Beau would open the defence case when the court reconvened. Every criminal trial starts with a strategy, a plan of attack, a theory of the defence that a reasonable jury could accept. And every criminal trial required constant reevaluation. It was for Beau the most important role he played; always having a strategy but never being scared to change it, mid trial if necessary. It was time to review.

Gallagher was satisfied he’d presented an ironclad case to support the charge of first degree murder. The murder weapon, the confession, witnesses to the shooting were all before the jury now, each piece of evidence persuasive alone but as a whole, Gallagher thought to himself, impossible to surmount. Add to that the evidence from several of Stokes’ old prospector buddies, testifying to the ill will he bore toward the victim and his repeated threats to kill Woods if he ever saw him again and Gallagher once again muttered to himself, “Open and shut!”

The biggest decision in any criminal case now had to be made: Would Bear put Joe Stokes on the stand?. The conventional wisdom with jury trials is that you should, the jury needs to see and hear the defendant; hear what he has to say, get a feel for him as a man.

On top of that, the prosecutions’ case was strong; even without Beau’s early admission that Stokes had killed Woods with the .357, one shot to the head at the bar in Ross River, Gallagher had made his case with a long line of witnesses testifying in agonizing detail before the jury. The facts of the case were proven beyond any reasonable doubt. 

The only issue, and it had been the only issue from the beginning was intent. What was Joe Stokes state of mind when he pulled that trigger? Was it all intentional or was he in such a dissociative state of mind that he didn’t actually know what he was doing? Was he ‘out of his mind’? 

In law school, this would have been open and shut. Of course, your trial law professor would have said, of course you’d have to put Joe on the stand. The case is proven, that’s your only hope! But Beau had learned through many jury trials that it is never an open and shut decision. He had always known the case against Joe was strong. 

Beau didn’t have much time for Gallagher and he suspected Gallagher held him in the same regard. The forced civility between lawyers often breaks down with the personal tensions that inevitably develop in long criminal trials. When he thought it served his clients purposes Beau had often intentionally aggravated prosecutors; any energy he could divert his way was energy diverted from the case. He even remembered a fist fight in the barristers changing room between two lawyers, during a long drug trial in Victoria. Things could get heated. 

But none of that mattered right now. Gallagher was a good trial lawyer and he had been very effective. By the time he rested his case Beau knew Gallagher would have been confident of a conviction for first degree murder.

But that, thought Beau, with the unblinking contrariness of any good defence lawyer, that is before the jury has heard Joe’s defence and the forensic psychiatrist Dr. Pringle.

For Beau the question was simple: Did the jury have enough to acquit Stokes of first degree murder on the lack of intent to commit a planned and deliberate murder? 

Or did he have to put Joe on the stand? Could the jury on the strength of Dr. Pringle’s evidence decide that Joe was in a dissociative state, that he was ‘out of his mind’ and so acquit him on the first degree murder charge? And Beau reminded himself once again, he didn’t need the whole jury, he just needed one member of the jury to think that way.

Any decision to put your client on the stand in a criminal trial has to involve a clinical assessment of your client. Is he smart? Is he sympathetic? Does he contradict himself? Can he handle being cross examined by an experienced prosecutor? Would he convict himself with his own words?

And what about Joe himself. If he did put him on the stand what kind of witness would he be? Joe wanted to testify. From the moment Beau had first met him in the Prince George Remand Centre, he had been inconsolable, openly weeping as he admitted how he had shot his old friend Hank, “I don’t know what got over me, I can’t even remember doing it but I know I did it. I’m not going to say I didn’t!”  At first Beau thought Joe would be a good witness. His emotion was real and authentic and any jury needs to see that in the defendant. His tears were inevitable and they would be persuasive. The jury would warm to him. 

But Joe was a simple man. For him ‘I did it. I’m guilty.’ was his north star and no matter how much time Beau spent with Joe explaining the difference between first and second degree murder, no matter how much time Beau took trying to explain that he might have been ‘out of his mind’ when he shot Hank and if he was that would be a defence, no matter any of it Joe just repeated, ‘I did it. I’m guilty.” 

Joe’s story was a good one and if he put him on the stand it he could get it in front of the jury. He had spent his early years in Prince George, raising a family and running an automotive business. ‘Joe’s Automotive’ had been a fixture in Prince George for decades with a trusted reputation for straight talk and good work. 

