by Mark Tiro
Gevorkian then called his ‘Investigating Officer’ as his next witness. The detective got up from his seat next to the prosecutor and ambled to the witness stand. After the formalities (being sworn in, raising his right hand, spelling his name), the detective sat down in the chair on the witness stand. He pulled the microphone close to his mouth as Gevorkian started asking his myriad background questions. Once the prosecutor finally got around to the substance of the detective’s testimony, the prelim started to move.
Sitting comfortably in his chair, The DA ran through a series of questions, crossing off sections of the piece of paper he’d been reading from as he went along.
“And detective, what is your opinion as to why the Defendant crashed his vehicle?” Gevorkian said the words slowly, as he struggled to rephrase his previous question.
“Same objection,” Maya interjected. “Lack of foundation as to where he’s basing this opinion. It’s completely speculative.”
“People?” the judge turned to Gevorkian. Again. “Let me ask you, for the third time, what is the foundation for his opinion?”
“The pattern of the skid marks, Your Honor. The detective’s training and experience. And defendant’s statements.”
Maya bounded to her feet. “Objection! That assumes facts that are nowhere close to being in evidence. Your Honor.”
“People—why don’t you have him testify to the defendant’s statements first and then go on from there?” the judge retorted. And that was that. Gevorkian did as the judge suggested, but completely forgot to circle back around to elicit the detective’s opinion.
The audience was finally quiet, listening intently, while the detective testified to what David had told police. David’s words were at last out, for everyone to hear. “And he told you he saw God?” Gevorkian followed up, acting incredulously while turning slightly to make sure everyone in the courtroom could hear him. He paused for effect.
He’s over-acting. Pandering bastard. Hasn’t he incited them enough yet? Maya thought, glancing back towards the audience.
Following up, Gevorkian asked the detective, “And what was his demeanor?”
“He told us that he had seen God. I formed the opinion that he was mentally unstable. That he was clearly trying to kill himself.”
“And there’s no way he could have done that,” the DA gave his own backwards glance towards the audience. He lingered there, as if rehearsed, “without killing that little girl right along with him?”
“No,” the detective answered, almost on cue. “She was strapped into her little car seat in back. The little doll she was holding was never going to be enough to protect her from the force of the impact he intended for her. Poor thing never had a chance after he made his sick decision.” The detective gestured at David as Maya jumped to her feet to object.
Maybe it was the smell of the food that started wafting into the courtroom from next door. Maybe it was the sight of staff gathering in the hall, waiting for Judge Elanjian to finish the session and join her own retirement luncheon, already in progress. Whatever it was, the court staff was getting a little fidgety, and the audience was restless, making an almost continuous low rumbling sound now.
“Sustained,” the judge ruled. The luncheon would have to wait, just a while longer. “Now, People—do you have any more witnesses?” the judge asked pointedly as the detective ambled back down off the witness stand.
“No, Your Honor. The People rest,” the DA answered. After a moment, he hastily appended his statement, blurting out the words “subject to receipt of our exhibits by reference, of course.”
“Of course,” Judge Elanjian said dryly. “Now, Mr. Gevorkian, do the People have anything else?” The DA was still standing as she asked the question, but he had his back halfway turned by now. Gevorkian was apparently busy discussing his own lunch plans with the detective. Hearing no answer to her question, the judge looked down at her watch and then said, to no one in particular, “I want to know when I should have my staff back after lunch.”
Gevorkian sat down, looked over at Maya, and smirked at her. It lasted only a moment. Then he leaned back, relaxed in his chair and watched as the detective started putting away most of the reports that had been strewn around the desk.
“No, the People have nothing else,” he repeated. A moment later, the judge’s question finally registering with him, Gevorkian corrected himself. “Oh, I’m sorry. Thank you, Your Honor, for reminding me.”
Sad SOB, Maya thought, as she turned away from him and back towards the judge. He’s talking to her—he’s addressing the Court—and he still can’t even be bothered to wipe that smug look off his face. Hmmmpphhh!
