The Lawyer's Lawyer

by James Sheehan

  Jack smiled. The two men hugged.

  “We’ll do it soon,” he said.

  “Soon,” Henry replied.

  Jack turned and walked toward the jail.

  Two hours later, Tom faced the crowds and the reporters on his own. The crowds were much larger today although there were still no signs or placards. And the media were there in full force—newspaper and television reporters. Microphones were set up on the courthouse steps. As he walked toward the courthouse, Tom could see Merton standing in front of them pontificating as if he were a college professor and the reporters were his eager students.

  I wish the storm hadn’t passed by, Tom thought to himself.

  Merton was walking away when he reached the steps so he decided to say a few words. What the hell. I’m not going to let him try his case out here. He could see the surprise on some of the reporters’ faces as he stepped to the microphones.

  He waited, as a good trial lawyer always does, until he had their undivided attention.

  “I know it is often forgotten these days but one of the foundations of our democracy is that a man is presumed innocent until he is found guilty by a jury of his peers in a court of law—not the court of public opinion. Cases are tried in there, not out here.” Tom pointed to the courthouse behind him. “That’s the way it has always worked, folks. It’s the one thing that hasn’t changed much. This trial won’t be long. The facts are pretty straightforward. I represent a good man who has dedicated his life to the law. When this trial is over, if he so chooses, he may stop and say a word or two to you on his way home.”

  Tom turned and walked into the courthouse with reporters shouting questions at his back.

  The courtroom was empty. Reporters weren’t allowed in for jury selection. Merton was already there with his files spread out on the table. Tom went to the opposing table and took a yellow pad out of his briefcase, laid it on the table, and sat down. The fans were churning, the air conditioners rattling. The old courthouse sounded like a factory. At exactly nine o’clock, Judge Holbrook walked in. The two lawyers started to stand but he motioned them to stay seated. There were no spectators and no reason for the pomp and circumstance. That would come soon enough.

  “This is the case of the State of Florida versus Jack Tobin, Case Number 03-CI-759. Counsel, are we ready to proceed?” the judge asked in a loud voice.

  Both lawyers stood up.

  “The State is ready, Your Honor.”

  “The defendant is ready, Your Honor.”

  “Okay. Mr. Wylie has expressed a preference for examining one juror at a time so that is what we are going to do. What I would like to do is examine twelve jurors and then we’ll have a conference and see where we are. Then we’ll do another twelve and touch base again until we have a panel. Is that agreeable?”

  Tom stood up. “The procedure is agreeable, Your Honor. I just want to make sure back striking is allowed.”

  Back striking was a procedure that allowed each lawyer to strike a potential juror at any time until the panel was finally selected and ready to be sworn in, even though that juror had already been passed over.

  “Back striking is allowable, Mr. Wylie. However, I hope that you lawyers do not abuse the process. Is that understood?”

  Both lawyers nodded.

  “While we’re on the subject of procedure, let me tell you how I want objections handled both during jury selection and throughout. You will stand and make your legal objection. If I want argument, I will have you approach sidebar. There will be no speaking objections. Is that understood?”

  Speaking objections occurred when the lawyers stood and made arguments in front of the jury. Often it was a tactic to try to influence the jurors.

  “Yes, Your Honor.”

  “Yes, Your Honor.”

  “Are there any other questions?”

  “No, Your Honor.”

  “No, Your Honor.”

  The judge turned to the bailiff who was standing to his right by a closed door.

  “Bring in the defendant.”

  The bailiff disappeared through the door and minutes later he came back in, followed by Jack and two uniformed police officers. Jack wore a blue suit, white shirt, and maroon tie. He walked over to where Tom was standing and stood next to him. The two officers stood by the wall directly across from him, maybe ten feet away. The bailiff went back to his position by the door.

  The judge addressed Jack.

  “Mr. Tobin, I’m pretty sure I don’t need to tell you what is going to transpire during jury selection or how I expect you to conduct yourself. Am I correct in that assumption?”

