Legal Thriller: Michael Gresham: Secrets Girls Keep: A Courtroom Drama (Michael Gresham Legal Thriller Series Book 2)

by John Ellsworth

  I then tread water on unrelated issues for ten minutes and finally break it off. On a one-to-ten basis I would give this witness's effectiveness maybe a four. Maybe less.

  There is no cross-examination. Dickinson doesn't want to insult the three Catholics on the jury and it's a wise move on his part. Neither would I, and I hope I haven't. I was reaching, though, and they could very well have seen right through my ploy.

  45

  It is the twilight of the trial and the question has come up again. As it always does.

  Does the defendant testify? Does the defendant take the stand, impart his story, and undergo decimating cross-examination by the prosecutor?

  I say no, but the defendant, Jana Emerich, insists otherwise.

  "Who are you to say?" he complains noisily after the priest has returned to the gallery and the jury is out of the courtroom during our recess. "It's my case, dammit!"

  Which is absolutely right. He has the final say in the matter of defendant testimony. It is not my or any other defense attorney's decision to make, not ever. We can cajole and threaten and forecast devastation and dozens of years in prison, but, in the end, it's Jana's and every other defendant's call.

  And so he takes the witness stand and swears to tell the whole truth. As I knew they would, the jury is looking at him askance. They expect him to lie on his own behalf; they would do the same if it were them. It's human nature and that's how the game is played and everyone knows it. So, they are wary.

  We hurry through the background without much detail. The more detail I leave for cross-examination the better. The theory is that the prosecutor can bring out fresh detail but he won't be able to trap Jana with detail that I brought out. It's a cat-and-mouse back-and-forth and we're both expert at it, Dickinson and I.

  Then, "Directing your attention to October thirty-first. Were you here in court when your uncle Tim testified about your activities that day after school?"

  "Yes."

  "Is there anything about his testimony that you need to correct?"

  "No."

  "Uncle Tim told the jury you didn't leave your room that night. Is that true?"

  Keeping in mind that he previously told me and Father Bjorn, at the jail the first time Jana and I met, that he had been at the game that night. No questions about it at that time, definite yes, he was there.

  "Yes."

  "Yes, he's wrong?"

  "Yes, he's right."

  I am stunned. He has just lied. No, he has told the jury something different from what he told Father Bjorn and me at the jail. However, my professional affect doesn't change. I keep a straight face. I do not grimace and I do not telegraph how upset I am with Jana and his answer. I plunge ahead.

  "So you weren't at the game that night?"

  "No. I went over to the field the next morning and climbed up in the stands."

  "Why was that?"

  "I wanted to get a look at what was going on down below. Bobby Knupp called me and told me there was a dead body under there."

  "And--and--so you went to look?"

  "Yes. I climbed up in the stands. The cop was over in his car talking on his radio. That must have been when I dropped my muffler."

  My mind is whirling. My hands twitch as I leaf through my notes, buying time. Where do I go with this? It's unethical for an attorney to put false testimony on the witness stand. But there is a saving grace here for me: I don't know that it's false. I only know that it's different from what he told me at the jail. At the jail he said he'd been at the game. Today he says he wasn't at the game. Which one is true? I wasn't there so I have zero way of knowing. And this is how lawyers get into serious trouble with the Bar Association. They do it unwittingly or, like me, they do it half-assed, backing into a situation where they don't belong. I should call a recess now and talk to Jana out of the hearing of the jury. But to do so would send up a flag that something is wrong. So, in the interests of preserving my client's veracity (or lack) with the jury, I move it along.

  "The night of the game. What were you doing in your room?"

  "Listening to rap and doing my physics homework. We had a mid-term the next day."

  "Uncle Tim said it was a math mid-term."

  "He just didn't know. It was physics."

  "So he did get something wrong when he testified?"

  "I guess so."

  "Have you gotten anything wrong?"

  "No. I know what I was studying that night. It's only been four months."

  "Do you know Rudy Gomez?"

  "Yes."

