He cleared his throat. “It’s a motion in limine, your honor. The defense wishes to suppress any mention of the syringe allegedly found in an unattended trash bin outside the foster home where my client lived prior to his arrest.”
“Okay. All right.” Smulders shuffled through the papers on his desk. “Got it. You want to keep out the syringe.” He glanced up at Jazlyn. “You ok with that?”
She pursed her lips. “The prosecution is most definitely not ok with that, your honor. We oppose the motion. The syringe is keenly relevant. It has the defendant’s prints on it—”
“Possibly,” he interjected.
“—and contains traces of a deadly poison.”
“Possibly.”
“We believe it was the murder weapon.”
“Even though,” he added, “the corpse was dissolved virtually without a trace and thus could not be tested for cause of death.”
“But the tox screens indicate that the victim might well have been poisoned before he was...dissolved.”
“And then again, he might not have been.” He knew this was not the strongest motion he’d ever made, but given the judge’s lack of experience, he might get away with it. No judge likes the thought of being reversed on appeal, and a judge so inexperienced, saddled with a big case, his first-ever death penalty case, might be particularly nervous about screwing the whole thing up. “Listen to what she’s saying, your honor. Possible. Virtually. Believe. Might well have been. Everything she says is equivocating and uncertain. Evidence of this nature will only confuse the jury.”
Jazlyn didn’t let that pass. “The jury is always free to disregard evidence they find unconvincing.”
“But will they?” He took his voice up a notch. “We all know the prosecution has a massive advantage, particularly in high-profile cases like this one.”
“I don’t know that at all,” Jazlyn murmured.
“Evidence like this confuses jurors, most of whom already have problems dealing with complex forensic matters. The prosecution goes on and on about prints and trace elements and before long you’ve got an incorrect verdict based upon next to nothing.”
The judge shifted his weight uncomfortably. His eyes darted to his clerk. “Well, I certainly don’t want the jurors to be confused...”
“But the prosecution does, your honor. Even if people don’t believe the syringe was the murder weapon, introducing it could suggest some kind of illegal drug use. That could be defamatory and prejudicial, though not relevant to the question of who committed the murder.”
“Drug addicts have been known to commit crimes,” Jazlyn said dryly.
“Not a crime as complicated as this one. Are you now shifting to a crazed druggie theory?”
“No, just pointing out how relevant this evidence is.”
“If you want to bring drug charges, go for it. But you won’t, because you’re not even sure Ossie put the syringe in the trash can. My point is, your honor, the only evidence that should be admitted is evidence of who committed this murder.”
“The syringe is far from the only evidence we have against the defendant,” Jazlyn said. “I could recite a long list—”
“But please don’t. If you have so much evidence, you don’t need this keenly disreputable syringe. If I may explain further, your honor, this syringe was found by a so-called Dumpster diver, basically a homeless person living off the trash of others.”
“Which does not in any way impugn his testimony,” Jazlyn insisted. “We can’t all live on a yacht and drive a Bentley.”
Ooh, nice burn. “My sailboat is not a yacht, but that’s beside the point. The witness says he found the syringe in the trash bin outside the home where my client was staying, but we have only his word for that. And many people lived in that house. And the prints are sketchy and uncertain. And the prosecution isn’t even sure about the cause of death. Bottom line, your honor, this evidence is far more likely to confuse than to assist. The court should apply a balancing test, and the balance will come down against this evidence.”
Judge Smulders raised a finger. “Balancing test. I remember hearing that phrase in law school.”
Which apparently was about ten minutes ago. “Furthermore, there is the matter of payment. The prosecution paid this man for his testimony.”
“Now wait just a minute,” Jazlyn said. “I explained the situation in detail in my brief. The witness was in a bad way when he came to the police and he requested assistance. We provided food and clothing and a motel room where he could stay temporarily. We did not give him money.”
“No, you gave him something far more valuable. But the point is, he was compensated for his testimony. More to the point, he came looking for compensation, knowing he’d have to give you something good to get it. He’s basically a jailhouse snitch, except he’s on the streets rather than behind bars.”
“All we did was give the man clean clothes and a place to sleep.”
“Which for someone in his situation, was manna from heaven.”
Judge Smulders raised his hands. “Please slow down. This is getting confusing.” He frowned, deep lines creasing his forehead. “Can’t you just...bring all this up during the trial, Mr. Pike? Let the jury decide?”
“Exactly,” Jazlyn said. “Trust the citizens of this county. Let them decide whether the evidence is credible or not.”
“That’s not the best approach, your honor. The jury will have enough to deal with. Let’s make this a little simpler.” He paused, then played his trump card. “After all, a man’s life is on the line here.”
Judge Smulders’ face turned pale white. “Well, gosh. I just—I’m not sure—” Again his eyes drifted.
To his right, at her desk, his clerk Bertha raised her hand to cover her mouth, then muttered—quietly, but not so imperceptibly that everyone didn’t hear it. “More probative than prejudicial.”
Judge Smulders snapped to attention. “Yes, that’s it. This evidence may not be perfect, but it’s more probative than prejudicial.”
Bertha’s hand didn’t move, but her lips did. “Cross-examine.”
