by Kenneth Eade
“Yeah.”
“Who else lives here with you?”
“Well, there’s Moe.”
Jack started to write down the name, “Moe,” and then stopped and looked up at Michel, who was wearing a shit-eating grin.
“Let me guess, you don’t know Moe’s last name either, right?”
“Dude, you’re good!”
“And your other roommate’s name must be Jack, right? Manny, Moe and Jack?”
“Dude, it’s like you’re a psychic or something.”
“Thanks for your cooperation, Mr. Michel,” Jack said, and turned to leave.
“Anytime, dude!”
* * *
After the lunch break, Brent was given the floor, and tried to fuse the principle of reasonable doubt with the principle of circumstantial evidence in the minds of the jurors. His job during the trial would be to drive a wedge of reasonable doubt into every piece of circumstantial evidence that he could.
“Ladies and gentlemen of the panel, when my colleague Mr. Chernow spoke to you about circumstantial evidence, he explained how the Court would instruct you what it was and how it can be used to draw an inference about a proven fact. However, the Judge will also instruct you that before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Who knows what that means?”
A man in the panel raised his hand.
“Juror number four, Mr. Samuels, what do you think reasonable doubt means?”
“It means you have to be sure about it.”
“The Judge will tell you what the law says reasonable doubt is. He will instruct you that the defendant is presumed innocent and that the People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. They must prove this as to every element of the crime, and if they don’t, you have to acquit my client. He will instruct you that the defendant does not have to say anything or prove anything. The entire burden is on the People. With that in mind, does anybody on the panel think they would have to hear the defendant’s side of the story to decide anything?”
Two hands shot up and Brent took notes of who they were.
“The Judge will tell you that the reasonable doubt standard is more stringent than the preponderance of evidence standard we use in a civil case. The preponderance of evidence standard asks you to decide whether the evidence shows that a fact is more likely than not true. The reasonable doubt standard goes one step further. It asks you to decide whether each essential element of the case has been proved by the People to the point of an abiding conviction in you that the charge is true. Does anybody not understand this concept?”
Juror number 7, Joseph Baker, raised his hand.
Brent continued to question the jurors until he had run out of questions, then informed the Judge.
“The Court will hear any challenges for cause,” said Judge Curtis.
“Pass for cause, Your Honor,” said Brent.
“Pass for cause, Your Honor,” said Chernow.
“Alright then, the first peremptory challenge is with the People.”
“The People wish to thank and excuse Juror No. 6, Mrs. Helen Wyndam.”
Ms. Wyndam was excused, and the clerk drew another potential juror’s name from the gallery, filling her empty seat. This began a process of questioning the next prospective juror, who took a seat in the jury box and underwent the entire voir dire process.
“The next peremptory challenge is with the Defendant.”
“The Defendant wishes to thank and excuse Juror No. 7, Joseph Baker.”
Jury selection continued through the end of the day and into the next, until all 40 peremptory challenges had been used. The final jury was composed of five men, seven women and two alternates; one man and one woman. To Brent’s delight, most of the members of the jury had grey hair.
“Madame Clerk, please swear in the jury,” instructed Judge Curtis. The swearing was followed by the traditional admonishments, prohibiting the jurors from talking to anyone about the case, even amongst themselves. Then Judge Curtis turned to the lawyers and asked, “Mr. Marks, Mr. Chernow, is there anything else to bring before the Court’s attention before we start?"
“Yes, Your Honor, I move that witnesses be excluded from the Courtroom except during their testimony,” said Chernow.
“Any objection, Mr. Marks?”
“No, Your Honor.”
“Motion granted.”
Then Court was adjourned to the following day for the real work to begin.
* * *
If home is a state of mind, Brent slipped into it even before he pulled up to his Harbor Hills Drive home. After he got in and fed the cat, he relaxed and had a drink on the patio and looked at the ocean for a while. It was a calming end to a hectic day, and there were even more hectic days to come.
Brent spent some time after dinner going over his outlines for the opening statement and cross examination of witnesses. You never could be ready enough for a trial, but he was going to be as ready as he possibly could.
CHAPTER TWENTY-FOUR
Bradley Chernow stood in front of the jury at the podium confidently. He had done this many times, and had his cookie-cutter analogies all set to go. With his opening statement, the first battle of the war had begun.
“Ladies and gentlemen of the jury. This is the guilt phase of the trial, where you will be asked to decide whether the defendant, Nancy Haskins, murdered the victim, Barbara Densmore, by poison, which is a special circumstance under the law which could lead the defendant to a sentence of life in prison or the death penalty. As the Judge will instruct you, you are not to consider the possible penalty in making your decision on whether the defendant is guilty or not guilty of this heinous crime.
“As the Judge also will instruct you, the People have the burden of proving their case beyond a reasonable doubt. That doesn’t mean that you must have no doubts at all about the evidence; it simply means that from the evidence you consider, you must decide whether, to an abiding conviction, that the charge is true.”
As he spoke, Chernow made eye contact with each person in the jury, to make them comfortable and at ease with him, but also so he could see whether he was getting through to them. So far, it looked as if they were following him alright.