  "What is your relationship with Rudy?"

  "Just a friend. We both have a snake."

  "Does he come to your house?"

  "He did last semester. Two times, I think."

  "Did he take any mice from you?"

  "I gave him three mice one time. He was out and his guy was hungry."

  "His guy?"

  "His snake was hungry."

  "Jana, did you murder Amy Tanenbaum?"

  "No."

  "Were you with her the night of the game?"

  "No. I already told you I wasn't even there."

  “Did you hear her friend Erin say you were there?”

  “She’s confused. That was the game before.”

  "Did you know Amy from school?"

  "No. She was a freshman and I'm a senior. We don't mix."

  "Was she in any of your classes?"

  "Maybe homeroom. I don't know for sure."

  "Have you spoken with the police about this case?"

  "Yes. Twice."

  "When was that?"

  "The morning after it happened and the day after Franny was murdered."

  "Both times, the police have talked to you about those girls?"

  "Both times."

  "Were you involved in any way in either of those tragic crimes?"

  "No, I wasn't."

  "Do you know anything about them?"

  "Only what I've heard and read."

  "But you didn't see anything yourself?"

  "No."

  "And you weren't there?"

  "No. I wasn't there."

  "That is all, Your Honor."

  "Very well. Mr. State's Attorney, you may cross-examine."

  Unlike some prosecutors, Dickinson doesn't run to the lectern as if he's ready to eat this man up and spit him out. No, Dickinson saunters, for want of a better term. He is casual, almost friendly, as he approaches my client and shoots him a small smile. Jana--damn him--smiles back. I don't want him smiling and loose. I want him uptight and mute right now.

  Dickinson flips a page on his yellow notepad and then flexes his right hand. He looks directly at Jana and purses his lips. Now there is no smile.

  "You want this jury to believe you didn't kill Amy even though your muffler was found near her dead body?"

  "Yes."

  "So you were at the football game?"

  "No."

  "Why not?"

  "I was studying for a physics exam. I want to be an engineer and I need good grades."

  "A snake engineer?"

  "I don't know what that is."

  "Tell us what physics you studied for your mid-term. Oh, before you do, I had a police officer contact your physics teacher to obtain a copy of the physics exam you told this jury you took on Friday, November first. Guess what? He didn't give an exam that day. Do you still want to stand by your story?"

  Jana nods. "I didn't say I took the exam. I said I was upstairs studying for it. We got to school the next day and the exam was canceled. You'll have to ask Mr. Ausberger about that."

  Dickinson appears to suppress a smile. It is an act. He's good, very good.

  "You also said you know Rudy Gomez. How do you know Rudy?"

  "Everybody does. The cops picked him up for killing Franny Arlington."

  Bingo. That was a setup, courtesy of Michael Gresham. We had talked and talked about how to get in the bit about Rudy killing Franny. I instructed Jana to wait for any question of whatever
nature from the SA referencing Rudy and to slip it in then. He did, right between Dickinson's ribs. Now I get to come back to that question on re-direct examination because the prosecutor opened the door.

  Dickinson quickly moves on.

  "Speaking of Franny, since you mentioned her, are you telling us you didn't have anything to do with Franny's death?"

  “No. Rudy was arrested for that.”

  "You said Rudy Gomez has been to your house?"

  "Yes. About three times."

  "And you gave him some mice?"

  "Yes."

  "Are you aware that a mouse was found in the mouth of Amy Tanenbaum?"

  "I heard that."

  "Are you aware that the hair from that mouse matched the hair from your mice?"

  "Yes. And matched the hair from Rudy's mouse."

  "And you say your muffler was found by Amy's body because you were there the morning after and dropped it through the bleachers?"

  "Yes."

  "So let me see if I understand you. Your same mouse hair was found in Amy's mouth, your muffler was found near her body, and the Superglue in her mouth was the same batch as your Superglue. Isn't that just a little too coincidental to be coincidence?"

  "I don't understand you."