His son Jake was also mechanical and learned helicopter maintenance and worked in the lumber industry. Eventually Jake started North Country Helicopter and built a successful multi million dollar business. When Joe left Prince George he moved to Whitehorse, first working in an automotive shop fixing big trucks and then slowly beginning to prospect. It wasn’t unexpected when he told Jake and his grandchildren that he was going to prospect full time. He had enough money saved and they all knew he loved everything about it. 

Every year, twice a year since then Joe made sure he came down to Prince George to visit with his son and family, always thrilling the children with exciting stories of raging rivers, hungry bears and mysterious beasts. And he always came with little gold nuggets for the kids which he gave to Jake for safe keeping. One day he would say, it would be a little nest egg for the kids. It helped Beau to think about all this. He knew that Joe would come over as a genuine, decent man, a man who until he shot his old friend had lived a quiet, anonymous life; a good man who had caused trouble for no one, not his family and not anyone who knew him.

But Beau was as unsure of the answer to the question as he had been at any time during the trial. Back and forth he went, going over and over in his mind, weighed down by his awareness that this decision would decide Joe’s fate, calibrating a hundred thoughts, knowing that he was running out of time. 

But one thing had come clear. The jury needed to hear from Dr. Pringle first. He would evaluate his defence one more time after that. Right now he just wanted to get through to the weekend and leave the jury time to take it all in.

Beau had learned that if you polled any jury after they’d heard the case for the prosecution, they would convict the defendant. It was all out of balance, out of whack at that point. One sided evidence, systemic bias and the natural bias of decent people were the ingredients of an intoxicating cocktail.  But that, thought Beau, that was before the jury had heard Joe’s defence. He needed to make the jury think and to do that he had to give them something to think about. That ‘something’ had a name: Dr. Jonathan Pringle.

He would begin with Dr. Pringle. He knew he’d be presenting the video evidence of the forensic psychiatrist and he guessed his testimony would create a significant impression on the jury. 

He was as good as advertised. Pringle was an experienced witness. He knew that he had to explain his evaluation and conclusions in plain English but in a way that let the jury know he respected their individual intelligence and group wisdom, something that was not an easy task for people like Pringle who live in an intellectual bubble, often removed from everyday exchanges and everyday people. 

But Pringle nailed it. He clearly and simply explained the complex diagnosis of automatism and a dissociative state, a state of mind which leaves the subject essentially acting in a suspended state of mind, more observer than participant.

On the stand, Pringle took pains to review the entire history of the relationship between the two men, the decades of prospecting and shared dreams, the good fortune of Hank Woods and the sharp abandonment of their friendship. He told the jury what life had already taught them; all of our actions have context, and that context informs our decisions and our behaviours.

Pringle observed that this abandonment was for Joe Stokes a wrong from which he would never recover, a wrong that shook him to the quick and which coloured all of his thinking from that moment on. He opined that if Hank Woods had just once made an effort to contact Joe, things would have been very different in Joe’s mind. 

Beau also knew that during his cross examination, Dr. Pringle had blunted the impact of the many repeated threats that Joe had made. 

Gallagher had recognized what Pringle was trying to establish and immediately attacked the witness, his voice incredulous, “But Dr. Pringle, the defendant openly threatened to kill Hank Woods, ‘… I’ll kill that bastard if he ever sets foot in this bar again!’ How do you square that with this newly minted dissociative state theory of yours? It’s simple is it not doctor?  Stokes said he would kill him. And then he did.”

But Pringle was an experienced witness. He parried, “I suspect that if every time one of these old prospectors was held to account and carted away for vicious threats shouted out loud, there’d be precious few men left in Ross River. What might well be a meaningful threat in Ottawa where you come from Mr. Gallagher can be something entirely different in the Yukon.  Each community has its own ways, its own set of norms; for the men of Ross River, these old timers, winter bound for months, living more dream than reality, the reality being hardship and disappointment. All of this coupled with too much drink for months on end, shouted threats were commonplace and rarely if ever heard as real.”

Pringle then delivered the final blow. He spoke directly to the jury,

“Ladies and Gentlemen, think of your own lives. How many times have you said something threatening? You never meant to act on it, you were just mad. Joe Stokes never meant what he said as a statement of intention, not once, not at any time.” 

Pringle spoke with the confidence of a man who trusted what he was saying, “It was blowing off steam, like they’ve always done in Ross River.” 

