Antonelli - 03 - The Judgment (40 page)

Somewhere there had to be a dog-eared manual that described paragraph by paragraph what every prosecutor should say at the beginning of every homicide brought to trial. Everything followed a formula; every fact the prosecution was required to prove was fitted into place.

Dressed in a simple black dress, dark stockings, and black shoes, Loescher stood a few steps away from the jury box and, changing her tone, recited in a quiet, dignified voice the list of witnesses she intended to call and the testimony she expected each one of them to give.

“And when you’ve heard all the evidence,” she said at the end, her brown eyes glowing with confidence, “I know you’ll agree that the state has met its burden and that the guilt of John Smith has been proven beyond any reasonable doubt.”

Sitting next to me, the defendant known to the world as John Smith played with his tie. He had never worn one before and every morning when the deputy sheriff brought him into the courtroom, I tied it around his neck. Clean-shaven, with a decent haircut, he looked like a perfectly normal young man, except for the way he sometimes let his mouth hang open or rolled his head from side to side. Shy, and even terrified around strangers, he was also, I think, curious about the proceedings that were going on around him. At first he would not look up from the table, but gradually, as he became used to his surroundings, and especially the twelve faces in the jury box, he began to lift his eyes. He watched Cassandra Loescher tell the jury why he should be convicted of murder and when she finished smiled at her as if she had just said something nice.

Loescher had held the courtroom for nearly an hour, and when she sat down there was a dim, dull shuffling sound as the spectators, crowded together on the hard wood benches, shifted position. Slouched in the chair, both index fingers pressed together on my mouth, I was still trying to decide exactly what I should say when I heard the voice of the judge call my name.

“Do you wish to make an opening statement?” Judge Bingham asked.

I looked over at the jury and searched their eyes. “Yes, your honor,” I said as I got to my feet.

It had taken four days to pick a jury, and I had spent most of that time trying to convince them that they were there not to decide what had really happened the night Quincy Griswald was murdered, but whether the state had proven the guilt of the defendant beyond a reasonable doubt. I had done the same thing thousands of times before, persuading jurors to ignore their com-monsense notions about what had probably happened and to insist on facts about which there could be no dispute before they considered convicting someone of a crime. But this time was different. It was going to take more than an insistence on reasonable doubt if I was going to have any chance to win.

Standing at the end of the jury box, I put one hand on the railing and pushed the other into my suit coat pocket. This jury was like all the others. Three of its members had graduated from college, and one or two had some training beyond the twelfth grade, but most of them had ended their formal education with high school. There were no doctors, no lawyers, no business ex-ecutives, and no one who held any important public position.

Four of the twelve were retired, and of the seven women, three were grandmothers. Though it was not the fair cross section of the community it was supposed to be, it was in another way the perfect mirror of who we are. These were people who wanted to do the right thing and were willing to follow the lead of whoever seemed to know what that might be. I began with a confession.

“During voir dire, when I had the chance to ask each of you questions, we spent a lot of time talking about reasonable doubt and what it meant. Ms. Loescher kept trying to suggest that it didn’t mean you couldn’t be left with at least some doubt, and I kept trying to convince you that you better not doubt it at all before you decide to convict someone of a crime. I’ve been doing this for much of my life now, and it never changes. We keep asking these same questions, keep trying to convince you what the words ‘reasonable doubt’ mean. Do you know why I do that?”

My eyes moved along the front row, from one juror to the next, until they came to rest on a young woman, Mary Ellen Conklin, sitting with her hands folded in her lap.

“Because I learned a long time ago that the best way to win was to convince jurors that their obligation was to decide—not if the defendant was guilty—but if the state had been able to prove it … beyond that famous reasonable doubt.”

I looked away from the young mother of two and found a middle-aged Latino, Hector Picardo, in the back row.

“You’re not here to decide the truth; you’re here to decide whether what the state tells you is the truth, and not to take their word for it, either, but again, to prove it against the most stringent possible standard. I want juries that insist on that—the defendant has a right to have a jury that insists on that—and that’s why I keep asking those questions about whether you think it’s fair that the state has this incredibly difficult burden, fair that the prosecution has to prove its case and the defense doesn’t have to prove anything.”

I moved away from the railing, folded my arms across my chest, and stared down at the carpeted floor. Smiling to myself, I shook my head and then, a moment later, lifted my eyes and cast a sideways glance at the jury.

“The truth is: In most cases we couldn’t prove anything if we had to, because, you see, in most cases the defendant is guilty.”

Out of the corner of my eye I saw the judge suddenly look up.

“That’s the reason defense lawyers always insist so strenuously that the whole burden of proof is on the prosecution; that’s the reason why in more cases than I can remember I made certain the defendant never took the stand to testify in his own behalf.”

Cassandra Loescher was sitting on the edge of her chair, ready to make an objection as soon as she figured out what there was to which she could object.

“We have this very famous jury instruction—Judge Bingham referred to it when you were first sworn in, I spent most of my time on voir dire talking about it—you can’t convict anyone unless their guilt has been proven beyond a reasonable doubt. There is another jury instruction, one we did not talk about, but one that has to be given if the defense requests it.”

I went back to the counsel table, opened the file folder that lay next to my yellow legal pad, and pulled out a single sheet of paper.

“Here,” I said, waving it in my hand. “This is the jury instruction entitled ‘Defendant Not Testifying.’ It tells you that you may not comment on the failure of the defendant to testify, and that you may not in any way consider that fact in your deliber-ations. The judge is required to instruct you that it doesn’t mean a thing. But the truth is, it means everything. It means that the defendant has something he doesn’t want you to know. It doesn’t necessarily mean he’s guilty, it may only mean that he has done some bad things before: serious crimes, crimes reflecting dishon-esty or a penchant for violence, things that would make a jury believe that because he had done it before, it was likely he had done it again.

