by D. W. Buffa
“We are here in the matter of People v. Daniel Lee Atkinson,” he announced. Barely a whisper, his voice held you in a way that made you hesitate, wondering what made you pause, until you realized you were waiting to hear more, hear it again, that voice that seemed to hold the answer even to questions you had not thought to ask.
“Mr. Alfonso – Hector Alfonso – is here for the prosecution, and Mr. Harlowe – Michael Harlowe – is here for the defense.”
There was a sudden look of concern. He reminded himself that there was something still to explain. He turned directly to the jury.
“You will notice that the defendant, Mr. Atkinson, is dressed in a jail uniform and that both his wrists and ankles have been shackled. This has nothing to do with the issue you are here to determine: whether or not, as alleged in the indictment I read to you the other day, he committed murder. It does not matter – and it is not in any way to influence your deliberations at the end of the trial – how Mr. Atkinson is dressed. You may imagine him dressed, if you will, the way his lawyer, Mr. Harlowe is dressed, or the way Mr. Alfonso – Well,” he added, playing mischief to lighten the mood, “perhaps not like Mr. Alfonso who dresses better than anyone I have ever seen.”
There was a murmur of laughter and approval in the courtroom. All twelve jurors glanced at Hector Alfonso who shuffled his feet and smiled down at the floor. Harlowe moved a few inches farther away from his dull-eyed client.
“Now, gentlemen,” said Bannister, turning immediately to the two lawyers. “Shall we begin? Mr. Alfonso, you may call your first witness.”
Chapter Two
Despite what he had told Michael Harlowe, Hector Alfonso did not believe for a moment that he would make the kind of mistake that would cost him the trial. It was the reason everyone was here, why there were camera crews from all the television stations, why the papers had day after day run front page stories about what had happened that awful night, months earlier, when a normal and presumably happy American family had been slaughtered in their beds in an act of unspeakable violence. Alfonso had no illusions: It was not death that brought out the crowds and that drove the public into a manic fever of hatred and revenge; it was not even murder – it was blood, the secret love of slaughter. If the Lewis family had been poisoned, left to die peacefully in their sleep, there would have been nothing like the firestorm of anger and rage, nothing like the cries for doing whatever had to be done to keep a monster like Daniel Lee Atkinson off the streets. He understood this, and he understood something else as well.
Even before he started law school he had known that he did not want to be a lawyer. The law was a means, a way to position himself for higher office. Old school lawyers and law school professors could insist all they wanted that the law is a ‘jealous mistress,’ that it takes, and should take all your time, that it takes years of study and practice to get really good at it, but Hector Alfonso knew better. A few years trying cases, trying a lot of them the way you do in a prosecutor’s office and everything became second nature, something he could do in his sleep. He could listen to his own opening statement and while he measured the jury’s reaction glance away for a moment, wondering whether the reporter sitting in the first row would spell his name right in the story that would appear in tomorrow morning’s paper. Still a month away from his thirty-eighth birthday, he knew what a great many prosecutors never learned: that the more outrageous the crime, the greater the need for restraint.
As he began jury selection he was formal and polite, asking questions in a tone that suggested that this was the most serious public responsibility any of the prospective jurors would ever be called upon to perform.
“This is a murder case, Mrs. Miller. Four people, two adults and their two children, were killed in their home. The defendant has been charged with four counts of murder in the first degree. This is a capital case, which means that the state is seeking the death penalty. Would you have any trouble, any hesitation, in finding the defendant guilty because of some concern you might have over the death penalty?”
The question was insidious, and Michael Harlowe knew it. This was not just another murder case, a drug dealer or a gang banger shot dead in some illicit and violent dispute. These had been respectable people, a family, children, and the defendant, sitting just a few shorts steps away, with his tattooed neck and tattooed arms, with a scornful grin pasted on a mouth filled with yellow, sometimes broken teeth, shackled to the chair and under the constant surveillance of two armed guards stationed off to the side, was going to pay for it with his life, if the prosecution had anything to say about it. Harlowe moved a little closer to the jury, and a little farther away from Daniel Lee Atkinson.
