Play Dead (19 page)

T
HE WEEKS LEADING
up to a trial are unlike any others.

For one thing, they are much, much faster. A pretrial month feels like about two days. The preparation is so intense that every moment is precious, and those moments just seem to fly by.

The intensity during this period is also without parallel, at least in my life. Every witness, every word that is spoken, will have the potential to change the outcome, and the lawyers must be completely ready to deal with every eventuality. It is the pressure that comes from the need to cover absolutely every base that is so exhausting.

The period leading up to
New Jersey v. Richard Evans
has gone even faster than most. A lot of that has to do with the lack of progress we have been making; it has been frustrating and has created a feeling, of if not desperation, then of very significant concern.

Kevin and I have looked at our mission as twofold. First there is the need to mount an effective defense for Richard, to punch holes in the prosecution’s case and thereby create a reasonable doubt. Just as important is our goal of coming up with a possible villain, someone we can point to and say or imply, “He did it, not Richard.” Juries, like movie audiences, like to have a story reach a resolution. They want to blame someone for the crime, and the easiest place to lay that blame is on the defendant. If they can’t do that, then they at least want to be given a theory of who the bad guy really is.

It is in this second area that we have the most problems. Hamadi has so far been a dead end; Sam’s report is that he has substantial, apparently legitimate business relationships with at least six other companies. We have also been unable to learn any more about Archie Durelle or the significance of his apparently faked death on that helicopter.

Equally puzzling is the government’s role in all this. They tried to tap my phone, and the FBI mysteriously took over and put a lid on the investigation of the highway shooting. Perhaps it has to do with Franklin and his job with the Customs Service, but we haven’t made the connection with any certainty whatsoever. And juries like certainty.

To complete the circle to nowhere, Pete Stanton has reported no progress on the investigation into Karen’s shooting and Franklin’s death. There are no leads at all, leading Pete to believe that they were professional hits.

One thing I don’t like to overprepare for is my opening statement. I just figure out the points I want to make, without writing a speech or doing much rehearsing. I also like to relax and get away from the case the day before the trial starts, and since tomorrow’s the big day, I’m taking today off.

I stop down at the Tara Foundation to see how things are going. It gives me a peaceful feeling to hang out with the dogs, all of whom would have been killed in the animal shelter had we not intervened. They’re now well fed, warm, and safe as they hang out in what is a halfway station on their way to really good homes.

Karen’s influence on the place has been remarkable. She’s added a grooming station, decorated the visiting area in which potential adopters hang out with the dogs, and brought an overall warmth and enthusiasm that had been in short supply. Willie and Sondra are crazy about her, and she about them. Fortunately, no further attempts have been made to harm her, but Willie is ever vigilant.

“What are you doing here?” Karen asks. “Don’t you have to get ready for tomorrow?”

“Andy’ll be ready,” Willie says. “He’ll have the prosecution idiots for lunch.”

Willie has an overly generous assessment of my legal abilities, but I make it a point never to correct him.

“Tomorrow’s just jury selection,” I tell Karen. “There won’t be much excitement.”

“Andy, every single moment of that trial is going to be exciting. And you are going to be great.”

I spend about an hour there soaking up the compliments and then head down to Charlie’s so Vince and Pete can insult me back to reality. And reality is where I need to be, because starting tomorrow, Richard Evans will be counting on me to save his life.

“T
HIS IS A
very simple case,” is how Daniel Hawpe begins his opening statement to the jury we have chosen together. I don’t think that either side achieved any real advantage in the jury selection process; we’re both going to have to win it on the merits.

“We are going to simply present to you a series of facts, many of them uncontested even by the defense. You will then look at those facts and decide whether or not Richard Evans killed Stacy Harriman, and I believe your conclusion will be that he did so.

“The evidence you hear will be mostly circumstantial, and I’d like to discuss what that means. There is no eyewitness to this crime, no one who saw Mr. Evans kill Ms. Harriman and throw her body overboard. This is true in many, many murder cases. Most murderers don’t want to commit their crimes while others are around to observe them. So they do it when they are alone with their victims, when there is no chance for anyone to intervene and stop them.”

