Chapter 30
The smallest courtroom in the criminal justice center wasn’t small enough.
Jack and his client were seated just a few feet away from the witness stand, where Austen was a virtual peanut in a big oak
chair. Judge Garrison had moved the hearing from the main courtroom to a “more intimate” setting in the best interest of the
child, but Jack could see the fear all over Austen’s face. Behind the lawyers, beyond the rail, there were only three rows
of public seating, but through the eyes of a six-year-old boy, there might as well have been three hundred.
Jack rose to address the court, speaking from the heart.
“Your Honor, if the court is at all inclined to close this proceeding to the public for this witness, the defense has no objection.”
Weller was quickly on her feet. “The State of Florida strongly objects. This is not a situation where the child is a victim
of a crime. It’s not a child custody proceeding or a termination of parental rights. Like it or not, the public—including
the media—has a guaranteed right to be here under the Florida Constitution.”
The judge nodded. “Ms. Weller is correct on the law. However, I ask counsel to be mindful of the tender age of this witness
and his relation to the victim.”
“Of course,” said Weller.
Of course, thought Jack. Florida Constitution or not, the prosecutor’s suckup to the media was officially beyond the pale.
“Ms. Weller, you may proceed.”
The prosecutor thanked the judge and approached the witness slowly. Her smile seemed out of place. If intended to put the witness at ease, it was having the opposite effect.
“How are you today, Austen?” she asked.
“Okay,” he said softly.
It was the first lie told by every child on a witness stand. Austen’s “okay” was no more convincing than so many others Jack
had heard over the years.
“Austen, you understand that it’s my job to ask you a few questions, right?”
“Yes, I do,” he said.
The fact that he didn’t just nod his head and mumble “uh-huh”—that he gave a clear answer in a voice loud enough to be heard—told
Jack that the witness had been prepared as well as any child could be. Jack had expected a child who had experience performing
in front of the public as a dancer to do better than most children in this situation, a hunch that was borne out by the remaining
introductory questions. You understand that some of these questions might be difficult? That all anyone wants you to do is tell the truth? That no
one is going to get mad at you for telling the truth? Austen handled one question after another with poise beyond his years, perhaps even better than Jack’s daughter, Righley,
who was two years older, might have done.
Then the prosecutor adopted a more serious tone. “Austen, unfortunately, I have to take you back to the night your father
passed away. Can you go there with me?”
He hesitated, but he didn’t crumble. “Okay.”
“Were you at your house that night?”
His feet didn’t quite touch the floor, and his legs were swinging. “Yes.”
“Did you see anyone in your house that night?”
“My mom.”
“Anyone else?”
Austen paused long enough for Jack to prepare himself for a critical revelation that his client had buried in silence.
“Yes,” said Austen.
“Is the person you saw in your house that night sitting in this courtroom now?”
Jack wanted to grab Elliott by the prison jumpsuit and scream, “How could you not tell me this?”
“Yes,” said Austen. His legs were swinging faster.
“Could you please point to that person?”
Austen didn’t quite look in Elliott’s direction, but he raised his hand and pointed with enough assurance to leave no doubt.
“Let the record reflect that the witness has pointed to the defendant, Elliott Stafford,” said Weller.
“The record shall so reflect,” said the judge.
Weller gave the witness a moment, then continued. “Just a couple more questions, and then we’re done, Austen. I want you to
think carefully before you answer. Were your mom and Mr. Stafford in the house at the same time?”
He shook his head, then added an audible response. “No.”
“Was Mr. Stafford in your house before or after your mom got there?”
“Before.”
The prosecutor seemed more than pleased. Jack felt like he’d been punched in the chest.
“Thank you, Austen. You did a very good job. Your Honor, I have no further questions.”
Weller returned to her seat. The judge gazed in Jack’s direction, and his expression sent a clear message that the game was
all but over, despite the words that followed.
