“Thank you,” Drabble said solemnly. “Pass the witness.”
Small gains, Ben reminded himself as he approached the podium. That’s what you strive for. This was the prosecution’s case, not his, and Drabble wasn’t putting people on the stand to make Ben happy. If he could accomplish any little thing, it was a successful cross.
He didn’t waste any time. He knew a police witness would never warm up to him-they were specifically trained not to-so there was no point in trying to win him over.
“You testified that there were six men sitting around the table where you eavesdropped. But you only arrested two of them, right?”
Sasser was nonplussed. “Jonathan Christensen and Brett Mathers were the only two who talked about assaulting the victim. The other four were just the audience. They seemed to think it was a wonderful thing the boys had done and a great cause for merriment, but they didn’t admit to participating.”
“Did you ever consider the possibility that Johnny Christensen might have been exaggerating?”
“That he might be claiming to have hurt the victim more than he really did? Why would he?”
“You said yourself that his audience seemed to enjoy this talk. Maybe he was trying to impress them.”
Sasser shook his head. “You know, counsel, I might be willing to go along with you on that-if I hadn’t seen the corpse upon which every disgusting act they described had been perpetrated.”
Ben knew better than to let a cop witness take the ball away from him. “Sergeant Sasser, you’re supposed to be testifying as to what you saw and heard-and nothing more. And you didn’t see Johnny Christensen strike Tony Barovick, did you?”
“No.”
“And the fact that he talked about it afterward doesn’t prove that he did, does it?”
“Well…”
“Have you ever heard anyone say something that wasn’t true?”
“Sure, but-”
“Especially when they’re trying to impress someone, right? You might’ve told a lie or exaggerated details on occasion to make a good impression yourself.”
“I never bragged about pummeling someone with a five-pound hammer. That’s for damn sure.”
Well, Ben told himself, I certainly opened the door for that one, didn’t I? He tried to press on quickly.
“Did you overhear anything that would indicate where the beating took place?”
“Not that I recall. I might’ve forgotten. Since we’d already found the body, there didn’t seem to be much question-”
“You’re assuming the beating took place at the fraternity house, where the body was found. But wouldn’t that be a rather odd place to attack and kill someone?”
Sasser shrugged. “Not especially. I assume they lured the boy there or forced him to come. It would afford privacy. They could turn up the stereo to drown out the screams.”
“And wouldn’t it be even stranger to leave the body there? Where the crime would certainly be traced back to them.”
“I never claimed these guys were geniuses. I expect they thought they had some time before they had to dispose of the body.”
“So you’re saying they killed the man right there, in their own home, left the body in the den, and went out for a beer?”
Sasser started to get agitated. “You can’t judge these people by normal standards. Anyone capable of doing what those two did clearly does not think like a normal person.”
This was getting him nowhere, Ben realized. Time to shift gears.
“You’ve admitted that the late Brett Mathers was also involved in this alleged beating, right?”
“Right. He’d be sitting at your table now, too, if he were still alive.”
“How can you know exactly what Johnny did and what Brett did?”
“I can’t. And fortunately the DA tells me it doesn’t matter.”
“Objection. What is the relevance of this questioning?” Drabble asked, addressing the bench. “We all know that when the commission of a felony results in a homicide, felony murder charges may be brought against all participants. And the last I heard, beating someone with a sledgehammer was a felony. So what difference does it make who did what?”
A huge difference, Ben thought, if not now, then for sentencing purposes. But he couldn’t argue that. “The point, your honor, is that two people were involved, and the prosecution doesn’t know which of the two-if either-actually killed Tony Barovick.”
“I’ll allow further questioning on this point,” Lacayo said. “But I warn you, Mr. Kincaid, that I will be instructing the jury on the elements of felony murder at the conclusion of the evidentiary phase, and if your client participated in any felony that resulted in a death, he is liable on this charge.”
Ben nodded, then returned his attention to the witness stand. “You mentioned your initial questioning of Johnny Christensen. I’ve had the pleasure of reading the transcript of that interrogation several times. Did Johnny ever confess to beating Tony Barovick with a hammer?”
“He talked about it in great-”
“Answer my question, sir. Did Johnny ever confess to using the hammer? Did he confess to even touching the hammer?”
Sasser exhaled slowly. “No.”
“In fact, he specifically said that it was his buddy Brett who used the hammer, right? And come to think of it, you found the hammer in Brett’s car, right?”
“Right.”
“In fact, according to Johnny, Brett was the one who committed all of the most brutal parts of the beating. Brett was the one who broke Tony’s legs. And used the Taser. And Johnny says he tried without success to get Brett to stop.”
“It’s no big surprise, after we’ve got him dead to rights, that he would try to pin everything on his friend.”
“Move to strike,” Ben said, “and I’ll ask the court to instruct the witness not to engage in speculation about motives.”
Lacayo nodded, without much enthusiasm. “The witness will limit his remarks to what he actually saw or heard.”
The flaw in this argument, as Ben knew all too well, was that Brett, before he died, had tried to pin everything on Johnny. But, happily, that transcript wasn’t coming in. “The bottom line, sir, is that you don’t know where the victim was killed, or how, or by whom. At best, all you know is that a beating took place. But that does not equal murder.”
“You ever had your legs shattered?” Sasser shot back.
“I’m sorry, Sergeant, but in cross-examination, I get to ask the-”
“Because I have.” He turned toward the jury. “In the war. Vietnam. You can’t imagine how that hurts.”
“Objection,” Ben said hastily. “Nonresponsive. Not relevant.”
“It is relevant!” Sasser shouted. “The only reason I survived is that I got medical attention fast.”
“Move to strike!” Normally, law enforcement witnesses were well behaved and by-the-book. Something inside this guy had snapped.
The judge pounded his gavel. “The witness will refrain from-”
Sasser ignored him. “But Tony Barovick didn’t get medics. They just left him lying on the floor to die. To bleed to death. They didn’t care.”
Lacayo shouted across the room. “Mr. Drabble, take control of your witness!”
“This witness is dismissed,” Ben said. “Move to strike his irrelevant statements. In fact, I move to strike his entire testimony.”
“Why?” Sasser growled. “Because you’re afraid of the truth?”
Ben rushed to the bench. This emotional outburst might have an impact on the jury, but it could also give him a mistrial, or possibly even grounds for appeal.
“I’ll go,” Sasser said, stepping down from the stand. Then suddenly, he whirled back around on Ben. “But don’t tell me we can’t call it murder because we don’t know who did what or which of the many tortures actually killed that poor boy. It was brutal, cold-blooded murder. And anyone-everyone-who had anything to do with it deserves to die!”