“I can’t take it,” said Hurtado.
When explained to them in a dispassionate and methodical manner any and every one would understand the futility of trying to win such a dead case. Especially when that person’s attorney virtually guarantees said person the case will be lost.
“I have faith in you. I think you’ll win,” he said.
And of course even were somebody crazy enough to take it this far, once they saw that we were sent to Judge Arronaugh, saw how hostile she was to everything we attempted in defense, heard her all but promises the max, then heard her call for a jury pool and shortly thereafter heard those prospective jurors congealing outside the walls of the courtroom ready to come in and convict, certainly at that point any person would grasp at their last chance to end it all with a nice 2 to 4. This would be true even of a loony Vietnam vet with a tattoo necklace.
“I’m going all the way,” he said. And he did. “But I’ll take 1½ to 3,” he added.
Good news because no DA would willingly conduct a trial on a silly case like this over six months. They would offer the 1½ to 3 and move on with their lives.
“Can’t do it,” said prick McSlappahan.
We must have picked a jury in record time, at least since the advent of the shot clock.
“How do you like your jury?” Toomberg wondered once they were picked.
“What’s to like,” I said. “But my problem isn’t going to be the jury, it’s the fact that the people of this state, excluding me and Hurtado, have an overwhelming case.”
“It sure does sound that way. What can you do if your client won’t plead you know? At least when you lose—”
“Hold it right there bub. Who said anything about losing? What are you trying to do? Jinx me?” I could afford to talk all tough even though the case was so dead because of my secret weapon, which I was about to unveil. The weapon had come to me when I was staring at the relevant statutes while Arronaugh prattled on to me and the DA about the rules of her courtroom. What an annoying piece of shit. But the brilliance of it, my God. I was more than an attorney. I was an almost mythological entity whose wings would never melt no matter how close I flew to the sun. I couldn’t wait to disclose my brilliant defense to anyone who would listen. Just as I predicted, the response was overwhelmingly positive.
“Hate it,” said Swathmore.
“It’s a loser,” said Debi. “And I don’t think it’s an adequate or even correct statement of the law.”
“This guy needs to take a plea,” said Gold. “Why doesn’t he? Do you want me to talk to him?”
I did. Somebody needed to talk some sense into this chump before we went down faster than two naked skydivers. They were right. My brilliant defense was a sham. Everybody knew I was screwed.
Except Toomie. Sweet, angelic Toomberg with his convex-lensed glasses. I had forbidden him from talking to me about Kingg until Hurtado was done. On Hurtado I was all ears, and he struck the only somewhat optimistic note of the day when he told me that I just might be on to something because he seemed to recall reading something on the issue in a random practice commentary written by an esteemed judge. In the end he agreed to help me out in exchange for my promise to later reconsider on Kingg. He couldn’t be in court to watch the trial but, since I had forged Swathmore’s signature on a minutes order form and was getting daily copy, the plan was that Toomberg would review the transcripts as I got them and offer priceless insights. The only thing we had done that day besides pick a jury was open:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK:
CRIMINAL TERM: PART 23
TRIAL
111 Centre Street
New York, New York
BEFORE: HONORABLE POLENTA DWADNUM ARRONAUGH, Justice.
APPEARANCES:
ROBERT M. MORGENTHAU, ESQ.
DISTRICT ATTORNEY, NEW YORK COUNTY
BY: SEAN McSLAPPAHAN, ESQ.
Assistant District Attorney
CASIESQ.
Attorney for Defendant
DIANE S. SALON
Official Court Reporter
THE CLERK: Case on trial, People of the State of New York against Juan Hurtado. The defendant, his defense attorney, the District Attorney and the sworn jurors are all present.
THE COURT: Good afternoon, ladies and gentlemen. We have now completed jury selection. As we indicated to you during voir dire, we anticipate that this will be a very brief trial. I can now be more specific and tell you that we expect that you will hear from all of the witnesses in this case tomorrow morning, with you receiving the case to begin your deliberations probably some time around lunchtime tomorrow.
