Desano paused, but continued his focus directly on Gordon. Gordon clenched his jaws, shifted in his chair, but did not speak, even as the pause grew longer and the gaze remained intense. Stone silence filled the room.
Scott was now sure the trial would not start this week. Gordon may have had his reasons for not filing a motion to recuse Desano before trial, but surely he would file one now. This tirade by the presiding judge was on the record. Desano’s prejudice against Gordon, though quite justified, was obvious, and the court reporter had recorded it all.
As Scott sat waiting for Desano to continue, he realized that the prejudice may be obvious, but the remedy not so obvious. Gordon was not yet counsel of record; Wilborn was. Could Wilborn succeed with a motion to recuse a presiding judge because the accused wanted a specific attorney who was not even a member of the Georgia Bar? Scott wasn’t sure. He glanced at Nick, who was sitting a few feet away with a suppressed smile on his face. Apparently, Nick was thoroughly enjoying the tongue-lashing.
Finally, Judge Desano spoke. “I state this, Mr. Gordon, so that the record is clear. I found your performance in this court last year unprofessional. And furthermore, I believe your activities out of court were reprehensible, although our law enforcement community so far has failed to act on them. Nevertheless, I’m going to permit you to participate in this trial if you and your client still desire that. I have no opinion as to the guilt or innocence of your client, and he will get a fair trial in my court with or without your services. I’m going to give you a few minutes to discuss this with him before we proceed. Now, Mr. Gordon, you may speak if you wish. Or Mr. Wilborn. Do either of you have any questions?”
Gordon and Wilborn turned and looked at each other. Gordon rose and said, “No, Your Honor. We have no questions; you have been clear. I will discuss the matter with my client.”
Judge Desano stood. “I will reconvene the court in fifteen minutes. If you still want to serve as counsel, Mr. Gordon, you will be seated at the defense table. You are free to leave, gentlemen.”
CHAPTER TEN
When Scott and Nick returned to the courtroom, Richard met them at the bar behind their table
“How did it go?” Richard asked.
“Desano’s going to let Gordon on the case if his client still wants him,“ Nick said.
“If his client wants him—what do you mean? He’s already stated he wants him.”
“Yes, but that was before Desano gave Gordon one of his classic ass-chewings.”
“So Gordon may withdraw?”
“He could, but not likely. Gordon will try this case. Right, Scott?”
Scott, surprised at Nick’s response, said, “No, I don’t think so. Thinking back to last year’s trial, I must say he’s unpredictable, but there’s no way he is going to remain on this case. He knows Desano isn’t going to give him any slack, and they really don’t have a defense. Apparently, both Gordon and Senator Harrison believed that Gordon could pull this one out with his media-hyped golden tongue. But Gordon has too much pride to stay now. No, he’ll pick up his briefcase and head out any minute now. Why do you think he will stay, Nick?”
“Very clear to me. Money. Big money, whether he wins or loses. Senator Harrison wants his son out of prison ASAP, and for some godforsaken reason, he believes Gordon can do it. But Desano has the defense boxed in. If Gordon bolts or is later relieved, Wilborn takes over, and the senator is not going to trust his son’s fate to a hack like Wilborn. There is a lot of money available for this trial, and it’s all Gordon’s now. He can swallow his pride all the way to the bank. He’s not about to walk away.”
As Nick was speaking, Scott watched Gordon walk toward the spectator section where Senator Harrison was seated. Gordon placed his left hand on the senator’s right shoulder, and they lowered their heads in a private conversation. Soon Wilborn joined the huddle.
Nick became silent as he turned to observe the defense strategy session. Gordon was leading the conversation like an NFL quarterback, and Senator Harrison and Wilborn had their heads bent down in front of him taking instructions. Finally, Senator Harrison and Wilborn were nodding forcefully, signaling that the three were in agreement. The two defense counsel returned to their table, and Senator Harrison again took his seat in the front row.