  "Too many things that tie you to Amy make you appear to be her killer. Don't you agree?"

  "I didn't kill Amy. I don't know who did. What else do you want me to say?"

  "Mr. Emerich, were you ever in trouble in California?"

  "Objection. Relevance."

  "Sustained."

  "Were you ever arrested in California?"

  "The court objects to that question and I am going to admonish, you, Mr. Dickinson. That question is improper, you know it is improper, and if this happens once more in any form you will be looking at a mistrial. I might even revisit the defendant's motion for directed verdict."

  "Yes, Your Honor. Thank you."

  I am relishing this, of course. Moreover, I'm wondering how I might trigger such an impropriety again by the state and actually win a mistrial or dismissal. But I know I can't do it without Dickinson's help and by now he's been chastised enough. So, he shakes his head as if he's been treated poorly and takes his seat.

  "That's all I have," he tells the judge.

  If nothing else, his being called up short two or three times has rendered his cross-examination almost useless. I also know better than to play the Rudy Gomez-Franny Arlington card again. It would backfire and possibly open the door to extremely damaging questions by the state. So I back off, too.

  Jana is dismissed and takes his seat beside me once again.

  I then stand and rest the defense's case.

  My team could have presented Rudy in order to suggest he was a serial killer of sorts, but we ultimately decided against that. Why? Because it was a cheap shot. More importantly, though, I didn't sense that we needed it. Plus, it could have backfired, angering the jurors for attempting to point the finger at some kid without an attorney. Knowing Rudy's father, though, he would have had an attorney, a very good attorney, and our poking and prodding would have been fruitless and even come across as foolish. So we did the next best thing and pulled in our horns and rested.

  It was time.

  Judge Lancer-Burgess then gives the jury their instructions. This eats up ninety minutes and when she finishes it is two o'clock. Plenty of time for closing arguments.

  State's Attorney Dickinson gets to go first.

  46

  Trey Dickinson, Assistant State's Attorney, walked in here five days ago with a win-loss record of 65-0. As we're waiting for the jury following the judge's jury instructions and ten-minute recess, Dickinson leans across the four feet separating his table from mine and says with a smile that becomes a smirk, "So. I'm gonna start calling you Ole Sixty-Six."

  I give him an empty look.

  "What? You don't get it, Michael? I'm just a few hours away from my sixty-sixth win before a jury."

  "I'll bet that means more money in your pocket, right, Dick?" I say with all the sarcasm I can muster.

  "Fuck you and fuck that liar sitting next to you."

  He leans forward and looks at Jana.

  "I'm talking about you, boy. You're going away for a long time. Bubba's Bitch. That's your new name."

  "Hey, easy, Dick. You're personalizing," I say.

  "Yeah? Maybe that's because I stood in at Amy's autopsy, eh? I saw the mouse in the mouth. I observed the half-eaten cheek. Then you know what? Dr. Tsung opened her eyes. They were eyes of terror."

  He suddenly laughs and leans back to his own side of the aisle. He waves at me as if waving me off.

  "You had to be there," he says, finished.

  And five minutes later, he's making his closing argument to the jury. The same anger and rage that he spewed at us only minutes ago comes spilling out into the space separating him from the jury and ignites those people. Honestly, he has them and carries them for the next thirty minutes. At some point during this discourse every head nods along with him and refuses to look at Jana. Or at me.

  I know we are finished. Dead in the water.

  Unless I can put something together that surpasses where Dickinson has taken them.

  He sits and draws a deep breath. The judge looks at me so I proceed to the lectern. I have a prepared closing argument with notes on a yellow pad but I set those aside. The energy in the room seeps into me and I step up to the jury.

  "A killer walks among you," I begin. "So when you head off to bed tonight please double-check your door locks and window latches. Count the noses of your loved ones. Batten down the hatches because he is coming for his next victim."

  A look passes among the jury. They stir. They are uncomfortable. Press on.