Hawpe has a smooth, conversational style of speaking, of connecting with his audience. It will serve him well in politics, and I have no doubt he’s thinking that achieving a guilty verdict in this trial will serve him equally well.

“But circumstantial evidence can be far more powerful than eyewitness testimony. The most common way to illustrate this is the snowfall example. If you go to sleep at night and the ground is not snow covered, and you wake up in the morning and it is, you know circumstantially that it snowed that night. You weren’t an eyewitness to the event, but you know it well beyond a reasonable doubt.

“The same thing can be true of crimes. Eyewitnesses, in the excitement of the moment, can make mistakes. Facts do not make mistakes.

“So we will present you with facts that prove conclusively that Richard Evans went out on his boat one night with his fiancée, Stacy Harriman. Those facts will prove that he crushed her skull and threw her body overboard, then attempted to kill himself by taking a bottle of sleeping pills. Her blood was on the floor and the railing of the boat, and her body washed up on shore three weeks later. She was telling us her story even in death, and we must in turn bring her justice.

“The defense will paint a different picture, but instead of facts, they will use fantasy and wild theories. They will base their defense on a magical dog, and unseen villains who came out of the water like pirates, armed with clubs and sleeping pills.

“None of it will make sense, and it could not be expected to, because it will be up against the facts. So if there is one thing I ask of you, it is to listen only to those facts. And if you do, your conclusion will be obvious.”

As is customary, Judge Gordon gives me the option of presenting my opening statement now or at the beginning of our defense case. I would only defer it in the face of an inept statement by the prosecution, which isn’t the situation here. Hawpe was effective in connecting with the jury, and he made points that cannot go unchallenged.

“Ladies and gentlemen, you are not the first jury of twelve citizens to consider the case against Richard Evans. Another group of people, just like yourselves, sat in this very courtroom and did the same. And they voted to convict Mr. Evans of the murder of Stacy Harriman.

“Yet we’re back here, going through this process again, and there is a very simple reason why. Because in that trial the prosecution presented a series of facts to that jury, a number of which have turned out not to be true. I’m not saying they did so deliberately; in fact, I’m quite sure they did not. But they were wrong, and their facts were wrong, and they will admit to that. So when Mr. Hawpe stands and tells you that he is going to present you with facts, please remember that they are his new version of the facts. And once again, they are wrong.

“Richard Evans is not a murderer—not even close. The prosecution will not be able to tell you about a single violent act he has ever committed in his entire life, and believe me, they have searched for them. He had no reason to hurt Stacy Harriman; they were going to be married. If he had wanted to end the relationship—and he did not—he could have just broken off the engagement. He had no motive for murder, and you will not hear any from the prosecution during this trial.

“Nor did he have a reason to attempt suicide. He worked for the United States government for fourteen years, protecting our shores, and he was promoted four times. He had a great many friends, a loving family, and a bright future in front of him. To anyone who knew Richard Evans, suicide was inconceivable.

“Yet he sits before you today, an innocent man in the middle of an extended, horrifying nightmare. It is a nightmare that you can end by recognizing an obvious truth: Richard Evans has done nothing wrong. He himself has been the victim of a terrible crime, and basic justice deserves that he be set free to live his life.

“Thank you.”

I turn back and sit down, noticing that Karen is giving me the thumbs-up from the front row. Richard whispers to me, “Good job,” but I’m not comfortable with what I said, because I’m not comfortable with our case. All we have is reasonable doubt, and “reasonable” is certainly in the eyes of the beholder. And these jurors seemed to want to behold Hawpe a lot more than they did me.

Hawpe’s first witness is Coast Guard Captain Ron Ferrara. He was in charge of the cutter that boarded Richard’s boat that night, and Hawpe will use him to set the scene, and other witnesses will provide background to it. But it is the scene itself that is probably the most incriminating factor against Richard.

“We received the warning at approximately twenty-two fourteen,” says Ferrara, using military time and demonstrating that he does not have a great understanding of the word “approximately.”

“And then you passed it on to the private and commercial boats in the area?” Hawpe asks.

