by Kenneth Eade
“Thank you, Mr. Chernow. The Court will now recess for lunch. When we recommence at 1:30, we will have the opening statement of the defendant.”
Brent and Chernow stood up to pay respect for the jury as they filed out. They would now try to eat their ham and cheese sandwiches and hamburgers with the horrific images that Chernow had implanted in their brains. Brent jerked Banks to his feet. After they had left, the judge turned her view from the departing jury to Brent. Then, the judge motioned to the bailiffs to take Banks into custody.
“Counsel, approach the bench.”
Brent slinked up to the judge’s altar like a guilty dog who had stolen a sausage. Chernow was trying to suppress his glee. The judge looked sternly at Brent.
“Mr. Marks. Your client has a right to be present during these proceedings. I don’t want to have him shackled to counsel table with a guard watching him, but I will do it if it is necessary to keep order in my courtroom.”
“Yes, Your Honor.”
“So, do your best to control your client or I will have to take extreme measures to do so.”
“Yes, Your Honor.”
The jury’s ready to vote right now. Brent put on his best face of self-confidence as he left the bench. It seemed impossible to clean the stain that had just been cast upon Joshua Banks.
CHAPTER THIRTY THREE
Brent felt like Custer must have felt during his last stand, and the trial had only just begun. The first things the jurors heard and the last things they would hear as jurors were the details of the horrific murders, and now, with those images of the bloody hate crime indelibly etched in their hearts and souls, he was going to talk to them about ethereal concepts, like reasonable doubt and circumstantial evidence. The idea that this gay-hating heathen to whom they had just been introduced (and who acted the part in court) was entitled to a presumption that he was innocent until proven guilty would be challenging.
These vague concepts which the members of the jury would probably hear for the very first time could not possibly compete for their attention like the visceral images that had been painted by Chernow in his opening statement. Those images had percolated in their respective brains during the 1 ½ hour lunch break and, as the jury took their seats at 1:30, they were all looking at Banks. I say we hang ‘im, and then we kill ‘im.
Brent approached the jury like the last standing Native American at Wounded Knee. To do that, he embarked on educating them about a fiction in the law that every person accused of a crime was innocent until proven guilty. He knew full well that the contrary was true. His client had been branded and tattooed, and now it was up to him to change their perspective. Good luck. Here goes…
“Ladies and gentlemen, good afternoon. We’ve all heard the gory details of this most atrocious murder. As an officer of the court and a fellow human being who personally knew both of the victims, I have nothing but respect for their lives and mourn their deaths, along with all of their family and friends.”
Brent glanced out of the corner of his eye at Susan Fredericks, who was scowling.
“The evidence will surely show just how violent, horrific, pointless and terrible these murders were. But, your job as jurors is to listen to all the evidence and, based upon the law that will be given to you by the judge, decide if the prosecutor has proven every element of the crime against my client, Joshua Banks.”
“As terrible as the murders were, the law requires that you treat Joshua as presumed innocent. We lawyers often use the phrase, “cloaked in innocence” to describe this. Imagine, if you will, that Joshua is covered in a blanket of innocence. Joshua does not have to do anything to prove or disprove anything. He doesn’t have to say anything. The prosecution alone has the burden to convince each and every one of you that he has proven every element of the crime beyond a reasonable doubt, to an abiding conviction.”
They’re listening, but already they don’t trust me.
“If Mr. Chernow does not satisfy his burden to prove every element beyond a reasonable doubt, you must acquit Joshua. Why is this so important? Because the case against Joshua is based entirely upon circumstantial evidence. You won’t hear from any witness who actually saw who committed these murders. Circumstantial evidence can be very, very dangerous. I’ll give you an example.
“I once had a client who was accused of molesting his one-year-old daughter. He was arrested and tried on the basis of one statement, Papa did it. In the trial it was revealed that “Papa” was the name she called her grandfather. The judge will instruct you that, if the circumstantial evidence leads you to two inferences, one of which points to Joshua’s innocence, and one of which points to his guilt, you must choose the inference that points to his innocence.
Brent paused and regarded the jury to see if anything had sunk in. They still looked somber. I hope they’re so serious because they’re intently listening.
“You must look at every element of this crime through the looking glass of reasonable doubt. The judge will instruct you that reasonable doubt is more than mere doubt. It is when you lack an abiding conviction as to whether some element of the crime has been proven or not.
“What does this mean in life? We’ve all experienced reasonable doubt. It’s the doubt you have that makes you want to double check. It’s what makes you question, “Did I turn off the iron?” when you leave the house. Nine times out of ten, you did. But there’s that one time… It’s what makes you reach into your jacket pocket before you leave to make sure you have the concert tickets.
“We believe the evidence will show questions of reasonable doubt. For example, the People will present evidence that a huge truck crashed into the jail bus as it transported my client from the courthouse to the jail, and that my client escaped police custody. The prosecutor will ask you to draw an inference that my client was guilty because of his flight. However, there are pieces to this puzzle that are missing which should raise the specter of reasonable doubt in your minds. The truck left the scene. Who was driving the truck when it hit the bus? The People will present Detective Rhonda Salas, who had a confrontation with the so-called “Honeymoon Stalker.”