  “Yes, you are, Your Honor.”

  “Okay then, let’s proceed.”

  Jury selection was one of the topics that Jack and Tom had spent a considerable amount of time on during their three weeks of preparation.

  “We need to get into the nitty-gritty with each potential juror,” Jack had said at the time. “So we need to question them individually outside of the presence of the other jurors.”

  But what was the nitty-gritty? They both believed that each juror had to be asked whether he or she believed that Tom Felton was a serial killer.

  “When they say yes, then we’ve got to ask them if they know who you are,” Tom said. “If they say yes to that question, which most of them probably will do, we have to ask them what they know about you. And when they tell us that you got Felton set free, we have to ask them how they feel about that. And then we have to ask them what they know about this case, or what they have heard.”

  Jack had agreed with Tom’s assessment. They wanted jurors who thought Felton was a serial killer because they would be less inclined to convict Jack for killing him although that inclination might not trump their anger for getting him set free in the first place. That was the heart of it, and the two men would have to gauge each individual juror as they listened to the answers and watched the body language.

  “It’s a fine line we’re walking here,” Tom said.

  “I’m not sure I understand.”

  “Well, we have to hammer home at every opportunity the notion that every man, especially you, is cloaked with a presumption of innocence and, at the same time, we have to hope and pray each juror does not extend that presumption to Thomas Felton. Remember, the Florida Supreme Court had freed him and the State of Florida chose not to prosecute him.”

  “I wonder if Mr. Merton will be bringing up the presumption of innocence that Felton enjoyed at the time I shot him,” Jack said.

  “Everything I’ve heard about Merton tells me he’s not that stupid,” Tom said. “Everybody knows Felton was guilty and everybody knows Merton chose not to prosecute him for the attempted murder of Stacey Kincaid. Merton’s not going to try and play that card.”

  “He needs some emotional impact, though, to get the jury on his side. Without a victim, he’s only got me and their anger at me for representing Felton.”

  “Maybe he figures that’s enough.”

  “Well then, I guess jury selection is going to come down to finding the jurors who are least angry at me for helping to get Felton released.”

  “I think that sums it up, Jack.”

  Jury selection was surprisingly short. Both Jack and Tom had expected it to take a week, but it only took two days. Oakville was a small town. Every potential juror believed Felton was a serial killer and every juror knew Jack’s role in getting him set free. Still, most asserted that they could decide this case on its facts alone and would not let their opinions about Jack’s representation of Felton influence their decision.

  “I’m never inviting Mr. Tobin over to my house for dinner,” one woman said. “And I don’t think we will ever be friends, but I can still hear the facts of this case and decide it on its merits. If that means setting Mr. Tobin free, then so be it.”

  Tom and Jack decided to keep her. Robert Merton disagreed.

  Chapter Fifty-Nine

  The real show started on Wednesday. People were li
ned up at daybreak to get seats in the courtroom. Television kiosks were set up everywhere and reporters were reporting even when there was nothing to report. One was comparing Jack to the famous criminal defense lawyer, Clarence Darrow. Another was comparing the trial to the O. J. Simpson fiasco.

  The reality was far different. Jack and his defender, Tom Wylie, were not interested in making the trial a spectacle. They were trying to reduce the issues to their simplest terms and get the spectacle over with as soon as possible. Merton liked the grand stage a little more, but even he planned to stick to the facts.

  Judge Holbrook walked into the courtroom promptly at nine o’clock after being announced by the bailiff. The noise from the full courtroom standing up was almost deafening: The benches creaked, the floorboards creaked, the overhead fans squeaked, and the air conditioners, which weren’t working all that well, rattled. Judge Holbrook had to shout for everyone to be seated.

  Jack was dressed in a blue pinstripe suit and was seated next to Tom, who leaned over and whispered in his ear. “Now I know why people from the Old South talked so loud,” he said, pointing up at the overhead fans. Jack smiled. His lawyer was trying to keep him loose.

