Certain Justice

by Dennis Carstens

  “Here it is gentlemen,” Koch began while she hung up her robe. “Mr. Kadella, by my count, you’re down to six challenges, is that correct?”

  “Yes, your Honor,” Marc agreed.

  “And Mr. Harris, you have two left,” she said.

  “Yes, your Honor,” Harris replied. “In fact, I was going to request an additional…”

  “Not a chance,” Koch said. She was standing behind her desk chair leaning on the back of it. The look she gave Tommy Harris was clear that she would not consider allowing either of them any additional peremptory challenges.

  “We have selected a grand total of four jurors. We need twelve more including four alternates. I’m telling you right now, once your challenges are used up, and I can make you use them, then it will be pretty much up to me to select this jury by denying your bias claims.

  “Don’t make plans for Saturday. If we aren’t done by Friday evening, we’ll be here first thing Saturday morning and maybe Sunday if the mood strikes me. Understood?”

  “Yes, your Honor,” all four lawyers said.

  “Have a nice lunch,” she said in dismissal.

  A little before 4:00 P.M. on Friday all of the jurors had been selected. Twelve total plus four alternates. The twelve were a decent cross section of the community and would likely be fair and impartial.

  Of the total sixteen, nine of them had claimed they had heard about the case but had not really followed it very closely. Given the overwhelming media coverage, this was hard to believe. Even so, it was also likely true. A significant percentage of Americans paid scant attention to the world outside their own self-made bubble.

  Before leaving for the weekend, Judge Koch swore them in and gave them a stern warning to avoid the news concerning this case. They were not allowed to talk to each other and certainly no one else about it at all.

  When she finished Marc repeated his request to have them sequestered for the duration. Koch denied it again but assured him she would keep an open mind about it.

  “Your Honor, I have another request to make,” Marc said while the jury was still seated. “The defense moves to have all charges dismissed. This jury is constitutionally invalid, your Honor. The sixth amendment requires that the defendant be tried by an impartial jury, a jury of his peers. None of these good people are his peers. Not a single one has ever been wrongfully convicted of a crime by the use of doctored evidence and then spent twelve years in prison…”

  “Your Honor!” Harris practically exploded.

  “Not another word!” Koch practically yelled at Marc. “Say another word and you’ll spend the weekend in jail.”

  Marc stood with an impassive look on his face. He knew saying these things in front of the jury was going to get him in trouble. The mischievous little boy in him simply couldn’t resist. Plus, there was a possibility, minuscule at best, that Koch would agree. If she did, because the jury had been sworn in, jeopardy had attached and the case would be over. Double jeopardy would prevent the state from trying Howie again.

  “The jury is dismissed until Monday morning,” Koch said still seething.

  Harris and Marc sat down while the jurors were being led out. When they were gone, Koch turned back to the lawyers.

  “Move for a mistrial, your Honor,” an obviously angry Tommy Harris said while still seated.

  “Denied. I’m not going to begin over to pick a new jury,” she calmly said to Harris. “But,” she continued glaring down at Marc, “You will write a check for a thousand dollars to the court and you’d better not try to say something that inflammatory in front of this jury again. Do I make myself clear?”

  “Yes, your Honor. I was merely zealously representing…”

  “Give me a break,” Koch interrupted him.

  “I’ll appeal the fine,” Marc said.

  Koch thought about it and then said, “I’ll tell you what. I’ll suspend the fine, for now. But if you do it again, I’ll make it five thousand and you can appeal all you want. That goes for you too, Mr. Harris.”

  “What did I do?” Harris whined.

  “You’ve both been warned. I’m running this show and you will behave.”

  With that statement, she adjourned for the weekend.

  The dozen or so media members who had stayed until the end hit the door in a mad scramble to get this story out. This could be the beginning of an entertaining trial.

  “Give us a minute,” Tommy Harris said to the two deputies who were about to take Howie back to jail. “I’ve been authorized to make an offer,” he continued looking at Marc while Barry Cline and Howie looked on. “He pleads to two counts of second-degree and…”

  “No,” Howie said emphatically. “I ain’t pleading to anything.”

