He willingly admitted his participation in the crime. Told the jury about his deal with the county attorney and truthfully admitted he did it to save himself. There was no point in denying it and Boyce would have been a fool not to bring it out and be totally upfront with the jury.
All the while his client was on the stand Marc sat in the gallery behind the prosecution’s table, the one closest to the jury, patiently listening to Butch tell his story. Butch told the jury everything, including his own background and employment, admitting to the jury who he worked for, what he did and how he did it. He even admitted to a few assaults on Leo’s behalf that no one knew about just to let the jury know how remorseful he truly was. He could admit to these things because the deal Marc had made for him gave him complete immunity for any crimes he admitted to while testifying. By testifying to these things, the idea being he would enhance his credibility in the minds of the jurors. Oddly enough, while he was telling them these things, Marc noticed several of the female jurors’ eyes light up even more. The “bad boy” thing that many women find too irresistible, Marc assumed as he shook his head and smiled.
The direct exam lasted a little over three hours which took them into the lunch break. Prentiss called a recess and as the crowded courtroom emptied, Marc stood waiting for Butch and wondered why Boyce had committed such a huge tactical mistake. She had failed to go over in detail Butch’s arrest and conviction record to lay it all out for the jury so there would be no surprises when Dolan would try to use it to attack Butch’s credibility. It would have been far better for Boyce to bring it out as softly as possible to take away the impact it would have by allowing Dolan to do it. Now, Dolan could use it to hammer away at Butch and the jury would hear about these things the way Dolan wanted to present them.
A defendant’s criminal history is normally not allowed to be used against him. The idea being that the jury should not be allowed to convict someone for being a bad person. They should only be concerned with the facts presented regarding whether or not the defendant committed this crime. There are some exceptions to this rule for which a defendant’s criminal record can be used such as to prove motive, intent, plan and identity. These exceptions are supposed to be narrowly construed by the judge but are not always construed as narrowly as the law would seem to indicate. Since Butch was no longer a defendant but was now a witness, basically all bets are off as far as using his criminal background by the defense to attack his credibility. Boyce must have believed letting Butch talk about his background himself during her direct exam would be enough to deflate the impact of his past in the eyes of the jury. Dolan would get his turn in the afternoon.
SEVEN
The afternoon session could be used as a law school case study of how to conduct a cross-examination of an accomplice in a criminal case. Bruce Dolan spent all afternoon and into the early evening eviscerating Butch Koll in front of the jury. Normally Prentiss, as a law and order judge, would do all he could to limit a defense attorney’s attack on the state’s case. Dolan however, was allowed significantly more latitude and just about Butch’s entire life seemed to be fair game.
Dolan went over every detail of every problem with the law that Butch had ever had, even things that he had done when he was a juvenile which are normally totally off limits. In addition, he had been supplied with several more incidents from his client the police did not know about that he was able to use to discredit Butch. Butch was able to deny these, but all of it was like a Chinese water torture. Each drop added up so by the end of the day, the jury was clearly no longer impressed with the state’s main witness.
Boyce tried to interject an occasional objection, all of which were overruled. She was really just trying to break up Dolan’s flow, interrupt him and give Butch a chance to take a breath and relax. After a while it was obvious what she was doing and she ran the risk of alienating the jury by making them think she was trying to keep something from them.
For the most part Butch handled it well, kept his cool and did not let Dolan visibly shake him. Boyce and her co-counsel, Mike Lundgren, had spent several hours going over his testimony and preparing him for Dolan’s attack. Most of what Boyce and Lundgren did was not very helpful, but Marc had two good sessions with Butch and had put him through a much more realistic cross-exam from a defense attorney’s perspective to give him a better feel for what was coming. Even with that, he became visibly upset a couple of times and clearly glared back at Dolan with venom in his eyes.
Finally, shortly before 6:00 P,M. Dolan asked a few final questions to try to nail down reasonable doubt.
“I want to be clear about why you are testifying,” Dolan said. “Just so the jury understands completely. You made a deal with the county attorney to plead to one of the charges and received a favorable jail sentence recommendation in exchange for your testimony here today isn’t that true?”
“Objection,” Boyce said as she rose to address the court. “He has been entwining this into his examination of this witness since he began. Enough already.”
Prentiss reflected for a moment then said, “I’ll allow it, but she’s right Mr. Dolan. Move it along.”
“Yes, your Honor. Mr. Koll, please answer.”
“Yes,” Butch said. “I made a deal.”
“You pled to third-degree assault and not one of the murder or manslaughter charges, isn’t that true?”
“Yes.”
“And part of that deal was nine months at the county workhouse instead of many years in a state prison, isn’t that true?”
“Yes, that’s correct.”
“And after you completed your sentence the charge would drop from a felony to a gross misdemeanor on your record, correct?”
“Yes, that’s what I was told.”
“Pretty sweet deal,” Dolan said, and then quickly added before Boyce could object again. “Withdrawn.”
“How tall are you?” Dolan asked changing subjects before Prentiss got on him again about his line of questioning.
“Six-four.”
“And what do you weigh?”
“About two forty.”