The judge nodded his head furiously. “And you’ll have a chance to cross-examine at trial, right? You can bring out any problems you have with the evidence then.”
He’d never seen anything like this in his life. Mortimer Snerd as death-penalty judge.
More rumbling from the clerk’s desk. “Renew motion.”
The judge smiled enthusiastically. “And you can renew this motion at trial, if it appears that the evidence is more prejudicial or not so probative.”
But by that point, the irreparable damage will already be done. “There’s no point asking the jury to disregard something they’ve heard, your honor. It only reinforces it in their brains.”
“Still, I think this the way to go. So, sorry Charlie, but I think this means your motion is overruled. Right? You lose. She wins. No hard feelings, ok?”
He literally did not know what to say.
“Thank you, your honor,” Jazlyn said.
The judge wiped his brow. “Whew. Glad that’s over. Okay, if there’s, like, anything else we need to deal with, then—wait.” He reached under his robe and withdrew his cell phone. “Oh gosh. People are yakking about this case online. Should I do a gag order or something?”
He thought for a moment. That would certainly create confusion. But it would also create delay, and he wanted this trial to stay on track. “I don’t think you can halt a Twitterstorm, your honor.”
“Probably right.” He tapped his phone a few more times. “Wow. Maria Morales. Isn’t she a member of your firm, Mr. Pike?”
“Ye-ess...”
Judge Smulders smiled. “We’re Facebook friends.”
Did that mean they would win the trial, or lose it?
Jazlyn spoke. “Is that...completely appropriate, your honor?”
He shook his head. “Oh, don’t fuss. I have 420 Facebook friends.”
“Still...”
; “And I’ll accept you too, Ms. Prentice, if you care to follow me. Boost my numbers. Yay.” He looked away from his phone. “Anything else, lawyers?”
“Not at this time, your honor.”
“We’re going to start the trial on Monday morning, right? You’ll be ready, Mr. Pike?”
“I will be, your honor.” And be sure to bring your clerk, so you can get past the first objection.
Chapter 28
Dan huddled around the kitchen table with Garrett and Jimmy. The mood was dark and their expressions were grim. Garrett was not noodling on his keyboard and Jimmy was not playing with his action figures, so he knew they felt the ominous mood just as profoundly as he did. “I don’t think I’ve ever gone into a trial feeling less sure of myself. Or of my case.”
“Don’t beat yourself up,” Garrett said. “I know the hours you’ve been pulling. You’ve left no stone unturned.”
“And yet, there are still so many unturned stones. I’ve been over all the evidence provided by the prosecution, but I can’t shake the feeling that there’s something more. Something important we don’t know.”
“The prosecution has to produce all exculpatory evidence,” Jimmy reminded him. “I’ve talked to Shawna and my other pals at the courthouse. She doesn’t think the DA is up to anything sneaky.”
“And yet we know he’s bringing in a ringer to prosecute. That’s another problem. I don’t even know who my opponent is yet.”
“The word on the street is that Belasco is tired of being beaten in the courtroom by you. I think there was some concern that...you and Jazlyn are getting too chummy. When the prosecutor and the defense counsel start attending the same birthday parties...”
“We don’t have to pretend to be hostile to do our jobs properly.”
Jimmy raised his hands defensively. “Hey, don’t kill the messenger. I’m just suggesting a possible reason for hiring an outside prosecutor. Belasco wants to win.”
“Have you had a chance to review my witness outlines?” Garrett asked.
“Repeatedly. You did the usual fantastic job I’ve come to depend upon.”
“I predict the prosecution will come on strong. They almost have to, given the circumstances. They don’t have a body. They’re only guessing about how the murder was committed.”
“When witnesses come on strong, when they stick to their guns despite all evidence to the contrary, jurors stop believing them.” A light bulb flashed in his brain. “Oh hell. Judge Smulders asked for trial briefs. Why would he do that?”
Jimmy shrugged. “Because he has no idea what he’s doing.”
“Probably heard the phrase ‘trial brief’ and thought it sounded cool. Has no idea what a waste of time they are.”
“Only a waste of time if you have to write them. In his case, anything might help.”
“That babe-in-the-woods is not remotely ready to preside over a death case.”
“Have you considered filing a complaint?” Garrett asked. “Ask the chief judge to appoint someone else?”
“And make an enemy for life? Possibly several?”
“Better than letting our client be executed because the judge is incompetent.”
“I think that’s a bad idea,” Jimmy said. “In the first place, I don’t think it would work. You’d just end up with a trial judge who thinks you don’t like him, so he constantly rules against you. In the second place, it looks like you’re running scared.”
“We are running scared.”
“But we don’t want it to show, right?”
He frowned but acquiesced. “I suppose I can carve out some time tonight to write the brief.”
Jimmy plopped a tall stack of papers in front of him. “Don’t bother. Already did it.”
“Why didn’t you—” His eyes widened. “Bless you. That is such a relief. One less thing to worry about.”
They heard a slamming door. Maria raced inside. “Sorry, everyone. Got tied up at the jailhouse.”
Jimmy arched an eyebrow. “I assume you mean that metaphorically.”
