CASE 8

GIVE THE SPARROW TO THE HAWK

They stood stiff as old stumps, he in a clean pair of starched bibs holding a sweat-stained cowboy hat against his chest, and she standing close, but not touching her husband. She was wearing a flowered Sunday dress and low-heeled, round-toed black shoes. Her lips quivered when she tried to hold a smile. Please, would I defend their son, Albert?

Their boy was charged with the murder of a young woman named Beverly Bright, a fellow worker, a pretty young thing with swishing red hair, a perky nose, and eyes that hinted at a bridled passion on the verge of escape. She’d been stabbed five times, once clean and clear through the heart. Albert had signed a confession to the murder. Why would a confessed murderer suddenly want to go to trial?

“We ain’t got much, Mr. Spence,” Jeff Hancock, the boy’s father, said in a voice that sounded like hard static. His forehead was white from the steady shelter of his old Stetson. “All we got is our ranch. We’ll sign it over to ya for yer fee if you’ll take Albert’s case.”

I’d seen it all before—parents who’d sacrifice whatever they had to save their young. Win or lose, they’d be homeless if I took their offer.

My partner Eddie Moriarity offered Hancock a quick smile. “Albert ever in trouble?”

“No, sir. Never. They forced him to sign that confession.”

“Ever lose his temper and hurt anybody?”

“No, sir. Why, Albert wouldn’t argue with a pup,” Mr. Hancock said. “I was maybe too hard on him. Taught him to respec’ authority. I was in the service, and I learned if ya cause no trouble ya get no trouble. That’s what I always said.”

“Did he have girlfriends?” I asked.

“Albert never had himself a date. He was a homeboy. Why, when Albert goes huntin’ with me he won’t even take a gun.” The Hancocks were honest, hardworking, longtime citizens in the county. The state had released Albert on bail secured by their small ranch.

The next day, Mr. Hancock brought Albert to the office. He was barely twenty-one, weighed less than 110 pounds, and looked fifteen. He was blond and pale as a featherless bird. He wore thick glasses that made him look like a blinking sparrow.

I took Albert in with a long stare. “If you didn’t kill anybody, why did you confess?” I asked.

Albert just shook his head, his eyes examining both sides of his hands. He struggled as if his words were jammed up in tight places. “I didn’t kill anybody.”

I leaned over my desk toward the kid and spoke to him in a quiet voice. “You were there when she was murdered. If you didn’t kill her, who did?”

He looked down again and mumbled his words in his high small voice that sounded like an off-key flute from the other side of the mountain. In staggered spurts he told the same story he’d been telling all along. He and Beverly were janitors at the State Training School for mentally disadvantaged children, and they were working that night, and a big man with a knife made him haul the woman’s body down the stairs and threatened that if Albert called the police he’d kill Albert’s family. It was the way he spoke, in flat, unemotional words. He spoke as if he weren’t present to hear them.

Surely Albert had been suffering in some frenetic landscape. His screws loosened, his controls failed, and he exploded into murder. We hear of cases like that all the time—someone who’s your quiet, law-abiding neighbor and one day ends up on the rooftop trying to shoot everyone in sight. I thought there could be an insanity defense for the boy.

Beverly Bright, thirty, five foot two, and filled out in convivial places, had that walk and a trigger smile. She must have been approaching terminal boredom living with her husband in Hudson, Wyoming, a wide spot in the road that offered a couple of restaurants, one with a closed-down whorehouse upstairs. She made dates on her CB radio with truckers as they came driving into the area at night, tired, alone, and lonely.

When Beverly didn’t come home that night, Terry, her husband, drove the twelve miles from their home to the State Training School on the outskirts of Lander. He couldn’t find Beverly, so he called the cops, who eventually found her bloody body stuffed under the staircase. When a wife is murdered, the cops look first at the husband. Did he have a motive? Did he have the opportunity? Answer both in the affirmative and you’ve got yourself a bona fide suspect, one a jury will convict with a little creativity from the cops and prosecutors. But Sheriff C. A. “Peewee” McDougall wasn’t interested in Terry Bright. He had an easier target—that strange-looking, strange-acting kid I’d begun to call “the sparrow,” Albert Hancock.

When Sheriff McDougall asked Albert to come to his office and talk to him about the murder, Mr. Hancock told Albert, “Sure, son, go on in and tell the sheriff what ya know. They gotta find the killer, and maybe you can help ’em.” Then, Mr. Hancock said, the cops hauled Albert off to Casper, Wyoming’s major city 150 miles down the road, “to take one of them lie detector tests.” Hancock shook his head. “Albert said they forced him to say he done it.”

But what if you were a small, timid ranch kid, alone, facing the sheriff and the chief of police pushed together in a tight office, and after they worked you over for hours they hauled you to the polygraph expert in a town 150 miles away? There another cop trained to use the polygraph to gain confessions took over, and you’re swimming around in confusion, scared and exhausted after hours of heavy interrogation, and they promised that all you had to do was sign the paper and things would go better for you.

On the other hand, what if you killed the woman and were fighting back guilt and remorse and fear, and you remembered the nightmare of her screaming, of her crumpled body on the floor soaked in blood, and the smell of death, and finally you couldn’t fight it anymore, and when the lie-detector guy said you should get it off your chest you heard yourself hollering, “Yes, I did it. I did it!” What then?

Sheriff Peewee McDougall and I had previously endured an arid eight-year relationship. He’d been the sheriff during both of my four-year terms as Fremont County prosecutor. People just seemed to tell Peewee what happened. If they were guilty, they confessed. But when Beverly Bright was murdered I’d been out of the prosecutor’s office fifteen years.

I launched into Albert’s case with a sound strategy: I’d send the boy to Dr. Robert Fairbairn, a competent, careful psychiatrist I knew who’d doubtlessly find Albert “not triable by reason of insanity.” That road was not only just and humane, it would avoid a long, expensive trial, something a poor rancher like Jeff Hancock couldn’t afford, and the court would send Albert to the state hospital in far off Evanston. There Albert would receive the treatment he needed—or at least that was the official promise. And justice would prevail.

“But Albert ain’t insane, Mr. Spence,” his father insisted. “He’s as sane as you and me. He just got pushed around by them cops.”

I said, “Mr. Hancock, if Dr. Fairbairn doesn’t find Albert needs treatment in the state hospital I’ll defend Albert for free.”

So the Hancocks drove Albert the long miles to Denver to see Dr. Fairbairn. Dr. Fairbairn had Albert admitted to a psychiatric hospital where he observed the boy for two weeks. He even administered truth serum to Albert—not once, but twice. Dr. Fairbairn reported that not only was Albert legally sane, but he was as innocent as the sparrow. The good doctor insisted Albert’s story was true.

True!

My partner Eddie said, “The jury’s going to see Fairbairn as another paid witness testifying for a lotta bucks for a couple of crooked defense lawyers who’re tryin’ to get a murderer off.” I knew he was right. Even if Albert’s story were true it would be a hard sell to any jury.

Finally I said, “Well, Eddie, I was talking again when I should have been listening. I promised Mr. Hancock that we’d defend Albert for free if Dr. Fairbairn found that he was sane and innocent. Here we go again—big case, no fee.”

Eddie laughed. As a kid he’d been the Montana state wrestling champion at about 120 pounds, and he was still nourished by a good fight. “We’ve been broke before,” he said.

We’d be pitted against a dedicated, intransigent, competent prosecutor, one I’d helped train. Arnold Tschirgi was tall, dark, and trim and looked like a tight end for the Pittsburgh Steelers. When I was the prosecutor I hired him as my deputy. Tschirgi grew up on a ranch and had the values of a rancher—endless hard work and a desire to do the right thing. I also thought he was driven by a dominating desire to beat his former boss, namely me. He often flashed an embarrassed but misleading smile, as if he weren’t too sure he should be in your presence. But I saw him as the hawk, fully capable of chewing up a sparrow like Albert.

So I woke up one morning realizing we’d taken a case against two men who knew me as well as I knew them. After eight years of our working together and circumventing each other, McDougall, in his own pragmatic way, thought he had me pegged. And Tschirgi thought he could predict me like the cows coming down to water in the morning. And, yes, I thought I knew them as well.

*   *   *

The case was set for trial in Lander, Wyoming, where the murder occurred. The local paper carried every bloody detail of the killing, and most of the stories referred to Albert as “the confessed killer.” The local judge granted us a change of venue, and he chose Judge Paul Liamos, from Newcastle, to officiate in the murder trial of “Black Sundance,” Beverly Bright’s CB handle. As if by the joking of Mother Fate, the case was transferred to Sundance, Wyoming. When the judicial dust settled, Eddie and I found ourselves in that small lost town up north near the South Dakota border, population a little over a thousand souls. As if prophetic, Sundance was in Crook County.

Sundance offered a couple of filling stations, a couple of cheap motels and a couple of bad cafés, a grocery store, a hardware store, a funeral home, and a locally owned bank, together with half a dozen churches. To get there you drove those long, weary, desolate backcountry roads of Wyoming. On the way you’d see herds of antelope or, at night, deer crossing the highway or a jackrabbit that would run in front of your headlights.

It was early summer and already hot, but Albert appeared to be on the verge of shivering. I got the impression that if I asked him his name he might look up at me with those large, blinking eyes and not know how to answer. I’d tried to talk to the boy, to get a sense of who he was. He was bright enough. Got through high school with good grades. But he seemed as afraid of me as he’d been of the cops.

What if Dr. Fairbairn was right? What if Albert was innocent and we failed him and his poor parents, who were sick to the bone with worry over an innocent child? Could Terry Bright, Beverly’s husband, have been the murderer? He had the opportunity and the motive. But I wasn’t ready to reach that dark conclusion. Before we’d entered the case an investigator whose actual name was Buck Rogers had worked for the public defender’s office and spent a year or more running down leads like a bird dog in a chicken house.

“What about the Kenyon guy in Buck Rogers’s report?” I asked Eddie. “More than one witness will say Beverly was always going in and out of the guy’s construction trailer parked at the school. He was her old flame. And she broke it off just before she was murdered.”

“Yeah,” Eddie said. “And, remember, her father, Billy Kane, says that if you’re going to go talk to Kenyon you better go armed and be ready for trouble, because that man is dangerous.”

Albert had described the killer to Rogers. “He was about six feet tall, weighed 175 pounds, or more. He had dark hair, parted a little on the left. He had the tips of two fingers partly gone. This was on the left hand, I think. Anyhow, the one finger [indicating the middle finger] was gone all the way to the nail, no nail at all. He didn’t have a watch on, and on his forearm he had what looked like a spot of blood, brown, a mole, birthmark or something like that. He had hairy arms and short sideburns. He had a deep voice, seemed calm. Something strange, he laughed once in a while, while I was doing what he said to do.”

“Why did you do what he told you?” Rogers had asked Albert.

“He said he’d kill me if I didn’t. He said if I ran that sooner or later he’d find me and kill me.”

“How did you manage to get away from him?”

“When I had the mop in the sink, after mopping up some of the blood, I saw he didn’t have the knife in either hand, so I ran. He ran after me, and I slammed the outside door on his hand I think, because he yelled then. I ran to the Administration Building and got inside. I didn’t tell anybody, I guess, because I was so scared I didn’t know what to do.”

I said to Eddie, “How does a kid who is being forced at knifepoint to drag a body down the stairs remember those minute details?”

“Some minds take detailed photographs,” Eddie said. “Some minds make photographs that are out of focus. And some turn out the lights.”

Rogers found a man who called himself “Alligator.” A couple of witnesses said Beverly had a fight with Alligator the night before the murder, which Alligator denied. He said to Rogers, “By God, if they’ve got anything on me, let ’em get a warrant!”

Later Rogers had a highway patrolman check out Kenyon’s fingers. His report: “They look as good as yours and mine.”

Several witnesses claimed Beverly liked to tease the residents at the Wyoming State Training School, boys grown to men who were still housed there living sparse, loveless lives. One of the residents she teased had been in love with her, and after he’d seen Kenyon take her into his trailer house the resident grabbed Beverly, threw her down, and tried to beat her up. But Bright said that for her size his wife was very strong and agile. Perhaps she teased because she thought her attention might be all they’d ever get from an attractive woman.

An inmate resident at the training school told Rogers that on the night of the murder “I saw a red car, red Chevy. Time, about good dark. Man went inside of building. The lights on all over. Man short. Didn’t look like Terry.”

A cook at a local café told Rogers that about a month before the murder a man came in one night and was sticking a knife in the table. The knife had a black handle. The man said, “Would you like me to show you what I can do with a knife like this? I’m pretty good with it.” The cook told him to get out. The knife wasn’t a hunting knife but “a big one that folded.”

The cook said the man had fingers that had been injured or amputated; he didn’t know if he was with Beverly, but he was in the group. Later our investigator, Mike Johnson, interviewed Fingers, as we referred to this individual. He said he and Beverly had gone to school together. Fingers remembered she was a redhead, but he claimed he didn’t remember who she was until someone showed him her picture. Two injured fingers on a tall, dark man? Yes. And he’d driven a red car that belonged to his mother.

Our investigator asked some questions of Jane Judson, the young woman who’d been with Beverly and Alligator the night before her murder. Beverly and Jane had been talking about marriage. Beverly said, “Don’t knock it, because marriage is a wonderful thing.” She said her husband was a really good person. She told Jane that she told her husband about her dates, and that she told Alligator she told her husband she was having a drink with him. Jane said she didn’t think that Beverly was trying to pick him up, but “she seemed pretty friendly.”

Our files contained a statement by one of Beverly’s friends who said Beverly complained she had to pry her husband out of a chair to get him into bed. On the other hand, another witness said she was saving up her sick leave and vacation time to have another baby, that she’d decided to call off her carryings-on and stay married and faithful to her man at home.

On a Monday morning, May 22, 1978, the trial of Albert Hancock finally got under way. We walked into that old one-story, square, yellow brick courthouse that supplied a courtroom of light oak paneling large enough to hold seventy-two people plus the jury, the clerk, the court reporter, a judge at his bench, and the lawyers sitting like cardboard cutouts at opposite tables. The courtroom provided a feeling that nothing changes, because things there were too tired to change.

Sheriff Peewee McDougall sat at the counsel table next to Tschirgi as if to guard the prosecutor from all anticipated danger. Albert wore new denim pants and a four-button denim jacket—all the buttons buttoned over a white dress shirt that was also buttoned at the collar, his black Sunday tie neatly in place. His worn black Sunday shoes were newly shined. He looked as if he were about to hear the preacher. But what he’d hear would be the prosecution bent on one objective: to haul Albert off to the state penitentiary. Albert gazed blankly out into the crowded courtroom.