Gallagher jumped to his feet, “M’ Lord Dr. Pringle is not allowed to speak directly to this jury and he knows that.”

“You’re absolutely correct Mr. Gallagher. I’m instructing the jury to ignore any reference the witness made about their personal lives.”

For Beau it didn’t matter. It had been heard by the jury and despite the judge’s warning, it could not be unheard. Pringle had spoken directly to them as ordinary people; he’d let them know that all this fancy talk of automatism and a dissociative state of mind didn’t trump the everyday experiences of twelve everyday people. 

Beau couldn’t have been more pleased. He was sure Pringle had been a good witness for the defence. And what’s more it seemed as though Gallagher had been so sure of his case that he hadn’t even bothered to contradict Pringle with an expert of his own, nor did he have one on standby.

Pringle’s opinion was with the jury, unchallenged by any other expert. Even better, he was the last witness the jury would hear before the weekend. Beau had given them something to think about. 

“Open and shut my ass!” Beau allowed himself a moment of satisfaction. He had been on his heels throughout the trial doing his best to minimize the compelling facts of the prosecution’s case but knowing that he was in tough, fighting a rearguard action against overwhelming odds. 

For the first time Beau knew he had Gallagher’s attention, that he had been underestimated. It felt good. 

And now one final decision. Was he going to put Joe Stokes on the stand in his own defence?  If he took the stand and was convicted, Beau would blame himself for the rest of his life. 

He’d been there already; a young man Beau had defended, one of his first big cases, was in jail serving seven years after a conviction for importing cocaine. He had travelled to Peru on vacation with three other buddies and naively mailed an ounce of pure cocaine back to himself in Kelowna, which he picked up when he returned from his travels. The cocaine had cost him $20 in Peru and the prosecution agreed that he was going to use it for himself. That client had insisted on testifying in his own defence and Beau had let him.  

When he had been convicted and taken in cuffs from the courthouse Beau was rocked, ending up down on the beach later that day, weeping openly, knowing that he had made a mistake that cost a twenty year old boy seven years in a federal penitentiary.

It was, Beau thought quietly, the hardest part of being a defence lawyer. The prosecutor just wins or loses, they’re even taught that they should only care about justice, to see justice done, that to care too much about winning as a prosecutor can lead to injustice. 

But not so for the defence lawyer, for them there is no such hiding place. You either win or lose and there is always real life human consequence to it all. The weight of this decision could be crushing but all that aside it was Beau’s decision to make.

Thankfully the weekend was here. He’d finally made some headway and the science behind his defence of Joe Stokes was with the jury. Maybe that would be enough. Or maybe not. Beau would have plenty of time to think it through. He had a great sleep. 

He was awoken by a soft knock on his door.

A PENNY FOR YOUR THOUGHTS

Penny stood in the door frame.

Beau was surprised. And very pleased, “Well aren’t you a sight for sore eyes. I’ve been thinking about you.” Between the trial and Break Out, Beau’s week had been very full, to say the least but he had thought about Penny several times since they’d met. He knew he had been attracted to her but also knew that they were both just passing in the night. He’d even told Shrap and his posse about her. They knew who Beau was talking about, she was a head turner, wherever she was. Of course they had to tell him that he was over reaching in a big way.

And here she was. Bright and early on a Saturday morning in Whitehorse looking even more beautiful than he had remembered.

“There’s nobody here, is there?” Penny asked, perhaps recognizing that Beau may have a female companion already. “I’m such  an idiot. I never thought about that,” she quietly chided herself. “How embarrassing.  I should have called up from the front desk. I’m so sorry to disturb you. I just wanted to see you again.” And she turned to leave.

“No, no … no, come in … please. It’s so good to see you again. Let me get ready and we can head out for lunch.” 

“I’d like that.” she said. “I know a nice place on the river.”

Beau and Penny spent a long time over lunch, both of them as hungry for conversation as they were for food. Beau knew that this was just one of those moments in time; he’d met a few other women the same sort of way, during his travels and had always regretted being so careful, so reticent. These happy collisions were fantastic but always left him disappointed, for what they could never be, he supposed. And here he was doing the same thing again, letting what it could never be get in the way of what it was right now. Not this time, he resolved. 

“You know, I still don’t know what you do Penny?” he said.

Penny smiled and looked right at him, “Well, why don’t I show you what I do, rather than tell you.”

