by Alan Hruska
“Alec’s trial starts tomorrow.”
“I’m sure he’ll do great,” she says, snapping a claw off.
“Yeah, he’s a smart kid.”
“So?”
“So. Whatta you think? It’s like watching a time bomb set to go off in his lap who knows when.”
“You’re talking about Phil. But he’s made no move.”
“He will.”
“You’ve heard something more?”
“No,” Sam says, spreading his hands on the blanket. “Phil hardly ever uses that phone now. It’s who he is. His history.”
“All right… so where’s this going?”
“Where? Where can it go? Alec needs protection.”
“Which you’re thinking you’ll provide?” she says in mounting decibels of incredulity.
He doesn’t like the tone and doesn’t respond.
“You’re saying that Phil has to be removed as a threat.”
He looks past the small beach over the flat water of the sound. From here, Connecticut is a purple blur. “Permanently,” he says.
“Oh, Christ,” she moans.
“There’s some other way?”
“Well, that way’s kinda outside your range, don’t you think?” Sam shrugs.
“Even if you didn’t get yourself killed, and somehow got him, they’d charge you with murdering the guy. Think of the irony!”
“It’d be self-defense. I’d make sure of that.”
“You told me when we first met—”
“I know,” he says, catching her eye. “But remember… I made a distinction. Between protecting myself and someone else.”
“So whatta you going to do, Sam?” says Abigail, now angry. “Live in some closet in his house until you can jump him with a gun?”
“Maybe.”
“What am I talking to, a crazy man?”
“How would you handle it, a guy who wants to kill your son?”
“I’d go to the cops. That’s what you do.”
“Cops, great. Phil and his family have been killing people for forty, fifty, maybe sixty years. It’s the family business. You think his father went to prison? His grandfather? Or Phil himself? And you think my showing up at a police station’s going to send him there? More likely be a death warrant for the both of us.”
Abigail finally puts the claw down, having done nothing with it but wave.
“All right, look,” he says. “I’m sorry. You went to trouble over this meal.”
“You’re making me sick,” she says.
“I’m sorry.”
“I’m already a widow.”
“You think of me that way?”
She looks at him with horror.
“I don’t mean as dead,” he says. “As a husband?”
“You’ve got all the privileges.”
“And none of the obligations, you’re saying.”
“I understand you’re worried about your son….”
“I’m better trained than you think.”
“Trained? You’re one guy!”
“I was in the Army.”
“What? You never told me.”
“Nothing much to tell. It didn’t go anywhere. But I learned how to use weapons.”
“When? Thirty years ago?”
“Not quite.”
“Sam! Think about what you’re doing here. Think about… me.”
“I am,” he says. “Believe me. I think mainly about you.”
“Oh, yeah?” She looks right at him. “Then stop thinking about what you’ve been talking about.”
“I think we should get married.”
It takes her a second to react. “Helps if you’re living.”
“Don’t worry.”
“Right. As if what? There’s nothing to worry about?”
SEVENTY-FIVE
In the courthouse elevator, Alec ascends slowly with a pride of lawyers. They don’t know him, wouldn’t care if they did, are submerged in their own cases, weighed down by their own concerns. Each man, breathing heavily, lugs a file folder full of documents under one arm with a briefcase dangling from the other. For nearly unendurable seconds, all are trapped in a graffiti-marked, battle-scarred, claustrophobia-inducing box. When the door opens, they scatter—to the dilapidated courtrooms to which the most prosperous city in the world relegates the administration of justice.
Alec enters Justice Kaye’s courtroom. It holds a mob scene of lawyers, paralegals, reporters, courthouse gadflies, and court personnel. Shilling is there, and, since he goes almost nowhere unaccompanied, is surrounded by his entourage. He has no function here other than to kibbitz, yet has more lawyers with him than Alec’s entire team, which consists of two first-year associates. Making his way to the counsel table, Alec greets them tensely.
