by Marcia Clark
Declan shrugged. It was a choice between death by hanging or by poisoning. There weren’t many good options here. I booted paycheck loan guy and the “waiter” and prayed I was wrong about the rest. Like it or not, by five thirty we were done.
“Congratulations, we have our jury,” Judge Osterman said. “Ladies and gentlemen, would you please stand and raise your right hand.”
Exhausted, I watched as Judge Osterman swore them in, wondering if I’d already made the fatal mistake that would set a murderer free.
64
I called Bailey to tell her we had our jury. “And it ain’t pretty.” I’d been filling her in all along, giving her the highlights—or rather the lowlights—of each day’s proceedings. Bailey was still angry and incredulous about Terry’s opening salvo.
“Rampart Division? Has she lost her mind?” Bailey said nothing for a few moments. “So they’re definitely going for the conspiracy tack.”
“Oh yeah. Terry’s definitely going there, and she’s taking the jurors with her.” I’d told Bailey all about the alarmingly receptive audience Terry had found in our jury pool.
Though Terry had produced nothing to back up her conspiracy claim, the press had run with it as though proof were a foregone conclusion. “The only question,” one commentator said, “is whether the prosecution can overcome this incendiary defense. And on that score, most agree, all bets are off.”
It was, in large part, hype that was meant to make it a close race. I couldn’t afford to get down about it; opening statements would begin before we knew it. Personally, I never do lengthy openings. I prefer to promise less than I plan to deliver. It gives the unheralded evidence an added zing, and it keeps the defense from claiming we made promises we couldn’t keep. I knew the defense wouldn’t say much, if anything. They didn’t want to tip their hand.
Over the next few days Bailey and I put in the finishing touches. Our most important being the ordering of our witness list. I usually like to call a victim’s friend or family member first. It humanizes my victim—always a challenge in a murder case, since the victim can never appear, while the defendant, all cleaned up and pretty, is ever-present. And, if well coached, crying on cue. But I wouldn’t be able to do it this time. Not with Russell dead set against me and Raynie still ambivalent. The night before opening arguments, I was still unsure about who to put on first. Bailey read my thoughts.
“We could start with Mackenzie,” she said.
“But she’s awfully young. We don’t know how she’ll bear up. And I don’t know that I want to open our case by admitting our victims were extorting Russell. We’ll have to get there eventually, but I’d like to at least start strong, put this case on solid ground before I get into problem areas. How’s Raynie sounding?”
“I only really talk to her about scheduling, but from what I can tell, she’s still pretty wishy-washy.”
I’d never before been in the position of having the victim’s family at odds with us in a murder case. “Maybe once Raynie and Russell see it all put together, they’ll come around.”
Bailey gave me a skeptical look. I knew she was right, hard as it was to swallow. “Then I’ll start with the physical evidence.
“How about Dorian?” Bailey suggested.
It made sense to start with our criminalist. She collected nearly all of the evidence, so I’d need her testimony before I could call the fingerprint and blood analysts—plus, she was a strong witness. But this time, since I couldn’t call any friends or family for a while, I had a different plan of attack.
“Is Dr. Vendi good to go for tomorrow?”
“Yep. And I’ve got all her photos on disc.”
We don’t get to pick our coroners. It’s always luck of the draw, and this time, we’d lucked out. Dr. Graciela Vendi was one of those rare pathologists who did fantastic work and knew how to talk to a jury. Her testimony would bring home the brutality of the attacks on Hayley and Brian in vivid detail. The defense could blab all they wanted about unnamed dark forces. Here was reality—two young people hideously slaughtered on a lonely mountain. Hopefully it would sober the jury up, get their minds right.
Bailey added, “Your guy Declan checked out the discs, said they looked good. I have to say, I really like that kid.”
“Me too. But that’s a total accident. Vanderputz only put Declan on so he could suck up to his Hollywood contributors—”
“And spy for him.”
“Yeah. Didn’t quite work out the way Vanderputz planned.”
We both laughed. I raised a phantom toast in honor of my second chair.
With all the constant stress and worry about the crazy circus this case was turning into, I hadn’t been getting much more than four hours of sleep a night, and jury selection and trial preparation had left me feeling like I’d been through a meat grinder. All I wanted to do was put it behind me and go to sleep. I hoped that with a solid eight hours under my belt, I’d wake up feeling better about the twelve select citizens we’d wound up with—or at least be able to pretend I did.
I dragged myself to the gym to work out the kinks and make sure I’d be tired enough to get into bed by ten o’clock. Then I ordered a light dinner—seared ahi tuna and a green salad—and polished off what was left of a bottle of pinot grigio. I’d just gotten into bed when Graden called to wish me luck.
“Thanks, I’ll need plenty of it,” I said.
“That bad?”
“I can’t remember when I’ve felt worse about my chances this early in the game.”