“The People would be asking to move up the scheduled arraignment after he’s held to answer. Just by a couple days. I have a vacation scheduled later that week.”
“Of course you do Mr. Gevorkian. And I can give you my word, you will not have to miss your vacation. I don’t think you’ll have to worry about that here. Thank you also… for your brevity.”
The DA was standing up again, turned towards the door. He was holding his now fully-packed up file under his arms, waiting for the judge to stop talking so he could get on with his lunch plans.
The judge, however, continued talking a little while longer. “I will also say this Mr. Gevorkian. I do not appreciate the theatrics. There is no jury here. You know that. Why don’t you come back after lunch, prepared to argue to me what level of negligence the defendant had.”
“I’m sorry Your Honor? This is a murder charge. I believe you misspoke. I believe the Court means ‘malice’?”
“No, I’m sorry if I was unclear with my choice of words,” the judge answered without hesitation. “By ‘negligence’, the Court means ‘negligence’. I apologize Mr. Gevorkian, if I confused you. I want to hear your argument after lunch as to whether the evidence you presented shows vehicular manslaughter with gross negligence, or just simple, ordinary negligence.”
Once she heard the judge’s comments, Maya leaned over, grabbing David around the back of his neck. She whispered into David’s ear quietly enough to make sure no one overheard. “Misdemeanor manslaughter.”
Throwing his hands up and gesturing wildly, Gevorkian blurted towards the judge, “misdemeanor manslaughter? Are you serious?” He was incredulous.
“I don’t recall anyone saying that, but thank you Mr. Gevorkian… for suggesting the more appropriate charge. I appreciate your candor,” the judge said. She looked down from the bench, surveying the ever-more restive courtroom. “Based on the evidence before me, I agree with you Mr. Gevorkian, that charge would seem to be the proper charge. In the interest of justice of course.”
“I cannot believe—but Your Honor, No! This is a…a…well it’s a murder. A baby is dead.” Gevorkian was gesticulating wildly now. He was apoplectic.
“Mr. Gevorkian, please be careful,” the judge said, turning towards the DA. “Let me caution you, it’s not healthy for a man of your age to be turning quite that shade of red.” The audience was mostly quiet now, but there was some snickering from the courtroom staff and attorneys that had trickled in, waiting to eat.
“Ms. Lee,” the judge turned to Maya now. “I understand you intend to call a witness after lunch as part of your affirmative defense? Well, I can just tell you—certainly, if you want to do that, that’s your prerogative. This case is a tragedy, obviously,” the judge lingered on her words now, addressing her comments to Maya, but looking squarely at the DA as she did. “I understand that Ms. Lee. But before we start with your expert’s testimony this afternoon, have you and the People discussed resolving this matter?”
“Absolutely not!” Gevorkian blurted out before the judge had even finished asking.
“Well, in that case,” she continued, “I understand Ms. Lee that you have a motion? Now that the People have rested, that is?
“Of course, Your Honor,” Maya answered. She hadn’t really planned to make a motion. At least not until after she’d put
on Joel’s testimony. But she couldn’t ignore the judge’s obvious invitation either. And so she stood up, look squarely at the judge, and said, “The defense would be making an oral motion to dismiss, for insufficiency of the evidence, based at this point on just what the People have presented in their case-in-chief, reserving our affirmative defense, if necessary.” Without missing a beat, she launched straight into her argument in support of the motion. She did it off the top of her head, without bothering to look down at any of the notes she had spread out over counsel table. “This appears to be a vehicular manslaughter without gross negligence. The People have not presented any evidence—not even an opinion from an expert—of causation.” These last words were directed towards the judge, but Maya looked straight at the detective as she said them. “This was obviously a devastating, tragic accident—” Maya started until a cry rang out from the audience, stopping her mid-sentence.
“You murdered her! You bastard—I hate you!” The voice rang out from behind Maya.
