As she was beginning her investigation, Cubby was continuing his experiments. On February 4 he uploaded a new video, showing a larger test explosion in water. She was worried because the newest video showed he was still active, and it showed a bigger explosion than the ones before. She didn’t know where it was or what it meant. She then handed the matter off to the state police.
I was surprised that she never thought of simply talking to Cubby the day she got Goyette’s phone call. He was a local kid, living with his mom in town, not five minutes from her office. If she was afraid to talk to my son, she could at least have spoken to his mom. It’s a sad state of affairs when a local police officer can’t have a conversation with the parents of a kid who’s lived in town his whole life. This whole thing could have been avoided with a little more common sense and understanding, I thought.
An hour had passed and the jurors looked bored. Fortunately, the next witness was a bit more dynamic. Gil Moring heads the Amherst Department of Public Works. His department runs the landfill where Cubby set off some of his explosions, among what he cheerfully described as “fifty-six acres of woodland, wetland, and trash.”
I’ve lived next to the landfill for many years, and I’ve visited it even longer. I went there with my dad in the sixties, when we made our weekly run with the household garbage. Later, in the seventies, I went there to scavenge parts from junk cars, to keep my junks on the road and running. The open landfill is long gone, replaced with a neat transfer station. But thousands of people still come and go, dumping trash and scavenging for treasure, just as I had done years before. Some come by road, but plenty more walk in through the numerous holes in the fence that surrounds most of the property.
The prosecutor handed Moring a large photo of the front of the transfer station. Pointing to the photo, she asked, “Who can go into the transfer station and landfill? Can anyone get in there?”
Gil smiled slightly and said, “Anyone can go in. It’s open to the public.”
One of the rules every trial lawyer learns is this: Never ask your witness a question unless you’re already pretty certain how he’ll answer.
Having struck out with that question, she tried a different tack with the next one. “Who owns the landfill?”
He said, “It’s town property, so I guess it belongs to all the residents of the town. Meaning the defendant and everyone else.” He smiled at her and looked over at my son.
She didn’t give up. “Isn’t it true that you walked through the landfill with state police detectives, looking for evidence of the defendant’s explosions? Can you tell us what you found?”
“We didn’t find anything. It’s a landfill. It’s full of broken things. That’s what it is,” he said. Several jurors laughed out loud.
I needed a break, so I stepped into the hall outside the court. Over in the corner, I saw Gerry Perwak. He was scheduled to testify next. I walked over to him. “I’m sorry it’s come to this,” he said. “I never thought this case should go to trial, but I don’t make those decisions. I hope it turns out all right for your son.” I was touched by his thoughtfulness. I went back in and sat down as he began his testimony.
Perwak talked about the call from Officer Romonovitz in South Hadley, and his own investigation. He said he looked hard but wasn’t able to identify any property damage from any of my son’s explosions. Next he described meeting my son at his school. “The interview lasted almost three hours,” he said, and my son seemed concerned, cooperative, and truthful.
He said Cubby led them to his mom’s house in his car, while the investigators followed in their own vehicles. When they arrived at the house, they met his mom, who gave them permission to search the lab. When the search started, Perwak told the jury that Cubby showed them exactly what was in the house and where it was located. He stayed at the house till two in the morning that first night. Then Perwak reviewed Cubby’s videos for the jury.
Finally, it was time for cross-examination. Hoose had a number of points to clarify, and I think he wanted to make the most of a somewhat cooperative prosecution witness. He began by asking Perwak to confirm that all of Cubby’s glassware and beakers were standard lab equipment. “Yes,” he agreed, “there was nothing illegal about any of it.” Perwak remained on the stand for more than two hours, going over his findings and Cubby’s videos piece by piece. As detailed as his testimony was, he did not say one word about malice, criminal intent, or property damage. In fact, he said the opposite, more than once.
That led Hoose to ask why Cubby wasn’t arrested at the scene. “If you have probable cause to believe someone committed a crime, you arrest them on the spot, don’t you?” “Yes. Absolutely,” Perwak said, and the jurors all turned to look at my son. You could see the question in their minds. If the ranking trooper hadn’t seen cause to arrest Cubby, why are we all here today?
