By Herschel Cozine
"I'm scared, Jimmy. I'm real scared." Michael huddled on the cot in the cell with his knees pulled up to his chin. He had been crying and a
sob shook his body as he peered through red eyes at his brother.
Jimmy put a hand on Michael's shoulder and patted it gently. "I know, Mike. I know. But I'm here. Nobody's gonna hurt you. I promise."
"But I killed her. They don't like me because I killed her. They're gonna want to kill me, too."
"Nobody's gonna kill you," Jimmy whispered. "Just trust me. Will you do that? Will you trust me, Mike?"
"But they said so. That judge said so, Jimmy."
"No he didn't Mike. He said you had to stay in here for awhile. OK?"
Michael sobbed again, nodded uncertainly and hugged his knees tighter.
Jimmy patted Michael's arm. "Now, stop crying and listen to me. I won't let them hurt you. You be good and do what they ask. I'll see that
nobody hurts you."
Michael rubbed a tear from his cheek and looked at Jimmy through fearful eyes.
"Trust me, Mike, OK?"
"OK?" Jimmy repeated.
Michael nodded uncertainly.
"Say it," Jimmy said.
"I trust you."
Jimmy stood up and crossed to the door of the cell. He beckoned to the policeman standing nearby. The policeman walked over, turned
the key in the lock and swung the door back. Jimmy stepped out into the corridor and the key turned again.
"I'm getting you out of here, Mike. Now don't cry and don't cause these folks any trouble. I'll have you out in a few hours."
It was a lie, of course. There was no way he would be able to get his brother out of prison. The verdict had been given and sentence
passed. But Jimmy couldn't tell Mike the truth. Not yet. Perhaps not ever.
Jimmy walked slowly and uncertainly out of the jail, looking over his shoulder toward the cell where his brother was housed. Mike, his
younger brother, was not right. He was born prematurely, suffered oxygen deprivation and enough brain damage to make him "mentally
challenged" as the social workers liked to say. Simply put, Mike was retarded. And he was never violent before. Violence was not a part of
Not that he couldn't have killed Lisa. But if he did it had to be an accident. And no one should be sentenced to spend ten years in prison
for an accident. Jimmy wondered how the jury had arrived at the verdict they did. He had sat through the trial listening to prosecution and
defense witnesses. From what he had heard there was enough doubt to justify — no — require a not guilty verdict.
It had to be prejudice. The members of the jury, watching Mike as he wiggled and made faces, cried and even yelled during the trial, let
his actions influence their thinking and find him guilty of any crime the prosecution chose to name. And Fred Warren, Michael's court
appointed attorney, did little to help. At best the defense was perfunctory. Jimmy felt it was worse than that. It was incompetent. A plea of
diminished mental capacity was denied. The court relied on experts to decide that Mike knew right from wrong. No other plea was entered
by defense counsel.
Jimmy cried out audibly when the verdict was read by the jury foreman. He was gaveled to silence by the judge. Jumping to his feet, he
glared at the jury, then whirled and stomped out of the courtroom.
Jimmy spent the rest of the afternoon wrestling with his feelings. Poor Michael. He wasn't even aware of what was happening. He only
knew that he had done something wrong, or at least he was told that he had done something wrong, and that he had to stay in jail until
people decided what to do about it. Jimmy had protected him from the harsh reality, hoping that the jury would find him not guilty. But that
wasn't to be.
Angrily, Jimmy stormed back to the courthouse. Brushing past a guard, he strode into Judge Miller's chamber.
Judge Miller, a stern faced man whose manner exuded self-confidence, scowled at the intruder and pointed to the door.
"How dare you come in here without an appointment. Get out!"
"Please, your honor," Jimmy started. "I am Mike Cooper's brother and..."
"I know who you are, young man," Miller said. "We have nothing to discuss."
"I respectfully disagree," Jimmy said. "I'm asking that you reconsider your sentence."
Miller waved an impatient hand. "Your brother had a fair trial. The jury gave it due consideration and returned the only verdict possible
under the circumstances."
"It isn't a fair verdict," Jimmy protested. "And his so-called attorney is an incompetent fool."
"Your brother is guilty. I know it. You know it. No defense could get him off."
"How can you say that, Judge?" Jimmy said. "Everyone is entitled to competent counsel."
"A retrial would be a waste of taxpayers' money," the judge said. "Your brother belongs behind bars where he can't hurt anyone —
intentionally or otherwise."
