[Marc Kadella 03.0] Media Justice

by Dennis Carstens

  On the left of the courtroom next to Marc’s table was the jury box with twelve reasonably comfortable, padded chairs. There were four more comfortable chairs in front of the jury box for the alternates. In the front of the room, from left to right, were the witness stand judge’s bench and to the left of the judge’s seat, the court clerk’s desk. It was a modern well-lit, fairly comfortable courtroom done in an oak motif.

  After Marc arrived, a deputy roped off the front two rows directly behind the defense table. These would be reserved for the family and others involved on Brittany’s behalf. At 8:30, the Rileys were escorted into the courtroom. Butch and Andy were with them along with two sheriff’s deputies. Much to Sheriff Cale’s displeasure, Judge Connors had ordered the sheriff to provide protection for Brittany coming and going from court.

  A few minutes later, the prosecution team arrived again including the attorney general herself, Anne Peterson. Along with Vanderbeck and Hart, there were four additional lawyers, two who would be there throughout the trial to help the trial lawyers. The other two were simply aides of Peterson. There were seven lawyers on behalf of the people of Minnesota, three at the table and four in chairs in front of the bar, all lined up against one, young, pretty, widowed mother. Marc smiled at the absurdity of it and hoped it would look as ludicrous as bullying and overbearing to the jury as it was to him.

  By now, the courtroom was beginning to fill up. The members of the media who had been selected to sit in were filling the second, third and fourth rows along the right-hand side of the room. Behind and above them, with a clear, unobstructed view, was the single camera that would beam the proceedings live to an insatiable, voyeuristic public who seemingly could not get enough of courtroom reality television.

  The lawyers were asked to meet with Connors in chambers a little before nine. Marc, Vanderbeck, Hart and Attorney General Peterson went back to see him. Connors wanted to know if there were any last minute issues to discuss which there were not. He made it clear that opening statements were to be done before lunch and testimony would begin that afternoon.

  While the trial was beginning, Melinda Pace and her producer Robbie Nelson were meeting with Hunter Oswood and Madison Eyler, the station’s general manager. They went over scheduling and details for Melinda’s show. It had been decided that starting today in her normal four o’clock afternoon time slot, they would rerun the previous day’s show. At 6:30, Melinda would go live with a report and commentary of that day’s court proceedings. The station had never tried this before but there had never been a trial with this level of ratings appeal. The station had set up copying equipment and had a pair of full-time techs to view and copy the entire day’s feed from the live courtroom camera. In addition, they agreed to preempt any programming being aired to run live feeds over the air. As the meeting was breaking up, Oswood bluntly told Robbie, in Melinda’s presence to keep a lid on her drinking.

  FORTY-NINE

  As Marc had guessed, Danica Hart gave the prosecution’s opening statement. Opening statements are supposed to be an opportunity to tell the jury what the case is about and to verbally walk them through the evidence that is to be presented to the jury to make the case. It is not meant to be a time to argue the case to convince the jury they should find in your favor.

  Marc’s job during Hart’s opening was to take extensive notes of what she told the jury. If she told them they would hear testimony or receive exhibits then failed to deliver on any of these things, Marc would be sure to let the jury know this during his closing argument.

  He also liked to watch the jurors as much as he could. He wanted to see if they would give any nonverbal indicators of what they were thinking. As they were led into the courtroom and seated, the four alternates taking chairs in front of the jury box, Marc undoubtedly noticed something. Every one of them took a long look at all of the lawyers on the prosecution team. The looks on the faces of several of them were plainly not positive. In fact, he saw two of the women and one older man look back and forth between the small herd on the prosecution’s side and Marc with just pretty, modest Brittany sitting beside him.

  Danica Hart spent over two hours explaining their case. Hart presented herself well, had a nice, easy manner and a voice that, unknown to Marc, had years of singing lessons behind it. In Marc’s opinion, she made one serious mistake. When he wasn’t taking notes, Marc was closely watching the jurors. Again, he was trying to gauge their nonverbal response to her.

  At first, all sixteen, including the four alternates, were sitting upright paying very close attention. At least half of them started out taking notes themselves. The mistake Marc believed she made was giving them too much detail. Hart, by memory, explained what every witness was going to tell them and what every piece of evidence was that they would see.

