The Ophelia Cut (30 page)

Innocent until proven guilty.

These four words were not window dressing, not mere legal jargon. They provided an enormous tactical and psychological advantage. Because while a defendant was still innocent, the burden of proof fell on the prosecution. The defense never had to prove anything. And if you were a defense attorney, you wanted to deal from that position, where your client got the benefit of every doubt every time, where only one person on a jury had to remain unconvinced of your client’s guilt and you got the verdict you wanted. The longer you could keep the jury’s foreman from saying the word “guilty,” the better job you had done for your client.

For the defendant awaiting a murder trial, there were some equally compelling incentives to have it end as soon as possible, particularly if you didn’t want to cut a deal and had high hopes for an acquittal; even more so in the unlikely event that you hadn’t committed the crime and were therefore that rarest of creatures, the innocent man, falsely accused. The first of these incentives was that, since bail tended not to be an option in murder cases (McGuire’s was set at $10 million, which he had no chance of making), every minute that the trial was delayed was another minute that you were in custody, which was a depressing, debilitating, psychologically destructive experience even in the best of jails, which San Francisco’s was not.

Second, when a trial was on the fast track, the prosecution often found itself at a severe strategic disadvantage. With time at a premium, the People may not find the time to prep witnesses adequately. Expert witnesses might be unavailable on short notice. Critically, there might not have been time to find all the possible physical evidence, or for the various laboratories to come in with their findings. The prosecutor would like, and could undoubtedly use, more time to perfect a theory of the case and a game plan for how to present it effectively to the jury.

On this fog-bound and chilly morning of Monday, July 9, as Dismas Hardy unpacked his enormous lawyer’s briefcase at the defense table in Department 24 of the Hall of Justice, Judge Carol Gomez presiding, he didn’t care about any of the reasons McGuire had wanted to keep the trial on track. He’d heard them all before and had an argument against every one of them.

For all the good it did him.

Moses had told him on his second visit, day two after the arrest, that he wasn’t going to be spending any greater portion of his sunset years than he absolutely had to in jail. He told Hardy to get him his Px, or preliminary hearing, on the first day it was available, which by law had to be within ten court days of his arrest.

Hardy had argued for all the usual reasons. The Px had a probable-cause standard of proof, much lower than a trial’s proof beyond a reasonable doubt. And the probable cause was based upon two things: is there reason to believe that a crime was committed and that the defendant committed it? Beyond that, in a Px, a single judge made the decision, not
a jury of McGuire’s peers; and in a Px, hearsay was admissible, further stacking the deck against the defendant.

If Hardy were going to try to fight the good fight at the Px, he needed months of preparation, wily strategies arrived at after lengthy discussions and briefs from his associates, alternative theories of the crime, expert witnesses, the whole arsenal available to a defense attorney. In the event, he got ten court days to prepare, and Moses was held to answer and bound over for trial. The preliminary hearing had been such a complete no-brainer, given the evidence from the searches at the Shamrock and the McGuire home—to say nothing of the Homicide inspectors’ hearsay about the eyewitness testimonies—that Hardy had barely a word to say in his client’s defense.

Two weeks after that, Moses had pleaded not guilty at the arraignment, then refused to waive time, meaning that the trial had to begin within sixty days.

And now here they were, with the rest of a man’s life at stake.

Absurd.

Today might be the first formal day of the trial, but it would be a good little while before the actual shooting began: the statements, evidence, witnesses, and arguments. First they had to do their motions and pick a jury. In this case, Hardy believed, jury selection—always significant and always a crap shoot—would assume an almost mythic importance, far more than in any other trial in which he’d been involved, since the case hadn’t gotten the opportunity to fade from incessant media coverage. If one accepted the dominant theory about Brittany’s rape being the inciting incident—and everyone did—it was the kind of crime that gathered onto itself all the frenzy that sexual politics usually brought to public discourse: women’s rights groups of all stripes had flocked to condemn Jessup and the “culture” of date rape; the
Chronicle
had run a four-part series on date rape, its prevalence, its aftereffects, the drugs affiliated with it.