The next witness was Michael Murray, one of the two ATF agents in the case. He described walking through the house with the state police bomb techs. He said there were so many different chemicals in Cubby’s lab that he wasn’t sure how to handle them. He called John Drugan, the state police chemist, who gave him advice and suggestions. Murray stayed on the scene till midnight and returned the next day.
Murray wasn’t on our side, but he didn’t have any really harmful testimony. The only scary thing he said was that he’d walked through the house in a Kevlar bomb suit, but of course nothing happened. So the suit was a precaution that was never needed.
I wondered what the jurors thought.
With that, the first full day of trial came to an end. Court adjourned for the Memorial Day weekend. It was a time of fun for some, but not for us. Cubby had started sipping Maalox by the bottle, and my jaw and shoulder muscles were so tense they hurt. All we wanted was for this nightmare to be over.
Court resumed at nine o’clock Tuesday morning, after the long holiday weekend. I had the list of witnesses, and I knew who was up next. I was about to meet the rat who’d turned my kid in to the South Hadley police. The thought of people who do things like that just made my blood boil. I took a deep breath and waited for the day to begin.
“The commonwealth calls Kevin Goyette.” I looked at him as he sauntered past and shook my head. I don’t know what I had expected, but he was a pudgy figure in a cheap suit, the kind of specimen who might appear at your business selling supplies. He positively bounced into the witness box, looking excited to be there. Then, with a little urging from Perry, he told his tale.
He bought up scrap and salvage material that he sold on eBay and elsewhere online, he told the jury. Cubby had run across his merchandise while searching for flasks and beakers, ordinary glassware for any chemistry lab. Goyette had some nice-looking stuff at what seemed like good prices, so Cubby placed an order. In doing so, he gave Goyette’s website his name, address, e-mail address, and credit card information. Armed with that, Goyette decided to go snooping.
He found Cubby’s videos, watched a few of them, and called the South Hadley police. After that, he canceled the order. Cubby’s lawyer asked Goyette if he made a practice of snooping on his customers. He just squirmed, and he was dismissed with no further questions.
Jeremy Cotton from the state police bomb squad was next. He was one of the troopers who responded to Perwak’s call, arriving that first afternoon. He said my son’s lab was more complicated than any explosives scene he’d been to before. There were lots of different chemicals, many of which Cotton did not recognize. “It was the defendant who explained to me what they were,” he said. Most of the chemicals were not dangerous at all. The few explosives Cubby pointed out were loose, in glass jars and Tupperware containers. There were no “bombs” to clean up, just material in containers. That was an important point, because loose explosive in a lab tray isn’t considered a weapon by most people, and the charges against Cubby implied he used explosives as weapons. “I’d never seen anything like it,” he said. Cotton readily conceded that he didn’t have “solid knowledge” of
chemistry, so he called FBI chemist Kirk Yeager for guidance.
Like several previous witnesses, Cotton stressed that Cubby was very cooperative. He made clear that his main job was to put on eighty pounds of protective gear and carry materials from Cubby’s lab out to the truck, which took them to the local landfill for disposal. There, the ATF agents blew it all up, with official government-issue explosives.
Next was Agent Peter Murray of the ATF. He was a local fellow, having served with the UMass Police before joining ATF eight years previously. He told the court about taking Cubby’s statement at school and about touring the basement with Cubby. “I didn’t see any explosives connected to a fuse or detonating device. All I saw were loose chemicals,” he said.
John Dearborn of the Longmeadow Fire Department was the next to be called. I hadn’t understood why a fireman from a town twenty miles away was there at all, but he explained that he headed the state’s District 14 hazmat team, which responded to situations all over our area. Speaking like a true bureaucrat, he told the court, “When I arrived, there were already multiple resources present.” To him, every person and every piece of equipment was a “resource.” I just shook my head for the hundredth time.
