“Yes.”
“And a Mustang convertible, do you recall saying that?”
“Yes.” Rob’s eyes were downcast, his voice barely audible anymore.
“And since you’ve been in custody, as recently as a few months ago, you tried to buy a new car. You called the dealer up on the telephone, told him to have it ready for the end of February, didn’t you do that, sir?”
“That call,” Rob said wearily, “was to purchase a used car for a close family friend named Tessie McBride, as a Christmas present for her in the way of thanking her for all of the help in the past year.”
“A Two-eighty Z-X?” Kelly asked incredulously.
“Used,” Rob said.
“A Two-eighty Z-X?” he repeated.
“Yes.”
And then he went to work on the alleged forgeries. And when everything was added up, he said, “Total insurance on all these policies and counting the one that was mailed inadvertently, one million, five hundred eighty-three thousand dollars. Would you accept that figure?”
“Well, I don’t think we ought to count that one that was mailed inadvertently.”
“Well, subtract that one,” Kelly said magnanimously.
“Made it a million, four hundred thousand,” Rob said.
“More than sufficient insurance, to quote Felice Rosenberg, to cover your debts—three hundred thirty-four thousand. You would agree with that, would you not, sir?”
“More than to cover my debts, yes. More than was necessary to cover my debts.”
“With about a million-one left over for pocket money.”
“I wouldn’t characterize it that way, Mr. Kelly.”
Kelly had his glasses off, his suit coat unbuttoned, and he was pacing. He gave off that aura of menace, of being just on the verge of losing control, that had graven fear into the hearts of young men just like him at St. Benedict’s and, quite possibly, just like Rob Marshall, too, during those long-ago days at Monsignor Bonner, back when being unprepared for an English exam seemed the most dreadful fate that could befall a mortal, back when being on trial for the murder of one’s wife was something that happened only in the movies one might occasionally see on a Saturday night.
“After Maria’s funeral,” Kelly said, “during the week that followed, did you ever once walk over to the prosecutor’s office and say, ‘Is Lieutenant Gladstone around?’ and ask for Lieutenant Gladstone and ask him how the investigation was going?”
Rob remained silent, head down.
“Did you do that once during the week after Maria’s death?”
“No.”
“Ever pick up the telephone at any time during the month of September and call the prosecutor’s office and say, ‘Hey, fellas, how’s the investigation going? Any leads?’”
Again, Rob remained silent.
“Did you ever do that?” Kelly demanded.
“No. I was told not to.”
“Sir, for the month of October, the entire month, did you ever contact anybody in law enforcement, being a concerned spouse, a widower—”
But now Carl Seely was on his feet, a concerned corner man waving a towel, seeing his fighter defenseless on the ropes.
“I object to this,” Seely said, “because of the fact that he was represented by counsel then, and Mr. Kelly is obviously trying to create some type of negative inference which is not fair with regard to the witness.”
To say that Kelly was trying to create a negative inference was like saying that a charge of dynamite tries to create an explosion. But on the basis of the fact that Seely had formally advised the prosecutor’s office as of September 24 that he was representing Marshall and that any contact with Marshall should be through him, Judge Greenberg sustained the objection as it pertained to any activities of Rob’s after September 24.
“All right,” Kelly said, hitching up his pants at the waist. “Before September twenty-fourth did you ever contact any law enforcement authorities even once to ask them how the investigation was going?”
Lamely, Rob tried to answer. “On the twenty-first of September, when Mr. McGuire and the other gentleman came to the house, I asked them how things were going.”
Kelly shook his head in disbelief. “My question was, sir—”
“Did I contact?”
“Did you ever take it upon yourself to contact law enforcement and ask them how the investigation was going?”
“No. Upon advice from other attorneys, I did not.”
“Did you ever go down to the prosecutor and say to him, ‘The heck with these other attorneys, I hear all these rumors and suspicions going around, I had nothing to do with it, the trail’s getting cold, you’d better go start looking in another direction’? Did you ever do that?”
Again, Carl Seely got to his feet. “Your Honor,” he said, “I object for two reasons. Number one, he’s badgering the witness, which he has no right to do, and number two, this is an improper attempt to create some kind of inference with the jury in a situation where an individual has been represented by counsel. The prosecutor was and is right now and has at all times been aware of the fact that Mr. Raymond DiOrio had represented Mr. Marshall. Mr. Marshall testified on direct examination that he consulted Ray DiOrio. To suggest that he should be doing something when he has a legal representative is totally improper and totally unfair and infringes on Fifth Amendment rights that he may have.”
“To save some time,” Kelly said, “I’ll move on.”
“All right,” Judge Greenberg said. “We’ll consider it withdrawn.”
But Kelly couldn’t leave it alone. “On September eighth,” he said, “the day after your wife died, you came to your office and you found a copy of the search warrant, did you not?”
“Yes.”
“You know that the police officers had searched your office on that date?”
“Right.”
“Did you go down to the prosecutor’s office and say to the prosecutor, ‘I have nothing to hide, why are you suspecting me? You’d better go off and look in another direction because the trail’s getting cold’? Did you do that, sir?”