This had led to a backlash by people who felt the newspaper had given too specific instructions to young men on doping up their victims. Others picked up on the reality that Brittany already had a relationship with Jessup, and that the so-called date rape was probably not exactly that; either she had “asked for it” or was crying rape to punish him for
breaking up with her. Naturally, talk radio called her a slut and worse, and Brittany’s picture appeared on CNN and cable news, which led to several more invitations for screen tests, all of which, to Hardy’s knowledge, she had turned down. What she couldn’t avoid was becoming somewhat of a reluctant media darling, her picture showing up in all the tabloids.

McGuire himself became the subject of intense debate. What should a father do if he finds out his daughter has been raped? Is he justified in going after the perpetrator? Can he be forgiven if he does? Why do so many victims of rape fail to report it? And if the daughter doesn’t report it, how then can the rapist be brought to justice? Despite firm stonewalling on any of these issues and Hardy’s constant reiteration that, rape or no rape, his client had pleaded not guilty to Jessup’s murder and must be presumed innocent, McGuire got his own local magazine cover,
Mother Jones
, accompanied by an unflattering piece about the scourge of vigilante justice.

Tick,
Hardy thought when he’d read that.
Tock.

All of which meant that jury selection, to say nothing of bigger issues about McGuire’s life—what kind of guy would allow himself to become a vigilante? Had there been a history of anything like that in his life?—was shaping up to be a nightmare. It was going to be very difficult, if not impossible, to find a San Francisco citizen who would make the cut—who was unaware of the basic facts of the case, who would not be prejudiced one way or the other, who would be able to be fair.

That, although bad enough, was the least of his worries.

Hardy had considered asking for a change of venue. Though a judge almost certainly would have granted such a motion, Hardy was more concerned with finding at least one or two jurors whose not-guilty votes could thwart ten other jurors who wanted to convict. He knew that his chances of finding such jurors were far greater in the politically active, opinionated, strong-willed, anti-authoritarian, counterculture folks who made up the traditional San Francisco jury pool.

G
INA
R
OAKE WALKED
up from her seat in the gallery and turned to look at the buzzing, murmuring chamber, with standing room only around the side walls and in the back. “How big is your pool?”

“Two hundred a time for disqualification for publicity and hardship,
three panels a day for three days,” Hardy said. “We want to get a hundred people who can be here for regular voir dire.”

“It might take a month.”

“I told that to the judge. Stier even agreed with me. Gomez figures a week.”

Gina gave him a tight smile. “It’s nice when things start off on such a positive note. And where’s our client?”

“They forgot him.” He held up a hand. “True story. He ought to be down any minute.”

“In time to do a perp walk in chains from behind the bench?” Gina asked. “They shouldn’t have brought the pool in here yet.”

“You think I should tell Gomez to get them out of here so Mose can walk in like a free man? Set us back another half hour or so?”

“It’s a murder,” Gina said. “Does anybody seriously think the jurors don’t know he’s in jail?”

“Actually,” Hardy said, “no chains, no kidding. The appellate court would call me incompetent for letting it happen.”

“If it’s incompetent and Moses gets convicted and some appellate court wants to let him out for that, God bless it. Meanwhile, he’ll at least be dressed out, right?”

“Right.” Meaning Moses wouldn’t be in front of the jury pool wearing the jail’s orange jumpsuit; he would be sporting his nice slacks and ironed shirt and coat and tie. The handcuffs and shackles would be removed in the hallway before he came in.

Hardy realized that they were into it already. The tiniest details. From here on out, even before the judge entered the courtroom, everything counted. “I’ll go talk to the bailiff and make sure I walk in with him,” he said. Pushing back the chair, Hardy stood up.

To his left, closer to the jury box—which was now filled with twelve prospective jurors and six alternates—Paul Stier sat with one of his acolytes at the prosecution table, ostentatiously going over the computer sheet with names of people in the jury pool, as though by themselves they could tell him anything.

Hardy, his game face on, stopped without apparent premeditation at Stier’s elbow. “Excuse me, Paul,” he said, offering his hand. “Before we get going, I just thought I’d say good morning.”

