Final Argument: A Legal Thriller Part 36

By 4 A.M., when we returned the car to Hertz, my nose was dripping, my eyes felt ragged and I had trouble keeping them open. But at least, so far, the soles of my feet stayed calm.

"I'll come to court with you," Toba said. "I'd better be there if you fall asleep at the counsel table."

My heart seemed to slow another beat or two. Now my feet itched. "That's good of you, darling, but-"

"Oh, knock it off, Ted. I'm coming."

There was nothing I could do. She would be there, and she would hear my witnesses.

My father had given me two bits of advice I often remembered. Never try to save money on what goes between you and the ground (he meant shoes, tires, and mattresses), and treat yourself to a good steak and a shot of Jack Daniel's whenever you're feeling depressed.

At 5:00 A.M. in the airport restaurant I ordered a medium-rare T-bone and a pot of coffee. The bourbon didn't seem like a good idea yet.

Chapter 30.

TOBA AND I changed planes in Atlanta and landed at Jacksonville International just after ten in the morning. The air was warm and crisp. The sun was s.h.i.+ning, and the glare hurt my eyes. I kept wiping my red raw nostrils with Kleenex; my stomach had what the Florida crackers of my boyhood called "the whistlebelly thumps."

We took a taxi into the city and reached the courthouse just before eleven. In the elevator I b.u.t.toned my collar and tied my tie. A few TV cameramen outside Courtroom Five stared at me. I'd used my suit jacket as a pillow at Newark Airport, and there was a stain on my trousers where a piece of breakfast T-bone had landed. In general, I felt as if I'd been shot out of a cannon and missed the net.

Floyd Nickerson was to have been my first witness, a.s.suming he hadn't left town and risked a contempt citation. He was under a subpoena that Gary Oliver had hand-delivered one evening a week before to Orange Meadow. At first Nickerson had tried to slam the front door. Then he threatened bodily harm to Gary, who stood his ground and said, "Mr. Nickerson, I'm acting as an officer of the court. Touch a hair on my head, and I'll hand you this subpoena tomorrow in a jail cell."

Yesterday after lunch, Gary had gone to Judge Fleming and explained that I'd been called out of town on urgent family business, but that I'd be back the following morning and we would complete our case by the end of that day, as promised-as, in fact, demanded.

In a midnight call from Oakwood, I had prepped Gary on how to examine Nickerson. "Draw it out until I get there. Whatever you do, save the other witnesses for me."

But as soon as I pushed open the courtroom door on Wednesday morning, I realized that Floyd Nickerson was not on the witness stand.

Darryl Morgan, in a khaki jumpsuit provided by the jail, filled a wooden chair at the counsel table. Gary Oliver, seated next to him, was examining a man named James L. Duckworth. In his early sixties, Duckworth was the chief medical examiner in Duval County; he had been my witness in the trial thirteen years ago.

Toba and I pa.s.sed by Connie and Neil Zide. With a gracious smile, Toba squeezed herself into a seat on the wooden pew across the aisle from them. She hadn't seen Connie since the last time we'd all been together in court, thirteen years ago. Clamping my teeth together, I continued past the bar and to the counsel table.

Gary looked up and spotted me. Without hesitation, he said, "No further questions, Your Honor, and we request a brief recess."

Judge Fleming banged his gavel in agreement.

I sat down, nodding to Darryl. Clutching Gary's arm, I said softly, "Where the h.e.l.l is Nickerson?"

Gary told me that at three o'clock that morning, Nickerson had killed himself.

Light seemed to fade before my eyes, as in a brownout. I whispered, "I don't believe it."

"Believe, Ted."

"How?"

"Ate his gun."

It was what cops did when they were old and tired and depressed, or still on the job and unable to face the consequences of something rotten about to be uncorked. In his garage, the same garage where I'd seen him saying goodbye to Suzanne Byers-at about the hour that Scott Fitzgerald had called "the dark night of the soul"-Nickerson had put his service revolver in his mouth and pulled the trigger. An insomniac neighbor, hearing the shot, hurried over to find him. Nickerson's subpoena was on the kitchen table next to a copy of the Times-Union with its lead story about the hearing, an empty pack of Camels, and an overflowing ashtray. There was also a ground-out b.u.t.t next to his body in the garage. Gary's report had indicated that Nickerson hadn't smoked for the last ten years. It was, I suppose, his final pleasure.

Jerry Lee Elroy, now Floyd Nickerson. I could understand how you might think twice about becoming a witness for Ted Jaffe.

Darryl hadn't said a word. He was the only one of us who was calm.

"What do we do?" Gary asked. Together we had planned the strategy of this hearing. He knew where Nickerson would have fit, why his presence was so important.

"Does the judge know?"

"Not yet. I thought if I told him, he might call the whole thing off. I called Jim Duckworth just to stall."

The point was, of course, that Fleming had granted this hearing on the basis of my tape recording of Nickerson and the former JSO Homicide detective's promised presence as a witness. Technically, without Nickerson, we had no case of our own except what might be proved through cross-examination.

"Go get Terence," I said. I stood up, brushed past Whatley and grabbed Muriel Suarez by the arm, and made a dash for chambers.