It was David’s wife.
Judge Elanjian looked up towards the woman. She quickly realized this was the baby’s mother. Rather than calling for quiet and asking the bailiff to remove her, the judge patiently—respectfully even—let her finish, not saying a word until she had finished her outburst. Then, without a word about it, the judge simply turned back towards the DA and asked him to respond to Maya’s argument.
Gevorkian stumbled through his hasty, off-balance reply to Maya’s motion. He clearly wasn’t prepared for this. Maya, however, wasn’t sure the judge had even heard him. Maybe it was the expression on the DA’s face, maybe it was the desperation in his voice. Whatever the cause, that’s the moment when the first audible gasp came from the audience. This was followed by more, and then a wail, followed by a shriek. It was the dawning of awareness, at last, of what was happening.
“Baby murderer!” rang out, from somewhere in the audience. Maya turned back around. This time, however, Maya did not see David’s wife, who Maya surmised must have just left. Rather, Maya turned to find that the same people she had seen earlier that morning were now jumping to their feet, shouting at the judge. Whatever inhibitions had been keeping the gallery quiet up until that point dissolved. A cacophonous sea of outraged voices rose up, drowning out everything else in the courtroom.
“Idol worshipper!”
“Anti-Christ!”
“Vengeance is mine sayeth the Lord!”
“Have a good lunch everyone,” the judge announced, with a relaxed air of authority. “This Court is adjourned. I’ll see the parties back here at 2:00.” And then she stood up and strode off the bench. Maya just barely heard the judge’s words. The raucous screams from the audience now completely filled the air.
32
In the end, Joel ended up eating lunch alone. Maya spent most of what was supposed to be the judge’s retirement luncheon talking to David back in lockup.
“Well that’s it, I think. If it happens, are you sure you want to do this?” Maya asked him.
She had gone through the ins-and-outs of felony vehicular manslaughter with David. Against her better judgment, she had also gone over misdemeanor vehicular manslaughter. “The judge, of course, has the authority to reduce the murder charge, David,” she had explained. “She could hold you to answer on a less serious charge. In essence, what she’d be saying is that it wasn’t murder. That means she’d be finding that you weren’t trying to kill yourself. In order to get there logically, she’d also be making a finding that you weren’t so cold as to not care whether or not you’d be taking your baby down with you.”
Maya stopped a moment, to give him time to process her words. “Either a straight involuntary manslaughter—that’s the four year maximum. If she were to knock it down to either a felony or misdemeanor vehicular manslaughter, that would max out at either six, or, if it’s the misdemeanor, just one. I think that’s the best we can hope for today. The only difference between them is basically the level of negligence that caused the accident.”
The last thing Maya ever wanted to do was to set a client up for disappointment later. And Maya still wasn’t completely sure which way Judge Elanjian would ultimately rule. In any event, if the judge did reduce David’s charge, it would very likely mean many more months of drawn-out litigation, as the DA would almost certainly try to re-file the murder charges.
Turning to Maya in lockup, David asked, “if the judge does what you just said—what was it, reduce it to a misdemeanor? I can just plead to that, right? Then it is done?”
“I shouldn’t have mentioned that,” she answered. “She’s not going to reduce it to a misdemeanor. She’s just trying to scare the DA into making a reasonable offer down the road. In theory, yes David, if she were to reduce it to a misdemeanor—you’d have time-served already on the spot, but she’s not going to reduce a murder to a misdemeanor. Like I said, I’m sorry I brought it up.” Maya thought about that a second before correcting herself. “No, I’m sorry she brought it up.”
“It’s time, Maya. It’s okay,” he said. “Everything is okay.”
“I’m sorry David, maybe I wasn’t explaining this right. Everything isn’t okay. Even if she does only hold you to answer on the lesser charge, it’s going to be an involuntary manslaughter, or maybe, well probably, a vehicular manslaughter. You’re not going anywhere, you’re not getting out. Nothing is going to change. Even if she did reduce it, I’m not even sure she would have jurisdiction at that point to take your plea.”
