Authors: Attica Locke
Nichols walks the doctor through the gruesome facts, the beating and the suspected sexual assault, the bruising around her pelvic area and across the face and neck. The cause of death was strangulation, the manner of death homicide. On cross, Jay gets as far as he's likely to get in dismantling the state's case. There is, he reminds the jury, stealing a look at the black men in the second row, not a single piece of evidence on the victim's body that suggests his client ever came into contact with Alicia Nowell, let alone killed her. “Testing of the material underneath the victim's fingernails was inconclusive, yes,” Dr. Singh says.
“And again, to be clear, Dr. Singh, that means none of it matched the DNA sample of my client, Neal Hathorne, isn't that right?”
“That is correct.”
On redirect, Dr. Singh, with the D.A.'s prompting, reminds the jurors that the testing was “inconclusive,” as he turns to give them an impromptu lecture on the adverse effects of moisture on DNA material. “It's terrible, in fact.”
“So the fact that the DNA test results were inconclusive doesn't mean that it
wasn't
the defendant's DNA, does it?”
“Objection, leading.”
“Sustained.”
“Let me ask it this way, then,” Nichols says. “Can Mr. Hathorne be ruled out as the contributor of the DNA found under the deceased's right fingernails?”
“You cannot draw any real conclusions from this test, no.”
“Oh, I think we can,” Jay says on recross. “Inconclusive, by definition, means you cannot conclude that it was the DNA of my client, isn't that right?”
Dr. Singh sighs. “Yes, that is correct.”
Next up:
Derek Menendez, Sprint technician.
He's here to pick up the story of the pager, found in the victim's purse, and to get into evidence the phone records attached to the ten-digit pager number that Alicia Nowell was using. At 7:32
P
.
M
., November fifth, Ms. Nowell's pager did receive a call from 713-457-2221, digits that were stored in the small device. Jay, in a few questions, reminds the jury that there is no recording of any phone conversation between Neal and Alicia, nor proof that any such conversation ever took place. “I wouldn't know anything about that,” Menendez says.
Next up:
Tony Perlman, AT&T rep.
His only role is to establish that the above phone number
belonged to a cellular telephone account paid for monthly by Mr. Neal P. Hathorne.
Jay passes on a cross.
And Judge Keppler breaks for lunch.
Lonnie agrees
to meet him at the hospital. As soon as he steps through the sliding glass doors of the emergency room at St. Joseph's, Jay starts to feel short of breath. It's the stark scent of industrial-grade bleach and the cold, cold recycled air that tighten his chest, making him feel light-headed. He hasn't been inside a hospital, or a doctor's office for that matter, in a year. “Rolly Snow,” he tells the intake nurse, before being sent up to the third floor, to room 312, where the man himself is sleeping, seventeen hours out of surgery now. He's lying on top of the bedsheets, bare chested. Jay can see the thick bandages, just under his left clavicle but, thank god, above his heart. Marisol, in a rather demure pair of brown slacks and a flowery blouse, is standing to the side of the hospital bed, leaning over the brushed metal railing to sweep damp black hairs away from Rolly's face. “He's okay,” she says, barely turning when Jay walks in. Maybe it's the clothes, or the hospital setting, but she actually looks like someone's grandmother today, cooing words into Rolly's ear in Spanish. “He's going to be okay,” Jay hears again, this time from Lonnie, who is sitting by the room's one window, a slim rectangle just to the left of the door. For a moment, none of them says anything, just three sets of eyes on the patient and the soft whir of the compression pump attached to his legs to prevent blood clots. Bernie'd had to wear the same. The steady rhythm of it, like a ghost's breath in the room, used to keep her up, day and night. To Marisol, Jay says, “I'm sorry.”
She won't look at him. “You're trouble, both of you.”
