by Kenneth Eade
Richard continued, “This will involve placing an enormous emphasis on your experts’ testimony.”
“Which would be consistent with my own testimony.”
“If I decide that you can testify. We don’t have the one-armed man, remember? You’re going to testify that a masked man ordered you at gunpoint to pull the knife out of the body, correct?”
“Yes.”
“A masked man that nobody on the scene saw?”
“Yes.”
“A ghost, if you will.”
“Richard, you’re supposed to be on my side.”
“I am. I’m just telling you that it will open you up to cross-examination, during which you won’t be able to give a logical explanation of either the appearance of this apparition or his disappearance. It may be better just to cast the dice of reasonable doubt as part of the ass-smoking defense and see if they pass or crap out.”
“You mean the 'grass smoking defense'. I should hope that the jury gets high on your presentation.”
Hannaford stood up and clapped his hand on Brent’s shoulder. “I can only assure you of one thing, my boy; and that is that they will be high. I will give them a performance the likes of which they have never seen on the idiot box or the silver screen.”
***
Back in his office, Brent could not stop with the last-minute preparations; especially because not everything had been lined up for his defense.
“How’s the Wizard of Oz doing, TJ?” asked Brent over the phone.
“Well, he just had to send Dorothy out to bring back the broom of the Wicked Witch, but don’t worry; I think we’ll get something.”
“It’s two days before trial. We have to come up with something.”
“You remember the Wizard’s real power, don’t you, Brent? The scarecrow had a brain all along. He just had to learn how to use it.”
CHAPTER THIRTY
While TJ was chasing flying monkeys, Brent and Hannaford were in the final throes of trial preparation. Dr. Orozco and Dr. Lawler had their composite virtual corpse ready for an interactive demonstration of Brent’s only real defense, which would show that he had withdrawn (but did not thrust) the knife, and Richard spent the weekend preparing his “smoking ass” defense.
Brent dreamed of freedom and of white sand beaches in Maldives – anywhere he could go to escape from what he felt was the inevitable reality of imprisonment.
“I don’t have much hope left, Angie,” he confessed.
“But, Brent; you’re innocent!” she pleaded.
The old adage ‘If you’re innocent, you don’t have anything to worry about’ may have comforted many a law-abiding citizen, and was the mantra of law enforcement, but Brent, as a trial lawyer, knew better. He knew that justice was rarely dispensed within the four walls of the courtroom. This was a game of cat and mouse, played by a prosecution who didn’t care who was the ‘real culprit’ as long as the evidence pointed in Brent’s direction; and Richard Hannaford, the best defense lawyer Brent could not afford (and, in fact, the best in the county of Santa Barbara, if not the whole state of California) could not think of a defense better than to blow smoke.
“That’s a fantasy they teach FBI agents in Quantico, Angie. This is more than an uphill climb for me.”
When they said good-bye to each other on Sunday, Brent fell into a despair the likes of which he had never known before. He reviewed every note, every outline, and every question, but the case always came up short on defense every time. Calico jumped up on the couch, got herself comfortable, and started her motor running. The rhythm was calming to Brent, who felt like he was losing his mind.
***
The Los Angeles Superior Court Criminal Courts Building had been given a long new name, but it was the same old crappy courthouse it had always been. The ‘Clara Shortridge Floz Criminal Justice Center’ was all about criminal and not so much about justice. Department 56, on the seventh floor, was where Brent would be spending the last two weeks of his “freedom.” The inside of the courtrooms had not changed much since the 70s. The wood veneer walls were drab and plain, and the judge’s perch was much less lofty than those in federal court or even in Santa Barbara. You could tell that the County of Los Angeles was really in the midst of a budget crisis, or that nobody really cared what happened in this court.