It was another small but calculated move on Hardy’s part, demonstrating to anyone among the prospective jurors that the defense side and the prosecution side were cordial professionals, that Hardy’s identification with the defendant should not make them think any less of him and, by extension, his law partner Amy Wu, who would be sitting second chair at the defense table.

Stier straightened up, shook Hardy’s hand, introduced his associate as Lars Gunderson, a young man pushing the envelope of acceptable courtroom dishevelment with almost shoulder-length red hair and a luxuriant mustache. More handshaking.

Up by the bench, Hardy explained his situation to the bailiff, who nodded and led him back to the interior corridor that ran behind all the courtrooms. Just as he turned to look down toward the elevator leading to the jail, Judge Gomez exited her chambers in her robes and came walking down toward him.

She was a slight woman, even bulked up by her robes. Hardy had checked her out when she’d drawn this trial. He would have preferred a man or at least a parent because of the nature of the crime, and she was neither. Appointed by Jerry Brown, she was relatively new to the bench, forty-six years old, Georgetown Law, single. She wore her dark hair down to her shoulders, and with her glasses off, her face was close to beautiful, especially when she wasn’t frowning, which unfortunately was her default expression when she was in thought.

As she came closer, she obviously took a moment to place Hardy, standing by the back of her courtroom. As the recognition clicked in, she stopped and did not offer a handshake but said, “Mr. Hardy. Graciously escorting me to court?”

“Unfortunately, waiting for my client. They seem to have misplaced him.”

Apparently amused, the judge shook her head. “The biggest case I’ve ever tried, and they forget to bring down the defendant. I’m sure that says something, but I don’t know what it is.”

“I’ll have to make sure he’s dressed out, Your Honor. I won’t object to him coming in with the jurors already in the courtroom, provided he’s uncuffed and I can walk in with him. It may be a few minutes, if you’d prefer to wait back here.”

A wry smile. “I don’t suppose you’d like to go in now and we start without him?”

“If it were just me, I would. Honest. But it’s his trial, Your Honor. He’s supposed to be there. Face his accusers and all that.”

“Yes,” she said. “Of course.” Her brow furrowed, she sighed, and she aged ten years. “I’ll be in my chambers,” she said. “Would you please have the bailiff come get me when you’re ready?”

“Certainly, Your Honor.”

As she turned, the thought occurred to him that he’d scored a minor victory. He wasn’t going to attach too much importance to it, but something small and human had just passed between them.

He’d take it.

C
RITICAL THOUGH IT
was, jury selection had its mind-numbing moments.

The first jury dismissals were for publicity and hardship, instances in which a juror’s lengthy time on the panel would badly disrupt that person’s life. Into this category fell single parents without adequate child care, some people who owned their own businesses, those working for companies that did not pay for jury duty, folks with certain illnesses or medical conditions, and other similar situations. Dismissal for publicity didn’t include everybody who had heard about the case; virtually everybody had heard about the case. Those dismissed were people who had formed fixed opinions, based on what they’d read or heard, and couldn’t give the defendant a fair trial. The final hardship was that the trial wasn’t going to take just a few days and would be more time than a great many people could spare.

A
MY
W
U HAD
a Chinese mother and a black father. She had been with Freeman Hardy & Roake since the firm’s founding and had become a partner a year ago. At thirty-three, she was a skilled and experienced criminal attorney. She was also easy to look at, and Hardy thought she spruced up the defense table nicely.

Now Wu, Roake, and Hardy were at a table along the back wall across the street at Lou the Greek’s. Today’s Special was a bowl of lamb meatballs, eggplant, kalamata olives, and Chinese noodles, all heavily seasoned with Mae Ploy sauce. Surprisingly delicious.

Hardy, using chopsticks, lifted an olive. “Conflicts.” He didn’t have to go into detail; both of these women were attorneys and knew the questions: Are you related to anybody in law enforcement? Have you ever been the victim of a crime? Convicted of a crime? Arrested? Is there anything that would prevent you from being able to render a fair and impartial verdict in this case?