Graden tried to cheer me up by reminding me that anything can happen in trial—and even played back one of my own stories to make the point. “Remember? Your eyewitness fell apart on cross and the defense had a great alibi witness—solid citizen with no priors—who swore the defendant was working with him all day on the day of the murder. Even brought in the time card to prove it—”
“Except the time card showed it was the day after the murder.” It was one of those great courtroom moments. The memory still made me smile. “I’m not going to get that kind of lucky this time, Gray. Not with Terry Fisk on the case.”
We said good night and I took a health magazine—a free sample—to bed. Nothing like reading about gluten-free, fat-free, sugar-free to bore myself to sleep. In less than five minutes, the magazine slipped out of my hands and onto the floor.
The next morning, feeling rested if no less anxious, I pulled on my robe and stepped onto the balcony. I could already feel the heat building. At just seven a.m. My stomach was clenched too tightly for food, so I decided not to force the issue. I was out the door by seven forty-five and in my office by eight fifteen, a snack bar bagel and cream cheese and large coffee in hand.
“You really ought to let me do that,” Declan said, nodding at my purchases, as he sat down in front of my desk.
“You’re a lawyer, not a gofer.”
“They’re not mutually exclusive.”
“Especially at the big corporate firms.” I looked at Declan with curiosity. “I’ve seen your résumé. Law Review, moot court finalist, dean’s list. You could’ve had your pick of white shoe law firms. How’d you wind up here?”
“I interned here when I was in law school and I loved it. After that, I never wanted to be anywhere else.”
Maybe that was the problem he had with his father: daddy had more high-profile commercial prospects in mind for his son than the low-paid position of a county prosecutor. I was curious, because the more I got to know Declan, the less I could understand his father being anything but enormously proud to have such a great guy for a son. But being rabid about my own privacy, I couldn’t bring myself to encroach on his.
“You’ve got the DVD for opening?” I asked.
“Right here.” He patted his briefcase.
I looked at the clock on the Times Building. It was eight thirty-five. “May as well get down there and set up.” Judge Osterman had issued an e-mail to all parties reminding us that tardiness would not be tolerated and san
ctions would be imposed for any party not ready to proceed at precisely nine a.m.
Now that jurors would be coming to court, reporters were on orders to take their assigned seats in the courtroom. No loitering or interviewing in the hallways allowed. The judge had reserved two rows of benches for the public, who had to show up and take numbers. As Declan and I headed out of the office, Melia said they’d begun queuing up at five thirty that morning. When we got off the elevator, I saw Jimmy, the bailiff, taking the numbers from the line of lucky winners as he admitted them into the courtroom one by one.
At five minutes to nine the courtroom was packed, not even one square inch of space visible on the benches in the gallery. A loud buzz filled the air as reporters chatted and waved to each other. Raynie was waiting out in the hallway with the rest of the family and friends, at my suggestion. There was no reason for them to suffer through the grisly details of my opening statement. But Russell defiantly sat proud and tall on the “groom’s” side with all the rest of the Ian Powers supporters. I hadn’t spoken to Russell since the day he’d thrown me off the lot. I’d hoped he’d come around by the time trial started. I put the depressing thought out of my mind and looked through my notes while Declan finished setting up the monitors that would display our photographs to the jury.
Judge Osterman took the bench at nine o’clock on the dot and Jimmy faced the gallery. In a strong, stern voice he announced, “Come to order. Department One Fourteen is now in session. Judge Osterman presiding.”
The buzz stopped abruptly and a silent tension spread through the courtroom. Judge Osterman looked down at us. “Both sides ready? Anything we need to take up before we begin?”
We all agreed we were ready to go. “Then let’s have the jury.”
The twelve chosen jurors and five alternates filed in. My librarian darted a quick glance at the packed gallery, then cast her eyes down nervously as she found her seat. But the black single mom seemed unfazed. She took her time moving through the jury box and relaxed into her chair, then surveyed the courtroom with an amused expression. The young man with the ailing mother moved to his seat quickly, picked up his notebook, and stared straight ahead. Some of the jurors briefly looked my way, but none of them made eye contact. The judge commended them on their promptness, made sure they had no problems or issues to address, and told them now was the time for opening statements. He reread the introductory instructions he’d given at the start of voir dire, “just to refresh your memory,” then reminded them that opening statements weren’t evidence but only “a brief preview of what each lawyer believes the evidence will show.” Then he looked down at me. “Are the People ready to proceed with an opening statement?”
I took a deep cleansing breath that nearly choked in my throat and stood. “Yes, Your Honor.”
“You may proceed.”
I turned to face the jury.
Let the games begin.
65
I kept my opening simple, taking the jury through the events in chronological order, step by step, as Declan played the DVD of photos that illustrated my points. I started with the fight between Brian’s father, Tommy, and Russell over the theft of the screenplay, and noted that four of them looked skeptical. I moved through the kidnapping plot and into the finding of the bodies, deliberately speaking in calm, measured tones—a counterpoint to the graphic pictures they were seeing for the first time. Brian’s pale face above a bloody gash of a neck, his throat sliced nearly to the vertebrae, lying supine in his shallow grave on Boney Mountain. Hayley, the visible side of her face partially covered by bloody, disheveled hair, her left eye, half open and staring, her body curled in a fetal position in the trunk of Brian’s car.