Maya had stopped a second. “Well, she could do it, sure David. Maybe even she would do it. I don’t know, maybe she could even take your plea. But she won’t. And say she did, sure, you might get released….” she stopped herself in mid-sentence. “Well in any event David, the DAs would appeal it, or re-file it, or something.
“But Maya, what happens if the judge does? Reduce it, that is?”
“Well she’d go over your rights, tell you that you have the right to a jury trial.” Maya quickly went over the smattering of rights that would be involved in any—hypothetical—plea.
“She’d ask if you understand those rights and give them up,” Maya finished, looking from her file now. “Listen David, I don’t want to see you get your hopes up. Truth is, I’ve seen people make themselves crazy, locked up in here. You know the worst part of my job? It’s not watching someone go away to jail. People think that, but it’s not. No. It’s when I have to stand here and watch one of my clients descend into madness. There is nothing worse than watching the self-destruction of a man.”
“Don’t believe what your eyes tell you,” he answered. “I know it looks bad, but in reality—”
The lockup door swung open just then, bringing an abrupt end to their conversation. “Lunch break’s over. It’s just about time.” It was Deputy Castaneda. She had made a point of coming back into lockup to give Maya a heads-up before she went out to unlock the courtroom doors and let the audience back in.
“I know you have a lot of things you’re trying to keep in your head today,” David told her. “Thank you for making time for our talks in jail.”
“No, I’m sorry you’re in jail, David. The DA is kind of an asshole.”
“No, Maya, listen. It’s okay. Remember what we talked about. If anything ever bothers you, you can always bring it to me.”
“Thank you David. I appreciate that.”
“You are very good at what you do here,” he told her. As she gathered up her file, she leaned in to hear him tell her, through the bars, “You fought a hard battle Maya. You can be kind to yourself now. It is accomplished.”
“Well, not really David, it’s not. We still have to go back in there in a few minutes and face the judge. And we won’t really find out how she’s going to rule until she actually does. You know, we still have our affirmative defense. Joel—Dr. Lehner—still has to testify, and then there’s arguments, and our motion to dismiss, and don’t even get me started with Lil’ Dick.”
“Maya, we’re
all fighting the same battle here. Be kind. It’s okay to stop fighting now. It’s like we’re all watching old war footage on late night television—it was all over long ago. Before you were even born. What you’re seeing now are just images. They have no power to hurt you at all. To know that, though, you’ll have to leave the battleground.”
“Maybe I’ll just turn off the TV,” she told him, breaking into a mischievous grin. “Or put on a different show.”
“Listen, one last thing Maya.” He looked at her kindly but deliberately. “Forgive your brother for what he hasn’t really done.”
Just then the lockup door swung open again. This time, it let in a chorus of noise from the courtroom. As Maya walked out into the court, the detective came up to her, blocking her path to the defense side of counsel table.
“Listen, I don’t know what you’re trying to do here, but there’s a dead baby. And a mother—” he jabbed his finger towards Maya, before the bailiff jumped up, and stepped between them, to clear the rest of the way for Maya to the counsel table.
“Don’t worry,” Castaneda leaned over and whispered to Maya after the detective had backed down. “I got your back. We’re all family here.”
As soon as the judge took her seat back on the bench, Gevorkian jumped up. “We’d ask to re-open Your Honor. The People demand to re-open our direct.”
“Well, hold on now. Let me call the case on the record,” Judge Elanjian said. Once that was done, she turned to Gevorkian and gently pointed out that she had already asked him if he had anything else, and that his vacation schedule had been his only concern. The DA jumped back to his feet for a second time now—this time, more quickly than the first. “Then if the Court won’t let us re-open our direct, the People would move to immediately dismiss. We are entitled to re-file the full murder complaint, and we will be doing so as soon as you dismiss.”