"He was sentenced to ten years!" Jimmy shouted.
The judge scowled. "My sentence was dictated by the severity of the crime. I offer no apology, and I refuse to discuss this further." He
pushed a button on his desk. Almost immediately the bailiff appeared in the doorway.
"Show this man out," Miller said. "If he gives you any trouble, arrest him."
Jimmy shoved the bailiff aside. "I'll see myself out."
* * *
Fred Warren, a sixtyish, sour individual, was unwilling to discuss the case. "I did my best with what I had," he said. "I can't make a silk
purse out of a sow's ear. Your brother is not right. He doesn't fit in, and that makes people nervous."
"My God," Jimmy exploded. "I don't believe what I'm hearing. If everybody who didn't 'fit in' with society's concept of acceptable behavior,
there wouldn't be enough jails to hold them all."
The attorney shrugged. "They haven't killed anyone."
"Neither has Mike."
"The jury seems to think so, and they're the last word in this country."
"The jury was prejudiced. The evidence wasn't there. You know that. No one should be convicted on such flimsy evidence."
"What do you want me to do about it?" Warren asked with a sigh.
"Appeal for God's sake!"
The lawyer snorted. "Of course. But it's not going to change anything. I don't have a prayer of getting this conviction overturned."
Jimmy's frustration boiled over and he grabbed Warren by the shirt. "He's my brother, for Christ's sake. I'm all he has. And he doesn't
deserve to be locked up for ten years simply because he's a square peg. My God, this is insane!"
"I understand what you're saying," Warren said, his voice softening. "But Judge Miller is a respected judge and is seldom overruled.
I wish I could help."
"He doesn't belong in prison, dammit," Jimmy shouted. "Okay. I know. He's not right. And if he did what he's been convicted of doing, he
has to take the consequences." Jimmy leaned over the attorney's desk, his eyes dark with anger. "But prison isn't an option. Those
inmates are even less tolerant than the people who put him there. He'd be dead in a month."
Warren wiped his hand over his face and sighed deeply. "I'm truly sorry," he said. "I know how you must feel. But the legal process was
observed and a ruling made. No matter how much we may want to change it, the decision will stand. I've been down this road before. I
know the routine."
Jimmy left the attorney's office, frustration and anger welling up like an ocean tide as he considered the injustice and indifference of it all.
The victim in this case was a nineteen-year-old girl. Lisa Stewart. Jimmy knew little about her. Most of what he knew he had learned at the
trial. She was two years younger than Mike and had worked as a waitress where Mike had been employed as a dishwasher. She had a
boyfriend. And Todd Lerner was the most damaging witness.
"Yeah," Todd had said in response to the prosecutor's question. "This guy had a thing for Lisa. He followed her around like a puppy. It
was getting on her nerves."
"Did you ever see him get violent with her?"
"A couple of times."
"Would you tell the jury what happened?"
Todd turned in the witness chair and looked at the jury. "One time, about six months ago, Mike pushed her against the wall..."
"I did not!" Mike was on his feet. Warren pulled him back in his chair while the judge gaveled for order.
"Restrain your client, counselor," he said.
"I didn't push her! She pushed me! She pushed me!" Mike shouted.
Warren placed his hand over Mike's mouth and glanced at the jury. "I apologize for my client. He is distraught. I would like a brief recess,
The judge banged his gavel. "Ten minute recess," he said, glaring at Mike. "And when we return we will have no further outbursts or the
defendant will be removed from the court. Understood?"
"Yes, your honor."
"I didn't push her," Michael repeated over and over, ringing his hands.
"I know you didn't," Jimmy said. Turning to Warren, he said, "he's telling the truth. Mike couldn't hurt a fly. He cries when he sees people
get hurt or animals dying. He is incapable of violence."
Warren shrugged. "Try to convince the jury of that."
Jimmy whirled in outrage. "That's your job! Put me on the stand. I'll tell them."
Warren turned to his papers and stacked them neatly in a pile as the officer led Mike from the courtroom. "You're his brother. Do you think
the jury will put any stock in your testimony? Forget it."
Mike's behavior and outbursts in the courtroom worked against him. The jury was antagonized by the delays and disruption. Failing to take
into consideration his mental capacity, they were quick to return the guilty verdict.
Judge Miller, having passed sentence, further directed that his sentence be carried out at the State Prison. Jimmy cringed when he heard it.