“Mr. Swyteck, you may cross examine, but please be brief and mindful of my concerns about the delicate posture of this witness.”
“Yes, Your Honor,” said Jack.
Jack rose, but he didn’t immediately approach the witness.
Towering over a child, especially one who’d never met him, was a terrible strategy.
But Jack knew he couldn’t stay where he was, seated right beside Elliott, whom Austen couldn’t even look at when pointing.
Jack moved his chair out from behind the defense table and placed it a comfortable distance away from Austen.
Then he took a seat at eye level with the witness, as if the two of them were going to have a chat.
“Judge, I’d like to question the witness in this fashion, if I may.”
“You may.”
Jack crossed one leg over the other and folded his hands in his lap. He chose not to begin his questioning with the prosecutor’s
sophomoric “How are you doing today?” Instead, he had a children’s picture book with him. He flashed the cover to Austen from
a distance.
“Fancy Nancy, Budding Ballerina,” he said, reading the title aloud. “My daughter loved this book when she was little. You ever read any books about boys
who dance ballet, Austen?”
“My mom gives them to me.”
“I hear you like to dance,” said Jack.
“Uh-huh. A lot.”
“I think dancers are awesome.”
“Me too.”
Jack placed the book in his lap. “I wish we could just talk about ballet.”
“Yeah.”
“But I have to ask you about things you and Ms. Weller talked about. Okay?”
“Okay.”
So far, so good. But Jack was dreading the next line of questioning. And it was only human to feel some resentment toward
his own client, who’d put him in the position of having to ask a child the most difficult questions imaginable—without knowing
the answers.
“Austen, you told Ms. Weller that Elliott Stafford—the man sitting right over there—was at your house the night your father
died. You remember saying that, right?”
“Yes.”
If Elliott had been a “normal” client who spoke to his lawyer, Jack would have been in position to ask the type of questions that could call an eyewitness identification into doubt.
How far away were you? How long did you lay eyes on him?
Was the room dark? And so on. But the answers to those questions, unknown to Jack, might only bury his client deeper.
“Mr. Swyteck, a reminder,” the judge said. “Please be brief.”
“Yes, Your Honor.”
On the fly, Jack refined his examination to the bare essentials. The answer might hurt his client, but in this instance, it
seemed worth the risk: Jack’s instinct was telling him that the prosecutor had stopped short of asking the most important
question for a very good reason.
“Austen, have you ever seen Elliott Stafford hurt your father in any way?”
“Objection!” said Weller, her voice booming even in the smaller courtroom. “Your Honor, for the protection of the witness,
I request a sidebar.”
The judge waved the lawyers forward. They huddled at the side of the bench farthest away from the witness. The prosecutor
spoke first, her voice hushed but filled with anger.
“Judge, I stopped short of asking this question with very good reason. It will be painful enough for this child to relive
this horrific experience at trial. Let’s not drag a six-year-old boy through this twice, making him relive the murder of his
own father. Not here, in a preliminary hearing where the state has more than met its burden of proof. This is a despicable
Hail Mary attempt by Mr. Swyteck to get bail for the nonbondable offense of murder in the second degree.”
The judge seemed persuaded, but he was required to hear both sides.
“Mr. Swyteck, what is your response? And it better be good.”
“The answer is no.”
Jack did a double take; he hadn’t said anything. The voice was firm and loud enough to be heard from across the courtroom.
And it belonged to Austen.
The lawyers exchanged glances. The judge broke the silence.
“I’ll take it from here,” he said.
The lawyers returned to their places at their respective tables. Judge Garrison turned and faced the witness.
“Austen, did you just say, ‘The answer is no’?”
The child looked up at the judge. “Yes.”
“There’s no wrong or right answers in this courtroom,” the judge said, “but I need a little bit more information. The answer
to what is ‘no’?”
Austen glanced at Jack, then looked at the judge. “The answer to his last question.”
The prosecutor rose. “Judge, I—”
“Ms. Weller, please,” said the judge. “Madame court reporter, could you please read back Mr. Swyteck’s last question?”
