Primal Fear

  “Yes suh.”

  “You won’t be asked to testify to anything at the arraignment. If the judge does ask you any questions, I’ll answer them.”

  “I don’t say nary to him?”

  “Not a word. As far as this hearing goes, you’re dumb as a brick wall.”

  Vail had spent the previous evening in the city law library, seeking out cases to justify the motions he planned to make at the arraignment. One of his motions would attempt to subvert the use of the coroner’s photographs, which would most certainly provoke the jury and torch an emotional firestorm among its members. But knowing Shoat, that probably would be futile. At breakfast, he had run his strategy past the Judge.

  “It’s your strategy, Martin,” the Judge had responded.

  “What the hell’s that mean?” Vail had asked.

  “It means exactly that—it’s your strategy. I have no intention of suggesting you alter your approach in any way.”

  “But you have reservations?”

  “As you well know, for every problem there are a dozen solutions. One of the reasons I respect you is that you make decisions instinctively and you go at it with passion. What scares your opponents, and to some extent judges, is that you go in with the attitude of a big-league pitcher—it’s a contest and you are indomitable. You’re a warrior who has great ardor for all his causes and the instinct to win—and that, sir, is a very scary combination. You also happen to be a great lawyer. So, while I occasionally might disagree with you on points of law, I would never deign to criticize your style.”

  With that, he had given Martin two invaluable law references that would become part of Vail’s tactics. Strategy and tactics, this was the way Vail approached his job. The strategy was to present to the public a likable, pleasant young man and then raise two questions: Could he have done such a thing? And if so, why? His tactics would raise not the question of whether or not Aaron was innocent but rather whether or not he was guilty, and he would do it so powerfully that the jurors’ innate prejudice against Aaron hopefully would be nullified.

  “I’m sure you’ll give Shoat something to stew about,” the Judge had said. Then he’d laughed. He harbored little respect for Hangin’ Harry Shoat, considering him a cold-blooded politician in a job that called for compassion, understanding and empathy. The Judge believed one should be a statesman of the law, not its executioner.

  “Do you know the judge?” Aaron asked, breaking Martin’s train of thought.

  “Oh yeah, I know the judge,” he said. “And don’t worry about him. The judge is like a traffic cop—he keeps order and he rules on what is legally permissible and what isn’t. The jury is who you have to worry about. Their job is to decide what evidence to believe, which witnesses are credible, and the biggie—whether they think you’re guilty or not. Right now, your life is in the hands of twelve people—and they haven’t even been picked for the job yet.”

  “Kinda scary,” said Aaron.

  “It doesn’t get any scarier,” Vail agreed.

  They fought their way up the stairs through the horde of reporters with their mélange of hardware—microphones, TV cameras, tape recorders, still cameras—and their sometimes inane questions, one of which was:

  “Did you do it?”

  Did you do it? Vail said incredulously to himself. Who in hell asked that one?

  The three marshals cleared the way and Vail drew up the rear of the human buttress, handing out his business card to all who addressed him. His name was embossed in the lefthand corner and across the center was printed “No comment.” The circus followed them into the courtroom and jockeyed for seats in a section reserved forme press. Jack Connerman was one of them. He had stood back and watched the hysteria of his peers as Stampler and Vail made their entrance. Now he was seated next to E. J. Odum, a particularly cynical old-time courthouse man for the Trib. Connerman was a short, red-faced Irishman with the beginning of a beer belly. He had been nominated for a Pulitzer Prize two years earlier and, when he did not win, had left his job with me newspaper to join City Magazine, where he earned more money and could write with more subjectivity. He had a following; his pieces sold magazines.

  “What do you think?” he asked Odum.

  “Shit, it’s a goddamn arraignment, for God’s sake, not Anatomy of a Murder. The prosecutor’s gonna charge him and Vail’s gonna plead not guilty because he doesn’t have a choice. So what the hell’s all the fuss about?”

  “It’s Vail, E.J. You never know,” Connerman said.

  “It’s a goddamn arraignment,” Odum repeated.