  “You haven’t even heard it all,” Harris said.

  “I don’t care. The answer is still no. I’m ready to go,” Howie said turning to the guards.

  Marc held out his left hand to Barry, palm up. Without either of them saying a word to Harris and while Harris and Paul Ramsey watched, Barry laid a ten dollar bill across Marc’s palm.

  “Told you so,” Marc said still looking at Tommy Harris.

  FORTY-EIGHT

  Gabriella Shriqui hurried from the government center to the outside of the building onto the front courtyard. The most recent snowstorm had moved into western Wisconsin and except for the mess it left behind, the weather was fairly nice.

  Her cameraman, Kyle Bronson, was already set up and waiting for her when she arrived. Gabriella had called the station to let them know what she had and the decision was made to put her on live with Melinda Pace.

  The entire second half of Melinda’s show was taken up by Gabriella’s report. Melinda was at her condescending best, or worst depending on your point of view, when Gabriella explained Marc’s attempt to have the case dismissed.

  “So, Traynor’s lawyer tried to pull a fast one on the judge and she didn’t go for it,” was the way Melinda put it to her audience. “Good for her. It’s nice to know there are some sensible judges who won’t put up with the sneaky tricks criminal lawyers try to use to get their clients off.”

  Gabriella bristled a bit at this last comment and found herself wondering why it bothered her. It was a sneaky lawyer’s trick and he did not get away with it.

  “He’s just trying to defend his client,” Gabriella calmly said. “That’s his job, Melinda.”

  “Thank you for a wonderful report, Gabriella. I just wish there was a camera in the courtroom.”

  “The trial starts Monday, Melinda,” Gabriella said finishing her reporting.

  On the walk to the parking ramp where she had left her car, Gabriella made a phone call.

  “Hey,” Maddy Rivers said when she answered Gabriella’s call. “What’s up?”

  “I need a drink,” Gabriella said, “and a bite to eat. Can you meet me?”

  “Seven o’clock?”

  “Perfect. I’ll see you then,” Gabriella said.

  Gabriella started her car and just as she was about to back it out of the parking spot, her phone rang. She dug it out of her bag, looked at the I.D. and decided to take the call.

  “Hello, Gabriella,” she heard the caller say. “It’s Derrick Boone, from the…”

  “I know Derrick,” Gabriella agreeably said. Derrick Boone was a lawyer in the county attorney’s office. Gabriella had wooed him as a source during a trial she had covered and his information was usually quite good. Plus, despite the ring on his finger, he was hot to have her. “What’s up?”

  “Can we meet for a drink? I have something juicy about the Traynor trial,” he said.

  “Gee, Derrick, I’m sorry but I already have plans to meet a friend.”

  “Bring her along, we’ll make it a threesome.”

  “And you can bring your wife,” Gabriella tossed back in his face, immediately regretting it. She did not want to lose him as a source.

  “Nice shot,” he laughed. “Okay, here it is…”

  When Derr
ick Boone finished lying to her about the plea offer he claimed Marc made to Tommy Harris, Gabriella called her boss, Hunter Oswood. Twenty minutes later she was in his office. Also in attendance was Madison Eyler.

  “This is bullshit,” Gabriella said. “Marc Kadella called me Monday evening and told me this was going to happen. They’re lying.”

  “How do you know Kadella wasn’t lying?” Hunter asked.

  “Positively? I don’t, except he swore to me this would happen and he wanted it on record that his client adamantly refused to even consider a plea. He knew Slocum’s office would make an offer and his client would turn it down. And he predicted Slocum would leak it to the media that Kadella made the offer and the prosecution turned him down. Less than an hour after court adjourned today that’s exactly what happened.”

  “Late Friday afternoon would be the perfect time to do it too,” Eyler chimed in. “It’ll be all over TV and the papers all weekend. The jurors are bound to hear about it.”