The prospective jurors were a fair sample of folks from that rural Wyoming county—rancher types with fresh green cow manure on their boots, their wives, alongside their husbands, with rough hands and sunburned faces from harsh exposure to the elements. The jury panel included miners, laborers, a teacher, a plumber, and a couple of government workers. Among the prospective jurors were two who could readily be pegged as either an undertaker or a life insurance salesman, the only men in town who wore suits on weekdays.

Tschirgi wanted to keep jurors who said they might be prejudiced. “Thank you for being so forthright, Mr. Rafferty,” Tschirgi said to the prospective juror. “But as a fair man you can surely put aside your prejudice, listen to the evidence, and give this defendant a fair trial, isn’t that true?”

Juror: “Yeah, I s’pose.”

I wanted the juror off. I asked, “Mr. Rafferty, what magic eraser are you going to use to erase the prejudice from your brain so you can enter this case with a blank mind?” The juror just stared at me. I continued, “I don’t like pork chops. Perfectly good food, but nobody can change me on that.”

Juror: “Nothin’ wrong with a good pork chop.”

Judge Paul Liamos: “This is a trial, not a culinary school, Mr. Spence. I’ll excuse Mr. Rafferty. Thank you for your service, sir.” Judge Liamos was a patient man in his fifties, graying, balding, and with a not-to-be-messed-with frown molded on his face. He wore the traditional judicial black robe—black for death?

It was spring, and laboring men hadn’t worked all winter. The ranchers had springtime irrigating and calves to brand, and the judge excused them for “hardship.” A couple of jurors said they didn’t want to pass judgment on anybody, especially someone charged with murder. Those were the jurors we wanted, but they, too, were excused by the judge. After five days of jury selection I felt we’d created a sort of tribe that consisted of the jurors, Eddie, and me. Maybe we had a shot at an acquittal. But Tschirgi seemed happy with the jurors, too.

“What am I missing?” I asked Eddie.

“Don’t worry,” he said. “Let’s try our case.”

Judge Liamos struck his gavel and turned to the lawyers. “None of the witnesses will remain in the courtroom while this trial is taking place. Further, I order the witnesses not to talk with each other concerning their testimony, and the lawyers for each side will convey my order to their witnesses.”

I watched Arnold Tschirgi take long, confident steps to the lectern, his arms loose and swinging as if he were ready for hand-to-hand combat. I always start a trial with the uninvited visitation of “belly butterflies.” Tschirgi smiled his quick, boyish smile at the jurors and began describing Beverly Bright, an attractive Wyoming girl raised on a ranch, a friendly sort who would run up and kiss you hello, man or woman, a young woman brimming with a zest for life, a generous heart, a wife loved by her loving husband and a mother by her five-year-old daughter.

“And Albert Hancock, over there,” Tschirgi said, pointing, his voice suddenly escalating to an angry, nasal crescendo, “that man stabbed her to death. Then he dragged her mortally wounded body, soaked in her own blood, down seventeen stairs and tried to hide her underneath the staircase in the basement.”

White silence filled the courtroom. Jurors stared in horror at the alleged killer sitting between his parents, a strange-looker who stared back at the jurors through those thick glasses.

And the motive for murder? I knew Tschirgi couldn’t prove a motive. He said maybe Beverly Bright insulted Albert when she asked him if he was still in high school. “Albert didn’t take to that very well. Maybe he was in love with her. Maybe she betrayed him.”

Tschirgi kept hard hawk eyes on Albert as he described to the jurors each knife wound—five deep, deadly stabs. I could see the knife sinking in to its hilt, again and again, to the blaring beat of the radio she always kept at high volume as she worked.

Tschirgi claimed there was a small unidentified bloodstain on Albert’s pants. Whose blood? All mammals from mice to moose, all birds and beasts and jumping frogs, have blood in their veins.

Tschirgi told the jury that Albert was repeatedly assured that he didn’t have to tell the police anything, that he could have a lawyer, and when Albert was in Casper for his polygraph, the operator, Dave Dovala, once more reviewed Albert’s rights with him. It was all so clean and clear and kind, and Albert thereupon voluntarily confessed the murder. Case closed. More than that, according to Tschirgi, Albert said right there in the presence of his parents, “I’m not a very good liar. I killed her.”

Tschirgi said, “During the trip home Albert Hancock confessed yet again. He shouted, ‘I blasted her in the stomach with the knife.’” I felt my own stomach cramp. I looked over at Albert. His eyes were wide and wild, like a small, trapped bird.

“Well, Eddie,” I said at the recess, “what do you think?”

“I think Tschirgi’s got the jury pretty well horrified and hating Albert,” he said. “Especially that woman on the far right in the back row. If looks could kill, Albert would be one dead little sparrow.”

Yet, after torching the jurors with his raging fire for hours, I thought Tschirgi had failed to provide a convincing answer to a couple of questions that wouldn’t go away: Why did the sparrow kill Black Sundance? And if he didn’t, who did?

*   *   *

The next morning shortly after 9:00 A.M., I began my opening statement to the jury. The operational word in every competent defense is attack. If you’re explaining and defending, you’re losing. The prosecutor, the cops, their pathologist, their criminalist, and their trainload of experts all work as a team. They, too, know how to win: Attack.

I told the jury that the evidence in the case pointed to a murder Mr. Tschirgi and the cops didn’t investigate. Why was the prosecutor presenting an incomplete case after more than two years? Instead the cops picked on a poor, scared kid and bullied him until he signed a pathetic piece of paper the prosecution wanted to pawn off as a voluntary confession.

Tschirgi objected. As intended, his objections were interrupting the flow of my opening.

I asked the jury to remain patient. Truth does not come galloping up on a white horse. It plods into the courtroom one witness at a time, one day at a time. Tschirgi had used a favorite metaphor of mine when he told the jury that we lawyers were guides through the forest of facts. I said yes, but if we follow the wrong guide we’ll be lost. “We were deeply sorry about Beverly Bright’s death and sad for her grieving family. But this human tragedy, so wretched, so unjustified—”

Tschirgi objected and was sustained by the judge.

I turned to the knife that Tschirgi told the jury was the murder weapon. I spoke to the knife: “Hello, Knife. Who are you? There are endless thousands like you, and none have anything to do with this case. You just happened to be a knife the sheriff found in some drawer. How does it feel to be held up as a weapon that killed an innocent young woman?”

Tschirgi claimed that Dr. Thorpen, the pathologist, said the square indented wound on Beverly’s forehead, the size and shape of the setting in a man’s ring, might have resulted from her being dragged down the stairs. I spoke to the stairs. “Hello, Stairs. You had no square protrusions on your surface. And her face and head were battered, revealing a beating not by you, Stairs, but by the ring on a man’s fist. How does it feel to be blamed for something you didn’t cause? Besides, Albert never owned a ring.

“And the medical facts established a violent attack consistent with a powerful man with a motive to first injure and then to kill. She was smashed in the face with her glasses on. You will see the marks.” I reminded the jury how Mr. Tschirgi suggested that anemic motive for murder—that Albert had been insulted months before by Beverly Bright when she asked if Albert was still in high school. That was the motive for a brutal killing? I slowly took in each of the jurors. Their faces began to soften.

I told the jury that several witnesses had seen Albert in the time frame of the killing, and none had seen any blood on him. His pants had been washed? His folks didn’t own a washing machine. His mother went to town once a week to the Laundromat. By the time the officer picked up Albert’s clothes and boots, she hadn’t gone to town with the week’s wash.

The cops fingerprinted Albert, but his prints were never recovered anywhere at the bloody scene. At the same time, there were other suspects—a husband and a jilted lover, to name just a couple, and not a single suspect was ever printed.

“What else hasn’t Mr. Tschirgi told you, and why?” I asked. “The officers had taken scrapings from under Beverly Bright’s fingernails. They contained human skin and blood. But there wasn’t the first scratch on Albert, and now, interestingly, those scrapings have disappeared.

“And by the way,” I said, “why wouldn’t the officers talk to me? They’d talked for hours to a frightened kid who was all alone, but not to me?”

Tschirgi objected, and Judge Liamos sustained.

The jurors kept peering at Albert. I interrupted my argument and said in a quiet way, “I see you watching Albert for his reactions as I talk to you. Remember: He is young and he is frightened. How might we look to others when we’re being accused of a horrible killing? We are not how we look, but how we are.”

Tschirgi objected. The judge said for me to move on.

I told the jury that in school Albert was always the little bird in the corner. “On their small ranch he didn’t want to hurt or kill—not even a chicken for dinner. He has never received so much as a parking ticket. People laughed at this strange, quiet boy with the thick glasses, but he is respectful of everyone, even those who push him around. He knows bullies because Albert’s kind are their favorite victims.” I turned and looked at the sheriff and let the thought take hold in the minds of the jurors.

“The more Albert tried to tell the cops what happened, the more they called him a liar and terrified him. Well, here in this courtroom we’re going to finally tell his story to twelve good citizens who have no desire to convict an innocent boy.

“That night at the training school, Albert and Beverly were in the teachers’ lounge. She seemed disturbed. We discovered later she was in love with a high school sweetheart who lived in Shoshoni, and she’d been having an affair with him, but for her family’s sake she’d broken it off the day before. The night before, she’d made a date with a trucker whom she’d met on her citizens band radio. She had a drink with the trucker at a bar. Her girlfriend was with her. The man had propositioned her.”

Tschirgi objected. I stopped my opening and turned to Judge Liamos.

“Your Honor, as I address the jury and present the facts of our defense, Mr. Tschirgi keeps looking over at the jurors shaking his head. I don’t believe this conduct is proper or fair.” The judge called us to the bench. At the bench Tschirgi denied my complaint. But the judge said that if this were true he should desist.

I continued, “The night of the murder Beverly Bright said to Albert, ‘Wait a minute, I want to show you something.’ She went downstairs from the teachers’ lounge, where they were having a chocolate drink. The loudspeakers were on. She didn’t come back, and at last Albert went down to see why. He found her standing in the doorway bleeding. She said, ‘Call the police.’ Albert said there was a big man standing there.”

I told the jury how the cops wouldn’t believe him and said he was lying, and how Sheriff McDougall finally said, “Well, if you’re telling the truth, you’d be willing to go to Casper and take a lie detector test, wouldn’t you?” Albert thought he should ask his father. And that evening his father said, “Yes, son, you have nothing to hide.”

Albert’s so-called confession to the polygraph operator seemed incoherent and filled with blanks. I said I thought it a prime example of the disintegration of a boy’s fragile psyche on the one side and the betrayal of his rights on the other.

“He signed the paper, and he asked the polygraph operator if what he signed would keep him from becoming a police officer.

“What? Yes, he wanted to know if by signing the paper it would keep him from becoming a police officer,” I said again.

I told the jury that we sent Albert to Dr. Fairbairn and that the doctor found Albert was not insane. He was timid, pathetically so, and easily led to agree with authority, but the story he told was the truth.

Tschirgi objected. The judge said I should move on.

I told the jury that even Beverly Bright’s father, Billy Kane, thought Albert was innocent. Mr. Kane knew of another suspect he believed killed his daughter, and he wanted him investigated. But McDougall had his man—no, his boy—and neither he nor Chief Robert Campbell made any further investigation. To do so would be an admission they held doubts about the guilt of Albert Hancock and had rushed to judgment—to a wrongful judgment.

I took in each juror. I waited. Then I said, “That decision by those officers caused another murder—the merciless murder of Truth.”

*   *   *

Prosecutor Arnold Tschirgi’s first witness was Terry Bright. The right decision, I thought—to call the grieving husband. He was a nice-enough-looking fellow, understandably sad and nervous. He said he received a call from his wife about six thirty or seven o’clock on the evening of the murder. He was at home, their CB base station blaring away in the living room.

I wondered how it might be to lie on the couch and listen on your CB radio as your wife made dates with other men. What he heard we’d never know. He said he’d been awakened around 10:00 P.M. by a call from Barbara Rieman, who had a date to meet Beverly for a drink after work, but she’d never shown up.

He testified that he awakened again about 4:00 A.M. to find his wife still not home. Worried, he drove to Lander from their home in Hudson, taking their child with him and leaving her with his mother-in-law, Pauline Kane, and drove on to the training school nearby. Her car was there. By this time it was around four thirty in the morning. The lights were on in the building where his wife usually worked, in Emerson Hall. He honked his horn, and Mrs. McCullock, an employee at the school, looked out her upstairs apartment window.

He didn’t go into Emerson Hall. Instead he drove back to his mother-in-law’s and phoned Mrs. McCullock. She said she knew nothing about his wife’s whereabouts. He stayed at his mother-in-law’s until about six and drove to the Husky Café for coffee. About six thirty he returned to the school, found a door partially opened, and entered Emerson Hall to loud, pounding music from two radios. He hollered for his wife. No answer. He shut off the radio on the stage and hollered for his wife twice more.

In the south end of the building he saw his wife’s coat hanging on a doorknob across the hall from the janitor’s closet. He started back toward the gym and saw a cup of what he thought was spilled coffee on the floor, went up on the stage and hollered for his wife a couple more times, and then, as he left the stage, saw his wife’s glasses on the floor near the spilled coffee. He ran up to the McCullock apartment, called the switchboard operator for a supervisor, and then called the police. It was about seven in the morning when Officer Watan found Beverly Bright’s body at the base of the stairs.

On my cross-examination Bright admitted that Tschirgi provided him a copy of his prior statement, one he’d given the officers a full week after Albert had already been charged with her murder. It was as if McDougall knew his investigation was incomplete and needed Bright’s statement in case anyone asked why he hadn’t at least asked a few questions of the murdered woman’s husband. Bright admitted he’d read his statement five or six times.

My questioning of the husband went like this:

Q: She [his wife, Beverly] told you that a man who called himself “Alligator” propositioned her the night before the murder?

A: Yes. She said he made a pass at her that night.

Q: You deny that you were angry?

A: I trusted her.

Q: You knew she met him through a CB radio date?

A: Yes, she told me.

He denied ever striking his wife or threatening to hurt her. He admitted knowing that John Kenyon, his wife’s high school flame, had a trailer on the school premises, where Kenyon was working. She’d told Bright about him as well. But he insisted he wasn’t a jealous person.