Judge Theodore Renfrew was not an easy personality, but Hannaford had decided not to challenge him because he was a lot less dreadful than the other ones they might be thrown to after the challenge. He was a short, balding gentleman with a big red nose that was not quite as big as Hannaford’s, and he sported a different color bow tie for each day, which peeked out from his black judicial robes. His wiry little clerk called out a ritualistic slogan every day at the opening of court.
“All rise,” the Clerk called as Judge Renfrew entered through a small door to the side of the bench. “In the presence of the American flag and the principles for which it stands, the Superior Court of California for the County of Los Angeles is now in session; the Honorable Theodore Renfrew, Judge, presiding.”
Judge Renfrew took the bench and said: “Good morning, ladies and gentlemen: please be seated,” and the show was on.
“We’re here on the case of People v. Brent Marks. Counsel, please state your appearances.”
“Matthew Brednick for the People, Your Honor." Brednick was more than half a decade short of fifty, but doomed to spend the rest of his career in the middle levels of the District Attorney’s office. He was a by-the-book prosecutor with little flair for the dramatic: just the facts (or his version of them). At 5’8” and a few pounds more than he should have had, he wasn’t really fat: just an average, out-of-shape man.
Richard Hannaford stood to face the judge and took a statesman’s stance, as if he were addressing the U.S. Congress. “If it pleases the Court, Your Honor: Richard Hannaford, Esquire, appearing for the defendant, Brent Marks, Esquire.”
Richard couldn’t say anything in a simple way. He always had to say it with a dramatic flair, even if it was just to say “hello.”
“Thank you, gentlemen. The Clerk of the Court will call the first panel of prospective jurors.”
This judge did not waste time on protocol. The panel, a mix of blacks, Chicanos, and some whites, filed in and took their seats in the gallery. The Clerk pulled the first twelve names out of a container at random and sat them in the jury box.
Brent sat almost motionless at the counsel table next to Hannaford, who listened carefully to every answer being asked of the potential jurors, looking for biases and prejudices. It didn’t help that he had a lawyer for a client. People usually don’t care much for lawyers. They were too pompous, too aloof, and used too many words.
“Are you with me?” he asked Brent at the break, halfway through voir dire.
Brent looked up from drawing waves on his legal pad. “Yeah.”
“You’re not passing me any notes about the jurors.”
“You’re doing fine, Richard. Go ahead.”
“Brent, can you please try to at least look innocent for the jury’s sake?”
“What?”
“You look like a condemned man headed for the gallows.”
“That’s how I feel.”
“Well, don’t make it a self-fulfilling prophecy. The jury picks up on every nuance of your behavior.”
“Richard, I know. I’ve been a trial lawyer for over 25 years.”
“Yes, and that’s why you should know that how you look is just as important as anything else – especially in a smoke-blowing defense.”
“I’m sorry, Richard.”
“Look innocent. Have hope.”
“Okay.”
“And remember…”
“What?”
“Even O.J. Simpson was acquitted.”
CHAPTER THIRTY ONE
At the end of the voir dire process, they ended up with a jury of six black men (two car repair mechanics, one restaurant manager, and two AT&T supervisors), two reti
red white female postal workers, and four white men ( a physicist, an accountant from Price Waterhouse, a pharmaceutical salesman, and an executive from a local manufacturing firm.)
“Not a bad composition. We have a good potential to activate at least eight emotional brains,” declared Richard, meaning that the white men were not likely to vote in favor a defense verdict without a fight, but they might be able to hang the jury if they could win over the others. In jury composition, a lawyer had to practically pretend to be a racist, assigning assumptions to each potential juror according to their appearances.
“Mr. Brednick, you may make your opening statement,” declared the judge.
“Thank you, Your Honor,” said Brednick as he straightened his tie, arose, and approached the lectern which had been placed in front of the jury box.