“Your Honor, I object again,” Seely said, “because this suggests a certain duty upon a citizen to take certain actions and also that their failure to do that should lead to some negative inferences. That’s not the law, that’s totally improper.”
Judge Greenberg sustained the objection, but Seely, by now, felt that so much damage had been done that he asked the judge to give a special instruction to the jury, which the judge agreed to do.
“One of the principles in law,” Judge Greenberg said, “is that when a person is being investigated for allegedly having committed a crime, that person does not have a duty to go to or speak to the authorities about it, and you can’t draw any inferences of guilt against that person if the person doesn’t go to the authorities or doesn’t talk to the authorities.”
For Kelly (extending the boxing analogy), that was like being penalized the loss of a round for low blows when he was already ahead twelve rounds to none and the low blows in question had left his opponent unable to continue the fight.
Kelly walked back to his table and, putting his glasses back on, paged through some notes he’d made on yellow paper. Then he turned again to Marshall and spoke in a much softer voice.
“Did you ever tell any of the police officers that Maria sat up in the car, as you just told this jury—that she sat up in the car and you heard her yell, ‘Oh, my God’? Did you tell any of the officers that the night of the murder, sir?”
“They didn’t ask me,” Marshall said, “They never asked me whether or not she said anything.”
Kelly had been holding a pencil. He let it drop to the floor and did not stoop to retrieve it. Instead, he removed his glasses once again.
“Didn’t those officers, not one, not two, but five different officers ask you to tell exactly what you remembered happening from the time you left Atlantic City? Didn’t they say that to you, sir?”
“Yes, I think they did.”
“Did you ever tell any one of them that you heard Maria say, ‘Oh, my God’?”
“No, I never did.”
“Sir, that woman was sleeping, was she not?”
“No, she was not.”
“And when you pulled into that picnic area, if she did awaken ever so slightly, you told her you were going in there to relieve yourself, didn’t you, sir?”
“No, I didn’t.”
“You saw the photograph of her body on the front seat, did you not?”
“Yes, I did.”
“You know that her arms were folded under her head in a lying-down or sleeping position—”
This time, it was Nathan Baird up to object. “The photographs speak for themselves and they’re in evidence,” he said, “so I don’t think they should be characterized by counsel.”
“I’ll withdraw it,” Kelly said.
He put his glasses back on and walked back to his table. It was very late in the afternoon, very close to the time that the trial would recess.
“You pulled onto that ramp,” Kelly said. “You made a left-hand turn and then you made another left-hand turn and you disregarded a Do Not Enter sign, is that correct?”
“Yes, that’s true.”
“And it was pitch-black, wasn’t it, sir?”
“There were no lights there. That’s correct.”
“It was so dark that the only description you could give of the car that pulled in was that it was a dark-colored sedan. Now, let me ask you this: when you pulled in there and you saw this car pull in, weren’t you concerned at all about what these people were doing there? I mean, you were there with your wife. Did that concern you at all when they pulled in?”
“No, it didn’t,” Marshall said. “I thought they were coming to do what you suggested I was going to do.” This was to urinate, although there was a restroom less than four miles farther up the road.
Kevin Kelly stood with his arms at his sides, looking Rob Marshall squarely in the eye.
“Is that right?” he said softly.
“Yes,” Marshall replied.
“And as you stood there in the darkness of night, you didn’t hear a door open? Is that your testimony?”
“That’s correct.”
“And as you stood there some sixty feet away from that car, did you hear someone run towards you?”
“No.”
“You were looking at this tire that was bulging at the bottom and not hearing anyone coming in your direction, not hearing a door open, the next thing you remember is hearing Maria saying, ‘Oh, my God,’ and you’re hit over the head.”
“That’s correct.”
“The only damage found on that tire was a slit in the sidewall. You heard that testimony, did you not?”
“Yes.”
“There were no other holes or tears or rips or leaks of any kind found that would allow air to escape gradually from that tire. Did you hear that testimony?”
“Yes.”
Then Judge Greenberg said, “Mr. Kelly, I don’t like to interrupt. We’re past our normal time. I don’t know whether you could conclude now or not.”
“No, sir,” Kelly said, again gazing directly at Marshall.
And on his way out the door, nostrils flaring, he said to one observer, “This wasn’t anything. Just wait till tomorrow. Tomorrow, the gloves are coming off.”
25
That night, back in Toms River, Roby and Chris stayed up late, talking.
“What do you think?” Roby asked.
“I think,” Chris said, “that I wish I didn’t have to be there tomorrow.”
“But I mean, what did you think about today?”
“I think Kelly made Dad look like a fool.”
“He’s such a mean, sarcastic prick, that Kelly. I’d like to just deck him. One punch. Boom! Down he goes for the count.”
“Roby, he’s just doing his job.”
“Oh, bullshit. He can ask questions without all that macho routine.”
“He is asking questions, Roby. And you were listening to the answers.”
“Yeah, well, listen, I still believe in Dad, so if you’re going to start—”
“No, no, it’s not that. It’s just one thing in particular I can’t get out of my mind.”
“What’s that?”