This was a place for hard core criminals. It had a reputation for inmate violence, riots, and general hard core behavior. Mike would most
certainly be injured or killed before he had time to have his appeal heard.
"Incarcerate him in the mental home while you appeal," he told Warren.
"I'll request it," Warren replied. "But don't get your hopes up. That is a minimum security facility. Only non-violent inmates are quartered
"Well the State Prison is not an option. Let him stay where he is now."
"You don't..." Warren started. Jimmy whirled on him and pointed a finger in his face.
"You're his attorney. Like it or not. I know you didn't ask for this, but that doesn't change the fact. Start earning your goddamn pay.
There have been a lot of other cases like this where the defendant was not sent up until his appeals were heard. Mack Craven..."
Warren held up his hand. "Craven was an exception. He had contacts."
"And a competent lawyer," Jimmy said.
"That's not fair."
Jimmy snorted. "This whole debacle is not fair."
Warren nodded in sympathetic agreement. "I'll try, of course. Your brother will be confined to the local jail for the rest of the month. I'll talk
to Judge Miller about it."
Jimmy started to say something, but Warren held up his hand.
"Don't get your hopes up. I only have four days to make a case. It's not very promising." He cleared his throat and looked at Jimmy with a
"You didn't help matters by storming into Miller's chambers."
Jimmy grimaced at the memory. "I would hope the judge would look at this with a professional eye and not be influenced by my actions."
"Maybe," Warren said. "But he's only human, even if you don't think so."
Jimmy sighed. "Do what you can. But if Mike is sent up I can guarantee it will be the worst thing that could happen to him. And that will be
something Judge Miller will have to live with."
"I'll remind him of that," Warren said. He cleared his throat and toyed with the penholder on his desk.
"There is an alternative to the penitentiary in your brother's case. But I hesitate to recommend it."
"What is it?"
"Madison!" Jimmy shouted. "That's for the criminally insane. Mike is not insane and he is not a psychopath."
"I understand," Warren said. "But if the thought of sending him to the penitentiary is distasteful, this could be a compromise."
"No," Jimmy said. "I hear horror stories about the treatment of the inmates. They are isolated for twenty hours a day, doped up and
neglected. And they don't allow visitors. He'd be better off dead."
"I have to agree with you," Warren said. "But the only alternative is prison."
* * *
Mike was crying. "They don't like me, Jimmy. They hit me."
"Who hits you, Mike?"
Mike shook his head. "The guys."
"Do you mean your cellmates?"
"Yeah. Cellmates. Yeah. They beat me."
"Don't the guards do anything to stop it?"
Mike shook his head. "They watch."
Jim whirled from Mike and started for the door.
"I'll be back, Mike. I'll take care of this for you. Don't cry anymore."
He burst through the office door and went to the desk where a uniformed guard was writing in a notebook.
"Who's in charge here?"
The guard looked up with a frown. Then, seeing Jim his face relaxed.
"I am at the moment, sir. I'm Officer Wilson. How can I help you?"
"I'm Mike Cooper's brother. And I want to speak to your boss."
"That would be Jensen," the guard said. "He's not here today, but if you want to leave a message..."
"I don't want to leave a message. My brother is being beaten by other convicts and you guards are standing around doing
nothing to stop it."
Wilson frowned. "Your brother is mistaken."
"No. He wouldn't lie about this. He doesn't know how to lie."
The guard held up his hand. "I didn't say he lied. A certain amount of bullying occurs in the cell. It is not serious, so we don't intervene.
Your brother is not being 'beaten.' Do you see any marks or bruises on him?"
"I didn't look," Jimmy said. "But..."
Wilson held up his hand. "Mister Cooper, what is happening here is mere child's play compared to the penitentiary. Your brother will have
"That's what I am afraid of," Jimmy said. "He isn't capable of learning or defending himself. My God, can't anyone see that?"
"I'm sorry," Wilson said. "There is nothing I can do. I'll alert the guards to help whenever they can. I assure you your brother will not be
hurt while he is here."
"Yeah. OK. That's not what bothers me. It's when he leaves here that I'm worried about."
With a nod to Wilson, he left.
* * *
"Petition denied," Warren said.
Jimmy sat up straight. "Denied? Why? What reason can they have?"
"Overcrowding, for one. There simply isn't room for any more patients at the mental institution. Your brother was convicted of a violent
crime. The penitentiary is the only option."