Scott was wrong. Gordon did not pick up his briefcase and head for the door. He was seated next to Clarence Wilborn when Judge Desano entered and called the court to order.
Desano called the attorneys to the bench and quietly addressed the group. “Mr. Gordon, have you had a conference with your client, informing him of the session we had in chambers a few minutes ago?”
“I have, Your Honor.”
“Has there been any change in his desire to have you represent him?”
“No, Your Honor, and I’m prepared to do so.”
“Does anything that was said in chambers give you any concern about proceeding as counsel in this case, Mr. Gordon?”
“No, Your Honor.”
“Do you have any question of my capability or intent to provide your client a fair trial?”
“No, Your Honor.”
“And you, Mr. Wilborn?”
“No, Your Honor.”
Scott saw where Judge Desano was going with these questions. They were for the appellate court, an answer to any complaint of prejudice the defense would likely bring after conviction. The blistering rebuke Desano gave Gordon back in chambers was on the record and not likely to be forgotten soon by Gordon. But now the defense had in effect waived their appeal of this issue. Typical Desano, thought Scott. He may be brash, but he’s always thinking ahead.
“In view of your responses, I approve the motion for admission of Mr. Gordon pro hac vice. You may return to your seats. We will begin jury selection.”
****
Jury selection went smoothly. As in all his trials, Judge Desano’s voir dire questions were lengthy and thorough, but he wasted no time. He completed his questioning of the venire shortly after noon and recessed the court until 1:30 p.m.
Nick, Scott, and Richard all grabbed sandwiches from the shop on the first floor and went to Nick’s office to discuss the jury, which turned out to be an unusually mature and conservative panel. They were quickly in agreement on their peremptory challenges.
“This is going much quicker than I thought,” said Nick. “I didn’t expect to call my first witness until tomorrow, but we may need to put on one or two this afternoon. Desano gets upset if he can’t keep a trial going until at least five every day.” Nick turned to Richard. “Is Johnson available?”
“I’ve got Norm picking him up at the airport at one-thirty to take him to his hotel. His schedule was from Denver to Atlanta to Savannah on Delta. I checked this morning, and he was on the manifest to Atlanta. I expect I could have him here ready to testify no later than three-thirty. I can call Norm’s cell.”
“Do it. If we don’t have him here, I’ll have to start with some of the CSI guys and gals, but none of them have anything for this trial. I want to start strong and end stronger. That means Johnson first and Patel last.”
****
When court resumed after lunch, Nick and Gordon had only about a dozen voir dire questions each, and Gordon was careful to obey Judge Desano’s warning not to bring up his college football heroics. Desano excused a number of prospective jurors for cause. Neither Nick nor Gordon used all of their peremptory challenges, and by midafternoon, the jury—five men and seven women with two alternates—was seated and sworn for the retrial of the State of Georgia v. John Harrison.
Judge Desano looked over his bench at Nick. “You may make your opening statement.”
Scott quickly wrote a note and passed it to Richard. “Call Norm and tell him to get Johnson here ASAP.” Scott knew Nick’s opening would be short, and if Gordon reserved his opening, Desano would be expecting the prosecution to start presenting its case immediately. Scott could only hope that the Delta flight from Atlanta was on time and that Johnson wa
s on it.
Richard gave a thumbs up and quickly left the courtroom.
“May it please the court and ladies and gentlemen of the jury,” Nick began. “Three years and two months ago, a young man walked into a small convenience store in Savannah late at night. There was only one clerk on duty, the owner: Vijay Patel. Mr. Patel had managed that store, Fast Eddie’s at 1443 Waters Avenue, for almost twenty years. It was a Monday night, and business was slow. Mr. Patel had sent the only other clerk home earlier, and he was alone. He watched as the man, who was wearing sunglasses, walked to the beverage cooler, opened it, but removed nothing. Instead, the man seemed to rise on his tiptoes and scan the store. Then he walked from the cooler, behind a display of food products and toward a large glass window facing the parking lot in front of the store. Mr. Patel could see the man as he walked toward the front door, which is located about ten feet from the cash register counter where Mr. Patel was standing. Instead of leaving as expected, the man walked quickly to the cash register and faced Mr. Patel. He was holding a short, shiny revolver in his right hand.”