  Judge Holbrook began the proceedings by admonishing the spectators.

  “A man is on trial for his life. You are here as spectators to witness the American justice system at work. However, you don’t have an individual right to be here. You will sit and observe in silence and you will not react to anything that happens. If you react in any way, or if you do not remain silent, your privilege to observe will be revoked, and you will be removed from the courtroom.”

  He didn’t ask them if they understood his words. He simply turned to the lawyers.

  “Do you have anything you want to discuss before we bring in the jury?”

  “No, Your Honor.”

  “No, Your Honor.”

  “Bring in the jury,” the judge told the bailiff.

  Moments later, the twelve jurors and one alternate entered the room—eight men and four women, the alternate being a woman as well.

  “The lawyers are going to give their opening statements now,” the judge told them. “Opening statements are designed to give you an overall view of each side’s case. Listen carefully because the evidence does not often come in as timely and as precisely as we would like. Witnesses often testify out of order, depending on their schedules. And some evidence is never admitted. I caution you that what the lawyers say is not evidence. The only evidence is what is said from the witness stand and the documents that are admitted into evidence during the course of the trial.

  “Mr. Merton, you may proceed.”

  Robert Merton strode to the lectern that was facing the jury, but he stood next to it, not behind it. Being small in stature, Merton had learned a long time ago that the lectern only diminished his stature.

  “Good morning, ladies and gentlemen,” he began. “This case is about this man, Jack Tobin.” He took the time to point directly at Jack, a tactic that he would use over and over again during the trial. It had no effect on Jack, who had seen every tactic in a courtroom that there was to see. “This man, a very famous and successful trial lawyer, utilized his talents to free a serial killer on death row.” Merton paused for effect. “For money! And when that serial killer double-crossed him by killing again before he could collect his money, Jack Tobin intentionally murdered his own client.”

  It was a very aggressive tactic—go for the jugular immediately, leave the details for later. Reduce Jack in the eyes of that jury as quickly as he could. Jack and Tom had expected nothing less. They didn’t expect what came next, though.

  “But this case doesn’t start with the murder of Thomas Felton. It starts with the beginning of the deal. The defendant had to get Felton off to get Felton a payoff from the Florida legislature—and I will explain that process to you in a moment. And to get Felton off, the defendant had to attack the people who arrested him—impugn their character.

  “You will hear from two of those officers: Danni Jansen, a retired homicide detective who was a member of the original task force, and Sam Jeffries, the head of the task force that tracked Felton down so many years ago and now the chief of police of our town. Sam had already lost his wife at Felton’s hand. The defendant brutally and effectively attacked Sam’s handling of the case, accusing the entire prosecution of planting evidence.”

  Tom was on his feet. Lawyers didn’t usually interrupt other lawyers during opening statements, but Merton was way over the line.

  “Objection, Your Honor. Mr. Merton is trying the wrong case here. Thomas Felton was released by the Florida Supreme Court. We can’t try his appeal all over again in this case.”

  “That is a speaking objection, Mr. Wylie. I told you I won’t have speaking objections in my courtroom. Overruled.”

  “But Your Honor—”

  “Overruled, Mr. Wylie. Mr. Merton, you may proceed.”

  Tom sat down next to Jack, extremely frustrated. “This judge is going to be a big problem.”

  “We now know what Merton is going to use for his emotional impact. His victim isn’t Felton, it’s Sam Jeffries,” Jack said.

  “Exactly. And the judge is going to let him get away with it.”

  Meanwhile, Merton spent the rest of his opening putting meat on the bare-bones accusations he had made. He took the jurors through the facts he intended to prove in a meticulous fashion although he left a few things out. Tom didn’t know if it was meant to keep the jury curious or to surprise him and Jack, or both.

