Page 86 of The Right to Remain

“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 couldcall 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.