“He's very lucky,” Lon says, which leads Marisol to cut her eyes at the white girl. She suddenly grabs her purse off Rolly's rolling meal tray. “I'm getting coffee,” she says, sliding the beaded strap onto her right shoulder. “He wakes up, you tell him just like that, tell him I said I'm getting coffee,” she says rather cryptically. Jay watches her walk out, wondering if he or Rolly will ever see her again. He will never forgive himself if he cost Rolly his girl. He inches closer to the bedside, reaching for the tattooed knuckles of Rolly's good hand. The very warmth of it is such a comfort, Jay nearly cries. “He
is
lucky,” Lonnie says.
A few
moments later, they step outside to let him sleep, leaving the door ajar. They lean against the wall just across the hall from the nurses' station, Lonnie with an update on America's Tomorrow.
“It's a 527, a PAC.”
“A political action committee?”
“It was registered with the FEC early this year.” From her shoulder bag, she pulls a photocopy of a Federal Election Commission report. “This is a list of donors for the first quarterly reporting period, January to March of this year.” She hands it to Jay, who scans it quickly. “Those are some big names, my friend.”
“Yes, they are,” he says, reading.
AT&T
Bush, Dorothy
Bush, Marvin
Carlton, Jeffrey
Chevron
Cole Oil Industries
Cole, Richard
Cole, Mrs. Richard
Cole, Thomas
Dorian, Paul
Enron
Fox, Sam
Hunt, Ray L.
Koch, David and Julia
Lay, Kenneth and Linda
Luckman, Charlie
Maddox, Cynthia
Merrill Lynch
Mosbacher, Robert
National Rifle Association
Nunez, Pedro and Rita
PhRMA
Pfizer
ProFerma Chemicals
Philip Morris
Rose, Mark and Leanne
Stoney, Lee
Wyly, Charles
Wyly, Sam
“What does any of this have to do with Wolcott? These people are all donating to her mayoral campaign?” he says, looking down at one name in particular. It would mean he was right all along. Cynthia was double-dealing.
“I don't know,” Lon says.
Jay folds the paper lengthwise and slides it into the inside
pocket of his suit jacket. “I've got to get back to court,” he says, glancing through the crack in the doorway to Rolly's hospital room, watching for a few moments the rise and fall of his chest. “Can you stay for a little bit?” he asks. “In case he wakes up?”
“Sure thing,” she says. “And I'll check in with Rob Urrea too. Maybe this list of names means something to him.”
The court has
thinned for the day's second act, with half the seats in the gallery empty after intermission. The Hathornes are here, of course, and the Robicheauxs, both in the front row but on opposite sides of the courtroom. The
Chronicle
still has reporters present, including Bartolomo, but the usual court watchers and trial junkies got their fill from the autopsy photos before lunch.
Next up: Kenny Ester, the boyfriend.
“Mr. Ester, did you know a person by the name of Alicia Nowell?”
“Yes,” he says, the tears starting. He cries through his entire testimony actually, led gingerly by Matt Nichols into the story of meeting Alicia Nowell in fifth-period trigonometry during
their junior year. “She was smart,” he says, “a lot smarter than people gave her credit for, smarter than she even knew, my opinion. I wanted her to go to college, tried to get her to apply to Lamar University, in Beaumont, with me. But she was worried about money, you know. She figured she'd work a little, save some cash, and maybe there'd be a scholarship or something. I think that's why she wanted to volunteer on a campaign. She thought some school might look at that and put her at the top of the pile.”
“Well, let's get to that, Mr. Ester,” Nichols says.
The jury hears the story for the first time (and all from Kenny Ester's point of view) of how Neal Hathorne participated in the candidate forum at the high school, representing his uncle's campaign, and how he had singled out Alicia and flirted openly with her, right in front of her boyfriend. “I didn't like the dude.” Kenny's alibi on the night in question is unimpeachable, and Jay doesn't bother trying to dismantle it on cross. Instead, he attempts, suceeding rather easily, to make Kenny look like the jealous type who misread a situation that was as simple as the description of the event: campaigns looking for volunteers.
“But he
gave
her his card.”
“How else was she supposed to reach him?”
Kenny leans back, crossing his arms.