They merely nod in the midst of unpacking. First-years have one function at trial. Manual retrieval. Something comes up for which lead counsel needs a document, or a line of testimony in a deposition, the associates’ job is to find it. Instantly. And they do, more often than not. Because they think their careers depend on it. And because they think their lives depend on their careers.
Braddock is also there, watching. Not from the counsel table—that would undermine Alec—but from the second row. Alec, spreading his papers on the table, glances back at him. Braddock’s expression would be appropriate at a funeral.
Rosenkranz makes his entrance, trailed by his motley band. He greets those in his path—mainly reporters—like a politico working the tables. His entrance gives rise to a buzz in the room, a heightened expectancy that moves the crowd to fill up the rows of seats. Alec thinks for the hundredth time, How do these guys get away with it? As a result of the machinations of strike-suiters like Si, thousands of stockholders are suing themselves for the privilege of paying the lawyers.
“Oyez, oyez, the Honorable Justice Jacob Kaye, presiding! All stand!”
Everyone does, with soles scraping vinyl, bags shifting, the judge swooping in, the ritualistic chorus from the lawyers, “Good morning, your Honor.”
“Good morning, gentlemen. Be seated, please.”
The bailiff is already herding twelve prospective jurors into the box and twelve alternates into the first row of benches. Judge Kaye begins delivering his set speech of which Alec, at the table furthest from the jury box, can hear very little.
The room is high-ceilinged, with big windows and horrendous acoustics. Microphones, though prevalent at concerts and riots, have yet to be introduced in courtrooms. Lip-reading is helpful if the speaker is looking your way. Kaye, naturally, is facing the jury.
Alec studies the group and the information sheet identifying them by address and occupation. Seven women, five men. All remarkably attentive to the judge. Five of the women are middle-aged, one elderly, one, a model, young and quite pretty. The men range from white-collar to blue, to a guy actually wearing a sweatshirt. There are two Asian women, six Caucasians, and four blacks, the latter groups equally divided by sex.
Rosenkranz is invited to examine. State system. Lawyers, not judges, conduct voir dire. And abuse it. Unless judges crack down. Kaye, however, will let Si do what he wishes, barring the outlandish. So, under the guise of voir dire—which is designed to check out the objectivity of jurors—Si begins making his first opening argument—which, of course, is designed to prejudice them in his favor.
Si is smooth, easy to like, with his crinkly grin, going for simplicity. He says, in order to know whether any prospective juror might be prejudiced by any aspect of the case, he has to tell them the “facts.” Which are, according to Si: more than a billion dollars of oil allowed to disappear—and with it the investment of his clients—because of the recklessness of this huge corporation and its elitist board in getting involved in this high-risk, low-profit business, in not taking the most rudimentary precautions, and in hiring, as manager, a notoriously incompetent crony of one of its directors. Might these “facts,” Si asks, bias any juror against his clients?
Not a word, of c
ourse, by Si identifying his real clients as the financial institutions that dumped their U.S. Safety stock upon learning of the swindle. Nor is Alec, who now stands to conduct his own voir dire, free to shed light on that subject. Si has not opened it up. He has simply left the implication that he’s representing the “little guy.”
So Alec says, “Okay. Now you’ve heard one side of the case. Let me ask you the most important question I can ask. Is there anyone here who feels he or she can’t keep an open mind until hearing the other side?”
No one would admit to such close-mindedness, and no one does.
Alec next tells them a bit about the warehousing business, acknowledges that running it profitably would require some competence, but then asks everyone to open his or her mind to another point. “This case, as you will see by the end of the trial, has nothing whatever to do with the facility manager’s competence. It has everything to do with the man’s honesty. To explain,” says Alec, “let me put these three questions. Suppose you own a storage tank facility in another state, and you call up the manager and say, ‘Charlie, that third tank from the left—I’d like to know whether there’s oil in there, or whether it’s empty.’ To get an answer you can rely on, how smart does Charlie have to be? All he’s got to do is look inside the tank. This is not rocket science. What you need from Charlie is for him to call it like it is. Second, if you need Charlie to be honest, who would you pick? Someone you or your partner knew well and believed to be honest, or some individual neither of you had ever met? And third, would you, as a juror, be prejudiced against someone who answered these questions the same way I’m guessing you just did?”
