bars for several years, regardless of the brilliant advice I dispensed for hours.
Gardy and I are given separate rides back to the courthouse. A larger crowd of enemies jeer at me as I’m sort of dragged out of the car, still in handcuffs. Once I’m inside and away from any photographers, they remove the handcuffs. Partner is waiting in the hallway. I made the morning edition of the Chronicle, the City’s daily. Metro section, third page. No big deal—Rudd is thrown in jail again.
As instructed, I follow a bailiff back into the chambers of Judge Kaufman, who’s waiting with Huver. Both wear smirks and are curious to see how I survived the night. I do not mention the jail, do not acknowledge the fact that I’ve not slept, eaten, or showered in a long time. I’m in one piece, raring to go, and this seems to irritate them. It’s all fun and games, with Gardy’s life on the line.
Seconds after I step into chambers, another bailiff rushes in and says, “Sorry, Judge, but there’s a U.S. marshal out here says you gotta be in federal court in the City at eleven this morning. You too, Mr. Huver.”
“What the hell?” Kaufman says.
Oh so helpfully, I explain, “It’s a habeas corpus hearing, Judge. My lawyers filed it yesterday afternoon. An emergency hearing to get me out of jail. You guys started this crap, now I have to finish it.”
“Does he have a subpoena?” Huver asks. The bailiff hands over some paperwork and Huver and Kaufman scan it quickly.
“It’s not a subpoena,” Kaufman says. “It’s sort of a notice from Judge Samson. Thought he was dead. He has no right to notify me to be present for a hearing of any kind.”
“He’s been off his rocker for twenty years,” Huver says, somewhat relieved. “I ain’t going. We’re in the middle of a trial here.”
He’s not wrong about Judge Samson. If the lawyers could vote for the craziest federal judge in the land, Arnie Samson would win in a landslide. But he’s my crazy friend, and he’s freed me from jail before.
Kaufman says to the bailiff, “Tell the marshal to get lost. If he starts trouble, tell the sheriff to arrest him. That’ll really piss him off, won’t it? The sheriff arresting a marshal. Ha. Bet that’s never happened before. Anyway, we’re not leaving. We have a trial to resume here.”
“Why’d you run to federal court?” Huver asks me in all seriousness.
“Because I don’t like being in jail. What kinda stupid question is that?”
The bailiff leaves and Kaufman says, “I’m vacating the contempt order, okay, Mr. Rudd? I figure one night in the slammer is enough for your behavior.”
I say, “Well, it’s certainly enough for a mistrial or a reversal.”
“Let’s not argue that,” Kaufman says. “Can we proceed?”
“You’re the judge.”
“What about the hearing in federal court?”
“Are you asking me for legal advice?” I fire back.
“Hell no.”
“Ignore the notice at your own risk. Hell, Judge Samson might throw the both of you in jail for a night or two. Wouldn’t that be funny?”
12.
We eventually make it back to the courtroom, and it takes some time to get everyone settled. When the jury is brought in, I refuse to look at them. By now they all know I spent the night in jail, and I’m sure they’re curious about how I survived. So I give them nothing.
Judge Kaufman apologizes for the delays and says it’s time to get to work. He looks at Huver, who stands and says, “Your Honor, the State rests.”
This is an amateurish ploy designed to make my life even more miserable. I rise and angrily say, “Your Honor, he could’ve told me this yesterday or even this morning.”
“Call your first witness,” Kaufman barks.
“I’m not ready. I have some motions. On the record.”
He has no choice but to excuse the jury. We spend the next two hours haggling over whether or not the State has presented enough proof to keep going. I repeat the same arguments. Kaufman makes the same rulings. It’s all for the record.
My first witness is a scraggly, troubled kid who looks remarkably similar to my client. His first name is Wilson; he’s fifteen years old, a dropout, a druggie, a kid who’s basically homeless, though an aunt allows him to sleep in the garage whenever he’s sick. And he’s our star witness!
The Fentress girls went missing around 4:00 on a Wednesday afternoon. They left school on their bikes but never made it home. A search began around 6:00 and intensified as the hours passed. By midnight, the entire town was in a panic and everyone was outside with a flashlight. Their bodies were found in the polluted pond around noon the following day.
I have six witnesses, Wilson and five others, who will testify that they were with Gardy on that Wednesday afternoon from around 2:00 until dark. They were at a place called the Pit, an abandoned gravel pit in the middle of some dense woods south of town. It’s a secluded hideout for truants, runaways, homeless kids, druggies, petty felons, and drunks. It attracts a few older deadbeats, but for the most part it’s a haven for the kids nobody wants. They sleep under lean-tos, share their stolen food, drink their stolen booze, take drugs I’ve never heard of, engage in random sex, and in general waste away the days while sliding closer to either death or incarceration. Gardy was there when someone else abducted and murdered the Fentress girls.
So we have an alibi—my client’s whereabouts can be vouched for. Or can it?