He's in a boy's idea of dress attire, a pressed golf shirt and baggy black jeans. He got a new fade for court, S-curls shining on top.
“Your girlfriend, she took other business cards that day, didn't she?” Jay says, letting the boy testify, with his body language, to the fact that his grief is now hiding behind anger, an emotion that rarely ever works on a witness stand.
“I guess.”
“In fact, Alicia reached out to the Wolcott campaign, didn't she?”
“That day, naw. It was her and him talking,” he says, pointing to Neal.
“But she eventually reached out to their campaign, didn't she?”
“Objection, calls for hearsay.”
“Sustained,” Judge Keppler says, her first word on record since lunch.
“Your Honor, he may have personal knowledge of Alicia Nowell's activities in the days and weeks leading up to her death,” Jay says, wishing almost as soon as the words are out of his mouth that he'd quit this cross three questions ago. Judge Keppler peers over the lenses of her purple eyeglasses at the witness stand. “Do you,” she says, “have personal knowledge, not something Ms. Nowell told you, but that you yourself witnessed?”
“Naw,” Kenny says, wiping his nose on his sleeve. “When me and her got together, we didn't talk about politics. I never heard of no Wolcott having to do with Alicia until
he
brought it up in the newspaper.” He is pointing right at Jay.
Next up:
Tonya Hardaway.
Jay turns as she's being led into the courtroom by the bailiff, only to see his daughter sitting in the second row of the gallery, behind Ola Hathorne. Just as Tonya Hardaway, in a black sheath dress and ballet flats, her braids pushed back with a yellow headband, is being sworn in, Jay stands.
“Can I have a minute, Your Honor?”
“Something wrong?” Judge Keppler says, blowing steam from the mug of tea her clerk just handed her. She glances above Jay's head at the courtroom's clock.
“Just one second, Judge.”
He slips past the bar into the gallery, pulling his daughter
with him into the hallway as half the courtroom watches. Outside the double doors, Ellie holds her backpack against her chest, almost as a buffer against her dad's rising anger. She's in the same jeans and roll-neck sweater she left the house in this morning.
“What are you doing here?”
“I want to watch.”
“How did you even get here?”
“I took the bus.”
Which, the way Metro runs, means she might have left school as long as two hours ago. “I thought we agreed, no more skipping class.”
“I didn't,” she says, reaching into the front pencil pouch of her backpack, retrieving a slip of yellow paper, folded in half. She hands it to Jay. It's a permission slip for an excused absence, signed by Principal Debra Hilliard.
“I told her you said it was okay.”
“Jesus, Ellie.”
The bailiff leans her head outside the courtroom. “Mr. Porter?”
“Yeah, I know,” he says to the deputy, glancing at his watch.
To Ellie, he says, “Get inside, we'll talk about it later.”
Nichols barely waits for Ellie to take her seat, for Jay to get to his place at the defense table, before he starts in on his direct examination of the former field director for Axel Hathorne. “And how long did you work for the campaign?”
“Eight months. I was the first hired when they put the official campaign together. I worked through the general election, just up until a few weeks ago.”
“Well, we'll get to that,” Nichols says, leaning against the lectern.
Neal, sitting beside Jay, closes his eyes. He knows what's coming.
“I want to discuss the night of the general election, November fifth. Were you working in the campaign office that day, Ms. Hardaway?”
“I was coordinating GOTV, get out the vote, from the main office, that's right. I was in contact with precinct captains throughout the day, but I was mostly in the office, yes,” she says, glancing over at Neal, almost leading Nichols right into his next question. Was the defendant in the office that day?
“He was in and out,” she says. “Election days are pretty hectic.”
“Well, let's narrow our focus then, shall we? Was Mr. Hathorne in the office on the evening of November fifth, around eight forty-five?” Nichols says, verbally drawing a line under the time Alicia Nowell was last seen across town.
“No, he had left the office almost two hours earlier. He asked me to take him off the schedule for the rest of the day.”
