“ Go on.”
“ Jo Jo did.”
“ It is a plausible version of events, is it not? She encouraged you to fight him, provoking you with the tale of her beating. When you failed to dispatch him, she expedited the process.”
“ Great theory, H.T. How do we prove it? I can’t testify that she told me to attack Cimarron. Hell, she told me not to come to the barn. She tried to stop me.”
“ Really? And did you pay attention to her words or to the pain in her voice, to the choking sobs with which she enticed you?
“ Okay, I get it, but will a jury believe Jo Jo set me up to kill Cimarron?”
“ Or him to kill you.”
“ What?”
“ She egged him on, but from what you said, he resisted. Oh, he was going to do plenty of damage but stop short of killing you. That’s not what she wanted. She needed you dead.”
“ Wait, you’re losing me. I thought she wanted him dead.”
“ Either way, Cimarron would be out of the picture, wouldn’t he? If you were dead, she could go back to story number one. Cimarron beat her, you tried to help, he killed you. He gets convicted of murder. If he’s dead, well that’s even better, and if Jake has to take a fall, too bad.”
I chewed that over with some boiled peanuts, then said, “No way a jury will buy it. I don’t even buy it. I mean, why did she want Cimarron dead or convicted of murder?”
“ How should I know? I’m just playing poker with the cards dealt to me. You’ve got to figure the rest out.”
“ But you want me to say Jo Jo killed him?”
“ As I said before, it’s a plausible version of events, and the only explanation I have for her goading first you, then him, into a brawl.”
I sat quietly a moment, trying to think like a juror and follow the twisted path of our defense, as just outlined by my lawyer.
Too complex, too weird.
Besides, I couldn’t swear I didn’t fire the shot, if you’ll pardon the double negative.
Another thing, I didn’t see Jo Jo shoot anybody.
And finally, if you’re going to accuse someone else, you better show a motive for the crime. If Jo Jo had a problem with Cimarron, she didn’t have to kill him or have him charged with murder. She could have just gone home. After all, she came to Colorado to be with him.
Patterson said, “Just so the record is straight, Jake, I am not encouraging you to tell a version of the story that is less than the truth. I am only asking you to search the depths of your subliminal memory, that shadowy territory where light meets darkness, where conscious thought gives way to clouded, obscured vision. Perhaps if you search those dim perimeters of the mind, either by intense concentration or by hypnotic trance, your recollection will be enhanced.”
In other words, H.T. was telling me, I could make it up, but that was my decision entirely.
I thought about it some more, then said, “I can’t do it, old buddy. I can’t do it because that’s not what happened, and I can’t do it because it wouldn’t work anyway.”
Patterson nodded gravely and signaled the waitress for the check. “I understand, Jake, but just out of curiosity, would you do it if that’s not what happened, but it would work?”
On Wednesday morning, a fellow in a cardigan sweater took the stand. He told the jury his name was Don Russo, and he was director of products safety for Toolmaster Inc., a Delaware corporation that was a wholly owned subsidiary of a Japanese conglomerate with factories in Indonesia and Taiwan. Don Russo knew everything you ever wanted to know about the Masterjack Stud Driver 500.
“ That’s our top-of-the-line powder-actuated power-load stud driver, or what you folks might call a nail gun,” he told the jury.
Russo was a pleasant man with clear-rimmed eyeglasses, and he reminded me of the enthusiastic clerk in the hardware store who knows just what grade of sandpaper you need for every imaginable job. Russo usually testified in civil cases where a hapless amateur carpenter put a nail through his hand, trying to cock the gun with his palm over the muzzle and his finger on the trigger.
Now Russo stood in front of the jury box, holding state’s exhibit nine, a red evidence tag tied around its rubberized handle. “I always advise folks to treat the Masterjack as they would a rifle. Heck, they don’t understand, just because the bullet’s got no projectile, that doesn’t mean it’s not powerful. It’s really much more powerful than small arms ammo of the same caliber.”
We learned how the powder explodes, sending expanding gas against a captive piston, which slams into a pin that shoots a nail out the barrel into what Russo called the working surface, which in this case was K. C. Cimarron’s skull. We learned not to use nails that are too long, because they may fishhook in concrete and come back out at you like a boomerang. We learned the importance of keeping the breech wiped clean and we learned that someone, presumably Mr. Cimarron, had disengaged the safety device which was intended to prevent discharge unless the muzzle was pressed against the working surface. Russo tut-tut-tutted at that and said the gun is perfectly safe unless misused.
“ The stud driver is really for the professional, but every once in a while, we get somebody trying to hang a picture on the wall of his apartment and he ends up nailing his neighbor to the sofa in the next apartment.”
“ In short, Mr. Russo,” McBain asked in summary, “is exhibit nine a deadly weapon?”
“ If used as such, yes.”
“ And the firing of such a gun into the ear of another is an act calculated to cause death?”
Ah yes. The issue of intent.
“ Objection.” Patterson got to his feet. “Invades the province of the jury and not subject to expert opinion.”
Judge Witherspoon seemed to think about it.
“ This witness cannot ascertain the state of mind of my client,” Patterson continued.
“ I don’t believe that’s what the question called for,” the judge said. “Overruled.”
“ Yes, I should think so,” Russo responded. “Anybody who sticks a stud driver in somebody’s ear and pulls the trigger…why, there’s only one thing that can happen, and I guess every red-blooded American boy’s gotta know that.”
The coroner was an Asian-American woman in her forties who was the only trial participant shorter than H. T. Patterson. She approached the witness stand with dainty steps, sat down, and looked the jurors straight in the eye. She wore black flats and a white lab coat that came to her knees. A touch of purple eye shadow was her only makeup.
She took the oath, told us her name was Dr. Ivy Chin, with degrees from Berkeley and Harvard Medical School, internships and a residency at Mass General, plus extensive training in pathology at a variety of big-ticket hospitals. For the past five years, she’d been the chief deputy medical examiner for Pitkin County.
“ Did you have occasion to perform an autopsy on the body of Mr. Kit Carson Cimarron?” McBain asked.
“ Yes.”
Dr. Chin first saw the body in the morgue, cowboy boots hanging over the end of the steel tray. “I observed a major head wound, which I ultimately concluded to be the cause of death. There was what appeared to be an entrance wound in the area of the right ear and an exit wound in the temporal bone just above the left ear. From outward appearances, it had the characteristics of a gunshot to the head.”
“ What did you do then?”
“ I ordered X rays of the head to determine if any projectiles were inside the skull. There were none. With scalpel, I refracted the scalp which was bloody underneath. Then I sawed through the skull front to back and
