyer gave a brief interview to the local newspaper, in which he called the release conditions “a complete overreaction” and said Cubby never had any malicious intent.
We were back to the waiting game. Meanwhile, life went on.
I had always taken pride in the idea that Cubby was more socially aware than me, but the events leading up to the trial forced me to confront the idea that perhaps my notion was wrong. Sure, Cubby had more friends than me, but he was totally oblivious to the ways other people might see his actions.
In fact, he was oblivious to others in some very basic ways. That was revealed to me gradually, as others told me stories of Cubby’s behavior. For example, when Cubby was sixteen, my friend Rick gave him a summer job in his civil engineering lab at the university. One day, Rick watched Cubby run over another student’s foot with a chair and not even notice when she howled. Most days, my son was so immersed in his work that he ignored the other students, and they were annoyed when he neglected them. They would talk to each oth
er about their lives and local events, while he behaved as if he didn’t know them and didn’t care. Indeed, he probably didn’t. It was as if they had formed a team and he was on his own. Meanwhile, Cubby had no clue they felt that way, though like me, he always felt he was an outsider.
He was the same way with his lawyer. Hoose had given Cubby his cell phone number to call in case there was an emergency, and Cubby took to calling at odd hours whenever trial-related thoughts popped into his mind. Hoose would be at dinner or a movie, and the phone would ring. He had to answer, because it might be an emergency. But it wasn’t. It would be my son, with some random question or comment about the case.
Having read my memoir about growing up with Asperger’s and having gotten to know Cubby, Hoose was at first amused by his behavior. However, after a 9:30 call on a Saturday night while he was entertaining a houseful of guests, Hoose mentioned to Cubby that most people called on his business phone during regular office hours. It had never occurred to Cubby that there was anything at all odd about the nature or times of his calls. My son was shocked to realize he was being rude.
Was that Asperger’s? I was afraid it was. One of the key markers of Asperger’s and autism in general is blindness to the nonverbal signals of others. One of the ways that manifests itself is in self-centeredness. Folks on the autism spectrum don’t behave in a self-centered way to be mean or take advantage; they do it because they don’t “get” the signals others are sending. This trait has caused me a lot of trouble in life, and it looked like it was affecting my son the same way.