“Was that unusual?”
“Highly,” Tonya says. “He said he would be on his cell phone. I didn't see him again until after the polls closed, when he met up with the family and top staff at a viewing party at one of the donors' homes.”
“And did you try to reach the defendant during the time he was missing?”
“Objection, assumes facts not in evidence, that my client was âmissing,' rather than simply in a place that was none of this witness's business.”
“Objection, Your Honor, to counsel's argumentative tone.”
“Overruled,” Judge Keppler says, making a face at the objection to the objection. To Jay, she says, “Defense counsel's objection is sustained, but he is admonished to refer to the witness in a more respectful tone.”
“Yes, Your Honor.”
Jay can only imagine Ellie behind him, thoroughly enjoying
herself, having found the one place on earth where her dad's mouth actually gets
him
into trouble. Nichols, in a charcoal suit today, steps forward a few inches past the lectern, turning his back to Jay, as if he could block him out that way. Tonya shifts in her seat, adjusting the stiff neckline of her dress. Nichols asks her, “Did you try to reach Mr. Hathorne on the evening of November fifth?”
“Several times.”
“And?”
“He never answered his mobile phone or pager.”
Nichols glances back at his notes on the lectern, letting her words linger for a bit. Then, looking up, he asks her when she stopped working for the Hathorne camp. “After the girl went missing,” Tonya says, “Neal fired me.”
It's a specious presentation of the facts, suggesting causality where none has been proved. But it isn't worth the spotlight a verbal objection would put on it.
Jay stays in his chair.
“Do you know why you were fired, Ms. Hardaway?”
“For talking to a cop about Neal.”
Neal's knee finds and nudges Jay's beneath the table.
Jay nods without turning to look at his client.
He'll handle it.
“You had discussed Mr. Hathorne's sudden absence from contact with the campaign staff on Tuesday, November fifth, with Detective Moore?”
“Yes. He came into the office and asked about some of the staff, including Neal, and he asked questions about the schedule on the night of the fifth.”
“And how long after that were you let go from the campaign?”
“It was that afternoon.”
“I don't have anything further, Your Honor.”
“Mr. Porter?”
“Ms. Hardaway,” Jay says as he stands. He walks to the lectern, slapping down his legal pad. “The Hathorne campaign has a strict policy regarding the chain of command when it comes to communicating on behalf of the organization, isn't that right?” He looks up, staring at the witness.
“That's right.”
“In fact, it's in writing and known to all staff members that no one in the office is allowed to speak on behalf of the campaign, or distribute an in-house memorandum, such as a campaign schedule, to
anyone
, without going through Marcie Hall, the communications director, or Mr. Hathorne, the campaign manager, or the candidate himself, isn't that correct, Ms. Hardaway?”
“Yes.”
“So it is a misconception and a false impression to give this jury to suggest that it was talking to law enforcement about Mr. Hathorne's whereabouts that got you fired, when, really, you weren't following the rules.”
Tonya shrugs. “I talked to a cop, I got fired.”
“Which would make a nice title of a country song maybe, but not necessarily the way it happened, is it?”
“Objection, Your Honor, argumentative,” Nichols says, standing again, hands on his trim, athletic hips. He actually turns and glances at Jay, a pointed look of gleeful anticipation on his face, a sibling awaiting the punishment of an eternal foe. “Sustained,” Judge Keppler says sternly. “Be careful here, Mr. Porter.”
“Yes, Your Honor.”
Jay turns to address the witness again. He knows he's taking it out on her, the whole charade of this trial, his impatience with the slow drip of
Isn't it true?
and
Didn't you?
and with the yawning gulf between where they're standing and the truth.
“Where are you working now, ma'am?”
Nichols is on his feet again. “Objection, beyond the scope of direct.”
“Her employment was the whole point of direct.”
“Overruled.”
Tonya looks at the judge, then the D.A., hesitating.
“That means you can answer,” Jay tells her.
Tonya sits up a little straighter. “I am currently the field director for the campaign to elect Sandra Wolcott.”