It’s too late in the day now to hear any witnesses since we usually make every effort to end court by five. There is time, however, for you to hear opening statements.
First, a couple of things about opening statements. Opening statements are not evidence. They are a rendition of what the attorney expects the evidence to show. Think of them as the table of contents in the beginning of a book or the previews of a movie.
Now as we discussed often during voir dire, the burden of proof in this case, and indeed in all criminal cases in this country, rests solely on the prosecutor. As a result he is required by law to give an opening statement in which he details what he expects to prove through the evidence presented. Conversely, the defendant and his attorney are not required to prove anything so the defense attorney is not required to give an opening statement although he may choose to do so if he wishes.
That said I now turn you over to Mr. McNappashaw for his opening statement. Mr. McNappashaw.
MR. McNAPPASHAW: Slap a hand.
THE COURT: Excuse me.
MR. SLAPAHAND: Slap a hand.
THE COURT: Slap it yourself, let’s move on.
MR. SLAPAHAND: It’s McSlappahan Your Honor with all due respect and obsequiousness.
THE COURT: I’m sorry. Go ahead Mr. McSlappashee.
MR. McSLAPPASHEE: Thank you. May it please the court, ladies and gentlemen of the jury, defense counsel, Mr. Hurtado. This case is about crass opportunism. It’s about one man who works very hard and another who prefers to steal for a living.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
MR. McSLAPPASHEE: On April 27th of last year, that man seated over there, Juan Hurtado, broke into a van belonging to the Salieri Construction and Remodeling Company. As a result, the grand jury in this case has handed down an indictment charging the defendant with the crime of Burglary in the Third Degree.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
MR. McSLAPPASHEE: The way he did it that day was simple.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled. But do confine yourself to what the evidence will show Mr. Sharpenhan.
MR. SHARPENHAN: You will hear from Mr. Jerry Bolo. Mr. Bolo will testify that he has worked for the Salieri Construction Company for over nine years. The company does remodeling and restorations and owns a van that it uses for those purposes. Mr. Bolo will testify that the van is used for purely commercial purposes such as transporting materials and tools to and from work sites.
He will further testify further that at approximately 11:30 p.m. on the night of April 27 of last year he had parked the van outside of a church on 35th Street. In New York. He will testify about New York. Mr. Bolo will testify that 35th Street is in the county and state of New York. The 35th Street where this occurred is anyway. You will hear Mr. Bolo say that he parked the van outside of that church, which is on 35th Street inside the city and state of New York. The county and state of New York. He parked that van there because he was doing work on the church inside. The inside of the church. He will testify that he was doing this work for nuns. Nuns were in that church.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled. Continue Mr. McSlappahan.
MR. McSLAPPAHAN: Mr. Bolo will testify that during the course
of doing work on that church, he went out to his van to retrieve a tool that he needed. He will testify that as he neared that van he noticed that a window had been broken and that the side door had been opened. Imagine for a moment the fear that he must have felt.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
MR. McSLAPPAHAN: He will testify that he approached the van, looked inside, and saw this defendant inside the van rummaging through its contents. At that point he called the police and he and the defendant waited there until Officer Leary arrived to place the defendant under arrest.
You will hear from Police Officer Parker Leary. Officer Leary will testify that on the night of April 27th he was working an 11:15 p.m. to 7:50 a.m. tour when he received a radio run indicating that someone had broken into a van on 35th Street in the county and state of New York.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
MR. McSLAPPAHAN: Officer Leary will testify that when he arrived at that location, Mr. Bolo and the defendant were there. He will testify that after Mr. Bolo had told him what had happened, he placed Mr. Hurtado under arrest. Prior to arresting Hurtado, however, he searched him. In the course of that search, he found a screwdriver with a sharpened point. Officer Leary will further testify that such a screwdriver is commonly used to commit burglary related offenses.
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.
A Naked Singularity: A Novel Page 34