Q: Mr. Bright, did you tell the sheriff about her CB dates?

A: I don’t remember.

Q: Did you tell anyone?

A: I don’t remember.

Q: You listened to her conversation with Alligator on your CB radio the night before the murder?

A: No.

Q: You’re sure?

A: Yes.

Q: You heard her talk to other men on the CB?

A: Yes.

Q: That must have been painful for you.

He looked down.

Q: You must have loved her a lot.

A: Yes.

Q: Did you object to her meeting others via the CB?

A: No, sir.

Q: No?

Q: Surely that wasn’t your choice.

A: No, sir.

I thought he seemed smothered in pain.

He said his wife had called him about six thirty in the evening on the night of the murder. He didn’t remember why she called him, and he didn’t remember if she mentioned Alligator that night. He insisted there were no marital troubles between them.

Q: It must have tormented you that she was meeting with other men.

A: No, sir.

Q: No?

He didn’t answer.

Q: Didn’t you imagine what they were saying to each other? What they were doing together?

A: No, sir. I trusted her.

He owned a Buck skinning knife. No cop had ever asked him for his knife or his clothes.

He’d been in the service—spent time in Okinawa and the Philippines.

Q: Were you ever trained in the use of the bayonet as a knife?

A: Yes.

I had Bright demonstrate with a knife how he’d been trained to hold one, the thrust made with the palm up, but he said, “You wouldn’t use an upward thrust if you were taking out a sentry from behind.”

*   *   *

That evening after court I lingered with Albert. “I need your help,” I said. “Why did you confess to something you didn’t do?”

I waited. I could hear the rain on the windows.

Finally he said, “I didn’t want to cause any trouble.”

And that’s all he would say. Perhaps it was all he could say.

*   *   *

Tschirgi’s next witness was a man I’d known many years, Larry Lee, the Fremont County coroner. Lee unwittingly mentioned a witness meeting in Tschirgi’s motel room that seemed in violation of the judge’s order not to talk among themselves about the evidence. We remember that he ordered the witnesses separated from the courtroom in an effort to keep the prosecutor from presenting a rehearsed set of facts.

I charged to the bench arguing that the case should be dismissed for this intentional violation of the court’s order. “I want Mr. Tschirgi sworn, along with the others who were in attendance at that meeting in Mr. Tschirgi’s motel room.”

Tschirgi resisted. He was the state’s attorney and was immune from giving testimony. “This is a search for the truth,” I argued. “This is not choir practice where all the members are taught to sing the same tune.”

Tschirgi finally had had enough. He charged that my arguments had been derogatory and demeaning, and he now demanded the right to testify. In chambers he was sworn by the judge. He admitted that he had not conveyed the judge’s order to his witnesses as a group. He had mentioned it to some at different times, but he couldn’t remember which witnesses and at what times. Tschirgi argued that there was no more said than what everyone read in the Casper paper each morning. We had suffered no injury.

“So it all comes down to this,” I argued back. “The judge says don’t talk about your testimony. And Mr. Tschirgi’s excuse for the violation of your order is that they could read it in the morning paper anyway?”

In the end I couldn’t prove what was or wasn’t said, nor who said it, nor in the presence of whom. I knew Judge Liamos had no choice but to overrule my motion to dismiss the case. But I hoped my motion had been a warning to Tschirgi. On the contrary, the war was only escalating.

On my cross-examination of Coroner Lee I asked:

Q: The bloody handprint on the wall was important evidence?

A: Yes.

Q: You’d expect the officers to preserve it?

A: Yes.

Q: Did you or they preserve it?

A: No.

Q: If the victim had been stabbed in the heart while she was standing, you would expect to see blood on the walls?

A: Yes.

Q: There was blood on the walls, but only at thirty-four inches above the floor.

A: Yes.

Q: The cup on the floor wasn’t fingerprinted?

A: No.

Lee said there were no defense marks or cuts on the dead woman’s hands or arms, that is, cuts from the knife suffered when she might have attempted to protect herself. He thought that was unusual. “I assumed she was hit pretty hard the first time,” he said.

Every morning for certain, and some days at multiple times, we found some grounds to move for a mistrial. It got so tense in the courtroom that Chief Campbell took a position leaning up against the beverage machine in the lobby rather than sitting near any witnesses, and he refused to talk to anyone so he could never be accused of violating the court’s order.

When Tschirgi called Chief Campbell to the stand, I braced for the attack. He was potentially the most dangerous witness yet. He looked very official and imposing as he walked to the witness chair dressed in his uniform. He smiled at the jurors, took his seat, made himself comfortable, and waited for Tschirgi’s first question. His mission was to convince the jurors that Albert Hancock wasn’t a sparrow but a confessed vicious murderer sitting there among the citizens, something like a snake coiled up in the living room.

Tschirgi began by taking Campbell through yet another endless recitation of the measurements of buildings, their rooms, and their hallways. Then, as if there hadn’t been enough blood testimony already, Tschirgi had Campbell tell again in detail where all the blood was and the quantity of blood at each and every location. I began to believe the jury might convict Albert for no better reason than that Tschirgi had them crazy with all the blood. Someone had to pay for it. Why not that weird-looking kid sitting over there between his parents?

“Surely,” I said to the judge, “we all have an inkling by now that there was a lot of blood at the scene. But it’s as if blood has become the state’s entire case. We will stipulate that the scene was drenched in blood. Perhaps, now, we can move on.”

“Objection,” from Tschirgi.

“Sustained,” from the bench.

My feeling of compassion for Terry Bright returned when Campbell testified that Bright was standing near the corpse of his wife when Campbell came in. Campbell said to Bright, nodding to the body, “Who is she?”

“It’s my wife,” Bright said.

Finally Campbell began to testify about the bloody print on the wall. “How many fingers did you see on the handprint?” Tschirgi asked.

“I could see the thumb and three fingers—just a portion of maybe the little finger.”

A finger missing on the print!

Tschirgi had Campbell show the jury a picture of Beverly Bright’s face taken at the funeral home after she’d been embalmed. One could still see distinct “bruising” on her forehead, Campbell called it. That was about the extent of this important witness’s testimony. I wondered what trap, if any, had been set for me?

On cross I discovered that neither McDougall nor Campbell nor any of their officers prepared any reports of their investigation. We know it’s standard police procedure to make detailed reports in all felony investigations, especially in a murder case.

Q: Chief Campbell, you were aware that if you made reports the defense attorneys could get them.

TSCHIRGI: Objection.

THE JUDGE: Overruled.

A: Yes.

Q: That’s the reason no reports were made by the officers in this case, isn’t that true?

A: No.

I turned again to the bloody print on the wall.

Q: I believe you told us you thought that print was insignificant?

A: I believe I said it had no value.

But the handprint on the wall had been destroyed.

The cops had not saved Beverly Bright’s coat. “No significance,” the chief said, but he couldn’t remember how many pockets were in her coat or what was in her pockets.

The chief said the victim’s purse was returned to her husband. He couldn’t recall what she had in her purse. The purse’s contents were also insignificant, he said. He did, however, remember there was about $150 in the purse.

Q: Do you remember seeing an address book in her purse?

A: No.

Q: But you made no report, so you’re testifying to the contents of her purse from memory these years later?

A: Yes.

Q: Could an address book have had some value in a murder case?

A: Yes.

I suddenly changed the subject.

Q: Do you leave room for the possibility that there was a love triangle involved here?

A: I have no reason to believe that in this case.

Q: Would a love triangle be a possible motive for murder?

A: Anything could have been possible.

Q: Did you ever discover if Beverly Bright had been involved in any indiscretions?

A: No specific ones that I can remember.

Q: Would you want to find out if such indiscretions were more than a possibility?

No answer.

Q: Are you aware of the relationship she had with John Kenyon?

A: Yes.

Q: Did you learn that during the week of the murder she’d broken off a relationship with her former lover John Kenyon?

A: No.

Q: Were you waiting for a carrier pigeon to bring you that information?

No answer. Tschirgi hadn’t objected.

Q: Did you ever talk to Jane Judson?

A: Yes. In the conference room of the school.

Q: Did she tell you about Beverly Bright making a date through her CB radio with a man they called Alligator?

A: Yes.

Q: Did you record that interview?

A: No.

Q: You didn’t learn whether Alligator made a pass at her or not, isn’t that true?

A: Yes.

Q: Did you inquire of anyone whether Terry Bright was upset with his wife over her conduct?

A: No.

Q: Or if he threatened her?

A: No.

Q: Do you know if anyone made such an inquiry?

A: No.

Q: Did you know about Terry Bright’s training with a bayonet?

A: Yes. I heard Dr. Thorpen and Terry Bright talking about it in the motel room. [I gave the judge another knowing look.]

Q: Did you try to determine by Mr. Bright’s past conduct if he was the jealous type?

A: No.

Q: You knew that one of the first persons suspected in the murder of a wife is her husband?

A: Yes.

Q: Sometimes fights between husband and wife get out of control and someone gets killed.

A: Yes.

Q: This is more likely to happen to wives who are promiscuous.

A: Yes.

Q: You learned that she went into bars?

A: Only on one occasion. It was not uncommon for her to make such dates.

Q: The only one you know about was with Alligator when she made a date with him on her CB.

A: Yes.

The chief never tried to discover who called Beverly Bright on the night she was murdered. He’d learned she’d been upset from the call.

Q: Did you ask Terry Bright if he made the call?

A: No.

Q: Did you even ask him the last time he talked to her?

A: No.

Q: Did you ask him the last contact he had with her?

A: He said before she went to work on the afternoon of the fifth.

Q: Would it have interested you if you had learned he made a call to her about 6:00 P.M.?

A: At the time, no. I would like to look into it now.

Q: Once Albert signed that confession your investigation stopped, until we got into the case, isn’t that true?

A: Yes.

I showed the jury photographs of Beverly Bright’s face both before and after the embalming. One photo showed the square indent on the woman’s forehead that we thought came from a square setting in a man’s ring. The number six juror would not look at the exhibit. But the number one juror was staring at Chief Campbell with obvious contempt.

Q: Did you see any evidence there [referring to the photographs] that Beverly Bright was beaten?

A: I saw evidence of a woman who was dragged down seventeen stairs.

Q: If that injury came from being dragged down the stairs, then why did you find her glasses at the top of the stairs, not the bottom?

No answer.

I asked that her glasses be produced. The clerk handed me a sack that contained the glasses.

Q: Were her glasses bent?

A: No.

I asked Campbell to remove the glasses from the sack.

Q: Look down on the nosepiece. Are the glasses bent?

A: Yes.

Q: You are noticing that now for the first time?

A: I never noticed this before.

I handed the glasses to the jurors to inspect. Jurors three, four, and five were clearly upset with Campbell. Juror three was glaring at him. Juror nine covered her face with her hands.

Q: Is it your present opinion that Beverly Bright wore her glasses in that bent condition prior to her death?

A: No.

I had Campbell circle on the photo the bruise on the deceased’s nose. When the photo was passed to juror number six, she again refused to look at it and shoved the photo to the number five juror to her left. Number Six, as we came to call her, threw me a look that suggested I’d be better off meeting Dracula with a toothache in a dark alley than her.

Q: Did you look for anyone who wore a ring with a square mounting?

A: No.

Q: Did Terry Bright wear such a ring?

A: I don’t know.

*   *   *

After court Eddie and I changed from our court garb for our evening run at the Sundance high school track—to run out the pent-up poisons that chew at you all day in the courtroom, the anger and frustration stuffed into the gut and the emotional lid slammed shut.

Then the next morning I continued my cross of the chief.

Q: Were there any prints on the paper cup that was found lying on the floor?

A: I don’t know.

I asked that the cup be produced.

Q: Do you see three prints here?

I was pointing to prints that had been dusted and clearly appeared on the cup.

A: Yes, there appears to be a partial, one in the center that is a partial, and, yes, a third.

Q: Do you know whose prints these are?

A: Yes. I think they’re Mr. Smith’s.

Q: Smith was a member of the Lander police force?

A: Yes.

Q: Did you take Mr. Smith’s prints?

A: No.

Q: If someone claimed this cup was retrieved out of the garbage [we’d been told this was the case], would you agree with that?

A: No.

Q: When you talked to the resident named Victor, he told you he saw a white car behind the school.

A: Yes.

Q: What color was Mr. Bright’s car?

A: It was a white Universal Jeep.

Q: What time did Victor say it was there?

A: Late at night.

Q: Would it surprise you if Victor told our investigator, Mike Johnson, that he saw a man run out and get into the car?

A: Nothing he’d say would surprise me. If you suggested something to him he would probably say anything.

Q: Where did you talk to Victor?

A: In the sheriff’s private office.

Q: Did you record him?

A: No.

Q: Did you even take any notes?

A: No. I didn’t think he was confused when he saw a white car there.

Q: Did you, or anyone you know, fingerprint Victor?

A: No.

Campbell must have forgotten his earlier testimony in one of the pretrial motion hearings when he admitted they did fingerprint Victor.

Campbell said he couldn’t produce the skin scrapings from under Beverly Bright’s nails because the crime lab used up the entire sample in testing. But the crime lab reported it had returned the scrapings. Campbell also admitted that no one saw any blood on Albert’s clothes on the day of and after the murder.

I asked him about the suspect we called Fingers. They’d made no inquiry about this man. None.

Then I skipped to Judy Peabody, an employee at the school, and her knife, which McDougall alleged was the murder weapon. They’d taken no prints off Mrs. Peabody’s desk. He said he went through Beverly Bright’s car, which was parked at the school. He couldn’t remember what was in it or in its glove box.

Q: Well, Chief, was there anywhere in Albert’s confession where he actually said that he had killed Beverly Bright?

A: He didn’t say he did and he didn’t say he didn’t.

I looked over at Tschirgi. He seemed unconcerned.

Q: You and Mr. McDougall had Albert in the police car all the way back from Casper, and you were interrogating him the whole two hours on that trip back. Why didn’t you have that conversation reduced to writing and signed by Albert?

A: We were anxious to get home and file the charges against him.

Q: Let me read from the transcript of an earlier hearing in which you were telling what you said to Albert concerning a “waiver” of his constitutional rights: I quote from your sworn testimony. You said you told Albert, “If you waive your rights you can have an attorney—you can have an attorney with you, but if you waive your rights you don’t necessarily want an attorney.” Didn’t you think that was a wee bit confusing?

A: No.

Q: Are you saying you can waive your rights to an attorney and still have an attorney?