“Ladies and gentlemen, this is a very simple case and it won’t be very difficult to follow. The defendant, Mr. Marks here, has been charged with murder in the second degree. The People have the burden of proving, beyond a reasonable doubt, the following things: One, that Mr. Marks caused the death of David Marsen. Two, that he either intended to kill Mr. Marsen or that the natural and probable consequences of his actions were dangerous to human life and that he knew that. And Three, that the killing was without lawful excuse or justification. I am simply going to lay out the evidence the People intend to present, which will show you that all these elements are present.
“First, we will call Detective Antonio, who will testify as to the elements of the crime found on the scene and how they were protected and catalogued. He will testify that a knife was found at the scene of the murder by officers of the Los Angeles Police Department, and that Mr. Marks was also at the scene of the murder in the vicinity of Mr. Marsen’s body. We will call a fingerprint expert, who will testify that Mr. Marks’s fingerprints were found on the knife, and the Medical Examiner will testify that the cause of death was a severed renal artery caused by a knife wound, and that the blood on the knife found at the scene matched that of the victim.
“Finally, we will call eyewitnesses at the scene, who will testify that they saw Mr. Marks holding the bloody knife while he was standing over the dead body of the victim. Mr. Hannaford will make an issue out of all this evidence being circumstantial, but I am sure that when you hear it all, you will have no reasonable doubt that it was Brent Marks who caused the death of David Marsen, and he did it with a knife - a dangerous instrument of death and great bodily harm - from which one can only infer that the defendant knew the dangerous consequences to human life that would result from its use, and there was no lawful excuse or justification for the killing, such as self-defense.
“Mr. Marsen was unarmed and was, in fact, chased and pursued by Mr. Marks prior to the stabbing. Ladies and gentlemen, all the physical evidence points to only one perpetrator of this heinous crime, and that is Mr. Brent Marks,” said Brednick as he pointed a chubby finger at Brent.
Brent looked at looked at Hannaford in despair.
“Remember, your only part here is to look not guilty,” whispered Richard as he placed his hand on Brent’s shoulder, arose, and looked confidently at the jury. Hannaford strode to the podium as if he was the president of the United States wondering why wasn’t the court playing, ‘Hail to the Chief’. He placed his hands on the sides of the lectern and looked deeply into each pair of eyes on the jury.
“Good morning, ladies and gentlemen. I’m sure you have all seen the statute of Justitia, or Lady Justice. She is the lady with the blindfold, holding the scale of justice in her hand. Why is she blindfolded, you may ask? Because justice must be meted out objectively, without fear or favor, regardless of money, power or identity, and with impartiality. Thus, the term blind justice.”
Hannaford turned to the chalkboard. It was time for show and tell. On it, he wrote three phrases: presumption of innocence, direct evidence, and circumstantial evidence. He slapped the chalk down on the chalk tray, wiped his hands together, and turned back to the jury.
“Ladies and gentlemen, Mr. Marks comes to this court cloaked in the presumption of innocence,” said Hannaford, pointing to ‘Presumption of Innocence.’ "He must remain cloaked in innocence and presumed not guilty by each and every one of you until the last piece of evidence is in. Unless the prosecution is able to prove to each and every one of you, beyond a reasonable doubt to an abiding conviction, that each of the elements of the crime has been committed, then it is your solemn duty to acquit him.
“The other two terms are essential to your sworn duties in this case, ladies and gentlemen. 'Direct evidence' is when you have an eyewitness who says 'I saw everything that happened!'" said Richard, his arms stretched to the ceiling.
“Your job, under those circumstances, is to weigh the credibility of that witness and evaluate the testimony. However, in this case, there is nobody who will come forward and say, ‘I saw what happened.’ Why? Because nobody saw what happened. All the evidence that my esteemed colleague, the prosecutor, will present will be circumstantial. Circumstantial evidence is evidence that does not directly prove a fact to be decided. It is evidence of another fact or group of facts from which you can logically infer the presence of the fact in question.