“Well, that sounds interesting.” Whatever rabbit hole Penny was leading him down, Beau was all in.

Penny stood up, “Let’s take my car. It has everything we need.”

Very quickly they were out of town driving for what seemed like an hour before Penny turned off the main road, winding their way down a snow covered side road. And then they were there. This is like driving into a postcard, thought Joe, it’s right out of a Tourism Yukon poster. 

A small cabin stood on a bluff above a beautiful lake, bathed in the last hours of the day’s sunshine. And it was still. A quiet like Beau had never experienced before was pierced only by the haunting call of a loon.

Penny took him inside the cabin.

“Why don’t you make us a fire. I come here once in a while. Most often by myself. I’ve travelled around the world and have never found anywhere so beautiful and peaceful. I’m glad I can share it with you Beau.”

Penny stood up, her golden hair now reflected against the soft afternoon sunlight streaming through the windows. She moved to him and kissed him on the lips. A long, tender kiss, hinting at desire.

“I like you Beau Jackson.”

She walked into a side room and returned with a cello. 

“Let me play something for you.”

Penny sat in a chair, backlit by the crackling fire and placed the cello between her knees. Whatever was going on here, Beau knew that this had become another in a long list of spectacular days in the Yukon. 

Alone with a beautiful woman, in a remote log cabin on a beautiful lake, who was about to serenade him, “I couldn’t have written this story if I tried” he smiled to himself.

“There should be some white wine in the fridge. Why don’t you pour us a glass.” She began to play.

“This is Claire de Lune by Debussy. I will always think of this moment with you when I play this, wherever I am in the world.” Beau had no words. And he knew that words could add nothing to this incredible experience. Penny played and Beau listened, shutting his eyes, opening them, not wanting to miss a moment of this moment, gazing out the cabin window, hearing the faint howl of a wolf across the lake. He’d been asked recently if he could have one superpower what would it be. He’d never thought about that before and remembered thinking the question was trivial but now he knew his answer.  If I had one superpower it would be to stop time, right now, right here in this place, with Penny.

When Penny finished she sat quietly, looking at Beau across the room. 

“And that is what I do.” she finally said.

“What do you mean?” Beau didn’t quite get it.

“I play the cello as a guest artist with symphonies around the world.” She gently placed her cello on the cabin floor and beckoned Beau to come over. 

“I’m not here for much longer.” said Beau.

“Perfect” she whispered in the silent consent of the times, “I’m not either.  Actually, I’m leaving for Munich on Monday to begin a three month tour of Europe. Now, Beau ‘Bear’ Jackson, do I have to ask twice? Get over here.” When Penny had placed the cello down, she had kept her knees far apart. She pulled him to her.

Beau did not need to be asked twice.  They made love that night, their bodies lit by the dancing flames of the roaring fire, knowing that they would never meet again adding an intensity that would lock in the memory for life.

Sunday morning they awoke to the quiet. The unforgettable quiet of the Yukon; all he could hear was the rhythm of Penny’s breathing.  Beau knew he shouldn’t but he couldn’t help himself. Penny was mesmerizing, and intoxicating and Beau was drunk with everything about her. The entire time he was with her he had thought of nothing else, no one else. He didn’t want it to end.

Penny was the first to speak. As though she could read his mind.

“This is my secret place Beau. I’ve let very few people come here because it is so special to me. I love to play my music for people but I really believe I have found a way to live in balance, and to live in control. I am as happy here, as I am playing in the Coliseum in Rome. I don’t want anything to change that.”

It was as though she knew what he was thinking, that she knew his mind was racing trying to concoct some way for them to stay together. He could travel anywhere she was on tour to spend time. He’d love that. They could find a way to make it work.

“You are special Beau, I think I could even fall in love with you. But I would end up hurting you because I can’t be what a good man like you needs me to be. Let’s save these precious memories for all time. Just the way they are, in this moment, right now.”

Beau went quiet. He knew she was right, he just didn’t want to say it out loud. Besides, as Penny was in love with her cello, Beau was in love with his work. He would end up hurting her because ultimately he couldn’t be what a woman like Penny needed him to be. 

“I could come and meet you in a few weeks, somewhere on your tour.” he said, knowing he couldn’t.

“That would be nice.” Penny responded gently. They both knew it wouldn’t happen but it was a nice way of saying, “I won’t forget this. Ever.”

They drove back to Whitehorse in silence. In happy, content silence.