A: Yes. A person can disregard a waiver at any time.

Q: You, of course, explained that in detail to Albert before you began your interrogation?

A: No.

*   *   *

Judge Liamos had recessed the trial for the day. I waited for the courtroom to clear, let Albert’s parents spend a little time with him, and then, in the quiet of the courtroom, talked with Albert again. He seemed slightly more comfortable with me.

“So, Albert, how did you think our day went today?”

“It was OK,” he said.

“Aren’t you angry at Chief Campbell?”

“It doesn’t do you any good to be angry,” he said.

“Well, no, but aren’t you a little upset with the investigation that Campbell made?”

“Well, I was disappointed.” Then he looked off across the courtroom with his eyes focused on something I couldn’t identify.

*   *   *

Dr. James Thorpen, the pathologist, was next on the stand. During his career he’d completed between 3,000 and 3,500 autopsies. He was a friendly sort, a balding man with a round, happy face. I wondered how anyone could be happy after having cut up thousands of human bodies in various stages of decay. I liked him. I thought he told it as he saw it and had no hound in the hunt.

He testified he inventoried the contents of Beverly’s pants pockets: thirty-two cents (two dimes, two nickels, two pennies), along with three keys. In the left pocket of her blouse were five packages of Great Western sugar. In her right pocket was some cellophane with a paper clip through it, the cellophane appearing to be a label off of a vanilla bottle. I recite these apparent irrelevancies because we can tell something about a person by what the person has or fails to have in his or her pockets. She had no medicine in her pockets, not even an aspirin. No comb, no lipstick, no perfume—she was there to work. And the keys? What door did they unlock? No one knew or had tried to find out.

Dr. Thorpen testified Beverly had been stabbed five times with a blade at least four inches long and at least an inch wide. The first wound was in the upper left shoulder; the second through the ribs and into the left lung; the third through the front of the third rib and completely through the heart; the fourth extending into the liver and showed some twisting of the knife blade; the fifth into the right abdominal wall, cutting the many loops of the small and large intestines. It was a gaping wound through which a portion of the large bowel was protruding.

All the wounds, except the wound through the heart, were inflicted with the cutting edge of the knife down. The wound through the heart was the opposite—the cutting edge of the knife up. Respecting the first four wounds, the knife was held like a sword, the cutting edge down. But when the killer struck her from the back, resulting in the wound through the heart, the knife traveled in a downward arc until the cutting edge ended up. The doctor could not say in what order the wounds were inflicted.

Beverly Bright had been beaten, the doctor said. There were horizontal streaks of blood on her glasses and blood on her nose. Might we not agree that someone was at least marginally upset with the woman? But nobody had ever heard Albert raise his voice to anyone.

My cross-examination of Thorpen was of an honest witness who readily admitted that he’d heard other witnesses discuss the facts of their testimony at meals and in Tschirgi’s motel room. Thorpen said the blood splatters on the wall, waist high, were from “many different directions.” And he said the assault against her occurred at more than one location.

As for the knife: the top, noncutting edge was flat or rounded. Hilt marks were left by the knife on several of the wounds; the hilt was likely longer at the knife’s bottom than its top.

Thorpen thought the wounds were consistent with Beverly having been first beaten and then stabbed to death. He said that the injury to the back of her head was consistent with a larger man pounding the woman’s head into the wall. Perhaps, he speculated, at some point the assailant was on top of the victim on the floor just inside the gym at the doorway, where the doctor observed that the blood on the floor was smeared.

Thorpen had come to the scene before the body was taken to the mortuary. He’d found her body lying facedown in a heap. He thought the body had been moved before he got there. He thought that the urine pattern on her clothes from involuntary voiding after death was consistent with the corpse lying on its back.

The marks and splatters of blood told him there was “an element of pursuit and assault.” The bloody handprint on the wall was six or seven inches long, about the same size as Thorpen’s hand, not the more diminutive hand of Albert.

I asked the doctor:

Q: Did Mr. Tschirgi ever sit down with you along with all the exhibits and facts and ask you to give him a blow-by-blow reconstruction?

A: No, sir. Not as such.

Q: Considering the frenzied, furious, violent, willful stabbing and beating, the assailant must have been filled with hate and anger?

A: Yes.

Q: Something had to motivate such a killer?

A: Yes.

Q: You have told us that the food in Beverly Bright’s stomach was not completely digested?

A: Yes.

Q: She ate at about 5:00 P.M. but was alive yet at 8:00 P.M., probably later. That would be at least three hours during which her food had not digested?

A: Yes.

Q: An emotional upset can stop food from digesting?

A: Yes.

Q: The facts here are consistent with the deceased suffering an emotional upset?

A: Yes.

Q: Were you ever told that Beverly Bright had a telephone call at six thirty that evening?

A: No.

Q: Would you have wanted to know what the call was about?

A: Yes, sir. That would be significant.

*   *   *

Judy Peabody, Tschirgi’s next witness, testified about the knife. She’d purchased it with state funds and kept it hidden in the back of the center drawer in her desk. She got worried that it might have been the murder weapon, especially since Albert cleaned her room. She went to her desk with her husband and another witness, opened the drawer, and, praise all saints, there was her knife, and it was along the side of the drawer, not the back. (She forgot that she told Mike Johnson, our investigator, “When I would open and shut the drawer, the knife would come forward, and I would each time shove it back.”)

She told the jury that the last time she used the knife was in October of 1975—used it to cut up potatoes on a camping trip, washed it, and returned it to the drawer. When she and her husband and the witness retrieved the knife, it had moisture on the blade, along with lint, she said. She called Peewee, who immediately sent the knife to the state lab. The report that came back claimed the knife had human blood on it, but in such a minute amount that it couldn’t be typed. No fingerprints. My cross-examination was fitted to a lady who I believed was terrified that the knife she’d bought with state funds and that sat in her desk all these years had become a murder weapon.

Q: You and I have never discussed your testimony, isn’t that true?

A: Yes.

Q: You’ve discussed it with Mr. Tschirgi?

A: Yes.

Q: When was the first time?

A: In Mr. Tschirgi’s office in March of ’76.

She admitted discussing her testimony with Mr. Tschirgi four more times, most recently that morning.

Q: Before today, did they [pointing to the prosecutor’s table] also give you your statement to read to refresh your memory?

A: Yes.

Q: It is merely a one-page statement which you gave in March of ’76 to Mr. Tschirgi?

A: Yes.

Q: You have reread it at least five times, isn’t that true?

A: Yes.

Q: Since you’ve been to Sundance, have you been shown the knife by Mr. Tschirgi?

A: No.

Inked initials appeared on the knife. I asked:

Q: You saw no person initial the knife, did you?

A: No.

Q: Did the sheriff tell you these were his initials?

A: No.

Q: Do you know whose initials these are?

A: No.

Q: How can you tell us that this is the knife that came from your drawer?

The witness wouldn’t answer the question. Finally she said:

A: I have no reason to doubt the officers of Fremont County about the knife they initialed.

Q: Please look at the knife.

She took the knife gingerly into her hands as if it might turn on her suddenly.

Q: Were these initials on the handle the last time you saw it and before you came here?

A: No.

Q: Where did you last see the knife?

A: In the basement here in the courthouse.

Q: Is the knife in the same condition as it was on March 8, 1976?

A: No.

Q: Then you saw streaks?

A: Yes.

Q: Now it is polished and shined?

A: Yes.

Q: Did you polish and shine it?

A: No.

Q: Who else did you see in the basement here besides Sheriff McDougall?

A: Chief Campbell.

Q: That knife was used for camping?

A: Yes.

Q: It was not under your exclusive control?

A: No. Paul Scott used it. But I know Paul well enough to know he would never let anyone else use the knife. He is so responsible, I know he wouldn’t.

Q: But do you know if anyone else used it?

A: No.

Q: How about Mary Morehouse?

A: She used it in 1975 on a camping trip.

Q: Residents from the school were on that camping trip?

A: Yes.

Q: Would you know if a resident cut himself on the knife?

No answer.

She said that when McDougall came for the knife he “just reached in and took it out. And then he removed the knife and looked at the blade and put it in a plastic bag.” I wondered: Could anyone take an oath that this was the murder weapon?

*   *   *

Then Tschirgi called the state lab technician, one Richard Dixon, who was trying to explain how the items sent to the state lab were returned to the Lander police—twenty-two items by his records. On cross I had him count the items in the box. There were only eleven. So I was later to refer to his box as “Pandora’s box.” What evidence was missing, and where had it gone?

*   *   *

Eddie and I were running after court again on the high school track. “This track is a metaphor for what goes on in court each day,” I said. “We go around and around and cover the same ground over and over and the landscape remains the same.”

“Their case is starting to fall apart,” Eddie said. “I been watchin’ the jurors. They seem like they’re with us, Gerry. I been wrong before, but I think they’re comin’ around.”

“How about Number Six?”

“Six and nix,” Eddie said, and laughed.

*   *   *

At last Peewee McDougall, sitting next to Tschirgi at the counsel table, took the stand. McDougall was born in Scotland in 1914 and claimed he was born within sight of Edinburgh Castle. After you sorted him out, what you found was a practical man who wanted to get along, then go do some roping with one of his good roping horses. He had that dour countenance—reminded me of Alfred Hitchcock in a cowboy hat and boots. He had a quick smile that put you off guard. But now, when he looked back at me from the witness stand, the smile had retreated.

Peewee was a man driven by a well-concealed intelligence. He had no formal education, but he’d become a champion of common sense. You can see him standing there with his hands hanging by their thumbs from his belt, a big silver cowboy buckle in front, a man in his early sixties who stood about five-seven, broad through the shoulders, little pot belly, but nothing to be ashamed of for a man his age. McDougall, who had a believable way about him, would be Tschirgi’s bridge to victory. If Peewee said it, well, it was the by-God truth.

McDougall testified that before he questioned Albert he said to the boy, “I understand you want to talk to me. But I know you want to go to Beverly’s funeral first. After that you can come back and talk.” Albert went to the funeral and returned to the sheriff’s office at about 3:00 P.M. “He came into my office with Chief Campbell. There were questions I wanted to ask him,” the sheriff said, “but first I had to advise him of his rights.”

Of course.

Then that troublesome word “waiver” came up. McDougall said that Albert didn’t know what that meant, and McDougall told him it meant “that he could talk to them now, and that at any time he wanted an attorney he could have one.” All nice and clean and innocent as a Girl Scout selling her cookies door to door.

Then McDougall began asking Albert his tricky “What if?” questions:

“What if your prints were on the desk?” He claimed Albert said they must have gotten there when he was cleaning the desk.

“What if we found your prints on her wristwatch?” Albert supposedly said he needed to see what time it was. “Well, didn’t you have a watch?” Another of Albert’s feeble answers: “I was havin’ a hard time gettin’ to my watch because the sleeve on my shirt was too tight.”

McDougall’s next: “What if your prints are on the knife?”

Albert’s supposed answer: “I took it out to see how sharp it was.” (That answer put us in deep trouble.) I looked at Albert. He was shaking his head no as if a palsy had struck him, his face pale, his hands folded on his lap holding tightly onto each other.

McDougall insisted he had no idea what kind of knife to look for—that is, until Mrs. Peabody came to him and ushered him to her desk, where he reached in and retrieved a knife from her middle desk drawer. Prints on the knife? Not even Peewee’s were on the knife, although he’d taken the knife out of the scabbard with a thumb and forefinger at the base of the knife’s handle, which was leather, not wood as Mrs. Peabody testified.

The sheriff testified that he asked Albert if they could take his fingerprints. Albert said OK.

Could the sheriff have the clothes he wore that night? Albert said OK.

Could the sheriff search his car? Albert said OK.

Peewee testified that he’d made arrangements for Albert to be “interviewed”—the benign word he used—by a man in Casper, a polygraph operator. And this “interview” was totally up to Albert. “Voluntary” was the next word McDougall used. Albert thought that he should ask his father.

In short, everything the cops did with Albert was copacetic, lawful, and voluntary. He simply up and confessed to killing Beverly Bright—that simple.

I began my cross-examination of Tschirgi’s star witness by having McDougall admit that Albert was shy, looked birdlike, had a soft voice and was sometimes difficult to hear, looked nervous, and smiled a lot when he talked. Although he himself looked hard and tough, McDougall claimed he was open and sensitive to people’s fears. He came off like a bull sniffing a rosebud. He admitted people might be frightened of him—especially backward, timid, shy farm boys. He agreed that the murder of Beverly might have been extraordinarily shocking to Albert. It even shocked McDougall. And folks were afraid, he said. They wondered if they were suspects.

Although he’d asked a lot of questions in this murder case, he’d made no notes. Yet he told us word for exact word what Albert said to him. He claimed he was patient with Albert. Yes, he admitted he had a bad left ear. He didn’t know how long it had been bad, but he didn’t miss a thing when Albert talked to him on March 6, 1976. I asked:

Q: If your left ear was bad you wouldn’t know if you missed something, isn’t that true?

A: Right.

Q: And sometimes your memory is affected by what others say they recall?

A: Yes.

Q: You especially wanted to solve this murder because you’re facing some other unsolved murders in your county, isn’t that true?

A: Yes.

He admitted to three as I named them.

Q: You’d better solve this one vicious killing.

A: Yes.

Q: Now, on the ninth of March, five days after the murder, Albert didn’t just toddle down to your office on his own accord. You called the school to send him down.

A: Yes.

McDougall wasn’t happy with where we were headed. His mouth grew sour. The eyes narrowed. He said Albert’s story that he was ordered to drag a body down some stairs and mop up the blood and that Albert then escaped from the killer seemed odd. He admitted that Albert, a backward farm boy, was likely afraid when he came to the sheriff’s office. Chief of Police Campbell was also there, a man six-one or six-two who weighed two hundred pounds or more. Albert was seated between the two. From where Albert sat he could see the jail and hear the officers on their police radio. Then McDougall shut the door.

Q: Would you say that to be shut in a small room with the door closed surrounded by two big officers might be frightening?

A: Yes, I’d say he’d be frightened. Might depend on your conscience.

Q: Some people get so frightened they get the facts confused.

A: Yes, could have happened.

Q: And when people get confused they come off as guilty?

A: Yes. I’ve seen that many times.

Q: Don’t you know as an officer who has interrogated many people that one of the principal tools of interrogation is fear?

A: No, sir.

I waited a long moment, looking from juror to juror.

Q: You tell the suspect what a “tight fix” he’s in, isn’t that true?