He first arrived on the scene at 8:30 Friday night, and stayed till 2:30 the next morning. The Red Cross was also there, feeding people, and the explosives techs had set up a mobile lab with a spectrometer to analyze the stuff my son was pointing out to them. With all those resources and all that activity, you would have thought there’d be nothing for him to do. Not so! He had a Geiger counter and went right to work. As he told the court in a wistful tone, “I did a radiation sweep, but there were no levels above normal background.” I reminded myself that his crew had actually sent Cubby’s mom a bill for their efforts. I characterized the hazmat response as a massive play date at the time, and Dearborn’s testimony confirmed it.
When Hoose questioned him, he agreed they only saw two materials that were actually classified as hazardous, and those were legal and safely stored in containers. You could almost feel his disappointment as he told the court there was never a chemical spill. He even admitted that the hazards were only what you find in a typical residential garage. I could see he didn’t like saying that, because he was essentially conceding that there was no justification for most of what his crew had done that weekend.
Most prosecution witnesses were announced without any fanfare. The last one was different. For him, Perry turned to the jury and the spectators with a great flourish and said, “The Commonwealth calls Doctor Kirk Yeager of the FBI.” There was a pause, but no one applauded. She looked disappointed at our lack of response. I felt disgusted wondering who’d paid for Yeager to come up here and testify.
Yeager told the court he’d taught at New Mexico Institute of Mining and Technology in addition to working for the government. He’d presented papers at sixty conferences and won several awards from the FBI. He was clearly a high-caliber fellow.
Then we got to the reason he was there: the call from the Massachusetts State Police, on February 15 of the previous year. He said he spent five hours on the phone, advising the techs on how to remove and neutralize the chemicals in the lab. As a budding scientist, Cubby had a much wider variety of chemicals than they were used to finding at crime scenes. Many were new to the technicians. Then he recited the same list of explosives we’d heard before, with a little elaboration. He told the jury how dangerous TATP was, and how a gram could blow off a finger, while a pound could kill. He told the jury Cubby had ETN, an explosive he had never before seen in the United States. Cubby’s lab was unique, he said, because it had so many different explosive compounds. He said my son had a postdoctoral understanding of the physics of explosives.
He might have said all that to scare the jury, but I watched the jurors closely, and I think the point they took home was that possession of many different chemicals equals an experimenter, not a bomb maker. Yeager’s comments about Cubby’s knowledge simply reinforced that.
At that point, Perry trotted out her evidence bags once again. “Do you recognize these?” She handed him a few snack-size Baggies from the raid. These were the very same bags she’d been waving about the courtroom and passing among the jurors earlier, although they were new to Yeager. He took the bags from her and read their labels, then frowned.
“I don’t know if I’d be passing explosives around in court like this,” he said. She looked surprised. With all her talk of the incredible danger of Cubby’s lab, she had been carrying his explosive compounds around in her big manila evidence folders for more than a year. She had handled them, the cops had handled them, and the jury had handled them and they’d done nothing but lie there, inert.
Among the bags was one containing TATP, the very same material that was, according to her opening statement, “so highly volatile that if you were to walk across the room and static electricity from this rug were to be emitted, it could set it off”!
The judge sent the jury out for a recess. The rest of us remained in our seats as she asked the attorneys to step forward. “Doctor Yeager, I wanted to ask you if these items are in a state that currently renders them safe in the environment that they’re in for jurors and other court participants.”
“Advising all due caution, anything that contains TATP I would get out of here immediately” was his reply. “There’s only so much you can do to make it safe, and this material does not look wetted to me at all. The material in this amount is probably not going to detonate, it’s scattered out, but it’s going to create one nasty fireball if it decides it wants to go; and the person sitting in proximity to that is not going to be pleased.”
With a look of annoyance, the judge had the prosecutor call a trooper to gather up her evidence bags and carry them out of the room. I could see people in the courtroom looking at one another and whispering commentary as this went on.
