“That’s improper on its face, Judge,” Sam said.
Judge Daniels thought about it for a moment. “I’m going to sustain the objection.”
“Your Honor,” Sam said, “because counsel clearly understood this sort of thing is improper, I’d appreciate the court explaining to the jury the basis for your sustaining the objection.”
“Judge—” Ann began.
“No, Mr. Johnstone, I am not going to do that,” Judge Daniels told Sam.
“But Judge, if you don’t, the jury won’t know that kind of evidence is improper, and they’ll think my client is trying to hide something,” Sam said, eyeballing Juror 465, who was looking at him with disdain.
“Well, maybe you should have thought of that before you objected, counsel.”
“Your Honor, I’m only asking for the court to clarify—”
“I’ve made my decision. Return to your places.”
Ann began questioning Tommy before Sam even returned to his place. “So, Mr. Olsen, you are married?”
“Objection, Your Honor,” Sam said. “Lacks relevance.”
“Overruled. Answer the question,” Daniels instructed.
“Uh, yeah,” Tommy said. “Me and Becky been married nine years.”
“Happily?”
“Renew the objection, Your Honor,” Sam said.
“Sustained. Move along, Ms. Fulks,” Daniels instructed.
“So, you admit having sex with the deceased?”
“She was alive!”
Ann let it pass. “And your testimony was that it was consensual?”
“Yes.”
“And she was sleeping when you left?”
“Yes.”
“But you don’t know, and can’t explain, how it came to be that your bayonet had her blood on it.”
“No.”
“And you can’t explain how a piece of that bayonet happened to be found in her neck?”
“No.”
“Or why the bayonet was found at your home?”
“I live there!”
“But despite all that, according to you, she wasn’t killed while you were there.”
“No.”
“You weren’t using that bayonet to cut limes.”
“No.”
“You weren’t showing it to Emily or waving it around?”
“No.”
“It wasn’t in her house at all, to your knowledge?”
“No.”
“So, it can’t be that you ‘accidentally’ cut her with it?”
“No. I never had it with me in her house!”
“And you’re not sure exactly when you left?”
“No. Well, wait! I heard a George Strait song on the radio when I was leaving. On satellite.”
“But you didn’t see anyone or talk to anyone or stop anywhere and have contact with anyone who could verify your story or even the time you left?”
Tommy sat for a long time. He shifted in his chair and looked at his hands. “The ER doc,” he said at last.
“Mr. Olsen,” Ann began. “Have you ever struck a woman?”
“No!”
“Answer carefully, Mr. Olsen.”
“Objection!” Sam said.
“Overruled—if it was charged,” Daniels said.
“Thank you, Judge,” Ann said. “Mr. Olsen, isn’t it true that you lost a rank during your time in the Marine Corps for hitting a woman?” Ann watched the jury’s reaction to her question and deemed it better than she could have hoped. They were angry.
“She was an officer!” Tommy began, stopping when some in the audience began to react. “She was being disrespectful of those of us who were redeploying—”
“So you hit her?”
“She slapped me!”
“So you hit her?”
“Yes!” Tommy said.
“No more questions,” Ann said, seeing Juror 465 sit back in her seat and fold her arms.
Daniels allowed Ann to take her seat before proceeding. “Redirect, Mr. Johnstone?”
“No, Your Honor,” Sam said. The damage was done, just as he had feared.
“Mr. Olsen, you may step down, sir,” Daniels instructed Tommy, and then turned to Sam. “Call your next witness, Mr. Johnstone.”
“Your Honor, may we approach?” Ann asked.
“Of course.” Daniels waved both attorneys forward. When the attorneys and the court reporter were positioned, the judge turned on the “white noise” generator to preclude jurors from hearing and asked, “What is it, Ms. Fulks?”
“Judge, the State of Wyoming strenuously objects to Mr. Johnstone calling this witness! We were given no notice—”
“Your Honor,” Sam interrupted, as calmly as he could. “I filed an amended pretrial memorandum with the court and Ms. Fulks several hours ago.”