She dropped some notebooks on the table and collapsed into a chair. “I think that old guy at the front desk might enjoy tying me up. He seems the type.” She passed the notebooks around. “This is our final-draft trial strategy. I made a copy for everyone.”
Dan took his and opened it, scanning the first page. “You think the prosecution will say it’s all about the money.”
She nodded. “That does seem like the most persuasive path to take, doesn’t it? I know people who have been killed in a fight over fifty bucks. When there’s a billion dollars on the line—it would almost be more surprising if no one got murdered. But we can use that, too. After all, Ossie isn’t the only relative involved.”
“Are we naming an alternate suspect?”
“I don’t think we have to. Benny, Dolly, Phil, Sabrina. That obnoxious kid. Even Zachary isn’t above suspicion. I don’t think you even have to put them on the stand, and it might be better if you didn’t, given how much they despise Ossie. Just make sure the jury knows they’re out there lurking.”
“So our strategy is, Pin the Tail on the Relative.”
“No, that’s how we spin the prosecution strategy. Our strategy is, the police are in cahoots with powerful forces trying to frame our client.”
He rifled through the pages of the notebook. “You think this could work?”
Maria pulled some reports out of her briefcase. “We’ve tried it several different ways in our mock trials, and this seems to work best.”
“When you employed this strategy, Ossie was acquitted?”
Maria craned her neck. “Well...the mock jury thought about it longer, anyway.”
He gave her a stern look. “How often did this actually succeed?”
“Success is a relative term....’”
“How often did your mock juries acquit Ossie? Fifty percent? Forty?”
“Actually...” Her eyes wandered off. “None of them did.”
“None? Not one?”
“Sorry. It’s in the report. But there’s been so much pretrial publicity—”
“How many mock trials did you run?”
“Fourteen.”
“And not a single jury voted to acquit?” His eyes moved from one partner to the next. “We’re doomed.”
Jimmy sniffed. “I don’t put that much stock in mock juries.”
“Neither do I. But—none? Zero acquittals out of fourteen?”
“Bear in mind,” Garrett said, “there’s one very important difference between all those mock trials and the real deal.”
He tried not to look completely despondent. “And the difference is?”
“Those mock trials didn’t have you, Dan.”
He pressed his hand against his brow. He knew his teammates were trying to stay positive. But the future looked bleak. He’d never heard of a mock trial run that didn’t have at least one positive result.
“What about the jury consultant?” He still hadn’t met the man. And now he didn’t want to meet him. “Does he have any brilliant advice?”
“He thinks we have a tough job. The prosecution holds all the cards. We have lots of bad forensic evidence, plus a damning name written in steam on a mirror. And with so much money in the balance, it’s easy for people to become cynical.” Maria reached out and squeezed his wrist. “I’ve seen you produce miracles before, Dan.”
“Not like this.”
“I visited with Ossie at the jailhouse. That’s why I was late. He didn’t want me to leave. He’s so sad. But he hasn’t given up. He still has hope.” She leaned forward. “Because of you. He believes in you. Or more accurately—he thinks you believe in him.”
“I do believe in him. I’m convinced he did not commit this crime.” His voice broke. He felt despair welling up in his throat. “But I have no idea how to convince a jury.”
* * *
Dan walked down the lonely sidewalk that led to the marina where The Defender was docked. No one else was
around, which tended to be the case well past midnight. He’d worked as long as he could keep his eyes open, trying to cover every contingency, every possible turn of events. He wasn’t sure he’d accomplished a thing. He just wanted to assure himself he’d done all he could—so he wouldn’t blame himself if it all went bad.
Except he knew he would.
Maria said as long as he was in the picture, Ossie still had a chance.
She believed it. He didn’t.
Camila was at her own place, wisely assuming he wouldn’t want company on the eve of trial. So he would be left alone with his thoughts—which wasn’t necessarily a great thing.
He walked down the lonely boardwalk and unlocked the gate leading to his beloved boat.
Three men waited for him on the other side of the gate.
The one in the middle was the tallest, half a head taller than Dan and a lot thicker. The one to the left had small dark eyes. The one on the right smiled.
He’d seen that man before. But on the previous occasion, he was wearing a UPS uniform.
“Did Sweeney send you?”
None of them answered. The man in the middle stepped forward silently.
“Is this supposed to intimidate me? It won’t work. I won’t betray my client.”
No response.
“You know, I have a lot of friends and—”
The tall man’s eyes shrunk. His lips contorted into a smirk, then a snarl.
The other two stood on either side, watching.
The man in the middle bent his knees and swung his fist around toward Dan’s face.
He didn’t wait for the punch to land. If he was going to survive this, he had to take the initiative. Last time, he’d been a punching bag. He wouldn’t be that helpless this time around. He led with his best right punch, fast as he could, right into the solar plexus. The man might outweigh him, but if he lost his breath he’d be incapacitated, at least for a moment or two.
The punch landed. The tall man staggered backward. His two companions looked surprised and not pleased.
Turning toward the man on the left, he threw a left uppercut into the smaller man’s ribs. He tried to put as much weight into it as he could. The man grunted and bent over, clutching his stomach.
Trial by Blood Page 15