Nick paused, then walked and stood next to the defense table. He looked down at the defendant, who was seated stiff and upright next to Gordon, his eyes set on some object across the courtroom.
“The young man with the weapon in his hand that night was this defendant, John Harrison.” Nick pointed down at the defendant, whose eyes remained focused in the distance.
Nick resumed his position in front of the jury and continued. “The defendant pointed his weapon at Mr. Patel’s head and demanded that Mr. Patel place all the money from the cash register into a plastic bag the defendant had just removed from a jacket pocket with his left hand. With the pistol at his head, Mr. Patel complied. The defendant then ordered Mr. Patel to disconnect the handset from the phone behind the counter and place it into the bag. Again Mr. Patel complied.
“But Mr. Patel was doing more than following the defendant’s instructions. He was capturing forever a photographic identification in his mind of this young man so that, hopefully, someday he could identify him in a court of law and bring him to justice. Despite the sunglasses, Mr. Patel mentally recorded the defendant’s facial and body features. His memories remain, fixed and indelible, to this day. The money and the phone were placed into the bag, and the defendant quickly departed.
“After a 911 call, the investigation began. It included detectives and a forensic team that scoured the store and surrounding area for evidence. No physical evidence was found, which, the forensic team will tell you, is what they would expect after a planned robbery by a careful and fast-acting thief.
“But we will present additional evidence just as convincing, just as certain, as physical evidence. Sitting and observing this entire scene from his car parked outside was a soldier, Josh Johnson. Mr. Johnson had just pulled into the store parking lot, and he saw the robbery through the big glass window. He had a clear profile picture of the robber, and he, like Mr. Patel, will testify that the man with the gun that night was the defendant. He, like Mr. Patel, will testify from a certain and indelible memory.” Nick turned and pointed once more at the defendant. “He will tell you it was that man, sitting right there, who was the man with the gun.”
He looked again to the jury. “This will not be a long or difficult case. But when any citizen of Chatham County has a weapon thrust in his or her face and has property taken by force or by fear, it is an extremely important case. And I know you will do your sworn duty. At the end of this trial when you return your verdict, I am confident it will be one that speaks the truth and one that is just and correct: a verdict of guilty as charged.”
As Nick walked back to the prosecution table, Judge Desano looked at Gordon, “Does the defense wish to make an opening statement now or reserve it?”
“Your Honor, we wish to reserve our opening.”
At the first trial, Gordon made his opening statement immediately following the prosecution opening. It was Gordon’s continuing defiance of the judge’s admonition against arguing in the opening that led to Gordon’s dismissal. Scott had expected Gordon to again test the length and strength of Desano’s leash in his opening statement and was disappointed that Gordon waived it. Now the prosecution would remain completely in the dark as to the defense strategy.
“Then the prosecution may call its first witness,” Judge Desano said.
Nick looked at his watch. It was three o’clock. “Your Honor, I need a moment to make sure my witnesses are available and ready. May we have a brief recess?”
“I think we can afford fifteen minutes. Court is in recess until three-fifteen.”
Nick and Scott were on their feet and heading for the door even before the bailiff commanded, “All rise.” They did not get far into the corridor before they saw Richard rushing toward them.
“I just got a call from Norm. They are about five minutes away, and I told him I would be out front by the curb. He can let Josh out there with his bag, and I’ll bring him up to my office so he can change.”
