a mystery novel
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Chapter 24 – Defense Counters
Since leaving the courthouse would entail coordinating with my monitoring service and I could only go home, we had been given exclusive use of a conference room across the hall from our courtroom for the duration. During the lunch break I managed to convince myself that I really hadn't been Jeanie's lover and killer. The protein drink did little to calm my stomach. Tanya went over my opening for the hundredth time, emphasizing the DA’s usual tricks that had to be neutralized. I tried to concentrate.
Reassembled in the courtroom, halfway regretting my decision to give my own opening argument, standing a good distance from the jury box I took a deep breath and started, “Good afternoon. I agree with almost everything the prosecutor said… except, of course, that I am the monster who perpetrated this horrible crime. I did not kill Jeanie Rogers and her baby. I did not impregnate her. I was not her lover. In fact, I don't remember ever meeting her, although, living so close for years, it is possible, even probable, that we crossed paths at least a few times: in stores, at restaurants, at the movies, at a gas station. However, I cannot recall any such casual encounters and, if they did occur, they are the only contacts we ever had.
I returned to our desk for a sip of water (actually my disguised Coke) and to let that sink in, then continued, “Although I didn't know the victim Jeanie Rogers while she was alive, I've been studying her life ever since she was killed and feel as if I do know her now. I hope you won't think it's disrespectful if I call her 'Jeanie' instead of the victim – that term seems dehumanizing, doesn't it? As if that's all she was, a murder victim. But she was an entire human being who shouldn't be defined by how she died.
“The biggest problem I have is that I must try to prove a negative, that I am not Jeanie’s killer. Now you may be thinking, 'You don't have to prove anything: the prosecution has to prove you did it.' I'd like to believe that – that’s the way it’s supposed to work in our country – but after following true crime accounts on TV and on-line, it seems that most of the time if defendants can't prove they couldn't have done it or that somebody else did, they get convicted. That’s not the way it’s supposed to be, but all to often that’s the way it is. That's the main reason why, every few weeks, we see another case of somebody who has been imprisoned for years or decades exonerated with new evidence. And, undoubtedly, for every such case there are dozens where the wrongly convicted cannot prove their innocence. I have to hope you’re not like the juries those people had.” I didn’t mention the two cases that had been replayed on local TV stations in the past couple of weeks. My friends don’t have much influence in that area, so Tanya must have called in some favors – I just hoped she hadn’t had to sell her soul.
“Proving I'm innocent here is especially difficult. To prove I wasn't Jeanie's lover, I'd only have to prove that I couldn't have been with her at one specific time when we know her lover was. And she kept a diary, including all of her many, many times with him over the past year, so that should be easy, right? Except she didn't date her entries. In all the time they were involved, up until the night she was killed, neither we nor the prosecution can provide one single exact date and time we know they were together. So how do I prove I wasn't there?
“OK, so I just have to prove I wasn't there when she was killed. According to the medical examiner’s first opinion, she was killed between nine-thirty and eleven-thirty p.m. Later, after the police learned there was evidence I was elsewhere until almost quarter to one a.m., that opinion magically changed to between ten p.m. and one a.m. The evidence will show my wife and I didn't get home from visiting our daughter's family until nearly quarter till one and my wife will testify that I was home with her from then until the emergency vehicles arrived at the Jeanie's home.
”The prosecution will undoubtedly tell you that you can't trust my wife's testimony, because she would lie for me. She wouldn’t, but the District Attorney doesn't know my wife. Not only would she not lie for me – for anyone – to conceal a murderer, but if she knew I was sneaking out under her nose to have an affair with a neighbor, there'd still be a murder trial and you would still be sitting here, but she'd be the one on trial and I'd be the victim!” That drew a few chuckles. Including a soft one from a juror.
“Incidentally, you may wonder why my wife and my daughter,” I indicated them both in the spectator section and they each lifted one hand in acknowledgment, “won’t be here during the prosecution’s case if they support me. Actually, it’s because they do support me. They both intend to testify and my witnesses aren’t permitted to be in the courtroom before their testimony so they won’t be influenced by what other witnesses say. That’s true for all witnesses…. Oh, I should say, for all witnesses except police officer Madero who is scheduled to testify for the prosecution. It seems to me that if my witnesses can’t be here before they testify, he shouldn’t be either, or at least he should have to testify first to be fair, but the judge says that’s not how it works. That’s officer Madero at the end of the prosecution table, the one who doesn’t look like a lawyer.” I could have said, ‘the one who is turning red with embarrassment – or anger.’