By the time Wilson takes the stand and is sworn in, the jurors are suspicious. For the occasion he’s wearing what he always wears—grimy jeans with lots of holes, battered combat boots, a green T-shirt proclaiming the greatness of some acid-rock band, and a smart purple bandanna looped around his neck. His scalp is skinned above the ears and yields to a bright orange Mohawk roaring down the center. He’s displaying the obligatory collection of tattoos, earrings, and piercings. Because he’s just a kid without a clue and is now being dragged into such a formal setting, he instantly retreats behind a smirk that makes you want to slap him.
“Just be normal,” I told him. Sadly, he is. I wouldn’t believe a word he says, though he’s telling the truth. As rehearsed, we walk through that Wednesday afternoon.
Huver annihilates him on cross-examination. You’re fifteen years old, son, why were you not in school? Smoking dope, huh, along with your pal here, that’s what you’re telling these jurors? Drinking, and drugging, just a bunch of deadbeats, right? Wilson does a lousy job of denying this. After fifteen minutes of abuse, Wilson is disoriented, afraid he might be charged with some crime. Huver hammers away, a bully on the playground.
But because Huver is not too bright, he goes too far. He’s got Wilson on the ropes and is drawing blood with each question. He’s grilling him about dates—how can he be certain it was that Wednesday back in March? You kids keep a calendar out there at the Pit?
Loudly, “You have no idea what Wednesday you’re talking about, do you?”
“Yes, sir,” Wilson says, politely for the first time.
“How?”
“Because the police came out there, said they were looking for two little girls. That was the day. And Gardy had been there all afternoon.” For a kid without a brain, Wilson delivers this perfectly, just like we practiced.
Evidently, when there is a crime in Milo slightly more serious than littering, the police rush out to the Pit and make accusations. Harass the usual suspects. It’s about three miles from the pond where the Fentress girls were found. It’s blatantly obvious none of the regulars at the Pit have any means of transportation other than their feet, yet the police routinely show up and throw around their considerable weight. Gardy says he remembers the cops asking about the missing girls. The cops, of course, do not remember seeing Gardy at the Pit.
None of this matters. This jury is not about to believe a word Wilson says.
Next, I call a witness with even less credibility. They call her Lolo, and the poor child has lived under bridges and in box culverts for as long as she can remem
ber. The boys protect her and in return she keeps them satisfied. She’s now nineteen and there’s no way she will see twenty-five, not on this side of the bars. She’s covered in tattoos, and by the time she’s sworn in the jurors are already disgusted. She remembers that particular Wednesday, remembers the cops coming out to the Pit, remembers Gardy being there all afternoon.
On cross, Huver can’t wait to bring up the fact that she’s been busted twice for shoplifting. For food! What are you supposed to do when you’re hungry? Huver makes this sound like she deserves the death penalty.
We plow ahead. I call my alibi witnesses, who tell the truth, and Huver makes them look like criminals. Such is the lunacy and unfairness of the system. Huver’s witnesses, the ones testifying on behalf of the State, are cloaked with legitimacy, as if they’ve been sanctified by the authorities. Cops, experts, even snitches who’ve been washed and cleansed and spruced up in nice clothes, all take the stand and tell lies in a coordinated effort to have my client executed. But the witnesses who know the truth, and are telling it, are discounted immediately and made to look like fools.
Like so many, this trial is not about the truth; it’s about winning. And to win, with no real evidence, Huver must fabricate and lie and attack the truth as if he hates it. I have six witnesses who swear my client was nowhere close to the scene when the crime was committed, and all six are scoffed at. Huver has produced almost two dozen witnesses, virtually all known to be liars by the cops, the prosecution, and the judge, yet the jurors lap up their lies as if they’re reading Holy Scripture.
13.
I show the jurors a map of their lovely town. The Pit is far away from the pond; there’s no possible way Gardy could have been in both places at the approximate time the girls were murdered. The jurors don’t believe any of this because they have known for some time that Gardy was a member of a satanic cult with a history of sexual perversion. There is no physical proof that the Fentress girls were sexually assaulted; yet every miserable redneck in this awful place believes Gardy raped them before he killed them.
At midnight, I’m lying across my lumpy motel bed, 9-millimeter by my side, when my cell phone beeps. It’s the DNA lab in San Diego. The blood Tadeo brutally extracted from the forehead of Jack Peeley matches the strand of hair the murderer left behind in the shoelaces he tightly bound around the ankles of Jenna Fentress, age eleven.
14.
Sleep is impossible; I can’t even close my eyes. Partner and I leave the motel in the dark and are almost to Milo before we see the first hint of light in the east. I meet with the Bishop in his office as the town slowly comes to life. He calls Judge Kaufman at home, gets him up and out of bed, and at 8:00 a.m. I’m in his chambers with Huver and the court reporter. All of what follows will be on the record.
I lay out my options. If they refuse to stop the trial, dismiss the case, and send everybody home—and this is what I expect them to do—then I will either (1) issue a subpoena for Jack Peeley, have him hauled into court, put him on the stand, and expose him as the killer; or (2) go to the press with the details of the DNA testing; or (3) announce to the jury what I know; or (4) do all of the above; or (5) do nothing, let them get their conviction, and slaughter them on appeal.