A: Yes.

Q: That makes them afraid?

A: Yes.

Q: You put the knife down on the table in front of him, didn’t you? [My guess.]

A: Yes.

Q: You think if you put such a weapon down in front of an innocent farm boy, a suspect in a bloody murder, that that would further frighten him?

A: Yes, sir, it would frighten any farm boy. But not if he was innocent.

Q: You think only the guilty would be frightened?

A: Yes.

Q: Then you showed him a bloody photo of the dead girl. [Another guess.]

A: Yes.

Q: Have you ever had a good friend, and then had someone show you a photo of that person dead and in a pile of blood?

A: No.

Q: As a sensitive person, it would shock you, wouldn’t it?

A: Yes.

Q: Some people can take quite a bit of horror, and some can’t stand to see a photo of blood, isn’t that true?

A: Yes, but Albert wasn’t shocked at all.

Q: How do you know that?

A: He never said anything.

Q: And you questioned Albert for more than four hours?

The next morning McDougall was still on the stand. The sheriff admitted they found no motive for Albert to kill Beverly Bright; Albert had no history of violence; he’d never been in any trouble, not even a parking ticket. There was no physical evidence to tie him to the murder. McDougall admitted he’d obtained many confessions through the years. He said he had a recorder and could have recorded everything he said to Albert before they took him to Casper to meet the polygraph operator, but they recorded nothing. He wouldn’t admit that statements had been made by the officers to Albert that he wouldn’t want a jury to hear.

I asked McDougall:

Q: There were a good number of residents at the school who could have committed this killing.

A: Yes.

Q: And you learned Beverly Bright had a lot of men in her life?

A: Yes.

Q: And there was only one suspect who said anything to you, and that was Albert.

A: Yes.

Q: You wouldn’t have put him through all of this if he hadn’t come forward, isn’t that true?

A: It helped.

Q: Here was a boy who was raised right, and who did what good citizens are taught to do—to come forward and help law enforcement.

A: Yes.

Q: Don’t you make room for the possibility that the killer thought that Albert was a resident at the training school: “You drag her down there. You mop the floor. You don’t tell anyone or I will kill you.” And all the rest.

No answer.

Q: Your mind is made up, isn’t it?

A: Yes.

Tschirgi hauled me up to the bench. I was abusing Sheriff McDougall, he said. The judge didn’t agree, but Tschirgi’s complaint told me I was cutting an unwelcome swath through his case.

Q: Albert told you the man was of medium height and weight with dark hair?

A: Yes.

Q: Did you ever ask the supervisor that night what Albert told him?

A: No.

As for Terry Bright, McDougall did not check out his alibi, didn’t search his car, didn’t check his clothes, didn’t take his prints nor show him the supposed murder weapon, the knife. He admitted that in the killing of a married woman the first person to consider as a likely suspect is the husband. He also admitted that sometimes innocent people confess crimes when they’ve suffered coercion either physically or psychologically. Then after all of those hours of intense questioning under Sheriff McDougall and Chief Campbell, they sent the boy to the polygraph operator in Casper.

Q: You asked Albert if he didn’t want to go to her funeral—it’s shocking to go to the funeral of a friend, especially if you’re accused of killing her?

A: Yes.

Q: You sent Albert to the funeral before you began your interrogation of him?

A: Yes.

Q: And going to her graveside would be extremely moving?

A: Yes.

Q: You knew her parents were there, weeping, and her little daughter as well.

A: Yes.

Q: That would add a lot of shock and emotion.

A: Yes.

Q: Even if Albert were innocent he’d be in trauma.

A: No he wouldn’t.

Q: When he came back you showed him those bloody photos, didn’t you?

A: Yes.

Q: And you gave all of the crime scene photos to the Casper polygraph operator, Dovala, isn’t that true?

A: We gave him all that we thought would be helpful.

As for his search of Albert’s car, McDougall said he glanced at the seats. He was looking for blood. He found no blood, and saw nothing that would lead him to believe the car had been washed. The sheriff didn’t look closely in the trunk. He didn’t recall if he looked under the seats. He couldn’t remember what kind of a car it was, the kind of seats or their color.

Q: But you remember the details of four hours of interrogation of Albert?

A: I don’t know what all I talked to him about.

Q: Practically speaking, you were exercising control over Albert.

A: Yes.

Q: One of you in your office said, “You zapped her or you blasted her,” isn’t that true?

A: That was said, yes.

Q: So a good deal of what you say Albert said was what you told Albert in the course of your four-hour interrogation of him, isn’t that true?

A: Yes.

Q: And what Albert didn’t know, he later learned from the Casper guy.

A: Yes.

Q: Have you ever gotten a confession after having lied to an accused about a fact?

A: No.

Q: But what you asked Albert was: “What if your prints are on the knife—what do you say about that?”

A: Yes, I said that. And if I was innocent I would have said, “That’s a damn lie.”

Q: Your question wasn’t exactly a lie, but it implied to Albert that his prints were on the knife. It was a trick question to this boy, wasn’t it?

A: No.

McDougall had earlier admitted that there were no fingerprints on Beverly’s watch.

Q: It was 7:00 P.M. and you had Albert go with Campbell to be printed, isn’t that true?

A: No. It was a little after five thirty.

I read to him from a transcript of his testimony at a motion hearing in which McDougall had earlier said it was 7:00 P.M. when Albert was printed, and that the printing took fifteen minutes.

A: Well, that’s the way it reads.

Q: That’s the way it was.

A: Well, I’m wrong on that.

Q: You knew Albert was not experienced in the law.

A: Yes.

Q: And the best way for him to protect his rights was for him to have a lawyer.

A: Yes.

The scowling old devil. A part of myself kept prodding me to remember that I liked him. Couldn’t help it. He was tough, but not in-your-face tough. He was honest according to his own code and abided by it, the niceties of the law notwithstanding. I never thought Peewee was overly burdened with compassion. He called the drunks “pukes,” and the Indians “war-whoops.” His understanding of those whose experiences were different than his was nearly nonexistent. I thought Albert was one of those.

He admitted that if Albert had been his son he probably would have gotten him an attorney. The public defender had his office in the same building in which McDougall and Campbell were interrogating Albert. McDougall insisted he told Albert he’d be questioned by another police officer in Casper. But I called his attention to his earlier words at one of the motion hearings. Then he testified that he told Albert he would be interviewed. The power of words.

I drew McDougall’s attention to Campbell’s statement that he thought Albert looked confused. McDougall argued back, “I didn’t think he was confused, but I wouldn’t deny that Campbell said that.” He said that he knew Albert desperately wanted to prove his innocence, so since they hadn’t gotten a confession they took him to someone who was good at getting confessions. McDougall told Albert he could prove his innocence there. Prove his innocence? In America? My best memory is that in America the state must prove your guilt. And beyond a reasonable doubt.

Q: Didn’t Albert’s father ask you, “Shouldn’t I get an attorney for Albert?”

A: Yes.

Q: You knew that Mr. Hancock was a poor rancher?

A: Yes.

Q: And that their son was the most important thing in the world to them?

A: Probably.

Q: You wanted the Hancocks to trust you?

A: Yes.

Q: You suggested to the Hancocks that Albert talk to Mr. Tschirgi?

A: Yes.

Q: But you also knew that the prosecutor wouldn’t help them.

No answer.

Q: You never told them about the availability of a public defender in the same building?

A: No.

Q: And all the way home from Casper, a two-hour trip, Chief Campbell and you had that secret tape recorder that was sometimes turned on and sometimes turned off, isn’t that true?

A: I was driving. I don’t know what Campbell was doing. He was in the back seat. Albert was in the front seat next to me.

Q: You didn’t tell Albert or his parents that the man who was going to “interview” Albert in Casper, this Dovala person, had special psychological training, did you?

A: I didn’t tell them that.

Q: As for the word “interview”: One is interviewed for a job, isn’t that true?

A: Yes.

Q: And later Albert asked you if what he told the poly operator in Casper would keep him from being hired as a police officer?

A: Yes.

Q: Do you think Albert’s question showed Albert had a clear understanding of what was happening?

A: Well …

Q: Wouldn’t a straight answer from you be “That was strange. You bet, I thought he was confused”?

A: No, sir.

Q: Don’t you think that the Casper poly operator, Dovala, was a hundred percent effective in breaking the boy down with his psychological expertise?

A: No.

Q: But you sent him there to get a confession, not to be interviewed, isn’t that true?

He didn’t answer. I didn’t push him. The jury knew the answer.

McDougall admitted he saw Beverly Bright’s purse. But he didn’t see the money in it. Didn’t go through her billfold. Didn’t see her coat. As a matter of fact, he saw nothing in her little office. Whatever evidence was there that might point to the killer was lost.

The sheriff hadn’t gathered Albert’s school records. They were exemplary. He was in the National Guard and had security clearance, but McDougall hadn’t checked his records. Nor did he check with any of Albert’s teachers, his 4-H leaders—no one.

Q: You never checked Terry Bright’s fingerprints.

A: No, I didn’t.

Q: Billy Kane, Beverly Bright’s father, came to you and told you he didn’t believe that Albert did it.

A: Yes.

Q: Mr. Kane even told you he went to the state cops and asked them to do something?

A: Yes.

Q: Don’t you think that in all fairness you should go back to Fremont County and complete your investigation?

A: I figger it is complete.

Q: You thought so when you got Albert’s confession, isn’t that true?

A: Yes.

Q: What would you do for him if you found he was innocent?

A: I would do what I could for him.

*   *   *

Again I stayed with Albert after court adjourned. I wanted to reassure him.

“Are you afraid, Albert?”

He didn’t answer.

“You know, Albert, before they get you they have to kill me with an ax.”

Suddenly he stiffened in panic.

“That’s just an expression, Albert. Nobody is going to kill anyone. Not you and not me.”

“I didn’t do it, Mr. Spence. Sheriff said I did.” He looked at me as if I should understand.

*   *   *

It was no surprise when Arnold Tschirgi called to the stand the Casper polygraph operator, David Dovala. In Casper, and alone, Albert had been ushered into Dovala’s small office. Dovala assured the jury that he had advised the boy of his rights. That terrible machine men have manufactured to catch liars when they know the machine itself lies, the infamous polygraph, sat on a stand in front of Albert, waiting for its next victim.

Dovala was a tall man, six-three, and weighed a couple of hundred pounds or more. He claimed that after he administered Albert his rights he asked, “Do you wish to talk to me now?” and Albert said he did. Why not? This was the man to whom McDougall had sent Albert so that the boy could prove his innocence.

Q: (Tschirgi) What happened after the two of you sat down in your office?

A: (Dovala) I asked him questions and he answered them. The tape was given to my secretary, and she typed up the confession.

Q: Then what happened?

A: I had him read it, he signed it, and it was witnessed by both Sheriff McDougall and Chief of Police Campbell.

Q: Were his parents there after he signed it?

A: Yes. His father said the only reason he signed it was because he was pressured. I said to Albert, “Albert, you are twenty years old now. You might as well be a man.” Then Albert said, “I did it.”

Dovala testified he didn’t threaten Albert and offered no inducements or promises. He treated him kindly and sympathized with him. He saw no evidence of fear, no emotion, although he was emotionally withdrawn; he saw no remorse. Albert was alert and understood, Dovala said.

Q: (TSCHIRGI) What was your method of interrogation?

A: I sat in a quiet room and just talked casually, treating him with respect. I said he should get it off his chest and tell the whole truth.

Q: Did you ask him to write out his confession?

A: He said he didn’t know what to write. He seemed to freeze. He clammed up.

Q: So you recorded what he had to say?

A: Yes, but he didn’t speak as freely after the recorder started as he did before.

Tschirgi offered the so-called confession into evidence over my objections. It was allowed by Judge Liamos.

Dovala read it to the jury.

The jury was enraptured. Some looked sternly at Dovala. Some glanced from time to time to see how Albert reacted. Albert sat there and blinked.

And blinked.

Dovala, reading from the confession:

“Where did you get the knife from that you used?”

“I don’t know, really.”

“Was it your knife, or what?”

“No.”

“What kind of knife was it?”

“A hunting knife, I guess.”

“A hunting knife. Does it—was it a folding knife or one that, uh…”

“It was in a scabbard.”

“Did you take it to work with you or what?”

“No.”

“Do you have it home now?”

“No.”

“Do you know what happened to the knife?”

“I musta dropped it someplace.”

“I just want you to tell me what happened.”

Albert started speaking, but the recording device supposedly failed for a while. Blank spaces in the transcription … What was omitted no one will ever know. It picked up again with Albert saying, “And I helped her.” Then more blanks. Finally Albert said, “It didn’t make any sense, it just felt like a Dr. Jekyll and Mr. Hyde.”

Albert said in the supposed confession that he and Beverly Bright had not been arguing. He didn’t know if he stabbed her more than once. He didn’t know, but he must have dragged her downstairs. He guessed he took the mop and mopped up the blood. He did not sexually assault her.

He denied trying to cover things up by saying he saw someone running. He did see someone. Dovala told him that that person didn’t have anything to do with the killing, and Albert said, “I don’t think so.”

When he was shown a picture of a bloody handprint and asked if it could be his, his answer again was not recorded—“unintelligible.” Albert said he didn’t touch her. Didn’t get his hands bloody. He saw the mop in a photo and said it was the mop he used to clean up. He didn’t know if she was alive when he left her.

Dovala read where she ran into the gym and she asked, “What’s the matter with you?” He didn’t know where he stabbed her. Dovala suggested she then fell down, and Albert agreed.

Next Dovala asked Albert, “And then you dragged her down the stairs where they found her? Is that where [more inaudibles] initially true?” Who knows what that question was about? But Albert’s answer was also inaudible.

“Have you ever done anything like this before?”

“No,” Albert answered.

And that was a confession to a murder? A killer who had stabbed a woman five times with a large hunting knife and doesn’t know if he stabbed her more than once, and doesn’t know what happened to the knife or where it came from; a killer who dragged her body down the stairs leaving a massive, bloody trail and can’t confirm the basic facts of the murder, except what he was told.

I began my cross-examination. Dovala admitted he had some psychological training and put it to use employing his own techniques. He said McDougall and Campbell provided him a set of facts. I found myself wondering: Wouldn’t Dovala have to give both McDougall and Campbell a lie detector test as well if Dovala was to rely on the facts they fed him? Where does truth telling begin?

Q: If the sheriff told you incorrect information, then you may have proceeded incorrectly, too.