“So how do I prove where I was when the Jeanie was killed? Can you prove where you were between twelve forty-five and one a.m. last Monday morning?” I pointed at one juror, then another,“Can you? How about you? Now keep in mind, your family members and friends can't alibi you: they might lie for you – at least according to the prosecution. And a stranger can't either: if they don't know you well they might be mistaken in identifying you. And phone calls, computer logs, and such could be faked with modern technology. You need a person, or preferably more than one, who knows you well enough that they can positively identify you without any chance they might like you and lie for you. How many of you can provide such independent testimony about those crucial fifteen minutes in the early hours of last Monday morning?… Lucky for you, none of your neighbors were murdered then, or you might find yourselves in my position.”
“I agree with the prosecutor that Jeanie's lover, or someone acting on his behalf, probably killed her and for the stated reasons; however, the evidence will show that could not be me. There simply was not time for me to have done all that was done to Jeanie and her baby, and to her home.”
“Another point we might disagree on is what crime was committed in the killing of Jeanie. Before deliberations, the prosecution will probably give you a choice: first degree murder, second degree murder, or manslaughter. The judge will tell you the exact legal definitions of each, but you know the difference. And this was not second degree murder, and it damn sure wasn't manslaughter! That is total bull…” I turned to the judge and asked, “Am I allowed to say bullshit? Because that's what it is.” He nodded reluctantly, and I repeated, “That is total bullshit. Sorry if that offends anyone, but that's what it is. I know it, you know it, and the prosecutor knows it. Why then, you may wonder, might she offer those options? Because, if you can't agree on a real verdict, that way you can compromise. But a verdict shouldn't be a compromise. Whoever did this without any possible question committed first degree murder, and if you aren't convinced I did that then you certainly can't say I committed some lesser crime. That would surely be a cop-out.”
Another pause for another sip, then, “The prosecutor has claimed I am arrogant. Well, I don't think so, but I'm probably not the best judge of that – maybe it appears that way to some people. I think arrogance is one of those characteristics that we tend to judge in relation to ourselves: those who are more self confidant than I am I consider arrogant; those less confidant have poor self-esteem. But, regardless of how you rate me in that aspect, please remember arrogance is not illegal and that is not the crime with which I am charged.” I hoped to gain a little approval with the retired English teacher on the jury by not ending my sentence with a preposition, as the prosecutor had.
“You know, it's odd. In court, no one is generally permitted to say what somebody else is thinking. Regardless of how certain I am that I can read somebody's mind, I'm not allowed to tell you what that person is thinking. And that's a good rule. No matter how well you know someone, you never really know what they're thinking. Anybody who has been married can attest to that!” I drew a few chuckles and one outright laugh here, “But the prosecutor is apparently exempt from that rule: you all heard how many times she told you what she believes I was thinking. That doesn't seem fair to me, but I didn't get asked about the rules.
“The prosecutor told you why she thinks I choose to defend myself; now I'll tell you my actual reason – I think I am allowed to tell you my own thoughts. The lawyer provided for me, Ms. Barnes over there, is undoubtedly very competent and very experienced. But she is also very overloaded. As you can see, the prosecution has ample personnel to devote to this case,” I gestured at the prosecution table and the five people behind it, “In fact, more than fifty people from the prosecutor's office have worked on this case – and that's only the ones I know about and doesn’t even take into account the dozens of others in the police department and the crime lab and the medical examiner’s office.
“At the time this started, Ms. Barnes was single-handedly working forty-three cases. In fact, at her first appearance, with no discredit to her, she had not even been given time to learn my name. In addition, all she had seen then was some of the prosecution’s evidence against me and, of course, all of the news stories about the case. Some, maybe most of her clients are guilty, and she then had no reason to believe me otherwise. It doesn't seem unreasonable to me to want to be represented by someone who knows my name and believes me to be innocent. Unless you are rich, as I most certainly am not, you can't afford to hire a dream team of lawyers to represent you. In that case the State is required to provide you with a lawyer, as I was provided with Ms. Barnes. However, the State doesn't believe it is required to provide a full-time lawyer or even a one-fortieth-time lawyer. After all, this case is 'The State of California versus Kurt MacIntyre' so the State isn't really motivated to work against their own goal any more that the absolute minimum the law requires.
