He had a laundry list of questions addressed to the burden of proof. This was where he started conditioning jurors to his case.
“Mrs. Jones, do you understand that the state has the burden of proof to prove its case beyond a reasonable doubt?
“Do you understand what a reasonable doubt is?
“Do you understand that the defendant does not have to present any evidence whatsoever?
“Do you understand that the defendant himself has a constitutional right not to testify?
“How do you feel about that?
“If the state fails to prove its case beyond a reasonable doubt, do you understand that it is your sworn duty to find the defendant not guilty?
“Will you do that if the evidence does not support the state’s case beyond a reasonable doubt?”
That last one was particularly important. He had to get that commitment and he had to evaluate each person’s demeanor as they gave that commitment. It was an art, not a science, and Jack was an artist.
It took two days of questioning potential jurors before both sides were satisfied with a panel of twelve and two alternates. The process had gone rather smoothly. The lawyers had conducted themselves professionally, and Judge Middleton was continuing to feel comfortable. He swore the jurors in at six o’clock on Tuesday evening.
The fireworks would begin promptly at nine o’clock the next morning.
Jack had still not heard from Charlie since their conversation on the previous Monday, so he gave her a call that evening from Mike McDermott’s office.
“I’ve got good news and I’ve got bad news,” she told him. “I found the telephone records. They were tucked away in the back of the last box. I think that was intentional.”
“Probably so,” Jack replied. He was antsy. He wanted to cut through the small talk, but he knew Charlie needed to have her say. She was the one buried under mounds of paper. “So, did you find anything?”
“Yeah. There was a person in Florida that Carl Robertson was calling all the time. He wasn’t in Gainesville, though. He was in a little town called Micanopy. I found thirty-eight calls in the month before Robertson’s death-twenty the month before that.”
“Do you have a name and an address?”
“Yeah, I do. His name is Leonard Woods and his address is 26 Robin Lane, Micanopy. I called the number; it’s been disconnected.”
Jack didn’t know if this was a break or not. So Carl Robertson had a good friend somewhere in Florida that he talked to a lot. So what? He would have to pursue it, though.
“Where the hell is Micanopy anyway?” he asked Charlie. “I’ve never even heard of it.”
“I checked on that for you too. It’s a small town north of Ocala.”
“Okay. I’ll get Henry on it right away. What’s the bad news?”
“I haven’t even started wading through the financial records. Where are you in the trial?”
“We’ve picked a jury. We start opening statements in the morning.”
“How long will it take for the state to put on its case?”
“I think they could do it in two days.”
“If that’s the case, Jack, you’d better hope Leonard Woods has something for you, because I won’t.”
“I understand, Charlie, but keep at it. You never know what might happen.”
He called Henry as soon as he got off the phone.
“We got a name. Charlie says Carl Robertson called a guy named Leonard Woods in Micanopy, Florida. Apparently it’s a little ways north of Ocala. The exact address is 26 Robin Lane, and the closest major airport is probably Tampa.”
“So I take it you want me to get on a plane and go visit Mr. Leonard Woods.”
“Tonight.”
“Tonight?”
“That’s right. It may be our only lead. Charlie hasn’t even touched the financials yet.”
“All right. I’ll see if I can find a red-eye and get down there. Jack, remember everything I told you. Watch yourself. And be sure to call on your way home so somebody is waiting for you. And take a cab.”
“I will.”
Jack worked for another hour until his brain was no longer functioning. He wasn’t ready to go to sleep, and a drink or two to calm his nerves seemed like a good idea. He reached into his wallet to see how much cash he had and found the note from Molly with her phone number.
Molly answered on the second ring. “Hello?”
“Molly, this is Jack.”
“Jack, I didn’t think I’d ever hear from you again. How’s the trial going? I’ve been following it a little bit in the paper. You’ve been doing jury selection, is that right?”
“That’s right. You’ve been paying attention, I see. It’s going very well. We finished picking the jury today. Assuming we get through opening statements, the prosecution will start putting on evidence tomorrow. Listen, I know it’s late, but would you like to have a drink?”
Molly didn’t hesitate. “Sure. Where are you now? I can meet you.”
“I’m downtown still. I know you’re in the West Village. Is there someplace in between?”
“Yeah. There’s a little Irish bar called Colin’s Place over on Spring Street, two blocks east of Broadway. I can’t remember the cross street. I’ll meet you there in fifteen minutes.”
Molly was already there when he arrived. She was a sight for sore eyes even though the red bikini had been replaced by a bulky wool knit sweater, boots, and jeans. Jack gave her a big kiss. Molly glowed.
“Here we are in New York City,” she said with that familiar sparkle in her eyes.
“Yeah. It’s a far cry from Bass Creek, isn’t it?”
“They both have their advantages, don’t you think?”
“I do. Still, I’ve been in the city for only a week and I’m already missing Bass Creek.”
They chatted for about an hour. It was precisely what Jack needed to relax. He wanted more than anything to invite himself home with Molly, but he knew he couldn’t. He had an early morning, and Henry’s words were ringing in his ears. After his second beer, he told Molly he had to leave.