Judge Fleming peered at me with his lizard eyes and said, "Well, I'll be dog. You're not funning me? You lost another one?"

"Yes, sir."

"Off on a stony lonesome, like we say in Clay County?"

I nodded. "Gone belly up."

"You got any other witnesses?"

"Yes, sir."

"Worth my listening to?"

"Yes, sir."

"They in court or close enough to hear you yell?"

"Yes, sir."

It was like a cross-examination where a good lawyer fires a salvo of leading questions that only permits the witness to say yes or no.

"And by the way," the judge said, adjusting his gla.s.ses and letting his eyes roam over me, "what in h.e.l.l happened to you? You look like you just had a root ca.n.a.l."

"That would have been preferable. I had a long night, Your Honor."

"Worth it?"

"Too early to tell."

"Usually is," the judge said. "Well, we're here, we've cleaned the wax out of our ears, we've got a few hours left of precious court time. Seems a shame to send all these snoopy TV folks home early. How long will you take?"

"Not too long," I said.

"Sounds about the right amount of time. Let's get on with it." Muriel, crowding my elbow there in chambers, protested, but the judge finally flashed me a poisonous smile and said, "Call your next witness, Counselor, before La Bella Cubana comes up with something makes me change my mind."

Back in the courtroom, when his honor had ascended the throne and the bailiff had called for order, I dropped down in a wooden chair next to Darryl and said, "The defense calls Michael Stanzi."

Mike Stanzi, the JSO ballistics expert, was still working at the same job. I had his official report in front of me, as well as the pages of his thirteen-year-old trial testimony. He was a man of forty-five, with curly gray hair, a big mustache, and a pleasant demeanor.

"Mr. Stanzi, tell us briefly what you observed on the morning of December 6, 1978, when you reached the Zide estate and had a good look around."

No secret about that. Stanzi had observed a corpse with two bullet holes. The rounds were from a .38-caliber revolver. A third shot from the same weapon had struck the wall on the far side of the living room from the terrace and embedded itself there in the Swedish oak paneling.

"About how high up in the wall was that bullet hole, sir?"

He glanced at his papers. "My official report says eleven feet seven inches."

"You found no other spent rounds?"

"No, I didn't."

"And you never found the gun?"

"Never."

"Then it's possible that more than three shots were fired from that thirty-eight-caliber pistol, isn't it?"

"Well, I suppose it's theoretically possible, but we didn't find any evidence of that."

"Did you look outside the house?"

"No, because it was just lawn and trees out there, and the pistol had been fired by someone who was facing the house from the direction of the terrace."

"Is that a fact?"

"Yes, sir, that's a fact."

"But how did you know that to be a fact?"

Stanzi smiled, patronizing me. "Because we knew that the perpetrators had been standing on the terrace and fired toward the room. And that was confirmed by the bullet we found in the woodwork on the far wall."

"Mr. Stanzi, think about that a moment. Did you know the perpetrators had been standing on the terrace and firing into the room, or did you just a.s.sume it?"

"Well, as I said, there was the spent bullet in the woodwork. And I was told by a fellow officer that the bullets had been fired from the terrace."

"Which fellow officer told you that?"

"I believe it was Sergeant Nickerson, when we arrived."

"So you really didn't know, you simply took his word for it, right?"

"Yes ... but there was the evidence of the bullet in the woodwork."

"That evidence," I said, "told you that one bullet had been fired in a specific direction. It didn't tell you that the bullet had been fired from the terrace, did it?"

Stanzi shrugged. "Well, no. All right."

"The bullet in the woodwork didn't tell you anything about the bullets that had struck Mr. Zide, or any bullets that might have been fired from inside the room in the direction of the lawn-did it?"

"There weren't any other bullets out there," Stanzi said smugly.

"How do you know that?"

"Because there were only three shots fired, and those rounds were all accounted for."

"And how did you know that?"

"Sergeant Nickerson informed me."

"Did Floyd Nickerson tell you he was there and heard three shots? Only three shots?"

Muriel objected. This was hearsay, a statement made out of court that couldn't be confirmed.

"Your Honor," I said, "we're not offering it for the truth of the matter but as to why Mr. Stanzi believed what he believed when he conducted his investigation."

"In that case I'll allow it," Judge Fleming said. He seemed interested.

"Mr. Stanzi?"

"No, Floyd Nickerson didn't say he was there and heard the shots. I can't remember how he knew there were three shots. But he knew it. He was positive."

"Did he say he'd spoken to witnesses who were present when the shots were fired?"

"He may have. I really don't remember."

I believed him. I was sure Nickerson had been deliberately vague. Nickerson! Nickerson was the key, and Nickerson was dead.

"Did you or anyone else conduct a paraffin test of the hands and face of Darryl Morgan?"

"Yes, I did."

"And of William Smith down at the morgue?"

"I did that too."

"With what results?"

"Negative. But that didn't mean that neither of them fired a gun. It's only proof if there is paraffin. If there's none, it doesn't really tell you anything. People can wear gloves, they can hold a weapon at arm's length. And we didn't have the weapon, so we couldn't tell if it normally threw off blowback or left residue when it was discharged."