“In fact, virtually everybody involved in the case against me: the prosecution team, of course,” indicating their table, “the police, the medical examiner, the crime scene people, the crime lab technicians, some – actually, nearly all the prosecution witnesses – they all work for the State. Not supporting the State's case would be like biting the hand that signs your paycheck. Now the judge also works for the State, but he’s trained to be impartial, as I’m sure he will try to be.
“By the way, both sides have expert witnesses that will testify about technical aspects of the case that are outside what most people are familiar with. As you might expect, those the prosecution calls will support their side and the ones we call will support ours. It gets confusing – how can experts draw totally different conclusions from the same evidence? I think that it’s because what they testify to are mainly matters of opinion and guesswork regardless of how many big scientific words they throw around. The prosecutor might tell you that the reason is that our witnesses are all ‘hired guns’ that are paid to say whatever we want them to. That isn’t true, but such experts do tend to work primarily for one side or the other. Just remember that the prosecution witnesses also could be considered hired guns since they also testify exclusively for the side that pays their salaries. I doubt it would help their careers to testify against the State’s case.
“Getting back to why I’m defending myself instead of relying on lawyers: what this trial is about, or at least what it should be about, is truth. It should be about discovering the truth of who did not do this horrible thing to Jeanie Rogers. It would be really wonderful if we could also learn the truth of who did do it, but I'm afraid that's beyond any reasonable possibility. I don't know what your personal experiences have been, but in my experience it seems that, while lawyers may be good for many things, with apologies to Ms. Barnes, pursuing truth is definitely not one of them!” I got my third round of chuckles with at least three laughs.
“Now, obviously the District Attorney is irritated that I'm defending myself, and the judge is, too, although he hides it better. See, what they want is for this trial to proceed smoothly, like a well-run railroad. A good defendant should be merely a passenger, speak only when spoken to, and otherwise ride quietly and stay in his designated seat while all the professionals drive the train, until the conductor dumps him out either free on the street or in prison. The defendant isn’t supposed to roam around and certainly not go into the engine and bother the crew, asking they slow the train a little, make an unscheduled stop, or – worst of all – suggest they take a different track. And for God’s sake he should never ask to drive the train, not even for a second: that’s against the rules, their rules. It annoys and inconveniences all of them when a defendant doesn't play by their rules. Well, with what I'm facing, I really don't give a damn if they're inconvenienced!
“One reason the prosecutor doesn't like me representing myself is that I get to say things, as I am now, without being under oath, and she thinks you may not understand what that means. But I'm sure you do, that you realize that anything anybody – me, the prosecutor, even the judge – anything anybody says from anywhere in this courtroom except from right there,” I pointed to the witness chair, “from that witness stand after being sworn to tell the truth, is not evidence. What the prosecutor said to you just this morning is not evidence; what I'm saying now is not evidence; what the judge says is not evidence; and most importantly, the questions either side asks the witnesses are not evidence – only the answers given by sworn witnesses from that chair are evidence. The prosecutor thinks you might forget that. I’m confident you won’t.
“I'll make you a promise. Although it's usually considered good legal strategy for the defendant in a murder trial to exercise the right to remain silent, before this trial is over, I will give up that right, take that stand, and testify, and be cross-examined,” I paused a moment, then added, “If you look, you can probably see Ms. Barnes cringing right about now!
“And another thing. When I'm speaking from down here, some of what I say is fact – things I know are absolutely true – and some is opinion – things I believe are true but can't state so with absolute certainty. As an example, if I were to say the sun came up today, that would be a fact, something I can testify is absolutely true because I saw it and felt it. But if I say the sun will come up tomorrow, that is an opinion – one I firmly believe to be true but only an opinion nonetheless. We're going to keep track of those things and when I testify, I will tell you which things I have said are which and swear under oath that the facts I state are true of my own certain knowledge, and that I truly believe the opinions are true also but I cannot state them as factual.”
Another sip, then, “I do, however, want to apologize in advance to you, and to the judge and even the prosecution, too, for any mistakes I might make. The rules for proper procedure here are really complicated and complex, and frankly some of them don't make a lot of sense – unless you're a lawyer – like how to ask questions and what can be asked. And don’t assume those rules all benefit the defense, because they don’t! I'll do my best to keep my mistakes to a minimum, and I'm sure the judge will correct me when I go astray. Fortunately, I'm sure the prosecutor won't make any such mistakes because, as she just told us, she's been doing this for a long time and certainly knows all the rules by now. So, if she made a mistake, say like asking something she shouldn’t, we'd all know it was on purpose – and that would be really wrong.” I paused and took another sip, glancing surreptitiously at the DA who was red and looking as if she wanted to jump up and object – to what? To me saying she played by the rules? We both knew she couldn't do that.