“No time for that,” said Nick. “I want him at the courtroom ready to testify at three-fifteen. He’s not a Wall Street banker. He’ll give his occupation as a Colorado fishing guide, and it’s OK if he looks the part. Unless he’s barefooted or wearing flip-flops, bring him immediately. I need to at least speak with him before I put him on.”
“Will do,” said Richard, as he left to post himself by the curb.
Nick and Scott returned to the courtroom to wait. Nick alternated his attention from the courtroom clock to the courtroom entry door. Time seemed to be passing quickly. Seldom had he had to call a witness to testify without discussing the expected testimony first or at least having someone prepare the witness. He had Johnson’s statement of what he observed, but the statement was made long ago. Nick really needed to go over the statement with the witness, but that would not be possible now.
Just moments before Judge Desano entered from the door to the bench, Johnson entered the courtroom with Richard. Nick only had time to shake Johnson’s hand before the court was called to order, but he was relieved. He had his important first witness. He quickly sized him up: Johnson had the rugged outdoor look one would expect from a fishing guide. He was decently dressed in khaki trousers, dark loafers, and a knit pullover shirt with collar. In the short introduction, Nick observed that his witness had a strong voice and pleasant smile.
On the bailiff’s cry of “All rise,” all the spectators and reporters in the packed courtroom were quickly on their feet, and the trial was called to order. The jury filed in and was seated.
“Are you ready with your first witness, Mr. Cox?”
“We are, Your Honor. We call Mr. Josh Johnson.”
Josh, who had remained standing at the prosecution table, walked to the witness stand and was sworn. After preliminary questions of name, address, and occupation, Nick turned to the date and scene of the robbery. Josh explained that he had been to a movie that night and was returning to Fort Stewart, where he was stationed. He had pulled into the parking lot at Fast Eddie’s to purchase a pack of cigarettes. There were no other cars in the parking lot, so he parked next to the front entrance.
“Tell the jury what you saw as you were parking your car at that front entrance.”
“I saw a man with a pistol in his hand approaching the clerk, who was standing behind the store’s cash register.”
“Describe the lighting conditions in the store as you were observing the man.”
“All the lights were on. It was quite visible inside.”
“And your car lights—were they on or off?”
“I had not cut my engine. They were still on and remained on.”
“How was the man dressed?”
“He was wearing denim jeans and a light tan windbreaker.”
“What was the man behind the cash register doing as the man with the pistol approached him?”
“He was just standing there, but he seemed to have his eyes on the man with t
he pistol. It happened fast. I couldn’t hear what was said inside, but I saw the clerk reach into the cash register and put something in a bag the man handed him. It looked like one of those plastic bags that grocery stores use.”
“After the clerk placed the object or objects into the bag, what happened?”
“I saw the clerk turn his back to the man. He picked up something, turned back to the robber, and put it in the bag. I found out later that it was a telephone.”
“After the telephone was placed into the bag, what did you observe?”
“Really not much. The man with the pistol disappeared from my view. It happened so fast. I just sat there in my car and watched before it dawned on me that I should call 911. I had my cell phone with me and dialed it. That was the first time I had ever called 911. I could tell them what I saw, but I didn’t know the address. I knew I was on Waters Avenue, but I didn’t know the number. I finally said I was at Fast Eddie’s, and a patrol car arrived in about two minutes. It wasn’t long before the place was surrounded with police and detectives.”
“Mr. Johnson, I want you to look around the courtroom and tell the jury if you see the man who held the pistol on the clerk that night.”
Scott thought back to the first trial when he had asked the same question to his only eye witness, Vijay Patel. With a half dozen “look-a-likes” Gordon’s team had paid to appear around the courtroom—including one who Judge Desano allowed to be seated near the defense table—Scott had sweated out that identification. There was no such distraction now.
Johnson rose from the witness chair a few inches to scan the crowd in the gallery and then brought his focus on John Harrison. His eyes remained there for what seemed more than a minute to Scott, but he said nothing. Finally he looked at Nick.
The Indictments Page 7