“You’re a pretty good size man,” Dolan said with a soft whistle. “How tall do you think Mr. Pitts is?”
“I really don’t know,” Butch answered.
“As tall as you?”
“No.”
“In fact, you’re almost a foot taller than him aren’t you?”
“No, not that much. Maybe eight or nine inches.”
“How much do you suppose he weighs?”
“Objection, your Honor. This witness has not been qualified as an expert on human anatomy,” Boyce said standing behind her table.
“Overruled,” the judge replied with obvious annoyance. “By his own admission, the witness has known the defendant for years. He can make an educated guess.”
“I’m not sure,” Butch said. “Maybe one forty. One fifty.”
“And how tall and how much did the deceased, Mr. Corwin weigh?” Dolan asked.
“I couldn’t tell you,” Butch answered.
With that, Dolan picked up a single sheet of paper from the defense table, asked for and obtained permission to approach the witness and when he reached the witness box, handed the paper to Butch and took several steps back from the witness stand.
“Mr. Koll, I have just given you a page from the autopsy report, previously entered into evidence as state’s exhibit seventeen. Please read the highlighted portion.”
“The height of the deceased is seventy two-inches, and his weight was one hundred ninety pounds.”
“Thank you, Mr. Koll,” Dolan said as he took the page away from Butch and returned to his seat.
“Let me see if I have this straight,” he continued. “You’re six four, two forty. Mr. Pitts is five seven, maybe five eight and one forty to one fifty. Robert Corwin was six feet, one ninety and you want this jury to believe that Mr. Pitts, by himself against a much larger man, did all of that damage to the deceased while you sto
od and watched. Is that correct?”
“Yes,” Butch answered though visibly uncomfortable. “Because it’s true.”
“I have nothing further,” Dolan said and actually turned his head and winked at Marc.
The next half hour was spent listening to Boyce try to rehabilitate Butch in the eyes of the jury. Marc, still seated behind her, did his best not to show his disgust at how poorly Boyce had handled Butch. Being a criminal defense lawyer, Marc had tried to tell her what Dolan would do to Butch when he got him on the stand but she had, almost arrogantly, dismissed him.
While the redirect between Boyce and Butch was going on, Dolan quietly sat weighing his next step. He knew the prosecution’s case was completed and he had to decide if he wanted to put on a case at all. The decision was whether or not to put Ike on the stand. If he did, Boyce could use the same tactic on him. She could use his criminal past to impeach his credibility. But if he chose not to have Ike testify, Boyce could not say a word about it since Prentiss had already ruled that way.
When Boyce finished her redirect, which was not very effective, the judge asked Dolan if he wanted to re-cross which Dolan declined. Boyce then informed the court her case was completed and when she finished, Dolan, having made up his mind, rose from his seat and said, “The defense also rests, you Honor. At this time, your Honor, the defense moves the court to dismiss the case as a matter of law because the state has failed to present sufficient evidence to prove the defendant guilty of the charges against him beyond a reasonable doubt.”
This is always done and is normally a formality to make a record of the request to dismiss the case. This is a question of law and is a decision for the judge to make. Because it is a legal question and not one of fact, it is fully reviewable by the court of appeals. Questions of fact are decisions for the jury to make and are not normally subject to appellate review. Because of that the defense must make the request to dismiss or it cannot be reviewed in the event of an appeal. The request is always made and normally, immediately denied.
This time, however, Prentiss sat silently for almost two minutes, causing the prosecution team to begin sweating just before he finally said, “I am going to take it under advisement and I will rule on the defense motion following closing arguments which will begin at 9:00 A.M. tomorrow. We are in recess until then,” he concluded as he banged his gavel on the desk and quickly rose and left the bench.
Most of the audience was not aware of what they had just seen, but the lawyers were certain of it and the prosecution team was in a mild state of shock. They waited silently while the jury was led out and as Boyce began to gather up her case materials Marc made his way through the gate and over to her table.
“Listen,” he began, “we made a deal and my guy lived up to his end of it. He was fully cooperative and testified honestly and completely. You’re not going to back out of it now.”
“Don’t tell me what I’m going to do or not do,” she snarled back at him.
“Butch didn’t hose this case up, you did,” Marc said.
“Hey,” she continued, “Prentiss didn’t rule against us. I’ll get him in closing.”
“No, you’re right, he didn’t dismiss the case but he sure as hell sent a loud and clear message to the jury that he might which tells them he isn’t too thrilled with our case,” Boyce’s co-counsel interjected. “Do you think the jury saw that?” he asked.
“We’ll see,” Boyce calmly replied. “As far as your guy’s deal goes, it’s still good. You’re right, he kept his end of it. We’ll keep ours. See you tomorrow,” she said as the three of them walked toward the outer doors.
EIGHT
As Marc was pulling into the parking lot ramp across the street from the government center on his way to hear the verdict, he thought back to this morning’s proceedings. First up to begin closing arguments was Dolan.