A: Yes.

Q: How many times prior to today have you talked with Mr. McDougall about this case?

A: Don’t know. [I let that answer go.]

Q: How many times to Chief Campbell?

A: Don’t know. [I let that answer go.]

Q: How many times to Mr. Tschirgi?

A: Don’t know. [I let that answer go.]

His cumulative insistence that he didn’t know how many times he’d spoken to McDougall and Campbell or even Tschirgi about the case was met with my I-can’t-believe-it raising of my eyebrows. What was he hiding?

Q: Did you talk to Mr. Tschirgi today?

A: Yes.

Dovala had identified eight photos that he showed Albert. Death, blood, horror.

Q: So did you induce Albert to give this confession?

A: No.

Q: What does “induce” mean?

He threw his head back and looked up at the ceiling.

A: It means, “To get someone to do something.”

Q: Would this be a better definition: “To offer something to someone to do something”?

He nodded yes.

Q: We are not all motivated by the same inducements, isn’t that true?

A: Yes.

Q: You are not afraid of me?

A: No.

Q: Some people are afraid of police officers?

A: Yes.

Q: And such fear varies from person to person?

A: Yes.

Q: You have heard of people being brainwashed?

A: Yes.

Q: Have you heard of persons who have given false confessions?

A: Yes.

Q: Albert was under stress when you interviewed him, and you knew it?

A: Yes.

Q: No way to measure accurately the amount of stress he was under?

A: No.

Q: You are under stress right now?

A: Yes.

Q: And tolerance to stress varies from person to person?

A: Yes.

Q: You work with streetwise criminals?

A: Yes.

Q: Albert wasn’t a streetwise criminal, was he?

A: No.

Q: You saw Albert as timid and shy?

A: No.

Q: Would it take more stress to break a streetwise criminal than Albert?

A: Yes.

Q: You needed Albert’s trust and tried to get it?

A: Yes.

Q: You talked down or minimized the crime of murder, isn’t that true?

A: Yes.

Q: Part of your procedure is to minimize the crime and to get the subject to trust you, isn’t that true?

A: Yes.

Q: Did you know that officers McDougall and Campbell talked with Albert about his wanting to be a police officer?

A: Yes.

Q: Would it be an inducement to ask Albert to clear this up in order to get a job in law enforcement?

A: Yes, it could be. But I didn’t offer that inducement.

Q: He told you about a man running outside by the building?

A: No. He told me several different stories during the interview.

Q: He did tell you he didn’t kill Beverly Bright, didn’t he?

A: Yes.

Q: His parents weren’t present when he signed the confession?

A: No.

Q: Only you, Albert, and the machine were present?

A: Yes.

Q: And he was scared?

A: Yes.

Dovala admitted he might have used double questions on Albert—trick questions. Here’s one such question from Dovala to Albert: “Did she run into the gym after you stabbed her?” His answer either yes or no to this question agrees that he stabbed her. Another of Dovala’s trick questions: “Is this an accurate picture of how she was left?” Either yes or no assumes he knew how she was left.

Q: You tried to ask him fair questions?

A: Yes.

Q: But you asked him, “Where were you standing when you stabbed her?”

He didn’t answer.

Q: And when you asked him to write out his confession he said, “I wouldn’t know what to write,” isn’t that true?

A: Yes.

Q: Have you ever seen persons so frightened that they cried, lost control, so frightened that they even wet their pants?

He nodded yes.

Q: Did you hold out to him that you might be one to help him?

A: It might appear that way.

Q: You didn’t tell him you were questioning him as a favor for McDougall?

A: No.

Q: Did Albert know your purpose was to get a confession?

A: I don’t know.

Q: Didn’t you tell him he could go home if he answered your questions?

A: No.

Q: Did you tell him you were a disinterested person?

A: Could be, but I was.

Q: Did you tell him you were a police officer?

A: I introduced myself as a police officer.

I looked at the words on the so-called confession again. Did the author lower his voice, smile, raise an eyebrow, look threatening? Dead words on a page cannot tell how the words were said.

Albert was in that little room with Dovala for three hours. I could maybe read the Book of Genesis in three hours. Probably be a better person if I had. Thinking of Albert, one can grow old in three hours.

I asked Dovala:

Q: Did Albert ever get out of that room until he signed the confession?

A: No.

Q: Did the sheriff tell you they found a print on her watch?

A: Yes.

Yes?

Q: You believed him?

A: Yes.

Yes?

Q: You called this to the defendant’s attention?

A: May have.

I’d prepared many hours for this cross-examination. The last question about the print on the watch had never crossed my mind. Sometimes when the mind is open, truth sneaks in.

Had the sheriff lied to Dovala when he told him they found a print on the watch? I took a quick glance over at Eddie. He looked sad. Tschirgi was strangely silent and immobile. A lie at the heart of a case often destroys the case. The jury knew that McDougall had already testified there were no prints on Beverly Bright’s watch. I looked over at the jury and let silence underline Dovala’s crucial admission. Then I continued:

Q: You told Albert he’d be better off if he confessed?

A: No. I told him he would feel better if he told the truth.

Q: Did you tell him that no one would believe his story?

A: I don’t know.

My cross-examination was beginning to cause the borders of Dovala’s voice to vibrate in approaching anger. One wondered how Albert would have reacted to that sound, alone in Dovala’s office for three hours and bundled in his own blanket of fear. I looked over at Albert. He was staring at the floor, and his mother was holding his hand.

Dovala admitted that despite his best effort he was unable to find a motive for the murder.

I turned back to the confession.

Q: In several places you talk about “the stabbing.” Did Albert ever once say, “I stabbed her” or “I killed her”?

A: No, sir.

Q: These were your words.

He nodded.

Q: You say, Officer Dovala, that everything that Albert said to you was in that confession.

A: Yes.

Q: And you said that Albert told you he got the knife from a desk drawer in the Administration Building?

A: Yes.

Q: Show me where that’s in his confession.

A: It doesn’t appear in the confession.

*   *   *

The next morning, Dave Dovala was still on the stand. I said, “There wasn’t any way for Albert to prove what was or wasn’t said.” This veteran police officer turned to the jury and said, “You can put him on the stand.”

I immediately moved for a mistrial.

We bounded into the judge’s chambers. The sound level of the arguments there could have punctured a sturdy ceiling. I told the judge in low English that this was an experienced police officer who knew full well that Albert was not required to take the stand, that Dovala had, in open court, in front of this jury, violated Albert’s constitutional rights and made a mockery of His Honor’s attempt to preserve his right to a fair trial. I am told I threw my pen. It was not aimed at the judge, but it went flying across the judge’s desk.

Tschirgi offered to talk to his witness and get it straightened out. The judge said, “Well, let’s see if you can.”

I thought it better to have Dovala confess to the jury that he’d made a grave mistake rather than have the judge give one of his perfunctory instructions. Once an important witness for the state admits error, the foundation of the state’s case begins to expose more ominous cracks. During the recess Tschirgi talked to Dovala, after which I began my cross-examination anew.

Q: Do you remember what you said to the jury about how Albert could prove what he actually said to you?

A: Yes. I am sorry I said that. It was an error on my part. What I said was a mistake.

Q: You know that Albert has no duty to prove anything in this case?

A: Yes.

Q: It is your duty to fairly and accurately record what was said during your interview, not his.

A: Yes.

Q: And you only recorded what you wanted to record, isn’t that true?

A: Yes.

Q: And when you talked to Albert he didn’t have an attorney there, did he?

A: No.

Q: No attorney to bring out his side or to ask his questions.

A: No.

Q: But he told you he was scared and someone else had killed her?

A: Yes.

Q: And you told him that wasn’t true.

A: Yes.

Q: You knew or have heard how afraid Albert was that he’d be killed by this man, the murderer?

A: I read that in the newspaper.

Q: Don’t you think you should have better information than newspaper information before you pass judgment on the guilt of another?

No answer.

Q: Did you ever interview Terry Bright?

A: No.

Q: Would you have interviewed him if you’d been asked to by Sheriff McDougall or Chief Campbell?

A: Yes.

Dovala was excused. He walked from the witness stand without looking at the jury, or any of us. The bailiff opened the door for him. I looked over at Tschirgi. Had the sparrow somehow escaped the hawk?

*   *   *

Tschirgi rested his case.

I made the standard motion for a dismissal of the charges—insufficient evidence to sustain the prosecutor’s case. My motion was denied in the standard way with the standard comment by the judge: The jury should decide. I called Sheriff McDougall back to the stand. Good place to start—a quick, frontal attack on the enemy.

I asked McDougall if after having heard all of the testimony in the case he had reopened his investigation. McDougall gave me a someday-I-will-catch-you-behind-the-barn look. His answer was no. “I have no further questions of the sheriff,” I said, and dismissed him.

I called Dan Brown of Hudson, who said he lived about a quarter of a mile from the Brights on the same dead-end street. On the night of the murder he saw a car leave the Brights’ residence at about ten or eleven. He couldn’t see who was driving. I asked if the sheriff had ever talked to him. No, he said.

In my opinion John Kenyon could be considered a viable suspect—his explosive temper and their recent affair. I called Henrietta June West, Beverly Bright’s best friend.

Q: Did you know about her affair with Mr. Kenyon?

A: Yes, she said she had always loved him, and she believed that a woman could only have one true love during her life, and he had been her one true love. She said they had drifted apart after high school, but when he came to Lander on a construction job at the school they found each other again. She broke off her affair just before her murder. She had a good husband and loved her child and was going to stay home.

She said that the night of the murder Beverly had wanted to talk to her alone. Beverly was nervous and fidgety, but before they could talk they had to go back to work.

But Kenyon had all his fingers!

As Henrietta June West was testifying, some of the jurors kept watching McDougall for his reaction. Why had this testimony been kept from them? Tschirgi didn’t cross-examine the woman.

*   *   *

The time had come for us to call Dr. Robert Fairbairn, our psychiatric expert. He was a tall, middle-aged man with a full head of gray hair, slender and elegant in his appearance. He looked from one juror to another as he answered my questions in a quiet voice and with the style and poise of an expert.

He told how he had interviewed Albert under sodium amytal, not once but twice, during the two weeks that he studied him in a Denver psychiatric hospital. That drug, when given by an intravenous drip, is reputed to act as a sort of truth serum, which is to say that one under the drug will often relate information that he or she would have otherwise blocked.

Dr. Fairbairn told the jury the story Albert related to him under the influence of the drug. It was the same story Albert told Buck Rogers two years before we got into the case—about the large dark man with a knife who commanded Albert to drag the body down the stairs, hide it, and mop up the blood. Dr. Fairbairn believed that Albert had been intimidated into making a confession, that the confession was not given voluntarily, and that Albert failed to understand its gravity.

I asked the doctor:

Q: How do you explain that Albert agreed to this so-called confession?

A: Albert is the kind of person who says things to placate those in authority.

He described Albert as childlike, immature, frightened, unable to cope, and socially inept. The doctor said, “I wasn’t surprised that the murderer didn’t kill Albert as well.” He said he had administered sodium amytal to Albert because I, his attorney, had been doubtful of Albert’s story. The doctor said he believed Albert, and to settle the matter he wanted to see how he would react under the drug. As a result of his interview of Albert while he was under the influence of sodium amytal, he was convinced that Albert was telling the truth.

Tschirgi cross-examined and began by wrestling with the doctor on what was opinion versus fact. “Do you leave room for the possibility that your opinion is wrong?”

Dr. Fairbairn replied, “Yes. The problem chronically exists. I use the words ‘I think,’ or ‘I believe,’ or ‘Usually.’”

I had never heard an expert say it as honestly. Most often they say their opinion is the all-be-damned truth, and if you don’t like it you are an ignorant jack handle.

I watched Dr. Fairbairn walk from the courtroom. Had he saved Albert, or was he seen by the jurors as one of those quack doctors who think they can fool a person with their fancy talk?

It was decision time again. We dared not put Albert on the stand. In his state he’d be unable to understand the implication of the questions put to him, and helpless to convince twelve people of anything except that he was incompetent as a witness. Dr. Fairbairn’s testimony put Albert’s story clearly before the jury without Albert having to utter a word. Through his testimony the doctor had become Albert.

It had been hard for me to get close to Albert. It was easier for me to care about his parents, especially his mother. I’ve always preached you have to love your client. Sometimes that’s a very big order. But if you don’t have genuine feelings for your client, you can’t ask the jury to do what you can’t do—to care for your client.

Dr. Fairbairn had revealed Albert Hancock to me in a way that permitted me to better understand him. Here was a frightened, naïve farm boy who had single-handedly fought off big, tough cops for hours on end, and who at last said words that taken together fell short of an understandable confession of murder.

“Is it time?” I asked Eddie.

He nodded yes. I announced, “The defense rests.” There would be no more witnesses, no going back.

But Tschirgi wasn’t done. As we’ve learned here, the state has the right to the last word. Tschirgi called a witness who swore that Kenyon had been at a Masonic Lodge meeting in Shoshone between 7:10 P.M. and 9:15 P.M. on the night of the murder. Kenyon couldn’t have traveled the forty-five miles to Lander in time for the murder, which was committed between 6:45 P.M. and 8:00 P.M. But why hadn’t Tschirgi called Kenyon himself to testify to his whereabouts? Was he afraid that under my cross-examination Kenyon might explode, and if he did I could argue to the jury that they’d witnessed the same untamed rage that Beverly Bright had faced the night of her murder?

After that, Tschirgi rested his case.

*   *   *

Arguments on the judge’s instructions to the jury took all day. Eddie took the lead. The judge ended up giving his standard instructions in a murder case: The state would be required to prove Albert Hancock’s guilt beyond a reasonable doubt. The accused had no duty to prove his innocence. Albert Hancock was presumed innocent. The jury would decide what witnesses were or weren’t credible—and the confession must be voluntary.

The following day was the Fourth of July. How was it that Madam Fate, still laughing at her own little jokes, arranged things so that the final arguments in this case, in Sundance, Wyoming, for the murder of Black Sundance, and in Crook County, should take place on the Fourth of July?

Arnold Tschirgi came marching into court decked out in a white suit, a red and white polka-dot shirt, and a blue tie. I objected to his costume in chambers. Tschirgi said, “Isn’t it patriotic to convict murderers on the Fourth of July?”

I saw the judge parcel out one of his rare distant chuckles. He pretended to thumb through his rule book. “I know of no rules that dictate the color of the prosecutor’s garb. The only requirement here is that the lawyers dress appropriately, which includes a coat and tie. This is the Fourth of July. I hold that red, white, and blue are appropriate.”