  Harry Shoat stood at the door of his chambers, squinting out at the crowd, waiting until the room was full before making his entrance. The night before, Roy Shaughnessey had taken him to dinner and imparted some cogent advice.

  “Listen, Harry, you want to be a supreme court judge, right? Well, you have to loosen up a little. This Hangin’ Harry crap is hurting your image.”

  “What do you expect me to do, tell jokes?”

  “For Christ sake, I’m not suggesting you go out in black face and sing ‘Mammy.’ I’m just telling you, this Hangin’ Harry stuff is hurting you. We’ve got Vail by the balls, so you can afford to be … gracious.”

  “Gracious?”

  “Yeah.” Pause. “Gracious.”

  Gracious! This was an arraignment. A cut-and-dried procedure. What was there to be gracious about?

  Alvin McCurdy, the bailiff, was watching the door. The room was full. Well, give the devil his due—Vail did draw a roomful. He opened the door and strode out.

  “All rise!” McCurdy ordered, and rambled off the customary salutation—“Hear ye, hear ye, hear ye…”—as Shoat took his seat and immediately began arranging everything on the bench in precise order—his legal pad, two fresh yellow Ticonderoga pencils, the water thermos and glass, and his favorite instrument in the world, the gavel with its little hardstand. He also had a twelve-inch stainless steel ruler which he placed exactly parallel to the pad and two pencils. He very specifically placed the wire stems of his bifocals over each ear and adjusted their position. He finished this meticulous ritual just as the bailiff finished his introduction.

  “Call the first case,” he said.

  “State versus Aaron Stampler.”

  “Is everyone present?” Shoat asked.

  “Yes sir,” McCurdy answered.

  Shoat looked out over his glasses. Venable, as always, was stunning. She wore a tailored dark gray suit and her hair was pulled back in a bun. Vail was dressed almost haphazardly. He had on a tweed jacket, denim pants, tennis shoes, a nondescript tie and bright red suspenders.

  “I see, Mr. Vail, you haven’t made it to the barber since our last meeting.”

  “I’ve got bids out,” Vail answered with a smile.

  “Hopefully you’ll get them back in and make your decision before the trial starts. Ready to proceed?”

  “Yes, Your Honor.”

  “Madam Prosecutor?”

  “Yes, Judge. The state charges the prisoner, Aaron Stampler, with the crime of murder in the first degree, to wit, that on February twenty-six, 1983, at approximately ten P.M., said Stampler did, in this county and this city, with premeditation and with malice aforethought, murder by stabbing the Reverend Archbishop Richard Rushman. Furthermore, due to the nature of the crime, Your Honor, we request that bail be denied.”

  “How does your client plead, Counselor?” Shoat said to Vail.

  “Your Honor,” said Vail. “If it please the court, I would like to make a motion that my client be remanded to the state mental hospital at Daisyland for psychiatric evaluation before any charges are brought against him.”

  “Murder one, Your Honor. No bond,” Venable snapped back. “We have more than enough hard evidence to warrant the allegations.”

  “Yes, I agree,” Shoat said. “There’s certainly ample provocation here for a charge of murder in the first. It will be up to the grand jury, of course, to evaluate the charge. Do you unde
rstand the charges brought against you, Mr. Stampler?”

  The youth looked at Vail, who said, “Your Honor, my client refuses to answer on the grounds that his response may tend to incriminate him.”

  Both the judge and Venable looked perplexed.

  “The defendant is taking the fifth on whether or not he understands the charges?” Shoat said with surprise.

  “Yes sir. Until we have a complete psychological workup, he will take the fifth on any and all questions posed to him.”

  “Well that’s a new one on me,” Shoat said, shaking his head. “How about bond? Am I correct in assuming that you are not seeking bond, Mr. Vail?”

  “You are correct,” Vail said. “However, because of the inordinate amount of publicity my client has already received and the nature of the crime with which he is being charged, we would like to formally request a change in venue at this time.”

  “Denied,” Shoat snapped almost before Vail finished.

  “Exception.”