"It is not an option!" Jimmy said. "Can't you people understand? Mike is incapable of defending himself. He can't survive the
Warren held up his hand in a placating gesture. "I appreciate your concern. And I will continue to appeal. I think we may stand a chance
to get him transferred to a more suitable place. But it won't happen overnight."
Warren shrugged. "These things take several months. It could be up to a year."
Warren winced and busied himself with the papers in front of him.
Jimmy leaned his fists on Warren's desk. "He won't survive a week where he is going."
"Oh, come now, Mr. Cooper. Aren't you overstating the case?"
"No. I know my brother."
"I'm sorry. I am doing all I can here," Warren said. "We have to be patient."
"Patience is for those who can afford it." Jimmy said.
He slammed the door behind him and stepped out into the afternoon crowd.
* * *
Back in his apartment, Jimmy sat down heavily behind the desk and drew the sheaf of papers toward him. Letters and documents from
law enforcement and legal departments clear up to the Governor's desk were crammed into the folder. Some were sympathetic. Some were
cold and impersonal. They all contained the same message: "Denied."
Jimmy leafed through the papers, then threw them down in disgust.
"Petition denied." "The wheels of justice move slowly." "No alternatives."
Legal jargon. Clichés.
There was no one else Jimmy could turn to for help. Mike was going to be moved to the penitentiary in two days and Jimmy could do
nothing about it. The thought of Mike being housed with hardened criminals, subjected to their sadistic pleasures, sickened him.
There was only one thing left to do. Jimmy shuddered at the thought of it. But there was no place else to turn. He was out of options.
* * *
Mike was crying. "I'm going away, Jimmy. They told me I'm going away."
"Yeah, Mike. But not for long," Jimmy lied.
"Will you come see me?"
"Of course. And don't you worry, Mike. I'm getting you out of here."
Jimmy had never lied to Mike before. But it was all he had left to give. He held out a box for Mike.
"Here. I brought you something. Your favorite."
Mike's eyes widened as he opened the box. A huge slice of homemade sponge cake. Jimmy wasn't much of a cook, but he had learned to
make sponge cake because Mike loved it so much.
"I think you had better eat it now, Mike. If you take it back to your cell the other guys will take it away from you."
Mike had already taken a bite and was chewing noisily.
"Good," he mumbled. He grinned at Jimmy and took another bite.
Jimmy watched as Mike wolfed it down. Mike's eyes danced with delight for the first time since the trial. Jimmy felt a lump in his throat.
Poor Mike. He never had a chance in life.
He nodded to the guard.
"I'm through here."
Patting Mike on the cheek, he smiled.
"Don't worry, Mikey. Everything will be fine. You'll see."
He watched as Mike was led away. The small form, dressed in a prison jumpsuit that was a size too large, took hesitant steps, looking over
his shoulder at Jimmy as he walked down the narrow hallway. Jimmy stood looking long after Mike had disappeared.
"Goodbye, Mike," he whispered. "I love you."
His voice cracked and he wiped a tear away with his sleeve.
"God forgive me," he said to himself as he walked down the steps of the jail.
It would be a peaceful death. The literature said that the poison would cause one to lose consciousness and, if unattended, death would
occur within an hour. Mike would simply go to sleep.
Back home, Jimmy took the sponge cake with a slice out of it and tore it into small pieces. He ground it up in the garbage disposal and
flushed it down with water.
Herschel Cozine has published extensively in the children's field. His stories and poems have appeared in many of the national children's
magazines. Work by Herschel has also appeared in Alfred Hitchcock and Ellery Queen's Mystery Magazines,
Wolfmont Press Toys For Tots Anthologies and Woman's World. Additionally he has had many stories appear in
Orchard Press Mysteries, Mouth Full Of Bullets, Untreed Reads, Great Mystery and Suspense,
Mysterical-E and others. His story, "A Private Hanging" was a finalist for the Derringer award.
Retired from a career in electronics, Herschel lives with his wife, Sue, in Santa Rosa, California, close to his children and grandchildren.
Three of his short stories have been published on Over My Dead Body! — "Who Killed Hamlet?" (November, 2011), "The Melody
Lingers On" (March, 2012), and "Flashback" ( November, 2012).
Copyright © 2013 Herschel Cozine. All rights reserved. Reproduction in whole or in part in any
medium without express written permission of the author is prohibited. OMDB! and OMDB!
trademarks of Over My Dead Body!
Return to Over My Dead Body! Online.