They demand to know how I obtained a blood sample for Jack Peeley, but I’m not required to tell them. I remind them that for the past ten months I’ve begged them to investigate Peeley, to get a blood sample, and so on, but they have had no interest. They had Gardy, one of Satan’s foot soldiers. For the tenth time I explain that Peeley (1) knew the girls, (2) was seen near the pond when they disappeared, and (3) had just broken up with their mother after a long, violent romance.
They are bewildered, stunned, at times almost incoherent as reality settles in. Their bogus and corrupt prosecution has just unraveled. They have the wrong man!
Virtually all prosecutors have the same genetic flaw; they cannot admit the obvious once it’s on the table. They cling to their theories. They know they are right because they’ve been convinced of it for months, even years. “I believe in my case” is one of their favorite lines, and they’ll repeat it mindlessly as the real killer walks forward with blood on his hands and says, “I did it.”
Because I’ve heard so much of their idiotic bullshit before, I have tried to imagine what Huver might say at this point. But when he says, “It’s possible Gardy Baker and Jack Peeley were working together,” I laugh out loud.
Kaufman blurts, “Are you serious?”
I say, “Brilliant, just brilliant. Two men who’ve never met, one eighteen years old, the other thirty-five, join up for about half an hour to murder two little girls, then go their separate ways, never to see each other again and both determined to keep their mouths shut forever. You wanna argue that on appeal?”
“It wouldn’t surprise me,” Huver says, scratching his chin as if his high-powered brain is clicking right along and sifting through new theories of the crime.
Kaufman, whose mouth is still open in disbelief, says, “You can’t be serious, Dan.”
Dan says, “I want to proceed. I think Gardy Baker was involved in this crime. I can get a conviction.” It’s pathetic to watch him plunge onward when he knows he’s wrong.
“Let me guess,” I say. “You believe in your case.”
“Damned right I do. I want to go forward. I can get a conviction.”
“Of course you can, and getting a conviction is far more important than justice,” I say, remarkably under control. “Get your conviction. We’ll slog through the appellate courts for the next ten years while Gardy wastes away on death row and the real killer walks the streets, then one day a federal judge somewhere will see the light and we’ll have another high-profile exoneration. You, the prosecutor, and you, the judge, will look like idiots because of what’s happening right now.”
“I want to go forward,” Huver says like a defective recording.
I keep going: “I think I’ll go to the press, show them the DNA test results. They’ll splash it around and you’ll look like a couple of clowns still trying the case. Meanwhile, Jack Peeley will disappear.”
“How’d you get his DNA?” Judge Kaufman asks me.
“He got in a bar fight last Saturday at the Blue & White, got his face busted, and the guy who did it works for me. I personally scraped Peeley’s blood off my guy’s fist and sent it to the lab, along with a sample of the hair I collected earlier.”
“That’s tampering with the evidence,” Huver says, predictably.
“Oh, sue me, or throw me in jail again. This little party’s over, Dan, give it up!”
Kaufman says, “I want to see the test results.”
“I’ll have them by tomorrow. The lab’s in San Diego.”
“We’re in recess until then.”
15.
At some point during the day, the judge and the prosecutor meet secretly. I’m not invited. The rules of procedure prohibit such clandestine meetings, but they happen. These guys need an exit strategy, and fast. By now they know I’m half-crazy and I will indeed run to the press with my test results. At this desperate hour, they are still more concerned with politics than with the truth. All they care about is saving face.
Partner and I return to the City, where I spend the day working on other cases. I convince the lab to e-mail the test results to Judge Kaufman, and by noon he knows the truth. At 6:00 p.m. I get the phone call. Jack Peeley has just been arrested.
We meet the following morning in Kaufman’s chambers, not in open court, where we belong. A dismissal in open court would be far too embarrassing for the system, so the judge and the prosecutor have conspired to do it behind closed doors, and as quickly as possible. I sit at a table with Gardy by my side and listen as Dan Huver limps through a tepid motion to dismiss the charges. I strongly suspect that Huver wants to proceed with his beloved case, the one he believes in so strongly, but Kaufman said no; said this little party is over; said let’s cut our losses and get this radical basta
rd and his brain-damaged client out of here.
When the paperwork is signed, Gardy is a free man. He’s spent the last year in a tough jail—I should know. But a year in jail for an innocent man is pure luck in our system. There are thousands locked away for decades, but that’s another soapbox.
Gardy is bewildered, not sure where to go or what to do. As they lead us out of Kaufman’s chambers, I hand him two $20 bills and tell him good luck. They’ll sneak him back to the jail to collect his assets, and from there his mother will take him somewhere safe. I’ll never see him again.
He doesn’t say thanks because he doesn’t know what to say. I don’t want to embrace him because he didn’t shower last night, but we manage a quick hug in a narrow hallway while two deputies watch us. “It’s over, Gardy,” I keep saying, but he doesn’t believe me.
Word has leaked and there’s a mob waiting outside. The town of Milo will never believe anyone but Gardy killed the Fentress girls, regardless of the evidence. This is what happens when the cops act