With the jury back in their seats, Yeager talked about analyzing videos of explosions, including Cubby’s, and how it’s sometimes possible to evaluate the materials and the damage done in the blasts. He told the court how he’d analyzed video from the attack on the USS Cole, perhaps in hopes the jury would draw some kind of analogy. I listened very carefully. He said Cubby’s narrations and captions were consistent with what was shown, and the videos showed a steady increase in success and sophistication. That was especially true for the last video, where Cubby set a charge off underwater.
Yeager never mentioned a single instance of property damage.
Perhaps realizing that, Yeager tried to fill in with what might have been. “An explosion of that size could do substantial damage to a building, or even kill someone,” he said of the underwater detonation. Of course, there were no buildings or people in sight when Cubby did his experiments.
As Hoose said later, Yeager was totally on board with prosecuting my son, but he really didn’t have anything concrete to offer the court, as Hoose established on cross-examination.
“You never went to any of the sites, did you?” he asked. Yeager reluctantly conceded his involvement was limited to looking at images and talking on the phone.
Next he addressed Cubby’s motives. “Not every kid who experiments with chemistry becomes a terrorist. Isn’t that right?” You could see the sigh as Yeager agreed. Hoose tried to get him to admit his own students at New Mexico Institute of Mining might even experiment with explosives, but he wasn’t having any of that. “Not in my classes, they don’t!” He actually sat up straighter as he said it. The vehemence of his denial said more than further questioning. Yeager was a government chemist, with zero tolerance for breaking the rules.
Next they turned to PETN. Hoose said, “PETN as it sits on a shelf is sensitive enough to scare us, but not so sensitive it can’t be handled or used.” Yeager agreed. Yeager said PETN was widely used in weapons, but he agreed that all Cubby had was sample quantities of the material. So far, nothing new or striking had come out. I kept my fingers crossed.
O
f all Cubby’s chemicals, Yeager had been most critical of the TATP. Yet he said he’d made some himself in a government lab. Just experimentally, of course. In pursuit of science, not terrorism. Hearing of Yeager’s personal experience with TATP, Hoose asked if things could be done to keep it safer in the lab. Cubby had kept his TATP covered with water. Yeager agreed that storing it in water made it safer and less likely to detonate. I hoped the jurors were paying attention.
Perry sure was paying attention. As soon as Hoose finished, she popped up with more questions of her own. “Dr. Yeager,” she began, “your college students are not allowed to perform experimental explosions, are they?” He agreed they were not. “In your lab, you take all sorts of safety precautions, don’t you?” He agreed with that too, but they couldn’t take that line of questioning much further because Yeager had never been to Cubby’s lab.
She changed tack, remembering Hoose’s point about the TATP stored underwater. “TATP stored in tinfoil would be dangerous, wouldn’t it?” Yeager agreed, but I saw some quizzical looks from the jurors. After all, wasn’t it the same stuff she had handed them, with no comment, a few hours before?
When she was done, Hoose stood up again. They were both working Yeager for all they could get. Hoose reminded him of the TATP underwater and the other precautions Cubby had told them about. “Wouldn’t you say Jack took the highest precautions possible in his experiments?” To my surprise, Yeager agreed.
With that, the prosecution rested. They had hammered us for two days with one witness after another. We had been buried in detail about what they found, where it was, and what they did with it. We had not heard anything awful, but we had been deluged with a torrent of testimony. I was reminded of the famous quote, “If you can’t dazzle them with brilliance, bury them in bullshit.” I was truly afraid the state would succeed with that very tactic.
All the gravest crimes in our area are tried right where we sat, in the Hampshire Superior Court. All those trials are open to the public. Most times, the audience consists of victims and their friends and family. There are often reporters, and sometimes families of the defendant. This was the first trial in years where there were no victims and no complaint. Consequently, the entire audience—other than the reporters—was my son’s friends and supporters. Over the past few days they’d come to fill the courtroom. Many of his buddies from school and town were there. My neighbors and my family were there. My friend Bob, his wife, and even Bob’s parents were in attendance. Everyone gathered around him as court recessed to offer a pat on the back, a cold soda, or words of encouragement for the next phase of trial. “Now it’s your turn,” they said. “You’ll set them straight!”