Alec then seeks and gains the court’s permission to poll the prospective jurors individually on whether any would be prejudiced against his clients because one was a large corporation and another a famous war hero. As each juror rises and swears to the absence of bias on either count, Alec, out of the corner of his eye, sees Si give a grudgingly admiring nod.
During a brief recess, Alec, still seated at the counsel table, finds Judge Braddock looming over his head. Alec knows the question in the senior counsel’s mind.
“No challenges,” Alec says.
“Reasoning?” asks Braddock.
“I like the mix, and no one’s extreme.”
“There are poor people on there.”
“Doesn’t bother me,” says Alec.
“That’s it?”
“No. You challenge, you run the risk of resentment. Some juror left on will identify with the guy you bounced off. And figure out you did the bouncing. Especially if it’s a poor person.”
Braddock, turning, goes back to his seat. Had he disagreed, Alec figures he’d still be there.
Si, for whatever reason, has apparently arrived at the same conclusion, not to strike anyone. He and Alec inform the clerk.
“Oyez, oyez!” The judge swoops back in. Five-minute recess to the second. Kaye’s showing off for the press.
“I understand there are no challenges,” says the judge. “I will therefore swear in the jury.”
He does, and every member of the jury seriously incants the oath.
“Mr. Rosenkranz, you may begin your opening statement.”
As if he hadn’t already delivered one.
Si goes slowly to the lectern, conspicuously without notes. He repeats unabashedly—then hammers—his major themes.
Alec shows nothing. He’s learned this from Mac. No grimacing, no scoffing, no expression of any sort. And no note-taking. You just sit there. You wait patiently. You hear of your clients’ “greed,” their “indifference,” their “cronyism,” their “reckless departure from the standard of care that stockholders have a right to expect of directors,” and you say nothing, show nothing, react in no way at all. Until it’s your turn. And then—
Alec walks to the lectern. Not as slowly as Si did, but also without notes. He thinks how much more effective it would be to stride to the rail of the jury box and speak right in their faces. But only movie judges allow this. In real courts, you address the jury from a distance. It’s up to you to form the words to bridge that space.
There are certain things a defendant’s lawyer must say, and Alec says them. Like telling the jury whom he represents. Like noting that the plaintiffs have the right to open and close—first word and last—which is meant to be, and is, a terrific advantage. “Why them, not us? Because they have the burden of proof! This is their lawsuit. They’ve claimed it, now they have to prove it. We don’t have to say anything at all.
“But we will,” Alec stresses. “We want you to hear the whole story, not just part of it. And, as we talked about before, for you to be objective and fair, it is important for you to keep an open mind until we’ve had our turn. Until all the evidence is in.”
He stops to make sure all eye contact is still in force. It is. This jury is alive. Ready for his most important point.
“It’s up to you to judge the credibility of witnesses. You are the sole judges of whether a witness is lying or telling the truth. And in judging credibility, you are entitled to use your common sense and experience.”
He pauses again. “Credibility is a critical issue in this trial. Plaintiffs are resting their case on a key witness, the manager of the oil tank storage facilities. Two years ago, when we hired him, we had no reason to doubt his honesty. But a lot has happened in two years. Now we certainly do have reasons to doubt his honesty and his testimony, and we will show those reasons to you. And if you’re not persuaded he’s telling the truth—if you, too, doubt his testimony—then you should find for the defendants. For without this man’s story, plaintiffs’ case falls apart. And as I’ve said, and as his Honor will tell you later—plaintiffs have the burden of proof.”