“I’ll call you tomorrow night. Maybe we’ll meet again for a drink.”
Molly gave him the kind of good-bye kiss that ensured he would call the next day.
“Good luck tomorrow,” she said, her eyes holding the connection between them as he headed for the door.
58
Jack knew that Wednesday morning outside the courthouse would be different from the previous two days. He hadn’t anticipated how different.
George, the bodyguard, drove him downtown in an old Mercedes with heavily tinted windows. George was not a talkative person, and no words passed between them during the trip. He let Jack off on a side street a couple of blocks from Centre Street so that nobody would see how he’d arrived and be able to recognize the car and follow it.
“I’ll call you tonight when I’m on my way home,” Jack told him before shutting the car door.
“Uh-huh,” George muttered.
The crowds were thick, and there was some pushing and shoving when he reached Centre Street. He was carrying his trial briefcase and had trouble working his way through the mayhem. He saw the kiosks all lit up across the street. Several people in the crowd were carrying signs. In the immediate group around him all the signs had slogans against the death penalty. On the other side of the entrance to the criminal courts building the signs were all pro death penalty. The two groups were shouting at each other and chanting in unison like opposing fans at a football game.
The police had erected barriers to either side of the courthouse entrance to separate the crowds and prevent them from entering the building. Somebody in the crowd around him recognized Jack and shouted, “Way to go Jack! Keep fighting for justice.” Others picked up the chorus. He shook hands and smiled as he tried to shoulder his way through to the wooden barriers. When he finally got there he yelled to a cop to tell him who he was. Finally a sergeant noticed him, came over, and motion
ed him to climb under the barrier. He was in the open space now where everybody could see him. The crowd he’d been in was cheering; those on the other side booed loudly. Jack walked up the steps and into the building.
The last week before the trial, when the media was showering its attention on Benny’s plight, Jack did not read the newspapers or watch the news. He didn’t want or need that kind of distraction, so he had no idea what the media was writing and talking about. Since he’d undertaken Benny’s representation, Jack had focused solely on the strategy he was going to use to try to get him off. He’d assumed the high profile of the case came from Carl’s status as a wealthy captain of industry. Yes, the governor had been very vocal touting the death penalty, but New York hadn’t executed a person in fifty years. The signs and the attitude of the crowd had surprised him. In the eyes of the public, the New York State death penalty was on trial.
As he rode the elevator to the eleventh floor, Jack realized that the public’s focus on the death penalty was a good thing. If Benny was convicted, so long as there were grounds for appeal, his case would remain in the spotlight. The public would follow it through the entire appellate process and at every juncture apply pressure on the judiciary. His job was to make sure there would be an issue for appeal in the event Benny was convicted.
Even though Jack was thirty minutes early the courtroom was already full of spectators. Luis was there. Benny had not yet been brought in. Jack took his place at the defendant’s table and turned to Luis.
“Remember what I said, Luis. This is my courtroom.” Luis smiled nervously to let Jack know he understood.
A court officer approached and whispered in Jack’s ear. “Your client is in there,” he said, pointing to a door on the right side of the courtroom. “He’s changing.” Jack walked over to the door and into the room. Luis had brought Benny a new blue suit, a white shirt, a red tie, and black shoes, and Benny was getting into the pants when Jack walked in. Three guards were in the room with him.
“How are you feeling?” Jack asked him.
“A little nervous but fine,” Benny answered. He seemed a lot better off than his father. When he had finished getting his pants and shirt on, Jack helped him with the tie.
“You’re going to look like one of the lawyers,” he remarked. Benny smiled sheepishly. “Seriously, Benny, you look really good. When we go into the courtroom, I want you to stand when everybody stands and I want you to stand up straight. When you sit, sit straight. No slouching. No matter what anybody says on the stand, I don’t want you to make any facial expressions, understand?”
Benny nodded.
“As I’ve told you before, the jurors will be watching you constantly. Even though you won’t be testifying, they’ll be watching you and sizing you up. An important part of all this is you and your demeanor in that courtroom. Got it?”
“Yeah,” Benny answered. “I’m ready.”
“Okay, let’s go.”
Benny followed Jack into the courtroom and Jack showed him where to sit. He took a yellow pad and a pen out of his briefcase and put them on the table in front of Benny.
“You can write things down, even doodle-anything that makes you look attentive. If you want to alert me to something, write it down. Don’t talk to me while somebody is testifying because I can’t divide my attention. And remember, don’t tell me anything about what you did or didn’t do on the night of the murder.”
“I understand,” Benny told him.
They both sat down and Jack started unloading the contents of his briefcase onto the table and readying himself for his opening statement.
Spencer Taylor was already in the courtroom at the table farthest away from the jury. Like most prosecutors, he wanted the scum-sucking, lowlife defendant as close to the jurors as possible. As the trial progressed and Benny’s guilt became apparent, he wanted them to have a bird’s-eye view of him. Spencer trained his perfect pearly whites on Jack before the jury came in, flashing his best smile.
“Good morning, Counselor.”