I switched to a different subject, “One of the most difficult parts of this case for you will be viewing the crime scene photographs, especially those depicting Jeanie Rogers and her wounds. Because they are horrible. She was mutilated after being stabbed multiple times and beaten viciously, beyond recognition. Almost beyond recognition as a human being. You may think you're prepared to see them, but you're not. Seeing the pictures will shock you, and horrify you, and enrage you. And it should.
“The prosecution hopes that you'll be so enraged you'll be a little looser in your definition of reasonable doubt. And no one who sees those photos could blame you. So go ahead: be shocked, and horrified, and most of all, be enraged. But then, after a little while, once that first wave of anger subsides a bit, please ask yourselves, 'What in any of those photos indicates who did it?' They illustrate very graphically what was done to Jeanie, but is there anything in them that really shows who?
“Maybe you'll see something, but I doubt it. I've been studying them for months, hundreds, thousands of times – blown up, through different light filters, digitized, enhanced, every which way you can imagine; still haven't got the first clue. Well, maybe you'll have better luck. But unless you do see some clue in them, they don't really show anything pertinent to what you're here for now. It may seem cold to say this, but for your present task, how she was killed is not in dispute and is therefore immaterial; only the fact that she was killed and who did it matters. We can all agree right now that what was done to her was horrible and completely undeserved, so that is not the question. The question, the only significant question before you is, 'Does the prosecution's evidence prove beyond any reasonable doubt that I was the one who did those monstrous things to her?' Obviously, I want you to recognize that it does not.”
“Actually, though, I want more than that. I'm hoping that, once you consider the totality of the evidence, you will conclude that not only does it fail to prove that I had anything to do with this crime but it demonstrates that I could not, and in fact did not, commit it.”
I took another brief Coke break to let that sink in, then continued, “Oh, yes, another disturbing thing about the photos. You're going to see them many times – the prosecution will make sure of that. And you'll notice that, after the fifth or tenth time, their impact will soften just a little. The more you study them, looking for details, searching for clues, the more pronounced that effect will become. Realizing that is disturbing. After all this time, I know. Ms. Barnes here is afraid you'll notice my lack of appropriate reaction when the photos are shown and attribute it to callousness. She'd be happier if I could display my reaction from my first viewing of them, but I have neither the acting skill nor the inclination to try to pull that off. Please don't hold that against me.”
Another sip and I went on, “There are a lot of judicial fictions that govern these proceedings. You've all seen courtroom dramas where the lawyers wrongly try to influence jurors by asking questions they know are improper and then immediately saying 'Withdrawn' when the other side starts to object. We know the prosecutor won't pull any stunts like that because she knows all the rules, but I might inadvertently slip up. Other times a witness might say something you're not supposed to know. When any of that happens the judge will tell you to disregard whatever was said. That's hard to do. Our brains remember everything and sometimes we're not even aware how things we've seen or heard later influence us. I once met a man at work, a potential customer, and instantly disliked him. Couldn't understand why: he was pleasant and polite and never did or said anything offensive, but I just couldn't stand him. Then someone remarked on his hair – it was kind of poofed up and wavy – and it hit me: a teacher I'd had in high school wore his hair exactly that same way, and he was a real SOB! Hadn't dawned on me until that very moment that my dislike for this man was because of an unconscious link via his hair to that nasty old teacher. So examine your reasoning carefully to be extra sure not to let the things the judge tells you to disregard influence you.”
Another pause, another sip, and, “Also, the judge instructed you not to form any opinions until you are in deliberations. Frankly, I don't think that's humanly possible. We form opinions constantly; that's the way our minds work. You probably have opinions about the case right now – can't see how you wouldn't. I won't ask you not to form opinions as the trial proceeds, just that you to be willing to change them when the evidence warrants.
