57 | Courtroom as Kabuki

kabuki: a form of traditional Japanese drama with highly stylized song, mime, and dance, now performed only by male actors, using exaggerated gestures and body movements to express emotions, and including historical plays, domestic dramas, and dance pieces. LINK

I testified in February 2008. Lozow had his former partner, Rick Kornfeld, cross-examine me.

Days earlier, the defense had subpoenaed the fragmentary reports former DA Gallagher had given me and the court file I’d obtained in 1994. Along with my thank-you note to Gallagher, the court receipt for the copying charges, and the date-stamped manila envelope in which the clerk had mailed me the file, I gave them to my lawyer, Hal Haddon.

Haddon specialized in white-collar criminal defense. Although both lawyers’ clients had run afoul of the law, he and Lozow danced to very different tunes. Lozow sported hand-tailored Armani suits; Haddon’s clothes didn’t talk. Lozow mangled English and took pride in how few books he read; Haddon had represented Hunter S. Thompson. Lozow went for the gut; Haddon preferred the jugular. Lozow played his cases to the media. Haddon had one rule: Don’t.

DA Tomsic wanted me to describe Duane’s behavior the day of the murder and later at The Red Lion Inn. Kornfeld’s job was to show this wasn’t new evidence, either because I’d had a duty to come forward in 1973 or because the cops should have interviewed me back then. But when Haddon delivered the subpoenaed documents to Kornfeld just before Judge Valeria Spencer took the bench, an outraged Kornfeld accused me of grand jury abuse and demanded Spencer strike me as a witness or dismiss the case.

Tomsic pointed out Duane’s own lawyers had made the 1973 grand jury transcripts public by attaching them to motions in the court file—corroborated by the clerk’s own envelope and receipt. Suddenly Kornfeld’s credibility was at stake, not mine. Like Wile E. Coyote at the edge of a cliff, he frantically backpedaled. But I was rattled. When I took the stand, Lozow was scribbling and passing notes to Kornfeld. And Duane was with them at the defense table.

The last time I’d seen Duane in a courtroom was thirty-five years earlier, at his bail hearing. Manacled and in an orange jumpsuit that swallowed him, he’d looked scared. Facing him now was different than I’d imagined. As his icy eyes impaled mine, I felt an unexpected jolt of familiarity. He was angry—in control. Steps from the witness stand, in the first row of the gallery, Betty’s octogenarian sisters Agnes and Thelma sat with their faces turned trustingly towards mine. I kept my eyes on Tomsic.

Tomsic walked me through the day Betty was murdered. Why didn’t I talk to the cops in 1973? Because I was about to become part of Doug’s family, I said, and they never asked. Tomsic asked about Barb. Duane had been planning a cruise with Betty, I said. When Betty was killed, he’d wanted to take Barb instead, but the friends he was going with didn’t approve….

Liar! Duane shouted.

Duane was half out of his chair, and Tomsic stood open-mouthed at the podium. Spencer broke the silence. I will not stand for that, Mr. Frye! she said. Lozow told Spencer that Duane was hearing-impaired and he’d tell him to whisper to himself, but she wasn’t fooled. She warned Duane not to do it again. I looked squarely at him. Coldly he returned my gaze.

A week after I testified, Spencer ruled Cherrie and I had presented credible new evidence that justified reopening the case. Lozow’s epic motion to dismiss was denied.

We all knew who the liar was.

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