All jurors are attending to what Alec is saying, but the guy in the sweatshirt is frowning. Already, he’s not buying it. He likes Si. On the other hand, the pretty model is giving Alec a look that says, “I’m on your side.” This happens. Alec knows. Jurors go with the lawyers they like. Decisions based solely on the evidence are myths. So, however, is consistency. Minds change.
“Now let me get to the facts,” Alec says, looking straight at the model, not at the guy in the sweatshirt. Alec knows he’s not going to win him over; she is. Inside. Where she can say things—at length—that Alec could not get away with.
“We are dealing here with a gigantic swindle, pulled off by a man named Sal Martini and the thieves who conspired with him. A lot of people lost money, including my clients. If my clients had actually been reckless in allowing it to happen, then they would deserve the blame, and perhaps the ruination of their lives and their company. But if this swindle happened because a person they had reason to trust conspired with crooks to defraud them, then my clients are the victims of the fraud, not the perpetrators—and no more blameworthy than any other victim.”
Alec nods to Harvey, who rises from his seat in the back row and opens the doors to the courtroom. In march two messengers from Kendall, Blake, carrying a twenty-foot steel rod which, with everyone’s eyes on them, they bring to the courtroom well and place in Alec’s hands.
“Careful with that, counsel,” cautions the judge.
“I have it, your Honor. It’s very light.” Alec turns back to the jury. “Diesel oil, as I’m sure you know, is stored in huge storage tanks. Each tank has a door at the top. Why? So you can open it up and find out what’s inside. You do that—” Alec hoists the rod over his head—“by sticking one of these long poles down there to make sure there aren’t any false bottoms. And by checking when you pull the pole out, to see what’s on it.” He rests the pole on the floor.
“Not very complicated, is it? You stick the pole in, you pull it out, you look at it, you touch it, you know—you absolutely know—whether you’ve got oil in there, or water, or air. Or maybe, even, a false bottom.
“Plaintiffs say that our not learning that Sal Martini filled these tanks with saltwater—or created false bottoms—was grossly
negligent. I say, ladies and gentlemen—and I think you will find—that we weren’t negligent—we were robbed! For empty tanks to be reported to us as full ones, Martini needed the full criminal collusion of people we were entitled to trust. In other words, we were the victims, too. We were conspired against. And if you understand, from the evidence, as I think you will, that that is what happened—or if plaintiffs fail to prove it didn’t—then, based on the instructions as to the law his Honor will give you at the end of the trial, you must find for the defendants.”
Alec spots Braddock who gives a barely perceptible nod. It means—and Alec so understands it—you’ve said enough, sit the hell down!
“Thank you, ladies and gentlemen,” says Alec. “I know you’ll do your jobs.”
As Alec returns to his seat, Justice Kaye turns abruptly to Si.
“Mr. Rosenkranz, call your first witness.”
“Thank you, your Honor,” Si says, rising. “Plaintiffs call Brett Creighton, the Chief Operating Officer of U.S. Safety.”
SEVENTY-SIX
In a private dining room of an eating club three blocks from the courthouse, the defense team lays siege to a buffet lunch. A small television in the corner drones local news, which only Harvey Grand is watching. Marius Shilling does most of the talking, to which no one gives much attention. Alec ignores him completely while trying to think through his examination of Creighton. Then Shilling asks Alec a direct question. “How will you get that analysis in, the one we did of the stockholder list? The one showing how all the funds sold out?”
Everyone turns to Alec who takes a moment to refocus. “Not through Brett,” he says bluntly. “At least not now, not on cross. Probably, in our case-in-chief.”
Shilling looks unhappy. “Why not offer it now? Brett’s our best witness. And why call him back?”
“Kaye won’t take it now.”
“Why not?” asserts Shilling.
“Because Si hasn’t opened the subject, Marius,” Alec says with asperity.
“You think,” says Shilling, in a patronizing tone, “that we’re not allowed to identify the members of the plaintiff class?”