“That’s not enough time—” Ann began.
“It’s several hours more than I got on the Howard evidence, sir,” Sam said levelly.
Daniels sat back in thought for a time, and then waved the attorneys away. When they were back at the tables, he stood. “We’ll take a ten-minute recess, ladies and gentlemen, before the defendant’s next witness takes the stand.”
Juror 465 gave Sam a long look as she left the courtroom.
An hour later, after Russ Johnson, who had testified to the presence of the now-linked-but-still-unidentified prints, had been cross-examined and Sam completed redirect, Daniels informed the witness, “You may step down, sir.” Then, looking at Sam and knowing it wouldn’t happen, Daniels instructed for the record, “Call your next witness, Mr. Johnstone.”
“The defense rests,” Sam said, hearing the audience stir behind him. He couldn’t blame them; Sam himself could feel the tension building. After days of focusing on the now, he couldn’t help but begin to look to the moment when the jury delivered its verdict.
“Does the State intend to present any rebuttal evidence?” Daniels asked.
“No, Your Honor,” Ann said.
“Thank you, Ms. Fulks,” Daniels said. “Ladies and gentlemen of the jury, the evidence has now been closed in this matter. We will take a brief recess. When we return, the court will provide you with your instructions. Thereafter, the attorneys for the State and for Mr. Olsen will provide their closing arguments. At that point, you will begin your deliberations. Again, I beseech you: discuss this case with no one until you have been told to commence deliberations, and if anyone attempts to discuss the matter with you, report them immediately to your bailiff. Bailiff, please escort the jurors to the jury room. We will reconvene on my order.”
Daniels and all others rose as the jury departed. When the doors closed behind them, he looked to Sam and Ann and said, “We will meet in my chambers in ten minutes for final, on-the-record discussion of instructions. Barring any unforeseen circumstances, counsel, we’ll hear your closing, Ms. Fulks, in about an hour from now. We’re in recess.”
52
Ann’s closing, in Sam’s opinion, was perfunctory. She began with a review of the elements the State was required to prove, then ticked off each element and the evidence she felt provided sufficient proof for the jury. Ann’s closing, by Sam’s watch, was fourteen minutes long—remarkably short for a murder trial. No boasting, no overstatement of what had been shown, no soaring rhetoric. It was clean, concise, and—judging by the smirk on Juror 465’s face when Sam’s eyes met hers halfway through—very effective for the prosecution.
Sam stood and faced the jury. “May it please the court . . . counsel,” he began. “I, too, wish to thank you for your patience and participation in this case. I know it has not been an easy task for you. I recognize that your participation on this jury has been a burden for you and your family members.
“There is nothing pleasant or pretty about this case. The evidence—pictures and bayonets and blood samples and semen—are extremely distasteful. And I agree with Ms. Fulks that what happened to Ms. Smith was horrific. There is no excuse for it. When we began this trial, I asked you
to keep an open mind until all the evidence was in, until the judge had given you your instructions, and until arguments of counsel had been heard. I asked you to wait until the case was over to make your judgment. That time is near.
“Now, you should know that there were things Ms. Fulks might have shown you that were probably worse than what you did see, and for that I thank her,” Sam continued, cringing as Juror 465 looked with approval toward Ann. “But remember this very simple, very fundamental fact: the burden of proof in this case was upon the State. Their job was to prove to you beyond a reasonable doubt that Tommy Olsen”—here Sam pointed to his client—“is guilty of murder in the first degree.
“And they tried. They tried like hell. In so doing, they made a lot of fanciful arguments. In fact, some of them are extremely persuasive until you start scratching the surface of them. But remember, the burden of proof is never on the defense. My client didn’t have to prove anything. The State had that burden. And after all the testimony and all the witnesses and all the exhibits and all the arguments, the State failed to meet that burden. Because, ladies and gentlemen, when it’s all said and done, the State piled up a lot of circumstantial evidence against Tommy Olsen, but nothing conclusive.