  “So, what do we do?” Oswood asked somewhat rhetorically as he leaned back, locked his fingers behind his head and looked at the two women.

  “I say we scoop everybody and report the lie. I’ll go on the air and report what I told you. Kadella called me and warned me this would happen,” Gabriella said.

  “And Slocum’s office will deny it,” Eyler said.

  The two of them, Eyler and Gabriella politely argued about it for almost two minutes with Eyler mostly playing the part of devil’s advocate.

  “Okay, here’s what we will do,” Oswood announced. Madison Eyler was the station G.M. and Oswood’s boss. Oswood, being the news director, normally had the final word on what went on the air. “I think we can have it both ways. We’ll go with the story tonight that Kadella made the offer. ‘Sources have informed us that…’ blah, blah, blah. Then,” he continued looking at Gabriella, “you try to get Kadella on camera tomorrow for a rebuttal.”

  “What if he refuses?” Gabriella said in a bit of a sulk.

  “Then he does,” Oswood said. “If that happens then he doesn’t get to go on and confirm that he called you ahead of time and told you this would happen.”

  “I did not want to say this, Gabriella,” said Eyler, “but if we do it your way we’ll have problems getting information out of Slocum’s office in the future. We can’t afford to damage that relationship.”

  “That’s a crock!” Gabriella steamed.

  “No, it isn’t and you know it,” Oswood interjected.

  Gabriella looked at both of them, took a deep breath, sighed and said, “Putting Marc on the air on Saturday won’t correct the damage to his client. Slocum’s office is using us and….”

  “It really sucks,” Oswood admitted. “But this is the way we’re going to handle it. Life is a two-way street and after this trial we’ll still have to deal with the county attorney on other matters.”

  Marc was seated in a client chair in front of Connie Mickelson’s desk. It was almost five o’clock and the two of them were the only ones still there. Connie liked to kick the staff out a little early on Friday afternoons, at least as often as she could.

  The two of them were going over the jury selection and Marc was bouncing a couple of ideas off his good friend. The office phone rang and Connie answered it.

  “Yes, he’s right here,” Marc heard Connie say.

  She covered the mouthpiece on the phone and whispered, “It’s Aaron Forsberg. You want to take it in your office?”

  “No,” Marc answered as he reached for the phone. “I’ll talk to him here. Marc Kadella,” he said into the phone, “what can I do for you, Aaron?”

  “I thought you’d like to know, the cops are still watching me. Even though they arrested Traynor and Parlow is dead, apparently they’re not completely convinced I’m not involved.”

  Marc was listening as he jotted down the date, time and a note about the substance of the call.

  “Thanks for the update. Anything else?”

  “No, that’s it. If anything else happens, I’ll let you know,” Forsberg said.

  “This is very interesting. I appreciate the call and keep me informed.”

  Craig Slocum knocked once as a courtesy then went into the conference room that Harris and Ramsey were using. Paul Ramsey was gone for the evening leaving Tommy Harris to wait for Slocum.

  “Did we get the information out to all of the media that we wanted to?” Slocum asked as he sat down.

  “We did,” Harris answered him. “It should be all over the news for the next couple of days. The jurors are bound to hear about it.”

  “Good. What about the flawed DNA test? The one that got this Traynor released from prison. What did you decide about it?” Slocum asked.

  Harris paused for a moment then said, “I think I should bring it out right away in my opening statement.”

  “I agree. If you don’t, Kadella will find a way to bring it up. He’s a sneaky little bastard. Better to bring it out into the open, use it as a motive so you can control it. What about the surveillance by the police?”

  “We have to tell the jury ourselves, Boss,” Harris said.

  Inwardly Slocum loved being called Boss. To him it was a clear, succinct statement of who was in charge. Harris made sure everyone in the office knew Slocum preferred the title. Because of this, very few of the staff or lawyers referred to Slocum this way.