“Working for the opposition, huh?”
“It's a job.”
“Might also suggest a lingering bitterness toward the Hathorne campaign, my client in particular,” Jay says, gesturing toward Neal, who glares at Tonya.
“Like I said, it's a job.”
“Okay,” Jay says, turning to grab, from the corner of the defense table, a single sheet of paper labeled
STATE
'
S EXHIBIT NO
. 37. “Permission to approach, Your Honor.” Nichols immediately calls for a sidebar at the bench.
At her desk, Judge Keppler peers down at the exhibit, a single sheet of paper.
Nichols, standing next to the court reporter at the bench, says, “This is a murder trial, not a dissection of election politics. This has no business here.”
“This is part of the
state's
evidence. It was in the girl's purse.”
“He's trying to prove something without laying any foundation for it.”
“I want to ask a simple question as relates to her employment with Hathorne. I'm not going to ask her to authenticate the document, just if she's seen it before, in the course of her employment with the Hathorne campaign.”
“I'll allow it,” Judge Keppler says.
Jay lays the BBDP flyer in front of the witness. As he walks
back to the lectern, he sees Sam Hathorne leaning over the bar to whisper something to his grandson. “Have you seen this before, Ms. Hardaway?” he asks. She nods, says yes, and sets it on the corner of the wooden banister in front of her.
“Can you tell the jury what this is?”
Tonya sighs, pressing her lips together for a moment.
It's clear this is an area she wasn't expecting to get into.
“It's a flyer, something that came to the campaign's attention.”
“A flyer that was circulating around Pleasantville, yes?”
“That's right.”
“And why was this of significance to the campaign?”
“We all thought it was a stunt by one of the other campaigns.”
“Which campaign, Ms. Hardaway?”
Tonya looks down for a second, fiddling with the hem of her dress, where it rests just above her knee. “We all thought it was the Wolcott campaign.”
“Including you?”
Following a small, sharp exhale, Tonya says, “Yes.”
They break
for the day earlier than usual, following a quick conference at the bench to discuss the pace of the schedule, Nichols wanting to know if Jay plans to call any witnesses, so he might prepare. Jay assures the judge no decision has been made as to whether he'll offer a defense, and Nichols, put on the spot by Judge Keppler, admits he has plans to call only one more witness before the state rests. Jay is momentarily stunned by the news. The state's case, laid out in open court, is even weaker than he thought, not so much a condemnation of Neal as a light scolding for not doing everyone the courtesy of at least
appearing
less guilty, making Nichols stand up and sit down, stand up and sit down for the past two days. Neal, leaving the
courtroom with his uncle and family, shows the first hint of a smile in days. He looks at his lawyer and gives him a grin, lopsided and unsure, but hopeful nonetheless. Sam pats Jay on the back on their way out. Axel's sisters are not in court today, but Vivian, in a teal coatdress, the color deep and stormy, holds her grandson's hand as they exit the courtroom. Ellie, slinging her backpack onto her shoulder, follows her dad down the fifth-floor hallway to the side stairs, both of them avoiding the crowd at the elevator bank. Outside, the air is cold, Houston being famously late to the fall dance, waiting until the second week of December to wring the last of the summer's humidity from the air. It's dropped below fifty for the first time since last Christmas. There's a curling wind snaking through the high-rise buildings downtown, rolling sideways down the length of Franklin Street, lifting wayward leaves and gum wrappers along the curbs. As they approach the Land Cruiser, parked in a twelve-dollar-a-day lot on Caroline, Ellie, in her cotton sweater, shivers. Jay peels off his suit jacket and drapes it over her shoulders. Then he hands her the car keys. “Now?” she says. She seems nervous, not just because she's never driven downtown, but also because she senses another talk coming on. She's slow to put herself behind the wheel. By the time she's in place for this impromptu driving lesson, Jay already has his seat belt on in the passenger seat, the photocopied list of donors to America's Tomorrow sitting faceup on his lap.