  “Noted. Anything else?”

  “Your Honor, Mr. Stampler underwent several hours of interrogation by the police and members of the district attorney’s office before I was even assigned to the case. I feel, therefore, that his rights have been denied to him.”

  “Was he advised of his rights?” Shoat asked Venable.

  “Yes, Your Honor,” she answered. “He was interviewed three times and was Mirandized all three times.”

  “And did he waive his rights?”

  “Yes, Your Honor. We have three statements signed by the prisoner agreeing to speak to the officers without an attorney present.”

  “He still—” Vail started, but Shoat cut him off.

  “Mr. Vail, it appears he was fully advised and he did waive his rights. If you’d like we can swear in the arresting officers and have them verify—”

  “Not necessary, sir. My client does not deny waiving. Our objection is that he underwent several hours of interrogation before he even had an attorney.”

  “Counselor, you agreed to take this case the morning after the event took place …”

  “And he was interrogated twice… twice… before that,” said Vail, holding up two fingers. He sat on the edge of his desk, feet crossed at the ankles, his thumbs hooked in flaming red suspenders.

  Shoat sighed. “I think we’re splitting hairs here, Counselor. I don’t see any violation of rights.”

  “A man’s life is at stake, Judge. I think that’s worth splitting a few hairs over.”

  “I’m sure you do, sir.” Shoat was beginning to show his exasperation.

  “Your Honor, I have the transcripts and tapes of the interviews here,” said Venable. “If there’s no objection, we would like to present them—”

  “Objection, Your Honor!” Vail bellowed. “I move that all the interviews conducted prior to counsel be suppressed.”

  “Grounds?” Shoat asked.

  Vail grabbed a book and moved away from his desk into the arena before the bench. He held a thick code book open in one hand and held it toward the judge.

  “If I may, sir, I will call your attention to The State of Nebraska versus Flannery, Supreme Court, volume 43, page 685. I have the book right here. The court ruled, and was upheld in appeal, that Miss Flannery was denied her rights even though she had waived because she asked for an attorney at the time of her arrest and was not provided one for a period of eighteen hours during which, under great duress, she broke down in an interrogation and confessed to the crime. The courts ruled that the investigating officers violated her rights to fair representation because she requested a lawyer at the time she was Mirandized and she should have been so granted before any further interrogation.

  “We would argue,” Vail went on, “that once the request for legal representation is made, no further action can be taken until the lawyer has been retained and is present. If I had been representing Aaron at the time of these interviews I would have advised him to take the fifth across the board. Among other things, my client cannot adequately answer the question of cognizance—I believe that will be for the psychiatric team to determine. The fact is, there is nothing really incriminating in these interviews, anyway—it’s strictly a matter of principle.”

  “Oh please,” Venable said with disgust. “Principle? What principle? He was Miranda’d three times, assigned one of the best lawyers in the state—”

  “Why thank you, Counselor,” Vail intervened.

  She glared at him and went on. “And it is obvious from these interviews that Stampler understands the charges. He knew—”

  Vail had returned to his desk and picked up a copy of the transcript. He walked back and forth, one hand hooked to a suspender, the other brandishing the stapled report.

  “Your Honor,” Vail said, cutting her off again, “you will note that my client stated eight times, including once when he was first arrested, and consistently thereafter, that he is innocent of the crime. Furthermore, on page one of the prosecutor’s transcript, after Lieutenant Stenner read my client his rights, we see the following exchange:

  STENNER: Do you have an attorney?

  STAMPLER: No sir.

  STENNER: Do you wish the court to appoint you an attorney at no expense?

  STAMPLER: Yes sir, that would be most kind.

  “There you have it, Judge. Nebraska versus Flannery. They should have stopped right there until Stampler had proper representation. And I have an objection before the bench, Your Honor.”

  “The defendant signed three—three!—waivers,” Venable insisted.