“This business of whether or not Mom was sleeping. Ever since it happened, I’ve been wondering what her last seconds were like. You know? How scared was she? Did she know what was happening? Why didn’t she try to get away?”
“I always just assumed she was asleep.”
“Why?”
“I don’t know. I guess that’s always been the impression I got from Dad. Every time I’ve pictured it, I’ve pictured Mom just lying there asleep, never knowing what happened. That’s been something I’ve really been clinging to, Chris. That it was peaceful. It was quick. She didn’t know a thing. She didn’t suffer. She just went to sleep and didn’t wake up.”
“But Dad says she sat up and yelled, ‘Oh, my God!’ What made her yell, Roby?”
“Chris, I don’t like where this is going.”
“Neither do I, but let’s get it there or else it will be bugging both of us forever. If she’s awake and she looks out the window, the only thing that could make her yell is if she sees somebody who’s not supposed to be there.”
“Yeah. Whoever hit Dad on the head.”
“Right, and then what does he do? He comes at Mom.”
“Chris! Let’s not take this any further.”
“We’ve got to, Roby. We’ve got to know, in our minds, what it was like.”
“Chris, she had to be asleep. They said she was lying down just like she was sleeping and then somebody just leaned in and shot her in the back. No way, if she was awake, Mom would ever have laid down and said, ‘Shoot me.’ She had to be sleeping.”
“Unless it was like Dad said today, and then whoever knocked him out walked up to the car and said to Mom, ‘Don’t worry. Your husband will be okay. And you won’t be hurt. This is a robbery. Just give me your pocketbook and lie facedown on the seat. Don’t move for at least—’ ten minutes, twenty minutes, something like that. The guy’s got a gun. But he didn’t shoot Dad, he only knocked him out. There’s no reason why he’d want to shoot her. So she does what she’s told. She lies down, with her head in her arms, just like Kelly showed in court. And then—”
“And then some cowardly cocksucker shoots her in the back!” Roby said.
“That’s right.”
“So instead of it being peaceful, Mom was probably terrified.”
“Think about it, Roby. She couldn’t have been asleep. Even forgetting what Dad said today. Just think, the car is going along at sixty, sixty-five, and then suddenly he pulls off the road and onto that ramp and then comes to a complete stop in the woods, and tries to find a flashlight, and opens the door and starts walking around the car—there’s no way Mom would sleep through that.”
“You’re right, Chris. You’re right. Ah, shit. This just keeps getting worse and worse.”
“I know.”
“I’d always liked to think that maybe she was dreaming. Maybe at the moment she died, Mom was having a happy dream about us.” Roby’s eyes were filling with tears.
“Roby, in this story there’s no room for happy dreams.”
Roby thought about it overnight and decided not to go to court the next day. Between what Kelly had done to his father on the witness stand the day before and the late-night talk with Chris about his mother’s last, probably wakeful and terror-filled moments of life, there was too much confusion and pain in his mind.
He had never before seen his father the way he’d been Wednesday. Cowering. That’s what it had been. His father, always in command, always so sure of himself, always taking charge in every situation, had sat there cowering while that bastard, that cheap bully Kelly walked all over him.
It had been, Roby thought, as if the man on
the witness stand had been someone else entirely, not his father. This even went beyond the question of guilt or innocence. This raised the question of whose son was he, anyhow? The son of Rob and Maria Marshall of Brookside, the most admired and envied couple in Toms River?
Or had that family never really existed? Had that, too, been just a happy dream, like the one he’d tried to imagine his mother having at her moment of death?
He got up early, slipped down the hall, and went in to tell Chris he was going back to school instead of to court.
“Roby, you’ve got to be there. Dad will shit!”
“Dad has already turned to shit, in case you haven’t noticed. It’s too early to talk. Call me tonight. I’m out of here.”
And so it was only Chris and John (along with Tessie McBride and Brenda Dew) who had to sit through what Kelly did to Rob on Thursday.
The gloves were off all right, replaced by brass knuckles.
Afterward, Kelly said it had been the wedding band that had triggered his fury. Kelly had been looking at it every day and thinking more and more what a desecration it was for Rob to wear it, knowing as he did, as they all did, the role he’d played in the murder of his wife.
Mockery. Marshall was mocking the memory of Maria by wearing the ring. Well, mockery was a game that Kelly knew a little about, too, and on Thursday morning he decided to play it for a while. He started with questions about the “investigator.”
“Page two,” he said, and on this day he didn’t even try to suppress the anger and contempt in his voice, “of your tape-recorded farewell message, Best Western, you state: ‘Because of Maria’s actions over the past four or five months, I felt compelled to hire someone who I thought had a good reputation, was out of town, didn’t mind coming a distance.’ You will agree that fifteen hundred miles from Toms River is out of the town. You would agree with that, sir?”
“It didn’t matter to me where he came from as long as it wasn’t Toms River.”
“Well, you were the one who emphasized spending less, isn’t that a quote?”
“He told me he would work for the same price that—a reasonable rate is what he told me. Two hundred and fifty dollars a day, plus expenses.”
“Weren’t you the one emphasizing the importance of spending less? Yes or no.”