“The State says, ‘Tommy’s fingerprints were all over the house.’ Well, of course they were—Tommy had been there. He didn’t deny that. The State says, ‘Tommy’s semen was in and on the victim.’ Well, again, of course it was—Tommy was having an affair with her. But you know what? So was someone else. We know Judge Howard had been there, but we don’t know when or why, and we don’t know how hard the State tried to find out. Because once they had Tommy in their sights—Tommy, the disabled veteran who’s had some trouble since he got back from overseas—they quit looking. So, we don’t know who the owner of the other set of unidentified fingerprints might be or when they were left, and we don’t know who else left his semen behind, because the State apparently didn’t bother to look.
“Ladies and gentlemen, I submit that the fingerprints and semen that remain unidentified come from the real killer or killers, and I submit that’s reasonable doubt.” Sam looked at each juror in turn. He only needed one to agree with him. Juror 465 met his stare; it wouldn’t be her—and he silently thanked his lucky stars she was only an alternate.
“I’m not going to re-hash everything that was said during this trial—you were here, that’s up to you to recall. But I want you to remember one witness, and that’s Tommy Olsen. Tommy Olsen didn’t have to testify, but he did. He didn’t have to answer questions, but he did. Did he have satisfactory answers to every question? Of course not. Who among us could possibly account for some of the things he was asked to explain? But he took the State’s best shots and replied as best he could. He had an explanation for everything, as much as anyone could. And he was unimpeachable on one particular point: that he did not kill Emily Smith.”
Sam looked again at each juror in turn. “We don’t dispute that he was there shortly before she was killed, or that he had sex with her, or that he bled in her kitchen, or that his fingerprints or semen were there. Mr. Olsen has admitted all of that from day one—almost from minute one. But what he has maintained since his very first conversation with Detective Polson was simply this: he did not kill Emily Smith.
“The State’s burden of proof is beyond reasonable doubt. And that goes for every element. And the State has not bothered to even offer a scintilla of evidence that Tommy Olsen killed Emily Smith purposely and with premeditated malice, or that he killed her while perpetrating a sexual assault. They’ve provided no evidence of motive,” Sam said, his voice trailing off. “And do you know why, ladies and gentlemen? Because there was no motive. Tommy Olsen simply didn’t have one. No motive, unexplained prints, unexplained DNA. That’s reasonable doubt, ladies and gentlemen.
“All we ask you to do is three things. First, go into the jury room and review the evidence—all the evidence. Second, look at each element and ask yourself, with regard to the evidence supporting each and every element, ‘Is there reasonable doubt?’ Because if you do that, we are confident that you will do the third thing I ask, which is to return a verdict of not guilty. Again, thank you, ladies and gentlemen.”
With that, Sam sat down, exhausted. Under the table, Tommy made a fist and indicated a fist-bump was in order. Sam ignored him and, one last time, glanced at each juror in turn. All avoided his eyes, except Juror 465, who smirked at him. Sam picked up his pen and tried to take notes while Ann delivered her rebuttal. Again, it was brief, and before Sam could fully process what she had said, Daniels had charged the jury and they were off to deliberate.
The trial was over.
53
Sam remained behind, listlessly shuffling papers on his table, long after Ann and the prosecution team had rolled away the file boxes. At some point, he heard a voice inquiring of him, and he looked up.
“Mr. Johnstone, you okay?”
It was Fricke, the janitor. They were alone in the courtroom.
“I’m fine,” Sam replied.
“You need anything?”
“No, I’m good. Maybe a little sleep.”
“I hear that,” Fricke said. “Mind if I get the trash?”
“Please do,” Sam said, and handed Fricke the trash can from beneath the defendant’s table.
“I seen a lot of trials, Mr. Johnstone,” Fricke said.
“Yeah?”
“Yeah. And that was a damned good closing.”
“Thank you.”
“For all the good it’ll do you.”