“We talked a lot about circumstantial evidence during the jury section. Most cases only have circumstantial evidence. It’s very rare when you have an actual eyewitness to a crime who can tell you everything that happened.
“A case is kind of like a puzzle. When you start with the puzzle and pour the puzzle pieces out of the box, it’s just a bunch of colored pieces all jumbled up, and doesn’t resemble a picture at all. But, as you complete the puzzle, you can begin to see what the picture is. Once you’ve reached that point, you can tell, more likely than not, what the picture is. At that point, you are at what the law calls the “preponderance of the evidence” standard. Once the puzzle becomes clear and you have an abiding conviction as to what the picture actually is, you have reached the reasonable doubt standard. There may be pieces of the puzzle that are missing here and there, but you know for sure what the picture is.
“The People will present evidence that on May 3rd of this year, Nancy Haskins, with the intent to kill Barbara Densmore, delivered a bouquet of flowers to her that were specially rigged to dispense a fatal poison called ricin, and that this, in fact, killed Barbara Densmore. You will hear testimony from Barbara’s colleague, Frances Templeton, who will tell you about death threats which Mrs. Haskins made to her.
“You will hear the testimony of Detective Roland Tomassi of the Santa Barbara Sheriff’s Dept. that cellophane wrapping used to wrap the deadly flowers was found in Ms. Haskin’s garbage, which had traces of the poison ricin. You will hear testimony from Dr. Ignacio Perez, the medical examiner, who will testify that this poison c
aused the death of Ms. Densmore.”
Chernow then directed his gaze to Nancy at the counsel table, as if he was hurling the accusation straight at her body.
“The People are confident that, after hearing all of this testimony and examining all of the evidence, you will be convinced beyond a reasonable doubt that Nancy Haskins committed the crime of the murder of Barbara Densmore by poison. Thank you.”
“Mr. Marks, do you wish to give an opening statement or reserve it to your case-in-chief?” asked Judge Curtis.
“I’d like to give an opening statement now, Your Honor,” Brent replied.
“Very well, please proceed.”
Brent walked up to the podium, rested his arm on it, and spoke to the jury as if he were talking to a group of friends.
“Ladies and gentlemen, I represent Nancy Haskins, the defendant. As you’ve all been briefed during the jury selection, for the first part of this case, we’re going to listen to all the evidence that the D.A. has gathered concerning this case to determine whether the D.A. has proven every element of murder beyond a reasonable doubt.
“Now this is not a very easy thing to do, because all of the evidence you are going to hear is going to be circumstantial evidence. The prosecution claims that Barbara Densmore was presented with a bouquet of flowers, and that bouquet of flowers contained a deadly poison called ricin, but there is no evidence of any flowers, and no evidence of any delivery of flowers. The only evidence that exists is cellophane wrapping and a package of flower food containing ricin with only Ms. Densmore’s fingerprints on it.
“The Judge will tell you that the People must prove every element of their case beyond a reasonable doubt. That means that they have to present evidence from which you can infer without a reasonable doubt that: 1) Nancy Haskins had the intent to kill Barbara Densmore; 2) that she did, in fact, kill her, by administering a deadly poison; and 3) that this resulted in her death.
“All of this has to be proven by the prosecution, and the defense does not have an obligation to prove anything. But, ladies and gentlemen, the defense will go farther than that. Even though Mrs. Haskins has no obligation to, and, in fact the right not to testify in her defense, she is going to testify and tell you that she had nothing to do with this horrible murder.
“The Judge will instruct you, ladies and gentlemen, that, if there are two inferences you can draw from the evidence you hear and see; one of which leads to the conclusion that Mrs. Haskins is guilty, and one of which leads to the conclusion that she is not guilty, that you must select the inference that leads to the conclusion that she is not guilty. I am confident that, after hearing and seeing all of the evidence, that you will have no choice but to choose the inference that Mrs. Haskins is not guilty. Her life is in your hands. Thank you.”
“Objection! Move to strike as prejudicial!” called out Chernow.
“Counsel approach the bench,” said the Judge.
“Good job Brent!” Nancy whispered to Brent as he stood up. Brent suppressed his smile and walked up to the bench, where Chernow was already waiting, eager for the Judge to lambaste him.
“Well, we’re not starting out very well, are we?” said Judge Curtis. “Mr. Marks, you know that the jury is not to consider punishment in this phase of the trial.”
“Sorry, Your Honor.”
“Sorry’s not good enough. When something’s broken, sorry can never bring it back. Now I know your case is important, and that you’re zealous in your defense of your client, but I don’t want to declare a mistrial in this case. So please, don’t make any more inappropriate comments.”
“Yes, Your Honor.”
The lawyers went back to their seats and the Judge faced the jury and said, “The motion to strike is granted. The jury is instructed to disregard Mr. Marks’ comment that you hold the defendant’s life in your hands. It is improper as you are not allowed to consider punishment in reaching a guilty or not guilty verdict in this case.”
Nancy leaned over to Brent and whispered, “How can they disregard what they’ve already heard?”
“They can’t,” said Brent. “And now they’ve heard it twice.” He winked.