  “I agree. Since you can clearly show how he managed to slip away, don’t leave it for Kadella. I’m off to a fundraiser,” Slocum said. He rose to leave then added, “Win this, Tommy, and you’ll soon be working for Governor Slocum.”

  FORTY-NINE

  Marc found Howie and Father John already in the courtroom and waiting for him. He shook hands with both men then directed the priest to the empty chair with the “Reserved” sign on it. Marc made sure that the court deputies would reserve the aisle seat for Father John in the front row directly behind the defense table. Judge Koch would not allow him to sit at the table with Howie but she did agree to set this seat aside for him.

  While Howie took his seat at the defense table, Marc walked up to the clerk’s desk and told Andy Combs, Koch’s clerk, he needed to see the judge. Marc motioned for Howie and the two prosecutors and Combs led them back to chambers.

  “Your Honor,” Marc said to her, “I want the jury polled before we get started.”

  “About what?” she asked although she suspected what it was.

  “Friday afternoon, Mr. Harris made a plea offer to my client which was promptly turned down. Within an hour, every news outlet in the Cities and many national ones as well, were reporting that I made the offer to them and they turned it down. Obviously, this was promptly leaked to make my client look guilty.”

  “I resent that!” Harris blurted out.

  “Give me a break,” Judge Koch said. “Did you or did you not make the offer as Mr. Kadella said?”

  “Well, yes but…”

  “Then why was it reported so quickly the other way? I saw the news myself and he’s right, it does make his client look guilty,” Koch said.

  Paul Ramsey, who had nothing to do with this, looked calm and relaxed. Tommy Harris, on the other hand looked like a little kid who just got caught with his hand in the cookie jar up to his elbow.

  “Before you open your mouth and lie to me,” Koch continued looking directly at Harris, “there better not be any more of these little games Craig Slocum likes to play. Do I make myself clear?”

  Harris sat silently not sure what to say.

  “I’ll be out in a few minutes. We’ll start opening statements then,” she finished looking up at the lawyers. “I don’t think we need to poll the jury. That would only serve to make sure they know about this.”

  Marc had the same thought. In fact, the reason he brought the subject up was to let Koch know the prosecution pulled this little stunt. Prosecutors love to claim they won’t try the case in the media but almost never miss an opportunity to leak damaging news to them.

/>   Tommy Harris went first and for the next hour and a half did a very credible job with his opening statement. The opening statement is the first opportunity for each side to address the jury as a whole. It is also another opportunity to make a good impression on them of yourself and your case. Not wanting to bore them, Harris walked them through the case competently explaining what the witnesses would tell them and the evidence they would see.

  “Ladies and gentlemen, you’re going to be told that the defendant was under surveillance during the time of these murders. Originally, he was watched by private investigators and retired police officers. There was then a gap of a few days after which the police themselves put him under surveillance.

  “Now, this may sound like an airtight alibi but it’s not. We will show you and present you with the physical evidence how the defendant evaded the police to commit these brutal, vicious murders.

  “And when we are done, you will have the evidence to prove beyond a reasonable doubt that Howard Traynor is guilty. Thank you, ladies and gentlemen.”

  While Harris led the jury through the prosecution’s case, Marc listened very attentively. It was the prosecution’s burden to prove beyond a reasonable doubt every element of every crime charged in the indictment. If Harris told the jury they would see or hear evidence or testimony about something and then failed to present it, Marc would use that in his closing argument. A significant part of a defense lawyer’s job is to make sure the prosecution delivered and made their case. If they failed to do so, if they were unable to provide sufficient evidence of a single part of a crime charged, then the verdict for that particular crime, must be a not guilty,

  Before Marc began, Koch called him and the prosecutors up to the bench.

  “How long?” she asked.

  “Not very,” Marc replied. “I’ll be done by lunchtime,” he assured her.

  “Okay, we’ll take a short break then you can begin.”

  It was after 11:30 by the time Marc started. His job, which of course he did not tell the jury, was to poke holes in the prosecution’s case and create reasonable doubt. Because of this, he used his opening statement to make a couple of significant points.