She did, and the judge immediately followed up with the witness.
“Austen, are you saying that your answer to Mr. Swyteck’s question is no, you never saw Mr. Stafford hurt your father in any
way?”
“That’s the truth,” he said softly.
The courtroom was utterly silent, but something spoke loudly to Jack. Right before Austen had confirmed his first answer and
clarified “the truth,” if only for an instant, he had looked straight at Elliott.
“Very well,” the judge said. “Austen, thank you for coming here today. You’re a very brave boy. I’m going to dismiss you now,
which means you can go home with your mother.”
Austen didn’t move, until Helena came forward and stood at the swinging gate at the rail behind the lawyers. Austen’s eyes
lit up, and he hurried toward her. The gate swung open, Helena gathered her son in her arms, and they exited through the courtroom’s
rear door.
Weller picked up where the judge had cut her off. “Judge, I move to strike the witness’s response to that last question.”
“On what grounds?”
“The testimony is completely out of context. Maybe Austen closed his eyes at the crack of the gunshot. Maybe it’s a memory
that he has blocked out of his mind. There’s so much we don’t know.”
Jack didn’t want to overplay the first break to swing his way, but he had to go on the offensive.
“Judge, I’m having a hard time distinguishing between the prosecutor’s admission that ‘there’s so much we don’t know’ and ‘reasonable doubt.’”
“That’s a complete distortion of what I just said.”
“I’ve heard enough,” the judge said. “I’m prepared to rule. Mr. Swyteck, your client’s request for pretrial release on bond
is denied. The prisoner is hereby remanded to custody through the end of trial and the rendering of a jury verdict.”
“Judge, the defense hasn’t even had the chance to call any witnesses,” said Jack.
“Oh,” Weller said, scoffing, “now your client is willing to talk?”
Jack ignored her. “Judge, I have a handwriting expert who will testify that Mr. Stafford did not write the so-called suicide
list in question.”
The judge rolled his eyes. “Mr. Swyteck, I’ve been on the bench for over three decades. Here’s what I think of expert handwriting
analysis: It’s junk science. I appreciate the fact that the prosecution didn’t waste my time with testimony from a handwriting
expert, so there’s no need to hear from Dr. Quack for the defense. My ruling stands. Take it up on appeal if you wish. We’re
adjourned.”
With a crack of the gavel, the judge rose and stepped down from the bench.
“All rise!”
Jack rose with his client at his side. An appeal would be useless, but he knew Elliott wasn’t thinking about an appeal. The
thought of going back to jail had a way of crowding out all other thoughts. Jack felt the need to say something to his client
before they were separated, even if it was little more than a whisper in the courtroom silence.
“We didn’t win the hearing, Elliott. But trust me. We’re winning.”
The judge disappeared into his chambers, and as the side door closed with a thud, a half-dozen reporters rushed to the rail.
Some wanted a quote from the prosecutor, while others wanted to talk to Jack.
But it was the armed officers of the MDPD Court Services Bureau who commanded Jack’s attention.
They cuffed Elliott’s hands behind his back and led him away.
As they made their way toward the prisoners’ exit, Jack spotted something out of the corner of his eye.
Resting alongside a notepad on Elliott’s side of the table was a yellow Post-it note that Elliott had crumpled into a tight little ball.
Handwritten Post-its were Jack’s preferred method of communication with his clients at trial, though he’d yet to receive one from Elliott, which made him even more curious about the one he’d discarded.
Jack unwrapped the paper ball and, sure enough, Elliott had written his first and only message to his lawyer.
Presumably he’d wanted to share it with Jack during cross-examination, but Jack had moved away from the table, or perhaps Elliott had changed his mind. Either way, the words were chilling.
Leave my son alone, it read.
Jack looked up in time to see the officers escorting his client through the exit. His gaze met Elliott’s for a moment, and
then he was gone.