Knowing the images I’d be using for my opening statement would be horrific, I’d warned the friends and family not to be in court during my opening—all except Russell. He wouldn’t take my call. So while Raynie and all of Hayley’s friends were absent—Janice hadn’t flown out yet and I wasn’t sure if she ever would—Russell was, as always, front and center on the defense side of the courtroom. A part of me was glad. Maybe the shock value of the photographs would bring him around. They certainly got the jury’s attention.
As the images of Brian and Hayley cycled through on the monitor, the jury’s eyes widened. The librarian had to look away, but the black single mom’s face hardened, the perfect reaction that showed she was ready to hammer the person who’d done this. I knew the defense let her stay because the group-think was that a minority was more likely to buy into a conspiracy theory. The truth was, she was the best juror I had. At least for these few moments, the jurors were forced to remember that this case was about the slaughter of two innocent young people.
When I began my opening, there was the usual low hum of activity—whispers from the gallery, jurors shifting in their seats, and business being conducted by the clerk. But by the time I’d finished, the courtroom was utterly still—no one in the jury box or even the gallery seemed to be breathing. I took what solace I could from this and thanked the jurors for their time and attention.
The judge turned to the defense. “Ms. Fisk, Mr. Wagmeister, will you be making an opening statement today?”
Wagmeister stood. “We will reserve our statement for the beginning of the defense case. But we caution the jury that what the prosecution has just presented is just a wish list. We will show substantial problems with every aspect of their case—”
This was outrageous, completely improper speechifying. Controlling the anger that rushed to the top of my head with supreme effort, I stood up. “Objection, Your Honor. If the defense wishes to give an opening statement—”
“Overruled,” the judge said, frowning at me. Wagmeister rolled on, barely missing a beat. This kind of gift didn’t happen often and he knew better than to waste a second of it.
“—and that the defense will soon present important, compelling evidence of our client’s innocence. I thank you all for your kind attention.”
The judge should’ve stopped Wagmeister’s posturing little speech. In fact, he should’ve smacked Wagmeister for even trying it. A crappy jury and a weak judge. Super.
Wagmeister smiled, gave a little bow to the jury, and sat down. Judge Osterman turned to me and said, “Call your first witness.”
I stood and faked a confident voice. “The People call Dr. Graciela Vendi.”
Bailey escorted her in. At nearly six feet tall, Dr. Vendi was one of the few women who could look down on Bailey, and her mop of curly auburn hair made her seem even taller. She strode up to the witness stand and flashed a warm smile at the jury before turning to face the clerk and raise her right hand.
I took her through her credentials and job description. I know some lawyers like to have their expert witnesses talk directly to the jury when they testify, but I think it looks phony—like they’re pretending to have a little fireside chat, or worse, trying to sell them a used car. I also think it can make jurors nervous, like the witness is watching them, gauging their reactions. Which they—hell, we all—are. But bottom line, since I’m the one asking the questions, I think it seems weird to have the witnesses look at anyone else when they’re giving the answers.
“Dr. Vendi, did you conduct the autopsies of Hayley Antonovich and Brian Maher?”
“Yes, I did. And I brought my file containing my reports.” She gestured to the file she was holding.
“If the defense would like to have another look at these documents before I go any further, I’d be glad to let them do so now.” I always make this offer so the defense won’t have an excuse to interrupt the examination if the doctor needs to check her reports to refresh her memory.
“Thank you,” Wagmeister said. He walked up to the witness stand, greeted Dr. Vendi with an insincere smile, and leafed through the folder. I took the opportunity to glance at the defense table. Ian’s sharp designer suit had been replaced with a low-end standard they’d probably found at Sears, and I noticed he’d suddenly developed the need for r
eading glasses. Seated next to him, so close she was practically in his lap, was a young blonde female law clerk—their idea of Hayley’s proxy. They whispered to each other, leaning in close, lips to ears. In short, every trick in the book to make Powers look harmless and “of the people.”
Hayley’s friends and family, other than Russell, were still in the hallway. I’d advised them to sit this one out, since Vendi’s testimony would be even more graphic than my opening statement.
“Mr. Wagmeister, is there anything in that folder you haven’t seen?” the judge finally asked.
“No, this is fine.” Wagmeister moved back to his side of counsel table.
I waited for the jury to focus on the witness, then I continued. “Dr. Vendi, I’m going to put the photographs you had taken during the autopsy on the monitor. Please refer to those photographs as you describe your findings. I will begin with Hayley Antonovich.”
The first photograph flashed up on the monitor, showing Hayley on the coroner’s table before she’d been undressed or washed. I heard movement in the gallery and when I glanced over, I saw that Russell was leaving.
Dr. Vendi looked at the photograph briefly. “I always begin with a superficial examination. I noted that there were leaves and soil in her hair and on her clothing, thin scratches that appeared to be from tree or shrub branches on her hands, arms, and legs. And of course, the severed carotid in her neck.” Dr. Vendi pointed to the gaping slash across her throat that was the obvious cause of the red stain that soaked the front of Hayley’s T-shirt.