Tschirgi had Terry Bright seated in the courtroom with his little seven-year-old daughter. I asked the court to exclude the man and his child, who were “hate props.” The judge agreed that the child should be removed. “I don’t want her, at her tender age, hearing statements about her mother,” Judge Liamos said.

Then Tschirgi walked up to the podium with a pretty box, about the size of two shoe boxes. It was wrapped in bright paper with a big ribbon around it. I knew what was coming. I’d used the prop years before when Tschirgi was my deputy. As is said, “What goes around comes around.”

“This is more of Mr. Tschirgi’s theatrics and another improper prop,” I argued at the bench.

“What do you intend to do with the exhibit, Mr. Tschirgi?” the judge asked. The jury was still waiting in the jury room.

“I’m going to show that this box is the defense in the case. When you take the pretty wrapping and ribbon off of the box and open the box, there’s nothing inside.”

“No,” the judge said. “You have the burden of proof. The defense isn’t required to put anything inside the box. You’re not going to use that. Let’s see if we can keep to the law.”

Arnold Tschirgi began his final argument by gifting the jurors with that bashful, faint smile of his and quietly acknowledged that the jurors had been delayed in their haying and housework because of this trial. He thanked them for sticking it out—doing their duty—in this, the longest criminal trial in Wyoming’s history: seven weeks.

Then, like any good storyteller, Tschirgi set about to cast the characters in this drama. There were decent citizens who were mercilessly attacked by me, the defense attorney, as well as competent law enforcement men who, despite my shameful assaults against them, did not stray from their duty. He was the underdog, thrown into this fight against “that world-famous lawyer, Gerry Spence. He is a man who can say anything and make people believe anything. He is a master at ripping honest witnesses apart, in turning their innocent efforts to tell the truth into something ugly. We have listened to seven weeks of it, and we have had quite enough!”

He caught his breath. “But let us not forget the most important survivors of this tragedy—the victims in this case.” In an ever-rising voice he asked, “Doesn’t the victim’s family have any rights? Ask Albert Hancock over there if they had rights.” The prosecutor’s accusatory finger was shaking in a palsy of anger at Albert, who huddled between his father and mother as frozen as a corpse. “He gave no warning to his friend Beverly Bright, and suddenly turned on her and blasted her.” Tschirgi’s voice elevated into an exploding nasal scream. I felt myself jump.

“Here the victim was put on trial. Her lips were sealed by his bloody knife. She could not speak out in her own defense. And her mourning family have also been put on trial. And he blasted her!” he shouted again.

“Have you ever met Beverly Bright?” Tschirgi pulled an empty chair up in front of the jury and began talking to it as if Beverly Bright were seated in it. “Terry says you two have been married eight years. You are attractive, outdoorish, you laugh and talk to people. You like people and are flirtatious. You were last seen alive at 6:30 P.M. on March 5, 1976. The world-renowned defense attorney in his inimitable style tried to break down your husband, Terry Bright, and failed. He couldn’t crack Terry. But Albert Hancock, sitting over there, confessed to your murder. He made his confession to a mild-mannered police officer, Dave Dovala. Justice for your cruel, untimely death will finally come to you and your family.”

Tschirgi set a roll of wrapping paper on the lectern, paper about a foot wide and perhaps forty or fifty feet long. He’d written his argument on that scroll in two-inch letters with an ink marker so that as he made his arguments he pushed the paper forward, and it piled up on the floor in front of his lectern creating a physical reminder of the immense factual basis for his case—an argument fifty feet in length. Maybe more. If he’d made the letters even larger, his argument could have encompassed a hundred feet. But I ought not be critical, because Tschirgi had seen me use that device more than a decade before when I was a young prosecutor experimenting with various techniques I’d been inventing for final argument. I tried to look calm.

Then Tschirgi jumped up to the witness stand, sat down, and took on the role of Dr. Fairbairn. He stared out at the jury with a glass of water clutched in his hand and, with elegant exaggeration, began taking rapid sips from the glass. “He was the driest man I’ve ever seen in a courtroom,” Tschirgi said. “He drank more water than all the other witnesses combined. We see that in people under tension, or who lie. The dry-mouthed head-doctor, Dr. F.” Tschirgi was beginning to shout again. “He failed, flopped, flunked, fizzled, and he’s full of it.” No one smiled. Several of the women in the front row watched the prosecutor with growing signs of alarm.

“That is the killer of an innocent woman,” Tschirgi cried. He turned to Albert. “He sits in this court begging that you not believe him. ‘Do not believe me when I say I just turned on her and blasted her. I am a liar. Believe me now, but not then.’ What more is there to say? Do we set this liar free? I am asking you to do your duty, to keep us safe, to convict Albert Hancock of the murder he committed on an innocent woman and to thereby set us all free.”

I felt the power of the prosecutor’s words. Had it been that clear from the beginning? His words came through mightily, and their volume could have caused the courtroom structure itself to shudder.

How would I be able to convince a jury of twelve intelligent citizens that this strange story of Albert’s was true? Was Dr. Fairbairn’s testimony enough?

I fought the ever-returning, overpowering, chronic fear—that one day I’d watch some cop with a wooden heart slap the shackles on my client and haul him off to the penitentiary, in Albert’s case, an innocent kid, as helpless as a side of beef in the butcher shop. I had kids of my own, and whenever I saw a kid having fun, or accomplishing things that made his parents proud, I would think of Albert, helpless, in that concrete hole, and I would know that had I worked harder and been smarter he might be free.

I had to convince nine women and three men that they were being asked by a good man, the prosecutor, to do something wrong—to convict an innocent boy. Two of the women came into the courtroom wearing sunglasses. Had they already decided to convict Albert and needed their sunglasses to cover their tears? Number Six had gazed at Tschirgi like a doting mother watching her son play his first solo on his trumpet.

It was my time to argue. Attack. But the attack had to be effective and lasting. I had often said that if a criminal defense attorney hadn’t won his case by the time of his final argument it was too late. I pushed back ominous words that kept creeping in:

You’re due to lose.

If one is prone to give advice, as I confess I am, it was time to give advice to myself. “You’re a criminal defense attorney. A true warrior supposedly has no fear. He inspires fear in his opponent.” As always, and thankfully, ancient genes began creeping in to convert fear into the mind-set of the warrior. I was afraid, but in my mind’s ear I heard the echo of my promise to Albert: “Before they get you they’ll have to kill me with an ax.”

I began slowly in a quiet expression of genuine sorrow. “Yes, victims have rights,” I said. “What kind of satisfaction would the Brights enjoy by convicting Albert? What kindness do we show a grieving family by adding to their grief—that in their names, Albert has also been sacrificed? Is there no end to this nightmare?” I waited for the jurors’ silent answer.

“Mr. Prosecutor asks you to convict on passion and hate. Is it right for a prosecutor to use you as an instrument of hate for the benefit of the sheriff, who needs a conviction but refuses to do the work of competent cops to capture the killer? Worse, the killer will still be at large. Hate is the stuff of lynching. God help us that we are past those shameful, bloody times in this country.

“I want to talk with you about our case without any gimmicks. We don’t need empty chairs. We don’t need a fifty-foot scroll with our argument printed on it in two-inch letters. We need to just talk plainly and honestly about this tragic human drama we’ve witnessed together these seven weeks. One thing we must remember: This case is not about either Mr. Tschirgi or me. It is about truth. Where is the truth hiding, and why?

“When a prosecutor doesn’t have a case, then all that’s left for him is to create fear and hate. And if you hate Albert, Mr. Tschirgi doesn’t have to prove his case against Albert. Hate becomes his only case. Mr. Tschirgi is capable of making a fair argument. I’ve known him to be a fair man. And you are entitled to hear a fair argument.

“His problem is, of course, that the only fact he has is what the cops call a ‘confession,’ a pathetic piece of paper riddled with blank spaces, a paper that turns out to be nothing more than a scared kid saying what the officers wanted him to say, and even then, as Campbell admitted, Albert never once said he killed Beverly Bright.

“That paper, on its face, shows that Albert didn’t know the facts of the case. Where did the knife come from? He didn’t know. What did he do with the knife? He didn’t know. What kind of a knife was it? He didn’t know. ‘A hunting knife, I guess.’ What did he do after he stabbed her—a beautiful trick question. ‘Then you dragged her down the stairs?’ His answer is recorded as ‘inaudible.’ This, with the other blank spaces, is the best that Officer Dovala could get from this boy after three hours alone with him in another one of those small rooms? That pathetic piece of paper along with all of its blanks proved one thing: Albert didn’t know what happened except what he learned as he was accused over and over with this murder—first by McDougall and then Campbell for four hours and then Dovala for three. He learned the facts from them.

“If there was a murder with blood everywhere as if it were spread from a lawn sprinkler, shouldn’t there be blood on Albert’s hands, his clothes, his boots? Shouldn’t the police find his fingerprints somewhere at the murder scene?

“But compare the testimony of Sheriff McDougall to that of Dr. Fairbairn. The cops were after a confession—to get it any way they could. Sheriff McDougall sent the boy to the funeral, where he saw grieving parents and family. Probably the only funeral he’d ever been to. What effect does that have on an immature mind such as Albert’s? Ask Sheriff McDougall. He knows.

“In Casper he was totally under the control of another cop, Dave Dovala, for those three hours, and interestingly, Dovala neglected to record what he said to Albert and what Albert said to him. Can you imagine a farm boy who never sat still for five minutes in his life being cooped up for three hours in a small room with a cop who never once let him out, not once, who continued to question him without mercy, for three hours, and who failed to record what was said until he thought Albert was ready to talk? Even then the so-called confession is a confession only because the prosecutor calls it one. I will tell you what it is: It is the obliterated track of something that went on in that room, something we will never know, and that Dovala took pains to make sure that we would never know.

“And after that Albert was with McDougall and Campbell for two more hours on his way back to the Lander jail. No lawyer. No parents. No one to protect him. Surrounded by cops. Even his rights were intentionally misrepresented to him. He had as much chance to survive that onslaught as a crippled rabbit thrown into a pack of coyotes. But once he signed that paper, then they let him have a lawyer.

“Were they fair to Albert? Have they been fair with you and given you a clean, professional, credible case that you can rely on, a case you can feel comfortable with, one you can accept as true beyond a reasonable doubt so you don’t have to stare up at the ceiling at night wondering if you sent an innocent kid off to a life of torture?

“Facts are like a coloring book. The picture that comes out depends on who chooses the crayons. The suspect, Fingers, is at large and uninvestigated? Why didn’t the prosecutor bring Kenyon himself to tell you where he was that night? Why isn’t he here?”

I stopped for a moment to let my argument settle and to begin anew. “Compare Albert’s treatment by the police to the treatment he got from Dr. Fairbairn. Albert’s stay with Dr. Fairbairn was in a secure, safe hospital. He was treated with respect and kindness. He told Dr. Fairbairn what happened. The doctor put him under truth serum, not once but twice. The same story emerged. The doctor says it is his opinion that Albert was coerced into giving that so-called confession. Can we understand why?” I’d been standing in front of the jury box taking in each juror, one at a time, speaking to each for a sentence or two, being careful to bring each juror into my conversation.

“In this country we’re not permitted to do what these officers did to Albert. We are not permitted to tell him falsehoods—that if he waives his rights he can have an attorney. We are not permitted to work him over for hours and then say to a jury that his statement was voluntary. This is America. And this will always be America so long as jurors preserve the rights of the least of us, the rights of the weak and the poor—as long as even the lowly sparrow is counted.”

Some lawyers claim they can read jurors. Sometimes I think I can, but I’ve been wrong. Perhaps when I saw kindness on their faces they were only being polite. Three jurors had their arms crossed. Bad sign. Were they crossing me out? A couple of jurors kept watching Tschirgi as I argued. When I looked at Number Six she turned her head in obvious disgust.

“His Honor has told you that you are the judge of the credibility of the witnesses. Were Chief Campbell and Sheriff McDougall fair? Did they do their job competently? Or did they take the easy route against a helpless kid? Did they get the truth from Albert, or did they get empty words from a terrorized boy?” I turned again and looked at Albert sitting between his parents. They all looked beaten.

“When I sit down, I will never be permitted to speak to you as a jury again. But as you deliberate you will do a better job in answering Mr. Tschirgi than I could were I permitted to do so. You have twelve good minds and twenty-four good ears. You have heard and understood better than I. And we have a right to trust you and we do.

“I must say something more about Albert. He is a sparrow. And as we know, out in the universe, behind the sun, every sparrow is counted.” I turned and pointed to Tschirgi. “The hawk wants the sparrow. He demands the sparrow. Yes.” I waited. Then suddenly I said, “Give the sparrow to the hawk!” One of the women in the front row, the one wearing sunglasses, shook her head no. No!

I quietly thanked the jury and sat down.

*   *   *

Tschirgi jumped to his feet for his rebuttal argument. He seemed near the point of explosion, ripping with energy to stomp down, once and for all, the unconscionable sophistry of “that world-famous defense attorney.”

“What you heard here was 90 percent lawyer talk from the defense attorney,” Tschirgi said in his high, lilting tones. “What you heard was garbage. The murderer was someone else? There’s a whole world out there of possible murderers, but only one in the whole world who confessed this killing. Lawyer talk!” He ripped off a sheet from his notebook, crumpled it, and threw it in the wastebasket.

“This was not the right knife?” He held up the knife in evidence and waved it at the jury. “There is a world of knives out there, but only one with human blood on it that came from the desk drawer where Albert cleaned. All the rest is lawyer talk,” and he ripped off another sheet from his notepad, crumpled it, and dumped it in the court’s wastebasket.

“Blood all over! Splatters everywhere! But none on Albert!” He crumpled page after page representing my argument and threw each with a vengeance in the wastebasket—“lawyer talk.” I thought that if ever there was a piece of paper that should be wadded up and thrown in the garbage it was the so-called confession of Albert. But my time to speak to this jury was over. Forever.

Number Six was smiling at me as Tschirgi laid it on. She couldn’t keep her eyes off of me. She might hang this jury, and we’d have to struggle through another endless trip into the snake pit. There is no place on the face of this earth more dreadful and helpless than sitting in a chair in a courtroom listening to the prosecutor tear your argument into shreds and being powerless to speak another word in defense. Tschirgi returned once again to his theme. “We don’t need to prove anything more. He blasted her!”