“There are cases like this, where the defendant doesn’t testify because, though he is innocent of this crime, he has the kind of criminal record that will make it almost impossible for anyone to believe he’s telling the truth. But more often than not, when the defendant doesn’t testify, it’s because the defendant is guilty. The defendant did it, and because a lawyer cannot put someone on the stand he knows will commit perjury, and because the only truthful testimony the defendant can give is to confess to the crime, he doesn’t testify at all. And then the jury is given this instruction,” I said, lifting the single sheet of paper shoulder high before I let my hand fall down to my side. “No one can make the guilty testify against themselves,” I went on, darting a glance at Cassandra Loescher. “And no one can stop the innocent from testifying about what they know.”

She was out of the chair, raising her hand to attract the judge’s attention. “Objection, your honor,” she said without raising her voice beyond what was necessary to make herself heard. She was smart. It was too early in the game to show anger.

His hands clasped together under his chin, Bingham smiled politely. “Yes?”

“Instead of providing a preview of what he expects the evidence to show, Mr. Antonelli is attempting to characterize the credibility of the defendant.”

He turned to me, the same civil smile on his face.

“I believe, your honor, that the jury is entitled to know the circumstances under which a witness is going to testify. For example, when an expert witness testifies, the qualifications of that expert—”

“Are elicited during the examination of the witness,” Loescher interjected. “But he isn’t talking about the qualifications of an expert in any event, your honor. He’s attempting to bolster the credibility of a witness by invoking a jury instruction which, it seems obvious, has no application to this case.”

That was exactly what I was trying to do, and we both knew it was too late to stop it. What she was trying to do instead was to let the jury know that I was not playing by the rules, and to let the judge know that even during an opening statement she was going to insist that the rules be enforced. She was no one’s fool, and she would have been astonished had she known how grateful I was that she was not.

Bingham had heard enough. “Perhaps discussion of jury instructions should be left to closing argument,” he said in that civil way of his that made every decision sound like a helpful suggestion.

I had not moved from the place where I had been standing when Loescher made her objection. Now I stepped forward, moving closer to the jury, and picked up where I had left off.

“The defendant in this case is going to testify, and he’s going to tell you what he knows; though about all he knows is that he did not kill Quincy Griswald and that he has never harmed anyone in his life. He was living under the bridge—a bridge some of you may drive over every day to work—one of the homeless who wander around the city, picking up trash, things that other people throw away, things they can wear, things they can use, things they can trade for a little money or a little food. He was living under the bridge, homeless and alone, and someone gave him a knife—the knife that killed Quincy Griswald—and he took the knife and he kept it, and when the police came he told them it was his and he told them how he got it.” I shrugged my shoulders. “They didn’t believe him. Why should they? He was right where an anonymous caller had told them they would find the killer; he had the knife; and—let’s be perfectly straight about this—they thought he was crazy.”

I paused and, with both hands on the railing, leaned forward and searched the eyes of the jurors.

“When you hear him testify, you’re going to think the same thing. He talks funny. His speech isn’t always clear. Some of the words seem to take forever. He rolls his eyes and his mouth sometimes sags at the corner. I have even seen him drool a little.”

I spun away and looked across at where he sat, watching me, his head tilted back, his mouth hanging half open, an eager, trusting expression in his pale eyes.

“But kill somebody?” I asked, turning back to the jury. “No, that’s the last thing you’re going to think him capable of. Not after you hear the things he was put through; not after you hear the scandalous, heart-wrenching tale of physical torture and sexual abuse to which he was subjected from the time he was an infant, an unwanted child no one, not even his mother, cared anything about or did anything to protect. No one ever did anything for him: They did not send him to school; they did not even give him an identity. There is no record of his birth; there is no record of him at all. He does not exist. He does not have a name.”

I glanced at him over my shoulder and then looked back. “John Smith? That’s the name he was given by the police when they arrested him and charged him with murder and discovered there was no record of his fingerprints. His real name is Danny. If he ever had a last name, Danny doesn’t remember it, and because there was never any record made of it, he’ll never know it. For all intents and purposes, Danny was born an orphan. It might have been better if he had never been born at all. No,” I said, changing my mind, “it would have been better if the people who did these things to him had never been born.”

Clinically and without emotion, I described a few of the things that had been done: the way he had been chained to his bed, the way his body had been covered with welts and burned with cigarettes.

“The prosecution will insist that these terrible things turned him into an animal without a conscience, someone who could kill without a reason. You can judge for yourself when you listen to him testify whether he is the vicious killer they claim, or one of the most harmless human beings you have ever seen.”

Shoving my hands into my pants pockets, I began to pace back and forth in front of the jury box. Then, frowning, I stopped and looked up.

“They charged him with one murder. It doesn’t make sense.

They should have charged him with two.”

The silence was complete; there was not a sound in the courtroom. It was as if everyone was holding his breath, waiting to hear what came next.

“The defendant is charged with the murder of Quincy Griswald, but whoever killed Quincy Griswald killed once before. There were two murders, not one; two circuit court judges have been killed, not one. In nearly a hundred fifty years, no one has ever murdered a sitting judge, and now, in the space of just a few months, we have had two judges killed, and killed in exactly the same way. Calvin Jeffries, the presiding circuit court judge, was stabbed to death in the structure behind the courthouse where he parked his car. Quincy Griswald, who became the presiding circuit court judge when Jeffries died, was stabbed to death in the very same place. The defendant has been charged with the one, but not the other. Why? Because they know he did not have anything to do with the murder of Calvin Jeffries. But let me repeat again: Whoever is responsible for the death of Calvin Jeffries is responsible for the death of Quincy Griswald. John Smith—