“Good morning,” Jack said blankly.
Spencer’s table was all set up. He had a yellow pad directly in front of him and his exhibits stacked neatly on the table. Norma Grier, the deputy district attorney who had assisted Spencer earlier, wasn’t there. Spencer wanted the battle to be mano a mano, solely between him and Jack Tobin. He was still bristling from the stunt Jack had pulled at the hearing, not to mention the files he’d stolen from the warehouse. Spencer wanted to gut Jack in the middle of that courtroom, and he didn’t want any help when he did it.
Promptly at nine o’clock Judge Langford Middleton walked into the courtroom, and the bailiff announced the beginning of the proceedings. “All rise!” he bellowed.
Everybody stood up. Jack stole a glance at his client. Benny was standing at attention looking straight ahead. If only he can stay that way for the rest of the trial, Jack thought.
“You may be seated,” the judge announced. He waited for everyone to settle before delivering his opening remarks.
This was Langford Middleton’s moment. The years were starting to show on him. His once-thick brown wavy hair was now gray in spots and almost completely white at the temples, and age lines creased the corners of his eyes. He was still an imposing figure, though, and in his black robes, on this stage, he certainly looked like a judge. Nobody could see that underneath those robes his knees were shaking.
“Ladies and gentlemen,” he said in a great booming voice addressing the spectators, “your presence here is a privilege-a privilege that may be revoked at any time. This is a courtroom. It is not a movie theater. It is not a television studio. A man is on trial for his life. You will not root for one side or the other. You will not comment in any way on the testimony. You will sit and observe in silence and, if you cannot do that, you will be removed by court personnel, forcibly if necessary. Do you understand?”
Everybody seemed to nod as one. It was an auspicious start for the judge.
“Counselors, is there anything we need to take up before we bring the jury in?”
“No, your honor,” Spencer and Jack answered almost in unison.
“Bring in the jury,” he instructed the bailiff.
When the jury was seated, the judge turned to the prosecutor. “Mr. Taylor, you may proceed.”
“Thank you, your honor,” Spencer replied as he walked to the podium, which was now situated directly in front of the jurors. He was wearing a tailor-made charcoal gray suit, a crisp white shirt, and a lavender tie. His hair was once again coiffed to perfection and his clear, smooth skin was lightly bronzed, probably from a tanning booth. In short, he looked beautiful.
Spencer stood at the podium and made eye contact with each juror. When he started to speak, his words were warm and generous, his smile captivating.
“Good morning, ladies and gentlemen. As you know from jury selection, my name is Spencer Taylor, and I represent the people of the State of New York.” He didn’t say “you the people,” but they got the message. “And I am proud to stand before you today in that capacity.” The words were a little overdone, but he seemed to pull it off. His blue eyes spoke of nothing but sincerity and conviction.
Jack watched the jurors, especially the women, fall for Spencer and his schmaltz.
When Spencer finally got to Benny’s case, he began by describing the victim, Carl Robertson, and his stellar and lucrative career in the oil business. Then almost reluctantly he told them about Carl’s “imperfections,” that he’d had a mistress whose name was Angie and that he’d brought her money every month and paid for her apartment.
He briefly described what Angie’s testimony would be and told them he would also be calling two eyewitnesses, Paul Frazier and David Cook, who lived in Angie’s building. They had heard the shot and immediately gone to the window and seen a man leaning over the body of Carl Robertson. They’d later identified that man as Benny Avrile, the defendant.
It was a simple story of motive and opportunity:
Benny was there, the motive was robbery, and he’d shot Carl Robertson in cold blood.
“The only question you have to answer, ladies and gentlemen, is this: Does the evidence prove beyond a reasonable doubt that the accused, Benny Avrile, killed Carl Robertson in cold blood? The answer is a resounding yes.”
Spencer was driving an express train. His opening had taken only twenty minutes. He hadn’t talked about any of the forensic evidence. He didn’t need to. It would come up during the testimony itself, clearly supporting the simple, straightforward story he had told the jury.
It was now Jack’s turn. Jack had considered waiving his opening and giving it at the start of his defense. But this was a fight, like a boxing match or a gladiator’s duel. The jury had seen and heard from Spencer; now they wanted to hear from him. He had a problem, though, and it was a big problem. He still didn’t know what his defense was. All he could do was give them what he had at the moment.
In his preparations, two major issues had concerned Jack, the first obviously being the charge of first-degree murder. The second problem was almost of equal importance: the felony murder count. The felony murder rule basically provided that if someone was killed during the commission of a felony, everyone involved in the felony was guilty of murder. Thus, if Benny was attempting to rob Carl Robertson, that was enough for a conviction under the felony murder rule. Felony murder was second-degree murder and not punishable by death.
The governor wanted death. Spencer Taylor wanted death so badly Jack was sure that the man could taste it; anything less than a first-degree murder conviction would be considered a blot on his resume. Jack hoped to take advantage of that relentless focus to at least dispose of the felony murder count. Then the jury would only have one issue to decide.
The Law of Second Chances jt-2 Page 30