Asking each question in a calm, even tempered voice, he examined the first juror, thanked her for her honesty and then sat back, ready to watch while Michael Harlowe did the same thing.
“He sure as hell looks like a murderer, doesn’t he?”
Alfonso’s head snapped up just in time to see Harlowe turn his chair toward the jury and nod over his shoulder toward his client.
“Mean looking son of a bitch, isn’t he?”
A thin, jaundiced smile made a slow march across Harlowe’s tight-lipped mouth. With one hand extended behind him, held straight against the arm of the wooden chair, he searched the juror’s eyes, challenging her to disagree. Alfonso had been courteous, even deferential; Harlowe, in this first encounter, seemed argumentative and confrontational. Shelly Miller, quiet and deferential, a frail looking woman in her fifties with tired eyes, did not know what to say.
“No, I mean it,” continued Harlowe, gesturing with his hand to take in the jury as a whole. He cast a quick glance behind him at the defendant. “He looks exactly like what you thought he would, when you read about what happened, when you heard about it on television, a gruesome murder, a whole family killed. And here he is, right in front of your eyes. He looks just like what you thought he would, doesn’t he!”
Alfonso was on his feet, but he got up slowly and, as it were, reluctantly; and then, instead of shouting outrage the way most other prosecutors would have done, just stood there, waiting in patient silence until he was recognized by the judge. Walter Bannister did not have to wait to hear what Hector Alfonso wanted to say.
“I agree, Mr. Alfonso, that the question is a little unorthodox, and that choice of language is perhaps unfortunate,” he said, leaning on his elbow as he moved his index finger up and down, keeping time, as it seemed, with his thought. “But this is voir dire, not the taking of testimony under oath, and I’m prepared to allow counsel a fair amount of latitude.” He paused, and with a sudden added gleam in his eye looked directly at Harlowe who had risen from his chair. “I’m sure Mr. Harlowe won’t abuse the privilege.”
Harlowe had got what he wanted, an objection from the prosecution, and better yet, a ruling from the bench that showed that this was no ordinary trial, that things might not go as smoothly as Hector Alfonso had wanted the jury to believe. Daniel Lee Atkinson might look every bit the brutal murderer everyone thought he was, but maybe, just maybe, that was a reason to hold back, to listen and wait before sending someone to his death.
“If that’s all we did, bring him in here,” Harlowe went on, looking straight at Shelly Miller, who now looked straight back at him; “bring him in here, dressed like that, tied up in chains, and your only job was to take a long look at him and then decide if he was guilty or not, if that was all there was to it, every one of you would find him guilty. But that isn’t what we do, is it? What do we do instead, Mrs. Miller?”
She made an educated guess. “We presume he’s innocent.”
Harlowe beamed with imagined surprise.
“Yes, exactly right; what the judge told you when you first came into court. The defendant has pled not guilty and, in that famous phrase we all pretend to believe, he is ‘presumed innocent.’ I said pretend to believe, because in a case like this it is too much to expect. The question, Mrs. Miller, isn’t whether you reall
y believe Daniel Lee Atkinson is innocent; the question is whether you can ignore what you believe right now, push it out of your mind, and agree that, whatever you believe about his guilt or innocence, you will base your decision on nothing but the evidence presented in this courtroom in the course of this trial.”
There was a reason Michael Harlowe won more cases than he lost, a reason why he had become one of the first names anyone in Los Angeles thought of when they were in trouble. Juries wanted to believe him. Hector Alfonso you felt you could trust, with his polished manners and candid expression, but Harlowe, with his quick, if sometimes skeptical smile, and the occasionally irreverent way in which he spoke, was someone you liked and wanted to know. By the end of voir dire, when the twelve members of the jury had finally been chosen, both sides, the prosecution and the defense, could be reasonably certain that the verdict would be delivered without either sympathy or bias, which meant, as both Alfonso and Harlowe understood, that Daniel Lee Atkinson would almost certainly be found guilty.