  “If he knew what he was signing. Your Honor …” Vail started, but Shoat held up his hand. He looked down at Jane Venable. “Madam Prosecutor,” he said, “I mean no disrespect toward your investigators nor am I implying that they—in any way—violated the defendant’s rights. However, there does appear to be precedent here and there could be a gray line and I think justice may best be served if you and Mr. Vail start off even-steven, so to speak. So I am going to sustain Mr. Vail’s objection. The transcripts are out, Miss Venable.”

  “Exception,” she snapped.

  “Exception noted,” Shoat said, nodding to the clerk. “Anything else?”

  “I would request that the court have my client transferred to Daisyland during the period before the trial for the purpose of a complete psychiatric evaluation by the state.”

  “That can be done here, Your Honor,” Venable said quickly. “No need to send him upstate. Daisyland’s a two-hour drive from here.”

  “I assume then, that prosecution has no objection to the psychological evaluation?” said Vail.

  “None,” said Venable. “We do object to moving Stampler to Daisyland.”

  “That’s another reason we request relocation, Judge,” Vail countered. “As you know, this crime has generated a great deal of publicity. In fairness to Mr. Stampler, I feel we need to move him out of the city, away from the limelight. Since we can’t change venue, the next best option is to sequester him in Daisyland until just before the trial.”

  “Well, sir,” the judge said, “I don’t see that locking him up at Daisyland is going to reduce the public’s attention any more than if he stays here. Conversely, if we are going to evaluate your client, it would seem that Daisyland would be the proper place to do it.”

  “We would like easier access to the prisoner,” said Venable.

  “Why?” said Vail. “He’s not going to say anything to you. He’ll take the fifth if you ask him his full name.”

  “Can we save the squabbling for the trial, please?” Shoat said, trying hard to be gracious.

  “The state objects to moving the accused to the state facility,” Venable said.

  “Overruled, Counselor,” Shoat said. “I see no possible reason not to move Stampler up there. If you want to hear him take the fifth you can drive two hours to do it. The court hereby orders that Aaron Stampler be transmitted to the criminal section at Daisyland State Hospital and that he be evaluated by the st
aff there.”

  “I would also like to request that my staff and I be given unlimited visitation rights,” Vail said.

  Shoat nodded. “Yes, yes, Mr. Vail, contingent with the rules of the hospital, of course.” He stared over his glasses at the lawyer. “I wouldn’t expect you to be dropping in at two or three in the morning.”

  “No sir.” Vail smiled, then added, “Unless, of course, it’s an emergency.”

  Shoat glared down at him but said nothing. He turned to his book and leafed through the pages.

  “Anything else?” Shoat asked, leaning hard on the else.

  “Yes sir,” Vail said.

  Shoat groaned. “Let’s hear it, Mr. Vail.”

  “Defense would like to move at this time for suppression of the photographs taken by the coroner at the scene of the crime.”

  Venable was back on her feet, but Shoat, holding up his hand like a traffic cop, stopped her before she could speak.

  In the press box, Jack Connerman laughed. He leaned over to Odum and said, “Christ, Vail’s throwing everything at them. He’s trying the case at the fuckin’ arraignment.”

  “He’s gonna piss Shoat off,” Odum replied.

  “Hell,” said Connerman, “he’s been doing that for years.”

  “Excuse me, Miss Venable,” Shoat said. “I’m sure you object to the motion about the pictures. Let’s let Mr. Vail explain himself. Counselor?”

  “The photographs will only inflame the jury, Your Honor,” said Vail. “We will not deny murder was done, nor will we object to the introduction of the coroner’s findings or the autopsy report. But the introduction of these pictures, particularly to a lay jury, would be both shocking and prejudicial. We would agree to perhaps a single long shot, to establish the environment. But the photographs themselves have nothing to do with my client’s guilt or innocence.”

  Shoat looked at Venable for a response.

  “Your Honor, they identify the heinous”—and she looked at Vail and smirked—“nature of the crime. This is not just a murder case, this is a case of mutilation, possible torture, emasculation … all integral to the state’s case. The jury has a right to perceive the brutality of the crime. If counsel for the defense admits the crime was done, then he should have no objections to the official pictures of the scene and the victim.”