A Naked Singularity: A Novel (44 page)

DEFENSE COUNSEL
: Objection.

THE COURT
: Overruled.

MR. McSLAPPAHAN
: At the end, the Court will instruct you on the law. That is solely the province of the Court and I am in no position to tell you what the law is.

Sufficient to say, that the law is clear that if this van is used for commercial purposes then breaking into it is a Burglary in the Third Degree.

DEFENSE COUNSEL
: Objection.

THE COURT
: Overruled.

MR. McSLAPPAHAN
: The law says that this is a Burglary in the Third Degree.

DEFENSE COUNSEL
: Objection.

THE COURT
: Overruled.

MR. McSLAPPAHAN
: This was a Burglary in the Third Degree.

DEFENSE COUNSEL
: Objection.

THE COURT
: Overruled.

MR. McSLAPPAHAN
: At the end of the case I will be asking you to return the only verdict consistent with the evidence, which is not guilty to the only count in the indictment Burglary in the Third Degree. Withdrawn, I misspoke. I will be asking you to return a verdict of guilty to the indictment. To the only count in the indictment of Burglary. Burglary in the Third Degree, which is the only count in the indictment. Thank you.

THE COURT
: Thank you Mr. McShanahan. Counsel will you be making an opening statement?

DEFENSE COUNSEL
: I will but can we approach first?

THE COURT
: No.

DEFENSE COUNSEL
: Very well, though slightly bizarre. A short while ago every member of this jury stood up, raised their right hand, and took an oath. Like most oaths, what you did can essentially be viewed as a promise. Boiling it down even further what you promised to do was uphold and apply the law as it is explained to you. The law as it applies to hearing a case, to deliberating on a case, and most importantly here, the law as it relates to the criminal statute the defendant is accused of violating.

Why is this kind of oath necessary? Maybe the answer is this. I think that jurors, like all human beings entering a novel situation, enter jury service with the kind of preconceptions that may even amount to a predisposition. One of those is surely the tendency to view guilt or innocence as blanket, either/or concepts not susceptible to degrees or shades of variation. Of course our criminal justice system is, to some extent, founded on the notion of varying levels of culpability as evidenced by the fact that crimes come in differing degrees such as the Third Degree Burglary alleged here.

As we discussed during voir dire, those crimes and their respective degrees are themselves defined in statutes that break the crime down into separate, necessary elements, each of which must be proven beyond a reasonable doubt by the prosecutor if there is to be a conviction.

Why do I mention all of that in an opening statement? Simply because it is precisely that kind of subtle analysis which will be required of you in this case. As I said repeatedly during voir dire, this will not be a dramatic case of the kind you might see on Perry Mason or Matlock. You will not be hearing from the defendant and there will be no surprise witnesses emerging from the last row of the courtroom. Moreover, your primary task will not be to decide what happened on the night of April 27th. Your true obligation is to hold the prosecution to their burden of proof. Specifically, to hold them to the extremely stringent yet highly appropriate standard of proof that is proof beyond all reasonable doubt. And you’ll be asked to steadfastly apply that standard to every single element of the crime charged in this indictment. Once you do that you’ll see this indictment for what it is, a worthless piece of paper because the DA cannot legally prove beyond a reasonable doubt that the defendant committed the crime it alleges. In short, you’ll agree with me that the prosecution greatly overreached in charging Mr. Hurtado with the very serious crime of Burglary in the Third Degree where the evidence makes out a Petit Larceny at best. In only that way can you properly fulfill the oath you took, a critical oath that often serves as primary protection for the lone individual who finds the full powers of the state arrayed against him. Thank you.

THE COURT
: Thank you counsels. As I said ladies and gentlemen that is going to be all for today We have a relatively busy day scheduled for tomorrow, during which I anticipate that you will hear all of the testimony in the case and begin your deliberations. Because of that I’m going to ask that you all be here at 9:30 sharp tomorrow morning. Please remember not to enter the courtroom until you are escorted in by a court officer. Also remember my instructions to you. You have not heard any evidence in this case yet. You are not to discuss this case with any of your fellow jurors or with anyone else for that matter. You are not to form any opinions on this case based on what has transpired here today, namely, jury selection and opening statements. You are not to visit the scene where this incident occurred. I don’t anticipate any such coverage, but should there be any, you must avoid any exposure to media coverage of this case.

Lastly, I forgot to mention this earlier. During the course of this trial, you may come into contact with some of the parties involved in this litigation, for instance, in the hallways or the elevators. By parties I am referring to the assistant district attorney, Mr. McShaughnessy, defense counsel, or even the defendant Richard Hurtado. I instruct you now that should such contact occur they will not speak to you even to say hello. Do not be insulted by that as they are simply following my instruction not to communicate with any of the jurors. As you might expect, this is insisted upon mainly to avoid even the appearance of impropriety.

With that last admonition, I thank you for your service today and we’ll see you bright and early tomorrow morning.

Thank you.

(Whereupon, jurors leave courtroom.)

THE COURT
: See you both at 9:30 sharp.

DEFENSE COUNSEL
: I need to make a record.

THE COURT
: Make it tomorrow.

DEFENSE COUNSEL
: No, I need to make it now.

THE COURT
: Regarding what?

