Page 124 of The Right to Remain

The judge cleared his throat, as if to wipe the egg from his face. “Well, thank you very much, Ms. Weller. Perhaps there is more left to the prosecution’s case than I had given you credit for. But I still have serious concerns. Mr. Swyteck, what does the defense have to say?”

Jack rose and stepped up to the lectern. He too realized this was no slam dunk. But finally, he had ammunition.

“Judge, first off, let’s be clear as to what my motion isnotabout. My client is a trans man. He has been assaulted twice in a women’s jail. I’m not asking this court to release himbecause he’s trans. By the same token, I urge you to reject the prosecution’s argument that he is a flight risk—a human chameleon—who should be locked upbecause he’s trans. Your decision should be based on the evidence—more specifically, thelackof evidence.

“Let’s start with the murder weapon. It belongs to Helena Pollard.The prosecution would have you believe that my client came into possession of the gun because Helena Pollard rushed out of the house and left it behind in her purse. But how would Mr. Stafford even know where her purse was or that there was a gun inside it? And keep in mind that this ‘I forgot my purse’ explanation was never shared with the detective on the scene, with the grand jury, or as part of Ms. Pollard’s testimony at the first hearing before this court. It’s a recent invention.

“And why was it invented? Because, Your Honor, the prosecution has no physical evidence that my client ever touched Helena Pollard’s handgun. They have a smudged fingerprint of such poor quality that it can’t be connected to anyone, which leaves the prosecution with nothing but a flimsy argument that itcouldbelong to Elliott Stafford. But if C. J. Vandermeer touched the gun when he gave it to Helena Pollard, there’s an even better argument that the mystery fingerprint specimen is his.

“Which brings me to the one thing that is driving this entire case: my client’s alleged ‘motive.’ It’s revealing that Ms. Weller began her summation of the evidence today with ‘regret.’ The foundation of this prosecution is that my client regretted his decision to undergo gender-affirming therapy. From this, all evil sprang. Two answers to that, Your Honor. First, the prosecution’s star witness on ‘regret’ is Mr. Stafford’s mother, who is a convicted felon currently incarcerated for scamming teenage girls and extorting adoptive parents. Second, this stereotypical notion of ‘regret’ speaks not to my client’s alleged motive to commit murder but to the transphobic motivations behind this prosecution in the first place.”

“Objection!” said Weller, rising. “That was uncalled-for.”

“Sustained. Mr. Swyteck, here’s what troubles me: What about the testimony that places your client at the scene of the crime on the evening of Mr. Pollard’s death?”

“I understand your concern,” said Jack. “The testimony of Austen Pollard. Let’s remember that Austen is a six-year-old boy who has recently experienced the loss of his father, a major trauma.”

“Are you suggesting I should disregard that testimony?”

Jack measured his response. He had relied on child testimony in previous cases, including the alleged abuse of children. The science supporting the reliability of child testimony had come a long way during Jack’s career, but Jack knew he was speaking to the oldest judge on the bench—a jurist who could well remember the days when the law regarded child testimony as inherently unreliable.

“No, Your Honor, I’m only asking you to balance that testimony against more compelling evidence that has now come to light. Helena Pollard was having an affair with her husband’s business partner, C. J. Vandermeer. She and her lover feared that Owen would physically harm her. CJ gave her a gun for protection—a gun with no serial number. When asked about it in this courtroom, CJ refused to answer and was held in contempt. But despite his disruptive conduct, we know that Helena and her husband were at war over their son’s self-expression as a dancer. Helena admitted she’s a crack skeet-shooter with a shotgun, and we know that a shotgun was used to make her husband’s death look like suicide. The suicide message—Owen’s purported list of ‘Things Stressing Me Out’—has Helena’s fingerprints on it, and it was cleverly drafted to include references to ‘BB’s mom,’ which made it look like Austen’s birth mother wrote it.

“Simply put: The evidence against my client is far too weak to justify pretrial detention. I would submit that a better case can be made for the pretrial detention of Helena Pollard.”

“Judge, now Mr. Swyteck is literally asking you to stand on your head,” said the prosecutor.

“Well, notliterally,” the judge said, “though I take your point. I’ve been doing this for almost fifty years, and I should have known this case was going to be the headache of all headaches, starting with a homicide victim who makes his own 911 call.”

His “literally” remark was an awkward attempt at humor at a tense moment, and Jack read it as a sign that the judge was on the fence,filling the silence, not sure how to rule. He needed just one little push, and suddenly, it came to Jack. With Judge Garrison’s help itliterallyjust came to him.

“Your Honor, may I add one thing for your consideration?”

“Please,” said the judge, as if begging for something to tip the balance.

Jack took a moment to double-check his facts. The exhibit he’d shown Helena was on the table before him.

“Judge, according to Detective Osborne’s report, the police arrived at the Pollard residence in response to the 911 call from the victim, Owen Pollard.”

“That’s what I just said,” the judge said.

Jack checked the detective’s report again. “It says here that the call came from Owen Pollard’s cell phone number.”

The judge shrugged. “So?”

“If someone calls 911 from a landline, the operator knows the caller’s address immediately. But if the call is made from a cell phone, it can take a long time to figure out the caller’s location. A really long time. Long enough, in fact, for someone to stage a suicide.”

The prosecutor rose. “Judge, we don’t dispute that the defendant had plenty of time to make the murder look like suicide.”

“I’m not talking about my client,” said Jack. “Helena Pollard told Detective Osborne that when she arrived at the house, her husband was already dead in the kitchen, apparently the victim of a self-inflicted wound.”

“Also not disputed,” said the prosecutor. “What’s the point here?”

“Yes,” the judge said. “What is your point, Mr. Swyteck?”

Jack laid the police report on the table. “That means—if we are to believe her testimony—she got to the house, found her husband in the kitchen with his head blown off... and never called 911. Why didn’t she? More to the point, how would she know that there was no need to call the police, that her husband had already dialed 911—unless she knew this was no suicide?”

There was silence.