  “Mr. Wylie, are you ready to proceed?” the judge asked Tom when Merton had finished.

  “Yes, Your Honor,” Tom said and stood to face the jury.

  Tom Wylie had a slow, easy manner about him that tended to put everyone around him at ease. It was a stark contrast to Merton’s aggressive style. Because of his height, Tom could stand behind the podium and still comfortably address the jurors, although he preferred to walk about.

  He started his remarks by reminding the jurors of the burden of proof, the same thing he’d done with each juror during jury selection. Tom believed firmly that, when it came to the burden of proof, you had to repeat it to the jury over and over again.

  “When I talked to you during jury selection, I told you that the State has the burden to prove its case beyond a reasonable doubt. And I told you that the defendant has no burden and no obligation to put on even one witness in his defense, and, if the State does not meet its burden, you as jurors must acquit the defendant. And I asked each one of you if you understood and I asked if you could decide this case following that burden of proof, and you all assured me that you could. Now the trial has begun and I remind you of your promise and I ask you as you listen to the witnesses on both direct and cross-examination to always keep that burden of proof in your mind.”

  Tom paused to look each and every juror in the eye. By making eye contact, he was getting that individual commitment one more time. Merton didn’t even notice. He was writing furiously in his yellow pad. Tom continued.

  “Now you heard Mr. Merton say just a few minutes ago that this case really has its roots in the original appeal of Thomas Felton when the defendant—and I quote Mr. Merton—‘brutally and effectively’ attacked Sam Jeffries’s handling of the investigation. Facts, ladies and gentlemen, you are guided by nothing but facts—not unfounded accusations, not character assassination.”

  Tom spoke the words softly. He wasn’t pointing any fingers at Robert Merton. It wasn’t his way.

  “And the fact is, ladies and gentlemen, that the supreme court of this state, not Jack Tobin, set Mr. Felton free. And the supreme court of this state produced a written opinion about why Mr. Felton should be set free. That opinion is the law of that case, which every one of us, including Mr. Merton, is bound to follow. So please, do not be fooled by those deceptive words from the prosecution that would have you believe Mr. Tobin did something improper in his defense of Thomas Felton. They are false words
designed to derive sympathy from you for Mr. Jeffries and anger from you toward Mr. Tobin. They have no place in this trial.”

  Tom paused for a moment, knowing what was coming. Merton rose from his chair, his face turning a darker shade of red at each movement so that when he was fully erect, his face was almost purple with rage.

  “Objection, Your Honor.” He shouted so loud that, despite the noise from the ceiling fans and the clanging of the air conditioners, every person in the courtroom could clearly hear his words. This was what they had come for—the showdown at the OK Corral. And it hadn’t taken long for the fight to begin.

  “Your Honor, Mr. Wylie is directly attacking my character and I won’t have it.”

  Tom looked at Jack, who nodded. They both thought that Merton was high-strung despite his obvious talent in the courtroom. This was the initial experiment to see if they could get him unhinged, and it had worked to perfection. Merton was now headed toward the center of the courtroom and was out of control.

  “May we approach, Your Honor?”

  “Stay right there, Mr. Merton,” Judge Holbrook said. “I want the jury to hear this.

  “We are going to try this case in a professional manner. If you two want to go outside when this trial is over and have a fistfight, so be it. But in this courtroom you will conduct yourselves as professionals. There will be no personal attacks. Is that understood?”

  Merton stuck his chest out triumphantly, looking at the jury as he walked back to his seat. “Yes, Your Honor,” he said as if he were the conquering hero.

  Tom was as calm as a man could be. He looked at Merton and then back at the judge. “Yes, Your Honor. And I apologize to counsel if he took my statements as a personal attack. They were not meant to be. I was merely commenting on the statements that he made to the jury.”

  Merton was not yet in his seat. “Your Honor?” he pleaded.

  “Mr. Wylie,” the judge said, “you heard my comments. Now, move on.”