moment you look at it, you understand what really happened, and the state’s case blows away like smoke. That fingerprint, for example, which the government lawyer made so much of. You will hear how that fingerprint got there, just as Jacob told the policeman who arrested him, the moment he was asked. He found his classmate lying on the ground wounded, and he did what any good person would do: he tried to help. He rolled Ben over to check on him, to see if he was okay, to help him. And when he saw Ben was dead, he did the exact same thing many of us would do: he got scared. He did not want to get involved. He worried that if he told anyone he’d seen the body, let alone touched it, he would become a suspect, he might be accused of something he did not do. Was that the right reaction? Of course not. Does he wish he had been braver and told the truth right from the start? Of course he does. But he is a boy, he is human, and he made a mistake. There’s no more to it than that.
“Don’t-”
He stopped, looked down, considered his next sentence.
“Don’t let it happen twice. One boy is dead. Don’t destroy another innocent boy to make up for it. Don’t let this case become a second tragedy. We’ve had enough tragedy already.”
The first witness was Paula Giannetto, the jogger who discovered the body. I did not know this woman but I recognized her from around town, from the market or Starbucks or the dry cleaner. Newton is not a small town, but it is divided into several “villages” and within these neighborhoods the same faces keep popping up. Oddly, I did not remember seeing her jogging in Cold Spring Park, though apparently we both ran there often around the time of the murder.
Logiudice led her through her testimony, which dragged on too long. He was over-thorough, anxious to get from her every last ounce of detail and pathos there was to be got. Ordinarily, for the prosecutor a funny transformation takes place with the first witness: after standing center-stage for his opening statement, the prosecutor now steps out of the spotlight. The focus shifts to the witness, and the rules require the prosecutor to be almost passive in his questions. He steers the witness or prods her along with neutral questions like “What happened next?” or “What did you see then?” But Logiudice was quite picky about the details he wanted from Paula Giannetto. He kept stopping her to probe about this or that. Jonathan never objected to any of this, since none of the testimony tied Jacob to the murder even remotely. But again I sensed Logiudice fumbling his case, not by some grand strategic blunder but inch by inch, in a thousand little ways. (Was this wishful thinking? Maybe. I do not pretend to be objective.) Giannetto was on the stand for the better part of an hour relating her story, which was essentially unchanged since she first told it the day of the murder.
It had been a cool, damp spring morning. She was running along a hilly section of trail through Cold Spring Park when she saw what seemed to be a boy lying facedown on a leaf-strewn embankment, which sloped down to a tiny algae-skinned pond. The boy wore jeans, sneakers, and a sweatshirt. His backpack had tumbled down the hill near him. Giannetto was jogging by herself and she did not see anyone else near the body. She had passed a couple of other joggers and kids walking to school (the park was a common route to the McCormick School, which abutted it), but she saw no one near the body. She had not heard anything either, no cries or sounds of a struggle, since she had been listening to music on her iPod, which she wore in a holder strapped to her upper arm. She was even able to name the song that was playing when she saw the body: “This Is the Day” by a group called The The.
Giannetto stopped, removed the earbuds of her iPod, and looked down at the boy from the trail above. From just a few feet away, she saw the bottoms of his sneakers, his body foreshortened. She said, “Are you okay? Do you need help?” When she got no response, she went down to check on him, sidestepping carefully down the hill because of the slippery leaves. She was a mother, she said, and she could not imagine not checking on the boy, as she would expect others to do for her kids. She had it in her head that the boy had passed out, maybe from some sickness or allergy, maybe even from drugs or who knew what. So she got down on her knees beside him and jostled his shoulder, then jostled both shoulders, then rolled him over by his shoulders.
That is when she saw the blood that soaked his chest and the reddened leaves under him and all around him, still wet and glistening, draining out of the three vent-holes in his chest. The boy’s skin was gray but there were small splotches of pink on his face, she said. She had a vague recollection that his skin was cold to the touch but she had no specific memory of touching it. Perhaps the body had shifted in her hands so that its skin brushed her hand. The head fell back heavily, the mouth gawped open.
It took her a moment to process the surreal fact that the boy in her arms was dead. She dropped the body, which she had been holding under the shoulders. She screamed. She slid away from it on her butt, then turned and managed to scramble over the leaves on all fours back up the hill to the trail.
For a moment, she said, nothing happened. She stood there, alone in the woods, staring at the body. She could hear the music still playing faintly in her earbuds, still playing “This Is the Day.” The whole thing had not even lasted the three minutes it takes to get through a pop song.
It took a ludicrously long time to bring out this simple story. After such a lengthy direct examination, Jonathan’s cross was brief almost to the point of comedy.
“You never saw the defendant, Jacob Barber, in the park that morning, did you?”
“No.”
“No further questions.”
With the next witness, Logiudice misstepped. No, more than that. He stepped in shit. The witness was the Newton P. D. detective who had headed up the investigation for the local department. This was a standard, pro forma sort of witness. Logiudice had to begin by running a few witnesses up there to establish the essential facts and the timetable of that first day, when the murder was discovered. The first-responding cop is often called to testify about the state of the murder scene and the critical early moments of the investigation, before the case is joined-and taken over-by the State Police CPAC unit. So this was a witness Logiudice had to call, really. He was just following the playbook. I’d have done the same thing. The trouble was, he did not know his witness as well as I did.
Lieutenant Detective Nils Peterson joined the force in Newton just a few years before I started at the DA’s office, fresh out of law school. Which is to say, I had known Nils since 1984-when Neal Logiudice was in high school struggling to maintain a busy schedule of A.P. classes, band, and compulsive masturbation. (I am speculating. I cannot say for sure that he was in the band.) Nils had been handsome when we were younger. He had the sandy blond hair you might imagine based on his name. Now, in his early fifties, his hair had darkened, his back was a little stooped, his belly thickened. But he had an attractive soft-spoken demeanor on the stand, with none of the abrasive, cocksure bluster some cops exude. Juries swooned for him.
Logiudice took him through the basic facts. The body had been found lying on its back, face up to the sky, having been flipped over by the jogger who discovered it. The pattern of the three stab wounds. The lack of obvious motive or suspects. No signs of struggle or defensive wounds, suggesting a sudden or surprise attack. Photos of the body and the surrounding area were entered into evidence. In the first minutes and hours of the investigation, the park had been sealed and searched, with no results. Several footprints were found in the park but none in the immediate area of the body and none that were ever matched to a suspect. In any case it was a public park-there were probably thousands of footprint traces, if you cared to look for them.
And then this.
Logiudice: “Is it the usual procedure that an assistant district attorney is assigned to direct homicide investigations right away?”
“Yes.”
“Who was the assistant district attorney assigned to the case that day?”
“Objection!”
Judge French: “I’ll see counsel at sidebar.”
Logiudice and Jonathan went to the far side of the judge’s bench where they talked in low murmurs. Judge French stood tall above them, as was his habit. Most judges wheeled their chairs over to the rail or leaned in close, the better to whisper with the lawyers. Not Burt French.
The sidebar conference took place out of the jury’s hearing and mine. The next few paragraphs I have cut and pasted from the trial transcript.
The judge: “Where are you going with this?”
Logiudice: “Your Honor, the jury is entitled to know the defendant’s own father was in charge of the early stages of the investigation, particularly if the defense is going to suggest anything was handled improperly, as I suspect they will have to.”
“Counselor?”