“Ladies and gentlemen, you are excused. I will remind you of your obligation not to talk to counsel or the parties, not to discuss this case amongst yourselves, nor with anyone. Court is adjourned,” said Judge Curtis, who stood up, and walked into his chambers, shaking his head.
CHAPTER TWENTY-FIVE
Jack Ruder had spent weeks exhausting all the leads he had for Brent, each one of them cold, and Brent had already started the trial. He had been following the comings and goings at Keith Michel’s house for the past 10 days with no luck, and this night was no exception. Stakeouts were incredibly boring. The coffee was bad, the junk food was worse, and his Kindle battery had just died. Oh well, I guess it’s time to call it a night, he thought, when he noticed the classic tan VW van exit the garage. It was loaded up with surfboards. Jack slumped down in his seat and noted there were four occupants in the vehicle. He waited until the van turned the corner, then pulled out after it.
Once out of the development, the van turned left on Hollister, and Jack stayed far enough behind so he could not be seen, but not far enough to lose them at one of the long traffic signals on Hollister. The van took a right onto Cathedral Oaks and an almost immediate left onto Calle Real. Just as Jack thought he may lose it, it merged onto the northbound 101 freeway.
On the freeway, the van was easier to follow. Jack made sure to keep behind it in the middle lane, about five car lengths back. That way, he would have time to follow the van when it exited the freeway. A few more car lengths behind and exiting would be impossible. So far, the van was staying in the far left lane, so Jack had no trouble keeping an eye on it.
After passing El Capitan Beach, the van exited on Gaviota Beach Road. This confirmed to Jack that they were on a late night surfing trip and that Jack was most likely wasting his time. They passed Gaviota Beach, turning right on Hollister Ranch Road, which had no traffic at all to hide behind, so Jack stayed far behind. After a couple of miles, the van turned onto a desolate dirt road and crossed the railroad tracks. Jack quickly looked for a vantage point, and found one that was high enough, where he could park and use his night vision binoculars to watch the goings on.
When Jack saw the four exit the van and Michel and another dishwater blond surfer type take their surfboards from the roof rack, he figured the game was over, but decided to wait it out. He wasn’t really sleepy yet and it had been a long drive, preceded by an even longer wait. He watched the two take off down the beach, jump into the water and start paddling, while their friend, the fat Hispanic guy who had attacked him and another guy sat around smoking. Not much fun for them, he thought, as he wondered why all four were not surfing. Jack lost sight of the paddlers a couple of times, but kept scanning the horizon until he could spot them from time to time. He knew that this was a popular surf area with the surf addicts, but because of its inaccessibility, most surfers rode the reefs to the north of Refugio.
Jack sat there, eating the last sticky, stale donut from the box, and intermittently looking at the two pot smokers by the van and the others in the ocean, when he noticed a boat on the horizon. He couldn’t quite make it out because it was so far away, but the surfers seemed to be paddling to it. Then another boat appeared, as if out of nowhere. Jack put down the binoculars and got out his long range, night vision video camera. He started to tape the goings on. Michel boarded the first boat, along with his surfboard; then the other surfer boarded the second one.
As the boats drew closer, Jack zoomed in on them to see what was going on. The boats seemed to be about 30-40 feet long in Jack’s estimate. He could make out the “Chris-Craft” insignia on each of them. He tried to zoom in on the names of the boats, but he could not see them from his point of view. They were both flying American flags and both towing very large tender boats. Not much was happening with the boats as they drew closer to the shore.
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br /> When they were about 100 yards from shore, the boats each dropped their anchor and, at about the same time, Jack saw another VW van, this one blue, pull up alongside the surfer van and park. Four more people hopped out of it; they looked like they were Hispanic. Jack got a close shot of each one of the suspects, and focused in on the van, noting its California license plate, DGY 145. Jack divided his video time between what was going on around the vans and what was happening on the boats.
After the boats were anchored, the crews on both boats began to load the tender boats with bags. Jack could not see the content of the bags, but he could see that it took at least one man to lift one bag. They looked like sacks of potatoes. Several men on each boat formed a conveyor line to load the bags from the boats onto the tender boats. Jack could recognize one of his surfers on each boat, because they were the ones wearing wetsuits.
When the tender boats were loaded, they motored to shore with the two surfers. On the shoreline, what Jack thought before were pot smokers turned out to be a fine-tuned labor force which unloaded the boats with dispatch into the vans. The tender boats returned to the yachts and came back with another load for the vans. Once they had emptied the entire loads of the boats, the surfers returned to the yachts in the tender boats and paddled back on their surfboards. All in all, it had taken the boats about 30 minutes to anchor and transfer their loads to the two vans.
Once the surfers reached the shore, they ran to the van, strapped their surfboards to the rack, jumped in, and both vans were on the move again. Jack couldn’t call for “backup,” because there was no backup. He wasn’t an agent of the FBI anymore, so his only option was to call the police like any ordinary citizen who had witnessed a crime. He figured that, by the time he was able to explain what he had seen to the police, he would lose the vans, so he stuck to the surveillance task he had set out to complete. He would shoot each one of the suspects as best as he could, follow them and try to get them unloading their cargo, then turn copies of everything over to the police.