Opening statements followed the pattern set during jury selection. With cool detachment, Hector Alfonso listed the elements of the crimes, the four murders, and the evidence by which he would prove the defendant guilty of each of them. Without so much as glancing at a note, with only his own memory to remind him what to say, he went on for nearly an hour, summarizing in the order he intended to call them the testimony each witness for the prosecution was expected to give.
“We have the testimony of witnesses who saw the defendant running away from the house, testimony of the police officers who, at the risk of their own lives, exchanged gun fire with the defendant before he was apprehended.”
Alfonso stood at the end of the jury box, just below the empty witness stand, the jury on his left, the courtroom crowd, including the reporters who had come from all over to cover the trial, directly in front of him. For the first time, his glance settled on Daniel Lee Atkinson, sitting with sullen eyed indifference at the counsel table next to Michael Harlowe.
“But it is the physical evidence that will prove beyond a reasonable doubt that he’s guilty of four murders; prove beyond any doubt, reasonable or otherwise, that he murdered first Jonathan Lewis – shot him in the head at point blank range – and then Monica Lewis, the mother of two small children. Shot her as well, not in the head, like her husband, but -” Suddenly, and without warning, Hector Alfonso winced as from some piercing internal pain, looked down at the floor to steady himself and then stared hard at Daniel Lee Atkinson. “Shot her, not in the head, like he did her husband, but shoved the gun into her mouth, made her hold it there, and then pulled the trigger.”
Alfonso took a deep breath and turned away. For what seemed a long time, but could not have been more than a few seconds, he said nothing in the hushed stillness of the crowded courtroom; he just stood there, looking at the jury as if the last thing he wanted to do was what he had to do next. And for a moment, from the look of anguish that flashed in his eyes, it almost seemed he was about to apologize for what he had to tell them, what he had no choice but to say. He had to force himself to do it. The side of his jaw trembled under the tension as he grabbed the jury box railing with both hands.
“There were two children, asleep in their beds, just down the hallway from their parents’ bedroom. Perhaps they woke up, - the sound of gunshots – perhaps they slept right through it. Justine, the oldest, was only six; her brother, Joshua, had just turned four. He didn’t shoot them. No, Daniel Lee Atkinson did not do that. He did not do anything that quick, that painless. He killed them, one at a time, with a butcher knife. Killed them? – Yes, eventually, after he had hacked them to pieces.
“Justine, six; Joshua, four. They can’t testify, their parents cannot testify, about what happened, what was done to them that horrific night, that night from hell, but we have all the evidence we need, all that anyone will need to prove that this was all done by the same man, the defendant, Daniel Lee Atkinson. Their blood was all over him, a perfect DNA match. The gun he used, the knife he used, both were found on him. Both of them were tested by the crime lab, and there is no doubt – no doubt whatever - that they were the weapons, the lethal weapons, used. The only question that will be left unanswered at the end of this trial, the only unsolved mystery, won’t be what Daniel Lee Atkinson did – the proof is overwhelming about that. No, the only question, and it is a question that should trouble all of us, is why! Why would anyone – how could anyone - do anything like this?”
The question hung in the air, unanswered and perhaps unanswerable; a reminder of our ignorance about the dark forces that move inside us and that without warning can overcome every notion we ever had of right and wrong. It hung there, but only for a moment, quickly replaced, at least in the minds of most of those who had listened to the prosecution’s opening statement, with the comforting thought that the question was really about only one man, the defendant, Daniel Lee Atkinson, the one on trial, the only one who had done anything that needed to be explained.
Hector Alfonso had spoken with smooth and connected sentences for the better part of an hour; Michael Harlowe did not want to speak at all. It was not because he did not know what to say or, in the presence of a courtroom packed to capacity, was afraid he might forget something or stumble over his words. He had learned long ago, the first time he had gone to trial, that though he could barely sleep in the days leading up to it; could seldom, if at all, free his mind from the constant, endless noise of jumbled questions and answers, the sharp rejoinders and the quick recoveries, all the conceivable eventualities of a trial that kept rehearsing themselves in front of his dead tired eyes, the moment he walked into the courtroom every fear and anxiety disappeared. The voices in his head were gone, the only sound he heard his own quiet breath and the steady beating of his heart.