“Objection. Irrelevant, Your Honor. That is a different case.”
“Counsel approach.”
Brent argued that the prosecution couldn't have it both ways. Chernow couldn’t introduce evidence of Banks’ flight and then not allow Brent to raise inferences that led away from Banks as the perpetrator. And since Banks was a suspect in all the cases, Chernow couldn’t prevent Brent from introducing evidence of the differences between Banks’ physical makeup and the description given by Salas of the perpetrator. The judge agreed and Brent and Chernow took back their fighting positions.
“As I was saying, the prosecutor will present Detective Rhonda Salas, who had a confrontation with the so-called Honeymoon Stalker. But she will give a physical description of a man who is a much taller than Joshua Banks.
“Ladies and gentlemen, the prosecution will say that my client is guilty, but the police have no claim to the absolute truth than anyone else. All the defense asks of you is to weigh each element of this crime on the scales of reasonable doubt. Thank you.”
Brent could see the recognition in every juror. The wheels of their minds were churning. If only ten percent of what I’ve said sinks in, maybe at least a few of you will think.
CHAPTER THIRTY FOUR
He crouched in the darkness and prayed. Our Father, who art in Heaven, hallowed be thy name. He needed guidance; something from the spirit. He was confused and disoriented and, for the first time, was not hearing clearly the voice he had heard before: the voice from Heaven of the Lord Himself. He prayed for that connection to be re-established. Lord, have I failed you? Is this a test of some kind?
His mind drifted back to the killings. Yes, they had to be done; it was his duty. But still, there was something that bothered him about them. It was the way he felt. How he had enjoyed spilling the blood of the infidels. Relished the shrieking sounds of their de
aths. Oh, Lord, show me the light! Wash me of my sinful feelings! Then his head fell like a doll with a broken neck, and he cried.
***
Jack took a night meeting with Brent at Sonny’s Bar and Grill on State Street. The music was loud, but they had a quiet corner where they always conducted business over a brew. When Brent met up with Jack, he looked very somber.
“What’s up, Jack?”
“Chernow’s holding out on you, that’s what.”
Jack told Brent about his meeting with Riley, that the police had a copy of the stolen vehicle report on Bertha, and had interviewed Riley and taken a copy of the surveillance video. He turned over the video and his report to Brent.
“But the buck stopped there. They never followed up on Dusty Clairborne as a suspect.”
“Because they don’t care. They have Banks and they’ve got their blinders on. It’s up to you to solve their case for them, Jack. ”
“And Chernow?”
“I’ll deal with him.”
***
When court convened the next morning, Brent took Chernow aside.
“Can I talk to you a second?”
“Sure, what’s on your mind?”
“You’ve been holding back discovery on me.”
“I resent that.”
“Whatever. My investigator just uncovered the stolen vehicle report on the tow truck that smashed into the bus, the security video, and identified a suspect. My discovery package has none of that. I want all of it, Brad, and I want it now or I’m going to move for a mistrial.”
“That’s confidential information on a pending investigation.”
“Bullshit. It’s information that reasonably leads to admissible evidence in this case and I’m entitled to it. What else are you not telling me, Brad? Do I have to make a motion before the judge for all the discovery I’m supposed to get? Do you really want a mistrial in this case?”
Chernow frowned. “I’ll make sure you have an updated package by noon.”
“And you’ll stipulate that I be allowed to recall your investigators on cross or as part of my case-in-chief?”
“Yes.”
“Thank you.”
***
“You’re holding out on us, Rolly.”
Jack leaned across Detective Tomassi’s desk and looked him straight in the eye.
“I don’t know what you’re talking about.”
“The stolen tow truck. Dusty Clairborne?”
Tomassi was indignant. “First of all, Jack, I can’t comment on an active investigation. Second of all, the truck was clean. No fingerprints, no trace evidence. Nothing to connect it to the murders. A hit and run, plain and simple.”
“Did you talk to Clairborne?”
“What for? It’s a hit and run. I referred it to the appropriate department. Detectives determined it was a hit and run. Clairborne was cleared.”
“So Banks just got out of his handcuffs and restraints like Harry Houdini and killed everyone on the bus?”
“This isn’t show and tell, Jack. You’ll have to wait for court for that.”
“You’ve narrowed your investigation. Once you had the bloody clothes on Banks, you stopped following all other leads. Maybe even before then.”
Tomassi’s cheeks tightened. He clenched his fists. “Look, Mr. FBI-turned-rogue. I don’t need you questioning my investigation. He escaped and there were more murders. Then, he shows up high as a fucking kite in clothes soaked in the victim’s blood. Now, if you’ll excuse me, I’ve got work to do.”
“What about the inconsistencies?”