“Let me tell you something about the danger of circumstantial evidence. I remember these chocolate chip cookies that my mom used to make. After she took them out of the oven, she set them on the cutting board on the kitchen counter to cool. That was the best time to eat them, when they were nice and warm. You know; when they’re still kind of doughy and the chocolate chips are still melted. One day I couldn’t help myself. I climbed up on a chair so I could reach the counter, and I ate them all. It didn’t start out like that. I just had one, and then another, and they were so delicious that before I finally realized it, there was only one left. So, of course, I ate that one, too. Then I heard my mom coming, and I panicked and accidently knocked the cutting board off onto the floor. Of course, the dog had been watching me and my nefarious scheme all along, and when the board hit the floor, he started licking it. Well, I don’t have to tell you that when my mom walked back into the room and saw the dog licking the cutting board, that dog got the beating of his life.
“Why do I tell you this story? Because before you may rely on circumstantial evidence to find the defendant guilty, it is vitally important that you be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. There are many possibilities for any given set of facts. There are only three people who know what actually happened that day on Olvera Street: Mr. Marks, Mr. Marsen (who’s dead and cannot tell you what happened), and the real killer.”
Hannaford paused and looked at the jury, waiting for this to sink in as Brednick objected: “Argumentative!”
“Your Honor, we are simply outlining the evidence we intend to call in our case; that being that Mr. Marks will tell the jury, under oath, what actually happened.”
This reinforced Hannaford’s point to the jury, making Brednick regret his objection.
“Overruled. Please continue, Mr. Hannaford.”
“Thank you, Your Honor. Ladies and gentlemen, Mr. Marks has no obligation to testify in this case. The prosecution has the burden of proving every element of the alleged crime beyond a reasonable doubt. However, Mr. Marks wants to tell you what really happened, and he will tell you a tale of a murder-for-hire scheme that Mr. Marsen, the decedent, was involved in. We will call Mr. Marsen’s associates, who conspired with Marsen to hire a hit man through the Internet to murder Mr. Marks’s client Allen Bekker, a stock promoter whom they accused of stock fraud, and whose estate they sought to recover those losses from before Mr. Marks exposed Mr. Bekker’s death as a murder.
“Mr. Marks himself will testify that he spotted Mr. Marsen stalking him in court on that fateful day that he lost his life. Mr. Marks tried to talk to him, but Marsen ran out of the courtroom and Marks followed him, just to speak with him. When he finally found Marsen on Olvera Street, the
re was an altercation between them. However, that altercation was abruptly ended by a masked killer, who stabbed Marsen from behind and forced Mr. Marks, at gunpoint, to withdraw the knife in order to frame him for the murder. The assailant ran away and the witnesses saw the aftermath, which is consistent with Mr. Marks’s version of the facts.
“We will then call Dr. Orozco, an independent medical examiner, and Dr. Kevin Lawler, an accident reconstructionist and weapons and fingerprint expert, who will demonstrate that the physical evidence is consistent with Mr. Marks pulling out the weapon, but it is not consistent with his being the person who thrust it into the body of David Marsen. When you have heard all of our evidence, you will have no choice but to acquit Mr. Marks of all charges in this matter.”
Hannaford regarded the jury as if his job was over. They were free to cast their ‘innocent’ vote now. And the truth of it was, most of them had probably already made up their minds. Brent whispered to Hannaford, “Is that a true story about your mom and the cookies?”
“Uh, nope: poetic license. I just thought it fit in well.”
CHAPTER THIRTY TWO
Brednick called Detective Javier Antonio to the stand. Antonio was the first senior officer on the scene and had taken charge of protecting the evidence from contamination. There would be no surprises here. The detective testified that he arrived on the scene of the crime and met officers Branley and Davidson, who had secured the crime scene with yellow tape and detained Brent and the eyewitnesses. Antonio took the statements of the witnesses, arrested Brent, read him his Miranda rights. and took him into custody. He had also waited for the Medical Examiner, who had performed an examination of the body and removed it for the autopsy.
