Defending Jacob(71)

I let go of Patz and stepped back.

I was surprised to find I had lifted him off the ground. He slid down the side of his car, landing on his heels. His red Staples uniform shirt was pulled up out of his Dockers khakis, baring an expanse of round belly, but he did not dare straighten himself up yet. He eyed me cautiously.

“I know what you did,” I assured him, coming back into myself. “No way my kid is going away because of you.”

“But I didn’t do anything.”

“Yes, you did. Yes, you did. Matt told me all about it.”

“Please just leave me alone. I didn’t do anything. I’m just doing what the DA told me to do.”

I nodded, feeling exposed and out of control. Embarrassed. “I know what you did,” I said again, low and certain, as much to myself this time as to Patz. The phrase comforted me, like a little prayer.

Mr. Logiudice: And did you continue following Leonard Patz after that day?

Witness: Yes.

Mr. Logiudice: Why? What on earth did you hope to accomplish?

Witness: I was trying to solve the case, to prove Patz was the murderer.

Mr. Logiudice: You really believed that?

Witness: Yes. You made the wrong call, Neal. The evidence pointed at Patz, not Jacob. That was your best case. You were supposed to follow the evidence wherever it led. That was your job.

Mr. Logiudice: Boy, you don’t give up, do you?

Witness: You don’t have kids, do you, Neal?

Mr. Logiudice: No.

Witness: No, I didn’t think so. If you did, you’d understand. Did you tell Patz not to talk to me?

Mr. Logiudice: Yes.

Witness: Because you knew if the jury heard the evidence against Patz, they never would have believed Jacob did it. You were loading the dice, isn’t that right?

Mr. Logiudice: I was prosecuting my case. I was prosecuting the suspect I believed did it. That’s my job.

Witness: Then why were you so afraid to let the jury hear about Patz?

Mr. Logiudice: Because he didn’t do it! I was doing what I thought was right, based on the evidence I had at the time. Andy, look, you’re not the one asking questions here. That’s not your job anymore. It’s mine.

Witness: It’s just strange, isn’t it? Telling a guy like that not to talk to the defense. It’s burying exculpatory evidence, isn’t it. But you had your reasons, didn’t you, Neal?

Mr. Logiudice: Would you at least— Please. Call me Mr. Logiudice. I’ve earned that, at least.

Witness: Tell them, Neal. Go on, tell them how you knew Leonard Patz. Tell them what the jury never heard.

Mr. Logiudice: Let’s move on.





22 | A Heart Two Sizes Too Small


Mr. Logiudice: Directing your attention to a document that’s been marked Exhibit, um, 22, do you recognize this document?

Witness: Yes, it’s a letter from Dr. Vogel to Jonathan Klein, our defense lawyer.

Mr. Logiudice: And the date?

Witness: It’s dated October 2.

Mr. Logiudice: Two weeks before the trial.

Witness: Yes, give or take.

Mr. Logiudice: The bottom of the letter says, “CC: Mr. and Mrs. Andrew Barber.” Were you shown this letter at the time?

Witness: Yes, I was.

Mr. Logiudice: But your attorney never turned over this document in discovery, is that correct?

Witness: Not as far as I know.

Mr. Logiudice: Not as far as anyone knows.

Witness: Don’t testify, Neal. Come on, ask a question.

Mr. Logiudice: All right. Why was this document never turned over to the prosecution?

Witness: Because it’s privileged. It’s a doctor-patient communication and it’s work product, which means it was created by the defense team as part of its trial preparation. That makes it confidential. It’s exempt from discovery.

Mr. Logiudice: But you’ve produced it now. And in response to an ordinary boilerplate discovery order. Why? Are you waiving the privilege?

Witness: The privilege isn’t mine to waive. But it doesn’t matter now, does it? The only thing that matters now is the truth.

Mr. Logiudice: Here we go. This is the part where you tell us how you believe in the system and all that.

Witness: The system is as good as the people running it, Neal.

Mr. Logiudice: Did you believe in Dr. Vogel?

Witness: Yes. Completely.

Mr. Logiudice: And you have confidence in her now? Nothing has happened to shake your faith in the doctor’s observations?

Witness: I trust her. She’s a good doctor.

Mr. Logiudice: So you don’t dispute anything in this letter?

Witness: No.

Mr. Logiudice: And what was the purpose of this letter?

Witness: It was an opinion letter. It was meant to summarize the doctor’s findings about Jacob so that Jonathan could make a decision about whether to call Dr. Vogel as a witness and whether he wanted to get into this whole subject at all, the subject of Jacob’s mental health.

Mr. Logiudice: Would you read the second paragraph to the grand jury, please.

Witness: “The client presents as an articulate, intelligent, polite fourteen-year-old boy. His manner is shy and he is somewhat reticent in conversation, but nothing in his conduct suggests a compromised ability to perceive, recall, or relate the incidents involved in this case or to assist trial counsel in making informed, intelligent, well-reasoned decisions pertaining to his own legal defense.”