Harlowe did not want to speak because there was very little he could say that would make any difference at all. He had watched the eyes of the jurors, watched as they became more engaged and their interest more concentrated, more intense, as they listened to Hector Alfonso’s long and meticulous description of the defendant’s vicious depravity; watched while they glanced in horror stricken disbelief at the impassive and indifferent face of the defendant as the prosecutor recited with clinical precision the methods of murder employed by this bastard son of the devil. He had watched as the little uncertainty he had managed to encourage during voir dire vanished forever, the only hesitation still left whether instead of a verdict they might find some way to hang him themselves.
“Mr. Harlowe,” asked Walter Bannister in that gentle whisper of a voice, “does the defense wish to make an opening statement at this time?”
He sat there, slouched down in his chair, apparently unaware that the prosecutor had taken his seat and the judge was waiting for him to begin. Bannister bent forward, leaned on the bench with his elbows and tapped slowly together the fingers of his smooth manicured hands.
Still nothing, not a sign that he had heard, or, if he had, that it made any difference. Bannister was just about to call him for a third and final time when Harlowe suddenly seemed to come awake. There was no apology as he stood up and approached the jury box; nothing to indicate that he had done this quite on purpose, manufactured this delay, to make the jury start to think about something other than what they had heard from the prosecution, forced them to concentrate instead on the strange eccentricities of the lawyer for the defense, lost in a trance in front of hundreds of people while the trial court judge, patient and tolerant, called his name.
The difference between a courtroom trial and a playhouse drama is that the actors in a trial write their lines for themselves. If Hector Alfonso was quietly confident and analytical, building the case against the defendant with logical certainty, Michael Harlowe was the outraged skeptic, certain, if he was certain of anything, that the only certainty was doubt. Facts were blindfolded fools, meaning nothing except what someone said they did.
“Four people were killed, murdere
d in their home,” said Harlowe, peering at the jury through eyes full of deep suspicion. He shoved his hands deep into his pants pockets and began to pace back and forth, feeling everything a doubting skeptic should. “He has the evidence to prove it. He doesn’t need to bother. We’ll stipulate to it. Four people were killed, murdered – no, slaughtered, in their beds. But what does it mean – the awful fact of the crime? That the defendant, Daniel Lee Atkinson, did it – killed, murdered, four people?”
Harlowe stopped pacing. He pointed past the jury box to the counsel table where Atkinson now sat alone.
“He must have done it. The prosecution says he did, and Daniel Lee Atkinson certainly looks the part. No, don’t look at me – look at him, the way you did when Mr. Alfonso was telling you all the awful things Atkinson had done, and how he was going to prove it.” He slapped his hand on the jury box railing for emphasis. “We have four murders. The prosecution insists not only that the defendant did it – did those awful things – but that the evidence he is going to present is so clear cut, so overwhelming, that it won’t take you three minutes to reach a verdict.”
Nodding to himself, Harlowe ran his fingers through his curly auburn hair, and then, with a suddenly baffled expression, scratched the back of his head.
“He has so many witnesses, I frankly lost count. Police officers, detectives, crime lab technicians, neighbors of the dead family – half of Los Angeles is going to testify. They go first – the prosecution – because they have the burden, the burden of proof. They have to prove that a crime was committed and that the defendant, and no one else, committed it. The defense does not have to prove anything. We don’t have to call a witness, which is fortunate, because we don’t have any witnesses to call. No one is going to testify for the defense, because, again, there is nothing the defense has to prove. All we have to do is sit here and, like you, listen to what the witnesses for the prosecution have to say. Not exactly like you, because I get to ask questions, I get to ask the questions the prosecution doesn’t want to ask,” he added with a significant look. “The questions the prosecution might not want answered. And because this is an opening statement, and not a closing argument, because this is the time when both sides give you a kind of preview of the case, and not the time when both sides tell you how they think you should interpret what you have seen and heard, let me simply mention something – a crucial piece of evidence – that the prosecution won’t introduce because the prosecution doesn’t have it.”