“Huh?”
“That dude’s going down, sir. Jury ain’t buyin’ it.” Fricke shook his head as he emptied the trash. “Just how it is.”
Daniels had his robe and dress shoes off, donned a pair of slippers, and was pouring himself two fingers to sip while waiting for the jury to deliberate when the phone in his chambers rang. It was Joe Nelson, one of the bailiffs.
“Yes?” Daniels said.
“Judge, we’ve got an issue,” Nelson said.
“What is it?”
“One of the jurors is sick, sir.”
“How sick?”
“Chest pains.”
“Christ. Which one?”
“Juror 342.”
“That the big heavy guy?”
“Yeah. Front row, all the way to the left.”
“Okay. Get him to the hospital. We’ll have to call an alternate. Who’s the first alternate?”
“Juror 465.”
“Which one is that?”
“That fat woman in seat nine. Not good for Olsen. If looks from her could kill, he’d be one dead dude.”
“Thanks, Joe,” Daniels concluded. He then dialed Mary. “Get ahold of both attorneys. Tell them to meet me in the courtroom. We’re going to go on the record, and I’m going to activate the alternate to replace number 342. He’s got chest pains.”
“What does that mean?” Tommy asked after the brief hearing. He and Sam were huddled at the conference table.
“That means Juror 465 is replacing 342,” Sam said. That was enough. Tommy didn’t need to know that the seating of Juror 465 had eliminated the remote chance of an acquittal. The best Tommy could do now would be a hung jury.
“Which one is that?” Tommy asked. Sam described her.
“But that gal hates me!” Tommy protested. “I could tell! What do we do?”
“Nothing we can do, Tommy. That’s the system.”
“So they can put someone on the jury who hates me?”
“Yeah.”
“The system is crap!” Tommy said. Court security was moving closer.
“Well, it’s the only one we’ve got.” Sam put a hand on Tommy’s shackled wrists. “Look, try not to catastrophize this. Just go back to your cell and hang tight. I’ll let you know if anything significant occurs.”
“Okay, Sam—but this is bullshit.”
“I hear you, Tommy.”
“Sam?”
“Yea
h?”
“I think you did a good job. You’re a good lawyer.”
Sam’s eyes welled up. He turned away but blindly extended his hand toward Tommy’s cuffed ones. “I appreciate it,” he managed to choke out. “Now, get out of here and get some dinner.” He watched as Tommy was led away, certain his client’s opinion of him would soon change.
After fourteen hours of deliberation, the foreman notified Daniels the jury had reached a verdict. It had been a long night for everyone. Thirty minutes later, all parties and a full audience were assembled in the courtroom. “Ladies and gentlemen,” Daniels began. “I understand this has been a long and arduous couple of weeks. And I understand that for many of you, the result announced here today is as important as anything that may occur in your lives. But this is a courtroom, and I expect you to conduct yourselves accordingly. There will be no sound—not a peep—after the verdict is read. If we have any sort of noise, I will clear this courtroom.”
He wouldn’t, of course. But it had to be said.
“In just a few moments, I will call for the jury. When the jury is seated, we will go through a few administrative things, and then we will ask for the verdict. When the verdict is announced, the trial will be over if the verdict is not guilty. If the verdict is guilty to the charge of capital murder, we will reconvene here on Monday to conduct the sentencing portion of this proceeding.
“Does the State have anything we need to discuss out of the presence of the jury?”
“No, Judge,” Ann said.
“Mr. Johnstone—for the defense?”
“Your Honor, I renew my motion for a directed verdict. Very simply, the State failed—”
“Mr. Johnstone, I’ve already explained that I am reserving my decision. Is there anything else?”
"But, Your Honor—” Sam began.
“Bailiff, please bring in the jury.” After the jury had assembled, Daniels adopted a suitably grim countenance and asked, “Did the jury elect a foreperson?”
“We did, Your Honor,” replied Sean O’Hanlon. “I am the foreman.”
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