Finally Tschirgi brought his argument to a close with a thunderous climax. “Do not let this case be decided on the fancy words of a world-famous defense attorney.” I should have objected, but I didn’t want to emphasize either his argument or my fear of it. “I ask you, each of you, to test your knowledge of the truth here, and once that test has been made, to return your verdict of ‘Guilty as charged.’ Thank you.”

I thanked him to myself, grateful that his argument was over. He’d been a powerful adversary. The jurors marched out quietly to decide their verdict. They’d been dragged through the meat grinder of a jury trial. Did they have the energy to argue a single word for Albert Hancock? The Hancocks walked out of the courtroom with their son. They looked as if they’d just walked a hundred miles carrying their son on their backs. I wanted to rush up to them and say, “I wish I’d done a better job for you.”

I turned to Eddie. He looked down and silently busied himself clearing up our table of notes and notebooks. We were finished. It was over. Then he patted me on the back and smiled as if to say, “It’ll all be all right.”

Tschirgi walked up. “I didn’t like the way you treated Peewee,” he said, and walked on by.

*   *   *

In the days that followed I never saw a happier, more secure, more confident lawyer with a jury out deliberating his case than Arnold Tschirgi. He was jovial and joking. He even smiled at me and said good morning. I hadn’t slept. It’s at times like this I remember how to pray. The prayer goes like this:

“Dear Lord, please just let me win this one, and I promise I will never try another case. Never.”

In ways, my waiting for a jury’s verdict is worse than waiting for the birth of one of my children. There, everything was predicted to come out all right. But not so, waiting for the birth of justice.

Eddie and I went out to the track to run. Run off the pain that feels like a broken cement mixer churning in the belly. We ran harder than usual and were panting.

“You did good,” Eddie said.

He was just trying to ease my worry like the loyal friend he’d always been.

“I shoulda—”

“I don’t wanna hear any shouldas,” Eddie said. “Too late for shouldas.”

“Tschirgi is pretty happy,” I said. “He must think he won.”

“He isn’t going to let you know what he really thinks.”

The next morning we were all at breakfast, the whole trial contingent, the judge and the reporter at one table, Tschirgi and McDougall at another, Albert and his parents at still another, and Eddie and I sitting in the far back. “Well, Tschirgi and McDougall are sure having a great old time at breakfast this morning,” I remarked.

Albert, I thought, actually looked a little happy.

I suffered those same fever dreams I’d suffered as a child when I was sick with the flu. I was fighting echoes and dissolving faces, and arguing about an ocean of insane things I couldn’t identify, and I couldn’t hear my own voice. I suffer these recurring nightmares for weeks following every trial.

Eddie said he slept all right. But he looked tired. I thought his was the harder role. He had to be a friend to a man who was in chronic anxiety over the case, and, at the same time, he bore his own worries for the case. His insights were often startlingly accurate, and he had more wisdom than his younger age should have provided. He was like a buddy in war who would live or die with you in the same foxhole.

At lunch we met Tschirgi and McDougall coming out the door of the café as we entered. I said, “Arnold, you want to drop the murder charge and take a plea to manslaughter?” I was testing how solid he might be on his case.

He gave me his smile like a kindly father to an errant child. “We came this far. We’d just as well go all the way.”

“Well, what if they’re hung?”

“We’ll do it again.” He gave me that smile again.

“Do we want to spend the rest of our lives together?” I asked. I smiled back.

“Can’t think of a better way to spend the rest of my life,” Tschirgi said. And he laughed.

“Maybe he thinks these rancher types will go for Peewee,” I later said to Eddie.

“Maybe they will,” Eddie said back. “But you’re kinda their type, too. I think most of the mothers liked you, all but Number Six.”

I endured a second night of agony and more fever dreams. I can’t imagine the hell the Hancocks were suffering. No verdict. Was the jury hung? We were sitting on the steps of the courthouse waiting, waiting. We watched the jurors approaching after their lunch. Eleven were walking together. Number Six was walking behind the group, alone. She looked long in the face.

“Well,” Eddie said. “Looks like we might have a hung jury, all right.” And the next day after lunch it was the same. Number Six was walking still farther behind, and all alone. The message was clear to me. We had a hung jury.

I’d kept worrying about Albert’s parents. If we lost, his mother would surely die. Mothers cannot bear the pain of witnessing the endless torture of their children. And I thought his father would probably die soon thereafter. And Albert would end up as a member of the living dead in that concrete rectum called a prison. If only I could have stood tall and composed and handsome like Gregory Peck in To Kill a Mockingbird. “The majority of the jurors are for us,” I said to Eddie. “Surely I’m right on that. But sometimes I get fooled.”

“We’re not wrong,” Eddie said. “Number Six has always been against us. And Number Six is against the other eleven. So that means that eleven are for us and one against.”

I trusted Eddie. “I wonder how Tschirgi sees it?”

“He and all the rest think they won the case.”

“Maybe they’re just posturing,” I said.

Eddie shrugged his shoulders.

“Let’s have a talk with Tschirgi,” I said.

We found Tschirgi sitting in the courtroom reading. “I suppose you think you’ve won the case,” I said for starters.

He didn’t answer. Just gave me that far-off smile.

“We got ourselves a hung jury. I don’t want to try it again,” I said. “Maybe we should take a majority verdict and go home. I hear this case has about bankrupted Fremont County, and if we try it again it will for sure. I know it would break us.”

He surprised me. “A majority verdict? Well, I’ll give it some thought.”

“We couldn’t do it without Albert’s consent,” I said.

“Would Albert agree to it?” he asked.

“I don’t know,” I said. “It would be pretty much up to his parents.” A majority verdict in a criminal case when the law requires a unanimous verdict—can the parties agree to change the law? It had never been done in the history of the criminal law so far as I knew.

“His parents will agree if you tell them to,” Tschirgi said.

“The judge would have to agree to it. He’s probably as tired of this case as we are,” I said.

“You want to go talk to the judge?” he asked.

We found the judge sitting in chambers staring out the window. Wearily he asked what pleasure we were about to bestow on him. He tried for a smile. He was a good-natured sort, but I thought he’d seen enough of us. He, too, knew the jury must be hung. He had a card that he kept looking at from time to time when one of the lawyers came charging into his chambers with another motion. The judge held the card up.

“Do you know what this card says?” the judge asked.

Like children we shook our heads no.

He handed it to us. “Here’s how I feel about this trial,” he said. The card was a drawing of a couple of vultures up in a tree looking down on a living being. One vulture was saying to the other, “Retain your patience.” We laughed, as was our duty. Civility is hard to come by waiting for a jury’s verdict.

We told him we were thinking about being bound by a majority verdict. “You’ll have to get everyone’s agreement on the record,” he said.

I explained it to Albert and his parents. Albert had a right to a unanimous verdict. If the jury couldn’t unanimously agree, the judge would declare a mistrial, and we’d have to try the case all over again with a new jury. We might not be as fortunate the next time as I thought we were now. I told the Hancocks I believed we had a majority with us—how Number Six, who was always against us, hung back from the rest, and how that surely meant that the rest of the jurors were for us.

“We came this far with you, Mr. Spence. We’re going all the way. Whatever you say,” Mr. Hancock said. I looked at Eddie. He nodded. “Let’s do it,” I said.

We called in the court reporter. Albert, his parents, Eddie, and I were all present. I explained it to the Hancocks on the court reporter’s record: If the majority was for us Albert would go free. If the majority was against us Albert would be sentenced to murder by the judge. We were also giving up our right to an appeal. Albert’s parents both agreed on the record. In his small, distant voice Albert agreed as well.

Judge Liamos called us all into chambers—Albert and his folks, Tschirgi, Eddie, and me. We read into the record what I had explained to Albert, but the judge wanted to hear it himself. We were again on the record. The judge was speaking to Albert and his parents.

“Do you understand that if the majority of jurors have voted to convict you, you will be found guilty and I will sentence you the same as if all twelve had found against you?”

Albert nodded.

“You have to say ‘yes’ or ‘no’ out loud for the record,” the judge said.

“Yes,” Albert said.

“Do you understand that you are giving up your right to a unanimous verdict and your right to appeal?”

“Yes.”

“And if I find that this jury is hung, we would have to select a new jury and try this entire case over again. Do you understand?”

“Yes.”

“And if the case were tried again, you could be found innocent. Do you understand you are giving up all those rights?”

“Yes.”

“Mr. Spence and Mr. Tschirgi, you have agreed to this?”

We both said yes.

The judge, as if the gates to his freedom had suddenly been opened said, “Well, folks, I want to congratulate you. This has been a hard-fought case. That you should resolve this case in this manner speaks highly of all concerned.” He called for the bailiff. “Bring in the jury,” he ordered.

We watched the jury march in. They were tired. They looked over at our table, at me. None smiled. Faces of doom. I thought, “Oh, my God, have we made a mistake?” Then the lady in the front row with the sunglasses gave me a smile. Like a kiss from an angel. And the old rancher at the end of the front row gave me a friendly nod. Number Six turned her head away. I knew.

We were waiting for the judge to take the bench. I saw the desperate face of Mrs. Hancock, a mother whose child was in mortal jeopardy and who would live or die in the next few minutes. And she was helpless to save him. I leaned over to the Hancocks and said, “It’s all right. It’s going to be eleven to one for us.”

Then Judge Liamos took the bench. The relief I’d seen on the judge’s face just minutes before had vanished. Had he changed his mind? Could he change his mind in the face of our agreement? “Gentlemen,” he began, addressing both Tschirgi and me, “I have given this matter further thought.” Oh, no! He had changed his mind. “I want both of you to know that if either side wishes not to be bound by the agreement you have made, I will set it aside.”

He turned to Tschirgi first. “Mr. Tschirgi?”

“I’m all right with it,” Tschirgi said in a confident voice.

“Mr. Spence?”

“Yes, Your Honor, we’ll be bound by it.”

The judge addressed the jurors. “Do you have a foreperson?”

“I’m the foreman,” the man in the front row said, the one who had given me a friendly nod.

The judge addressed the foreman. “Mr. Foreman, the parties have agreed to be bound in this case by your majority verdict, whatever it is. Where does this jury stand on the question of the defendant’s guilt or innocence?”

“Eleven to one for not guilty,” the foreman said.

“Do the parties want the jury polled?” the judge asked.

“No,” Tschirgi said.

“No,” I said.

Mrs. Hancock was hugging first me and then Eddie. Jeff Hancock stood looking dumbstruck. Then he came up to me and said a simple “thank you.” He was quiet even in the pandemonium of the courtroom. His eyes said words his lips were frozen against. He shook Eddie’s hand. “You were the best,” he said to both of us.

“Does this mean I can go?” Albert asked.

*   *   *

I have told the story of this case because it stands for a fundamental proposition: that despite all the safeguards of the criminal law, good men with honorable intentions, men such as McDougall and Campbell and Tschirgi, may be in error, and the system, like a ship tumbled in the tumult of a hurricane, is capable of righting itself.

The case also provides answers as to why the innocent confess to crimes they didn’t commit. From the time we were bouncing babes we were taught where to bounce and how. We do as we’re told by authority. Through our formative years our parents were authority figures, as were our teachers. Endless government officials from the dogcatcher to the parking-meter lady daily exercise authority over us. The police have unmitigated power. They direct traffic. We follow. They blow their sirens. We pull over. Whatever they demand, we are in the habit of obeying. At work, for all of our lives, our employers tell us what to do, where and when. Our government taxes us, and we pay without a street fight. In retirement we strictly follow the rules we must in order to obtain the benefits of our retirement that we’ve earned. And even at death our bodies are disposed of according to the law.

We do not revolt against authority. We do not scream in the streets when the rights of others are wrested from them. We make no undue disturbance in public places. We stand in line waiting our turn, even if it is painful to do so. We allow people we have never seen and will never see again, under color of authority, to search us at airports. Rarely do we exercise independent judgment, and when we do, our judgments are subject to the scrutiny of authority.

Cattle walk quietly down the killing chute to be butchered because they are domesticated and respect our authority. Our minds are polluted with propaganda from the power structure, and we accept their statements even when they lie to us, including their pronouncement that we are free.

Is a case such as Albert’s so unusual, a case based on a false confession? False confessions may be the single leading cause of wrongful convictions in homicide cases,37 and according to records compiled by Professor Brandon L. Garrett at the University of Virginia School of Law, and reported in the New York Times on September 13, 2010, more than forty people charged with serious crimes have given confessions since 1976 that DNA evidence later showed were false. Unfortunately DNA evidence wasn’t available to Albert, nor is it in most criminal cases today. Indeed, thousands may be in prison based on false confessions. The lengthy questioning of the accused is most often not recorded, so the actual method by which the confessions have been obtained is rarely revealed.

As in Albert’s case, the lie detector is used to extract confessions, the operator pointing to the machine and claiming it proves he’s lying. The young and those mentally unable to defend against authority, even the average citizen, may succumb after hours of intense questioning, often in endless, ruthless relays by the police to the point where exhaustion is the torture from which the victim, hopeless to longer resist, at last succumbs.

By the time we finished with the testimony of the police, it became clear that their lack of notes and any recording of what was said erased all history of their interrogation methods. In retrospect Dr. Fairbairn’s opinion was right. Albert’s confession was not voluntary. Albert was as vulnerable as the sparrow to the hawk.

The ordeal of a murder trial slashes permanent scars across the lives and psyches of even the most innocent. Albert Hancock has lived a worthy life these more than thirty years since he walked out of the Sundance courtroom, a citizen freed by a jury of his peers. He lives in a large city with his wife of many years. He has contributed to the rearing of four children. They are successful, law-abiding citizens. He has been steadily employed as a confidential messenger for a delivery company. He once made a delivery to Scotland. I wondered if he’d passed by Edinburgh Castle near where Peewee McDougall was born. Madam Fate was still probably laughing at her tricks!

Patricia Hancock, Albert’s mother, still lives in Wyoming. Jeff Hancock died on December 21, 2003. He was a rancher to the end.

Peewee McDougall made no further investigation following the case, nor did Chief Campbell. McDougall died July 22, 1994. Campbell is retired. Arnold Tschirgi lives in Lander. He is a worthy and respected member of the bar and still practices law.

I asked Albert, “How did you ever survive that trial? Weren’t you afraid? How did you make it day after day?”

“I wasn’t afraid,” Albert said.

That surprised me. “Why weren’t you afraid?”

“Because I knew I wasn’t guilty.”