“The prosecution gets to present their case first so it's reasonable that it will look bad for me at the beginning. But please recall movies where it's obvious who the villain is all the way until the last few minutes when everything flips around and it turns out the obvious bad guy wasn't. However, the analogy stops there, because in the movie you usually find out it was really the stalwart old friend or the friendly neighbor all along. Here, you won't find out who the killer is. I have to hope you don't end up thinking you know because the only choice you're going to have is me and I really don't want you to think I killed Jeanie.
“You remember, during the preliminary questioning, you were asked if there was anything worse than her killer not being punished? And you all admitted that convicting the wrong person would be worse? I ask you all to stick to that. And don't expect that, should you acquit me, the police will say, 'Well, it's back to the drawing board. We'll have to start the investigation all over from scratch.' What they'll really say is, 'Damned jury got it wrong again!' and leave the case marked 'closed.' We'll all have to live with that.”
Before continuing I picked up some notes and drank more soda, but this time not for dramatic pause: I needed it. “Here's another legal fiction: all the witnesses will swear to tell the truth, the whole truth, and nothing but the truth. Now you may hear some truth, and possibly nothing but the truth from one or two, but you will never hear the whole truth. Because there are so many, many things you can't be told, I had to make a list,” and the list unfolded flashing the large-type set of rules, but far enough away and briefly enough that jurors couldn't read them, “just to keep them all straight.”
“Objection!” the prosecutor yelped.
“Mr. MacIntyre!” the judge yelped louder, then demanded, “Approach!”
Tanya, myself, and the prosecution company walked to the side of the judge's bench as he waved back the court reporter. “What the hell was that, MacIntyre?” he hissed, “I explicitly instructed you that you were not to tell the jury about subjects I ruled inadmissible!”
“And I didn't, your honor. I merely reminded them there were such subjects – which they certainly already know if they've ever watched a courtroom scene in a movie or on TV – and illustrated how many there are. If you question them, they'll undoubtedly tell you they couldn't read anything in the brief time the list was exposed far from them. I'm certain you never said it was forbidden to even tell them there is a list or let them know how long it is; had you told me that, I would have put it on my list.”
The judge got even redder, “This is simply a backdoor way to circumvent my instructions! Ms. Barnes, did you know about any of this?” He was looking for somebody to crucify, and I was glad to have kept Tanya in the dark.
“Your Honor, I knew he made a list in large lettering so he could glance at it when questioning witnesses and easily remind himself of forbidden topics. He is, after all, not an attorney and therefore unfamiliar with the rules of evidence, which, you must admit, make little sense to lay people – and even to a lot of us. However, I had no idea he intended to reveal that there were such forbidden topics or show the length of his list to the jury; had I known, I would, of course, have advised him of the impropriety of such actions.”
“OK, Mr. MacIntyre, you get away with this one. But I warn you, one more stunt like that and I'll rethink my decision to let you represent yourself.” Right, so we'll both pretend it's your choice. At least I'm back to 'Mr.' again. He then addressed the District Attorney who was bouncing back and forth like a kid who needs to pee, “I'll advise the jury to disregard; you know the only other remedy is a mistrial and none of us wants that. Are you ready to call your first witness now that Mr. MacIntyre has finished his opening statement?”
“But, you honor,…” I indicated the paper with the notes for the remainder of my opening.
“Oh, you are finished! Are you ready, Ms. Prosecutor?”
“Yes, your honor, but…”
“No 'buts.' You call your first witness when we resume tomorrow. Everybody step back now. And, Mr. MacIntyre: watch it!”
“Yes your honor,” I mumbled, head down, thoroughly chastised – or maybe so he couldn't see my grin. Go ahead, advise the jury! Like they're going to forget that list or, more importantly, that all you lawyer types don't trust us mere mortals to know what's really going on. I glanced at the jury and shrugged, sorry about that, guys, but the big boys won't let you play. As we reached our table, while the judge was futilely instructing the jury to hit the nonexistent erase buttons in their minds, Tanya turned a stern face to me and quietly chastised me, “Nicely done. And thanks for keeping me out of it. Let me see the notes for the rest of your argument.” She glanced at the first page of my opening without the slightest surprise. The judge was still a little red as he recessed court for the day, early as it was. I had to hope making my point to the jury was worth pissing him off.
As we walked out, after Tanya called the monitoring service to let them know I would be leaving the courthouse and heading directly home, she remarked quietly, “You did a pretty good job, Kurt. Boy, the DA was livid: you sure pulled her fangs!”
“Maybe so,” I replied, “but just like a rattlesnake, she’s probably got another set already moving into place.”