DEFENSE COUNSEL
: Prior to opening statements, you indicated that we, meaning the attorneys, would not be permitted to state a basis for our objections. I complied with that directive during the prosecutor’s wholly improper opening statement when I made many objections, all of which were denied. As I said at the time, I strongly object to this rule, which I feel prevents me from making an adequate appellate record. The First Department is clear in requiring that objections during trial must have a stated basis in order to adequately preserve the issue for appeal.

THE COURT
: I am aware of the Appellate Division’s feelings on the mattercounsel.

DEFENSE COUNSEL
: I’m glad to hear that. Although I fear it will be of little consolation to me and my client when he is convicted and is effectively denied his right to appeal.

THE COURT
: You will be permitted to make a record outside the hearing of the jury. Otherwise, I feel objections become too disruptive to the proper administration of a trial. As I said, you will be permitted to make your record. You may do so now with respect to the objections you made during the prosecutor’s opening. Incidentally, I found your constant interruptions ofthe prosecutor’s opening statement with baseless objections highly unprofessional and I think it speaks very well of Mr. McSlapashee that he did not respond in kind during your opening, as he would have been well within his rights to do.

DEFENSE COUNSEL
: The reasons for my objections were these in order. The DA began by making reference to the complainant’s employment status then proceeded to circuitously but unmistakably contrast it with that of my client. This is objectionable for several reasons which include it being an attempt to prejudice the jury against my client by making reference to matters which will not be part of the evidence in this case as I feel confident in assuming, and the DA can correct me if I’m somehow wrong, that there will be no attempt to present evidence regarding my client’s employment status. Nor would any such evidence even be conceivably admissible of course. That objection was overruled without any comment or limiting instruction.

The DA then made improper reference to the fact that the grand jury had handed down an indictment. Besides being prejudicial and highly irrelevant because of, among other things, the vastly different standards of proof involved at trial as opposed to in the grand jury, this comment was in direction contravention of your repeated instructions to the jury that the existence of an indictment is evidence of nothing. That objection was overruled as well without any limiting instruction.

The next objection was based on the fact that the DA was essentially testifying during his opening rather than making reference to what he expected the evidence would show. Again that was overruled. The next two objections can both be characterized as attempts by the DA to create sympathy on the part of the jurors in the hopes that they will base their verdict on those feelings rather than on the evidence. I’m referring here specifically to the prosecutor’s references to nuns and the fear the complainant must have felt upon returning to his van.

The prosecutor then told the jurors the contents of the radio run that resulted in the arresting officer in this case going to the scene. The law is clear that this is hearsay and obviously the DA cannot do himself, in an opening statement, what he would not be permitted to do through a witness at trial. For his next trick, Mr. McSlappahan informed the jury that Officer Leary would testify that the screwdriver recovered in this case was of a kind commonly used to commit theft related offenses. Unless basic evidence law is going to be disregarded in this trial, Officer Leary will not be permitted to offer opinion evidence unless he is first qualified as an expert. He has not been qualified as one and based on the police reports I have received I would be strongly objecting to any such qualification, so the DA’s comment was at best objectionable as premature.

Lastly, I objected three times when the DA, after informing the jury that he could not instruct them on the law, proceeded to repeatedly do just that and do so inaccurately in my view.

All of my objections were firmly rooted in unequivocal New York law. The fact that the DA repeatedly resorted to these types of improper comments evinces either a profound ignorance of the law or a malevolent disregard for it. More troubling is the fact that each of these meritorious objections was overruled and the improper comment permitted to stand without any kind of limiting instruction. Moreover, I was then denied the opportunity to approach the court to fully explain these objections at a time when an appropriate remedy could conceivably still be fashioned. Accordingly, the only proper remedy after such an inflammatory and prejudicial opening statement is an immediate mistrial, which is what I am moving for now.

THE COURT
: Denied. Anything further?

MR. McSLAPPAHAN
: Your Honor, if I may respond.

THE COURT
: No need. Defense counsel’s application is denied. Anything else counsel?

DEFENSE COUNSEL
: No.

THE COURT
: Then I’ll see you both at 9:30 tomorrow.

(
DIANE S. SALON
)

“Wow,” said Toomberg. “It’s getting pretty contentious in there isn’t it?”

“That obvious?” I said. “Even from just the transcript?”

“Sure.”

“You’re right, it’s a problem.”

“Why?”

“It’s a screwup on my part Toomie. Pay attention, you might learn something. I need the DA to be sleepy and overconfident, which would certainly be justified in this case. I don’t need him feeling all challenged and vigilant where he might figure out what I’m trying to do and address it before it’s too late.”

“Think he’s figured it out?”

“No, he seems pretty dumb, but even he has to realize that I can’t really raise much of a factual dispute when my guy is caught red-bodied in the fucking van. When he thinks about it I think he’ll focus on showing that the van was used for commercial purposes.”

“A reasonable deduction.”

“Which brings me to my other problem and misstep. So far only you, me, and the mysterious judge in that commentary agree that the defendant has to know the van is used for commercial purposes before he can be found guilty of Burg Three. The problem arises when I have to convince Arronaugh to give me the jury instruction I’m drafting. Aside from her general antagonism towards anyone accused of a crime, I now have to overcome the obvious hatred she feels towards me.”

“But isn’t that true of most judges? They’re almost all predisposed against us, yet their fear of reversal will still occasionally force them to rule in our favor.”

“True but this is different. From what I see, Arronaugh doesn’t seem to give a rat’s ass about being reversed and this is consistent with the scouting report I got on her. Think of the ridiculous way she overruled all those objections. Every single one of them was legitimate.”