If that’s all there is my friends, then let’s keep dancing.
Let’s break out the booze and have a ball…
Is That All There Is?
Over the next two years, Lozow filed dozens of motions to dismiss. The passage of time denied Duane a fair trial, the DA was negligent and acted in bad faith, and anyone who said anything against Duane was lying. In one motion, he quoted Peggy Lee’s Is That All There Is?
In the eighteen-month pretrial hearing, Lozow put the 1973 investigators and cold case cops on trial. He resurrected Tom Gussie as Betty’s real killer and Jim Blake as the dogged detective who’d broken the case. He attacked Duane’s deceased mother, Lolita. He even used poor old Jim Dean, who’d died brokenhearted after his wife Barb left him for Duane. Although Jim had told Dick Brickell he wanted to get a gun and kill Duane, Lozow claimed Duane’s inability to call Jim as a witness was fatally prejudicial because Jim “could have provided important information about the Dean marriage at the time of [Betty’s] death, and likely dispel the allegations regarding a suggested motive for [Duane murdering his wife].”
This time around, the DA’s office was better prepared. To reprosecute Duane three decades after the fact, they needed to show new evidence had been discovered. That put Cherrie and me in Lozow’s cross-hairs. Seventy-eight-year-old Cherrie became Duane’s “estranged sister” whose “cryptic assertion” related a “confession” or “story” that was “a figment of her imagination.” I was Doug’s “former fiancée” who didn’t know Duane because we’d met only a couple of times, and who had initiated the cold case in cahoots with Cherrie in order to sell books.
The DA’s smoking gun was Duane’s confession to Lolita. Because Cherrie had brought the confession to the cops, Lozow had to kill the messenger. It didn’t matter if that meant establishing Cherrie’s memory was faulty or she’d misinterpreted what her mother said; that Lolita had been untruthful or of unsound mind, or that Cherrie herself was an out-and-out liar. In June 2007, when Cherrie took the stand, Lozow got more than he bargained for.
As Cherrie marched past the defense table, she saw Lozow turn to his young associate. The Kanes and I are friends, he said just loudly enough for Cherrie to hear, we go to dinner together. Cherrie looked in vain for Jean Brickell. She knew Jean and her sisters attended every pretrial hearing even if they had to wait in the hall. But today Jean didn’t come. Suddenly Cherrie felt completely alone. When she’d learned about the confession, she’d confided it to her best friend, Betty Smaldone, the assistant minister at her church, and a second friend she’d refused to name. Bette had confirmed the confession to the cold case cops, but now she, too, was dead. All Cherrie could think was, thank god Bette died before she had to run this gauntlet.
Cherrie’s weakness was her inability to pinpoint the exact dates Lolita had told her about Duane’s confession. On tape at Piccolo’s, she’d said their conversations occurred in 1995 or 1996. She’d also roughly estimated it as 25 years after Betty’s murder which, if taken literally, was around the time Lolita went into a nursing home. With Cherrie on the stand, Lozow tried to push the date to 2001 or 2002, after Lolita developed dementia. But Cherrie insisted that when Lolita recounted the confession, she’d been lucid and alert. Cherrie also testified that when saw me interviewed on the local PBS station about Quiet Time, she went out and bought my novel. After reading it she called Jean Brickell.
Cherrie sidestepped Lozow’s traps. Failing to confuse her on dates, exact words said, and whether her minister advised her to go to the cops in the 1990s, Lozow tried to get her to conflate the confession with Quiet Time. When he asked if Betty crying over my impending marriage to Doug was in the book, Cherrie demurred. I read two books a week, she said, do you remember all your books? No, Lozow snapped, and I don’t read two books a week. Finally Lozow threw it in her face that when she’d met with Jean and Dick Brickell at Piccolo’s, they’d been wearing a wire. Cherrie hadn’t known. On the stand she kept her cool, but she never forgave Jean. And her dignity wasn’t all she lost.
Outside the courtroom, Cherrie made an overture to her niece, Jan. Infuriated, Jan rebuffed her. If you think I’m going to stand here making small talk with you, you’re crazy, Jan said. One phone call to my father and none of us would be here. We could’ve cleared up this whole thing without a trial!
That was Cherrie’s last contact with the Fryes.
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