Captain Ferrara shakes his head. “No, those warnings are sent out over the alert frequency from land-based positions. Our responsibility is to make sure that the boats leave the area and assist those in difficulty.”

“How bad was the approaching storm?”

“It was a significant system, but survivable. We’ve experienced far worse.”

Hawpe takes him through the process by which Ferrara determined that Richard’s was the only boat not to heed the warnings, and then did not answer Ferrara’s radio call. When Ferrara could not see any activity on the boat, he made the decision to board it.

“Please describe what you found when you boarded.”

He paints a picture of a placid scene, normal except for the lack of passengers. It was when one of his men went down below that Richard was discovered, lying on the floor, a small amount of blood oozing from his head.

“Was there anything on the floor near Mr. Evans?” Hawpe asks.

Ferrara nods. “There was. An empty bottle of pills.”

Ferrara then goes on to describe the emergency medical attention that Richard received. A decision was made to evacuate him by helicopter—risky because of the approaching storm. But it was accomplished, and then the boat was brought back to port to be examined, though at that point no one knew about Stacy Harriman’s disappearance.

“At what point did you consider this to be a crime scene?” Hawpe asks.

“From the moment I saw Mr. Evans.”

Hawpe turns the witness over to me. There will not be much I can do with him; both his actions that night and his testimony today were straightforward and basically correct. But I consider it important to make points with every witness; the jury has to know that there are two sides to this fight.

“Captain Ferrara, when did you learn of the possibility that there had been someone else on the boat with Mr. Evans that night?”

“I read about it in the papers; I think it was two days later.”

“So you found Mr. Evans lying unconscious, with an empty pill bottle nearby and a wound on his head?”

“That’s correct.”

“And you testified that you immediately considered this a crime scene?”

“I did.”

“Suicide being the crime?”

“Yes.”

“Would another possibility have been that Mr. Evans had a heart attack and had just taken pills, perhaps nitroglycerine, to counteract it?”

“I never considered that.”

“Was there a label on the pill bottle so that you could determine what was taken?”

“No, there was not.”

“Any way for you to have known how many pills had been in there?”

“No.”

I hand Ferrara a transcript of his radio conversation with Coast Guard command on shore. “Please read the passage where you say that you are treating the boat as a crime scene.”

He looks at it but knows the answer. “I did not mention that.”

“You didn’t think it was important?”

“I considered Mr. Evans’s health to be my first priority.”

“And mentioning that this might be a crime scene would in some way jeopardize his health?”

He doesn’t have an effective answer for that, so I move on. “Please read the passage where you instruct the people on shore to have forensics ready to check out the boat.”

“I did not so instruct them.”

I feign surprise. “Do you have training in forensics?”

“No.”

“Do you at least watch
CSI
?”

Hawpe objects, and Judge Gordon sustains. I then take Ferrara through the process by which Coast Guard personnel boarded the boat. A total of nine people did so, including Ferrara.

“Nine people? How big is this boat?” I ask.

“Forty feet.”

“And you and your people had your eighteen feet tromping all over it?”

“We were very careful not to contaminate the scene.” I frown with disdain at the very thought. “A storm was approaching, so you were in a hurry; your first priority was the man’s health; you had virtually no reason to suspect a crime, but you and your army of men were careful?”

“Yes.”

“Did you stop what you were doing to put on booties?”

The jury and most of the gallery laugh at this, which is the reaction I was hoping for.

“No.”

Finally, I take him through the bloodstains and ask him why they were not washed away by the rain.

“One was under cover, and the other was on the bottom of the railing.”

“That was convenient for you and your crack forensics team, wasn’t it?”

Before Ferrara can answer, Hawpe objects and Judge Gordon sustains. I let Ferrara off the stand, having accomplished as much as I could with him. Kevin’s nod as I head back to the defense table indicates that he is pleased with the result.

Judge Gordon adjourns court for the day, and I turn to Richard before they take him away. “You okay?” I ask. Sitting quietly and watching the State of New Jersey attempt to take your life away can’t be easy, even the second time around.

He grins. “Are you kidding? Compared to what I’ve been doing every day for the last five years, I feel like I just saw a Broadway show.”