He addressed the jury for almost two hours. He reminded them of their oath to be impartial, keep an open mind, observe the law that the defendant was innocent until proven guilty, that they were not to consider the fact that the defendant had not testified and most importantly, to hold the state to its burden to prove the defendant guilty beyond a reasonable doubt. He went over the prosecution’s case witness by witness, exhibit by exhibit.
Marc, along with the entire courtroom, was held spellbound by the voice, oratory and presence of Bruce Dolan. He spoke the entire time without a single note, calmly working his way slowly back and forth in front of the jurors. As Dolan did so many of them actually nodded their head in agreement with him as he verbally led them through the weakness of the case against Ike.
“Remember, ladies and gentlemen,” he said as he began his wrap-up. “When you go back to deliberate, remember your oath. Remember you swore to uphold the law. To hold the prosecution to its legal responsibility,” he continued as he moved up to the jury box, leaned over and placed both hands on the rail and slowly moved his head back and forth to look each juror directly in the eye. “Mr. Pitts is innocent. He doesn’t have to prove otherwise. They,” he continued, pointing at the prosecutors, “have to prove him guilty beyond a reasonable doubt. And ladies and gentlemen, they haven’t even come close,” he finished almost whispering.
As Dolan slowly walked across the courtroom to retake his seat at the defense table, Marc looked over the crowd which had visibly stirred when Dolan finished. Marc half-expected applause and when they did not quiet down right away Prentiss rapped his gavel a couple of times and admonished the people in the gallery to settle down. At that point Prentiss called a brief recess to allow everyone a much-needed bladder break. Fifteen minutes later it was Boyce’s turn.
Boyce also spent the better part of two hours wrapping up her case. She too went over each witness, every piece of evidence and Marc believed, did an excellent job of leading the jury to the exact opposite conclusion that Dolan had.
She had to go over the element of every crime with which the defendant was charged. The burden was on her to show the jury that the evidence, especially the beating and injuries Mr. Corwin sustained, clearly established that each crime charged had, in fact, been committed.
“The victim, by the testimony of witness after witness who saw him in the bar, was running for his life away from the defendant. Mr. Corwin clearly knew Ivan Pitts and knew why Mr. Pitts was chasing him: to collect money Mr. Corwin didn’t have. And quite unfortunately for the victim, he didn’t make it out of that bar by himself and failed to get away from the defendant.
“Three men walked out of that bar, and a half hour later one of them was found dead, beaten to death in an alley, less than one hundred feet from the front door of that same bar.
“One of the men responsible for this horrible act took responsibility for it. Paul Koll, also known as Butch Koll, sat in that chair and took it like a man. He was honest, forthcoming and admitted his responsibility. Yes, to get at the truth and find out what happened, we offered him a deal. But that deal was predicated on him getting on that stand and telling you good people the truth. And he did that.
“Now along comes Mr. Dolan and with a verbal wink and a nod, he tells you not to believe him. Well, ladies and gentlemen, the evidence presented to you clearly established beyond a reasonable doubt that Ivan Pitts is guilty of the crimes charged. Thank you for your service.”
The lawyers met with Prentiss at 2:00 P.M. and they spent a half hour going over jury instructions. Prentiss went back onto the bench, ruled against Dolan’s request to dismiss then spent a half-hour explaining the jury instructions to the jury and sent them back to deliberate shortly before 3:00.
Now, later that same evening, Marc was walking across the skyway from the parking ramp to hear the verdict when his cell phone went off. He pulled it from his pocket, looked at the caller ID, smiled and put it to his ear and cheerfully said, “Hello there. I was going to call you tonight.”
“What’s happening with the trial?” Margaret Tennant asked. Margaret was a Hennepin County judge Marc met the y
ear before and they had been involved with each other ever since.
“I’m on my way to hear the verdict now,” Marc replied.
“They’re in already? That doesn’t sound good for the good guys,” she said.
“The good guys? Just who are the good guys?” Marc asked. “Shouldn’t you be a little more open-minded?”
“Why? I’m not trying this case. Besides, you’d call Leo Balkus and his thugs the good guys? Please, give me a break.”
“You have a point. Listen, can we grab a bite after this? I haven’t eaten yet.”
“How about you come over afterward and I’ll make you something and if you’re really a good boy you might just get a little lucky.”
“Wonderful. Tell you what. I’ll call as soon as this is done and let you know that it’s over and I’ll be along as quickly as I can. Okay?”
“Okay, talk to you soon.”
Marc took his seat inside the rail behind the prosecution table to wait for all of the participants. He glanced around the courtroom gallery and saw that the other seats were rapidly filling up causing him to wonder how all of these people found out the jury had reached a decision. A few minutes later Dolan showed up with Ike and as the two of them made their way to their table, Dolan nodded and smiled at Marc. He watched as the defendant and his lawyer sat at the defense table, smiling and joking as if they didn’t have a care in the world. When Boyce and Lundgren arrived, Prentiss’s clerk disappeared to inform the judge that everyone was present.
Prentiss came out and as everyone in the courtroom was sitting down, the deputy opened the door to the jury room and the members filed out and took their seats in the jury box.
Marc Kadella Legal Mysteries Vol 1-6 (Marc Kadella Series) Page 51