  "What nobody has talked about--and what this case is really about, is the fact of three homicides at Wendover High over these past five months. We've been here in this courtroom day after day discussing a third of that killer's work. One homicide. And we are being asked by the state to blame that one on a young man who, no one doubts, had nothing to do with the subsequent two murders."

  They lean forward in their chairs; not much, imperceptible, as a buckle in the wind on a fall day. But they have reacted; I push on.

  "A student named Franny Arlington has died since Amy Tanenbaum. Was that the work of Jana Emerich? No one has said it is. No State's Attorney has indicted him for the crime. A third student has died, as well. Her name is Scarlett Newson and she was a young woman who spent most of her life confined to a wheelchair. Without regard to her disability or her desire to live, the same killer who killed Amy and Franny also killed Scarlett. But have they charged Jana with that crime? No. Nor will they."

  Two jurors are nodding with me now. A third has uncrossed her arms and her frown has relented somewhat.

  "And please remember. The police force in Chicago is thousands strong. The prosecutors in the Cook County State's Attorney's office are hundreds--maybe thousands--strong as well. And how many of these thousands of America's best prosecutors and law enforcement officials have pointed to Jana Emerich and said 'Young man, you've killed three now and you're done?'"

  Another juror and yet another nod. They continue nodding as I press on.

  "Let there be no mistake," I tell them, chopping at the air with my hand, "There is a killer loose among you and he hasn't been brought to justice, not yet.

  And what? Are we to believe the state that Jana Emerich killed Amy Tanenbaum and this somehow inspired this killer to kill Franny and then kill yet again?”

  "Nonsense. While the State's case is inviting at its cellular level, when viewed as a whole we all know it has entirely missed the point. The overview, the big picture, cries out for justice. The overview isn't your responsibility. It is the State's responsibility to come in here and present you with a coherent view of your world, the world of Wendover High, the world of Amy, Franny, and Scarlett. And guess what? The state has failed utterly to do that. Instead it has pu
rsued a boy who was an outsider and whom no one knew very well and was thus fair game. Until his father, a priest in Chicago, heard what was happening. And he said, ‘Enough! Enough! I am going to go before the people and help my son.’ So I was retained to come here and defend him against this wrong-headed attack."

  Now the Catholics are with me. I hate to be so base about it, but there you are. We win these cases one mind at a time. A pebble at a time, never an avalanche.

  On I continue. Building to a review of the facts in the case, which I spend not all that much time on as the jury knows all too well the simple facts of the State's case against Jana.

  Then I discuss reasonable doubt and go through the judge's instructions on the law. When I am done I have covered the facts and the law. Plus, I have covered what so often is forgotten in these rooms: the jury's need to do justice. All juries have it and there's the secret to winning: help them do justice.

  "So bring what has been so sorely lacking in this courtroom. Bring it because you can. I am talking about justice. Only you are allowed to do justice. Only you are burdened with doing justice. I am trusting you for it. Jana trusts you too. Vote not guilty. Go in there and vote and come back and tell this young man he is free to live his life, to go out from here relieved of the terrible burden placed on him by this detective and this team of prosecutors. Give him justice and be done with it. Thank you."

  It is silent when I am done and silent when I take my seat.

  The judge sends the jury to the jury room and, when they are gone, bedlam erupts. The press, too long quiet and respectful, suddenly are talking animatedly among themselves, phones are produced and connections made, and the TV camera--in violation of the court's order--pans the courtroom, sweeping east and west, north and south.

  Danny makes her way through the crowd and reaches us. Then comes Father Bjorn. He sweeps his son into his arms and hugs him--a first for them both. Danny throws her arms around me and lays her head on my chest and breathes. "It's over," she whispers above the bedlam. "It's over."

  Two hours later, there has been no word from the jury so the judge calls them into the courtroom and recesses the trial for the day. She admonishes the jury: they are to avoid all TV and newspapers and radio stations that are beaming out any news of the trial. They are to refrain from discussing it with anyone. They are to tell the judge immediately if anyone approaches them about the trial and tries to influence their vote.