“There’re always things that don’t fit in an investigation. Your guy did it, and that’s that. ”
Jack got up and turned to leave. He turned back. “Exactly my point.”
CHAPTER THIRTY FIVE
It was no surprise to Brent that Chernow called Susan Fredericks as his first witness. She would paint a picture of the murders that would forever dwell in the minds of each juror. More importantly, it would switch on their emotional brains and throw logic out the window. It was through her emotional testimony that Chernow would seek to admit the most repulsive photographs of the murder scene. Better her than the investigators, who were not personally involved.
A teary-eyed Susan Fredericks took the stand and described the day she discovered her brother’s murder.
“Ms. Fredericks, can you please describe your relationship to the victims?”
“James Fredericks Bennett was my brother, and Ronald Bennett was my brother-in-law.”
“The victims had just been recently married before the murders?”
“Yes.”
“Now, Ms. Fredericks, I don’t want to belabor the obvious, but James and Ronald Bennett were a gay couple, isn’t that correct?”
“Yes, they were.”
“And you were the person who discovered their bodies, is that correct?”
“Yes.” Susan wiped a tear from her eye and reached for the Kleenex box on the witness stand.
“Ms. Fredericks, I know that this is difficult for you, so if you need to stop at any time and take a break, let me know.”
“Okay.”
It was theatrical, but Brent couldn’t object. That would make him look like a jerk, and it was important that the jury like him. Nice guys may finish last, but in a courtroom they are king.
“Ms. Fredericks, please describe what you observed on May second of this year when you visited your brother’s home.”
Susan Fredericks knocked the ball out of the park for Chernow with genuine, heartfelt testimony of her gruesome discovery.
“When I entered the living room, the first thing I saw was writing on the wall, in blood.”
Brent could have objected to Susan’s lack of knowledge of the fact that it was blood, but it was coming out in the evidence anyway, so he let it go. The less he appeared to hassle this witness, the better.
“What did it say?”
Susan buried her face in her hands and cried. She looked up, tears streaming down her cheeks.
“It said GOD HATES FAGS.”
“What did you observe next?”
“I saw their bodies on the living room floor, covered with blood. They were posed in a 69 position.”
Again, Brent could have objected to the sexual connotation, but it was patently obvious.
“It was so horrible, I had to get out of there right away!”
“So the only rooms you went into were the foyer and the living room.”
“Yes.”
“Ms. Fredericks, I’m showing you a photograph that has been marked as People’s Exhibit 1.”
Chernow placed a photograph of her dead brother and his husband on the witness stand. Susan took one look at it and looked away, then wailed, and covered her mouth and nose with Kleenex. Chernow deliberately paused for full effect. Brent kept his eyes on Susan, empathetically, but, with his peripheral vision, he checked the jurors. Every one of them was with her. The women were wiping tears from their own eyes.
“I’m sorry to put you through this, Ms. Fredericks, but can you please identify the people in this photograph?”
She looked at the photograph quickly, then looked away.
“It’s my brother and his husband.”
“And does it correctly depict the way you found them on May second?”
“Yes.”
“Your Honor, I move Exhibit 1 into evidence.”
“Any objection?”
“No, Your Honor.”
“It is received.”
Chernow placed another photograph on the witness stand. “I’m showing you another photograph marked as People’s Exhibit number 2 and ask you if you can identify it.”
“Yes, this is the message that I found on the living room wall.”
“Again, does it correctly depict the living room wall the way you saw it on May the second?”
“Yes, it does.”
Chernow milked Susan’s testimony for all it was worth, then handed over
the broken, emotionally spent witness to Brent for cross-examination.
“Mr. Marks? Cross-examination?”
“No questions at this time, Your Honor.”
Questioning Susan Fredericks would have been an act of judicial suicide.
CHAPTER THIRTY SIX
Detective Roland Tomassi was Chernow’s next witness. He would outline the murders and point all inferences toward Joshua Banks for the jury: that would act as the master plan for the prosecution’s case. Tomassi testified that he was the first officer on the scene and described what he saw, allowing Chernow to introduce even more horrific photographs of the bodies. He described the blood-stained corridor and bedroom death site, which paved the way for Chernow’s blood spatter expert. Tomassi testified that the site had been secured, not contaminated, and that every piece of evidence had been accounted for. He testified as to the stab wounds he had observed on the victims, leading the way for the Coroner’s testimony. Banks sat next to Brent, listening curiously .
“Both victims had multiple stab wounds all over their chests, backs and abdominal areas.”
“Detective Tomassi, after securing the scene, did you identify any persons of interest?”
“Yes. After consulting with Detective Rhonda Salas, we determined that Joshua Banks was a person of interest in the investigation.”
“What led you to that determination?”
“The defendant had threatened the victims, which led to the issuance of a restraining order against him.”
“Your Honor, I have marked for identification the Restraining Order of the Superior Court as People’s Exhibit 23 and ask that it be admitted into evidence.”
“Objection, Mr. Marks?”
“No, Your Honor.”