  Gradually, she began to lose them. She didn’t lose them all at once and not entirely but an objective observer could see it. It started with the note takers. One by one they gradually stopped writing or at least slowed. Marc also noticed two or three others openly yawn or stifle one. Unfortunately for Hart, and this was easy to do, she was concentrating so much on what she was saying and where she wanted to take them that she failed to notice where her audience was. To top it off, Hart’s big finale, the part where she really wanted to hit a home run was, to Marc, pretty much a total flop. She went over the ten-day period when Becky first turned up missing until Barbara notified the authorities. Instead of highlighting this time frame as a whole, Hart informed the jury of Brittany’s behavior day-by-day. She went over in detail everything the cops had learned about Brittany’s behavior. By the time she finished detailing every bit of each day including such mundane details as what time she got up, what time she went to work and what time she got home, the jury was gone. In fact, at least half of them were fidgeting uncomfortably in their chairs obviously in need of a restroom break.

  When she finished Marc looked over at the prosecution table and all of them were beaming with pride. The jurors, all of them, were looking at the judge like little kids hoping dad would stop the car and take a break. Fortunately for Hart, opening statements are probably the least important part of the trial. If you screw it up, presenting your case will give you an opportunity to correct it.

  Following a short break, Connors looked up at the clock and saw it was now after 11:00. He turned to Marc and asked, “Are you going to give an opening statement now, Mr. Kadella?

  The defense has the choice of making its opening statement after the prosecution or waiting until the prosecution is finished presenting its case. Marc had been undecided about what he wanted to do until this very moment.

  Marc stood up to address the judge and said, “I’ll do so now, your Honor.”

  He stood in the well of the court a respectful distance from the jury and began by introducing himself and his client.

  “Ladies and gentlemen, my name is Marc Kadella and I represent the accused, Brittany Riley. I use the word ‘accused’ to describe her because that is who and what she is. She is accused and nothing more.”

  Marc spoke for about an hour. Without notes of any kind, while slowly pacing around the courtroom he spelled out for the jury the prosecution’s case in terms of what they did not have and could not present to them. No witnesses, no fingerprints, no forensics tying Brittany Riley to the death of her daughter. He avoided going into any detail the evidence the defense would present for its case. At this point in the trial, it was possible he might not have to put on a case at all. Highly unlikely but he did not want to promise them something then not deliver it.

  Marc concluded by reminding them of their oath. Their promise to keep an open mind and wait until all of the evidence was in before making a decision. He talked about the presumption of innocence and the burden of proof and while he did these things, he moved slowly before them and made sure he made eye contact with each of them. Trials are theatre and like any good story, the defense especially wants the jury to become emotionally invested in def
ense counsel and the defendant. It’s very difficult to make the jury like your client. But if you can do it, you’re probably half-way to reasonable doubt. While Marc was making eye contact with them, he actually made several of them nod their heads and smile at him.

  “If you do that, ladies and gentlemen, if you abide by your oath, wait for all of the evidence and follow the law, you will find this young woman not guilty and send her home.”

  When he finished, Judge Connors said, “We’ll break for lunch now. The prosecution will call its first witness at one o’clock.”

  Every television news report in America broadcasted over the lunch hour gave an update of the trial. Included was footage of Danica Hart talking to the jury. Each station cherry picked a piece of film to highlight Brittany’s dilemma. Every one of the news reports had a highlight clip of Hart making a damaging statement about the evidence to be presented followed by a commentary supporting the strength of the prosecution’s case. All of the reports had an “expert” talking head, a defense lawyer, a former prosecutor or a retired judge to give their highly regarded two cents worth. On the whole, those opinions were running about ninety to ten in favor of the prosecution. According to the media, Brittany Riley was in grave trouble.

  As Marc had anticipated, because it is chronologically and logically what he would have done, young Jackson Carson, the boy who found Becky Rileys’ remains, was the first witness called.

  Most ten-year-old kids would have trouble just walking up to the witness stand. They would typically be so nervous and their legs would be so weak they could barely move. Especially in a courtroom as packed with people as this one was.

  Jackson Carson swaggered, and that was the word to describe his walk and attitude, swaggered up the right-hand aisle, through the gate and directly to the witness stand. He stood in the box and looked out over the crowd as unconcerned as if he had done this a hundred times. The clerk swore him in and he sat down.

  Connors took a couple of minutes to chat with him, off the record just to make sure he was comfortable and ready. Having been thoroughly prepared by Danica Hart, Jackson was fine and knew enough to call Connors, your Honor. Satisfied, Connors offered the witness to Hart.

  In Minnesota state courts, lawyers must conduct their questioning of witnesses while seated at their table. Many state and federal courts, will allow the lawyers to stand at a podium about ten or twelve feet, maybe more, away from the witness box. This is to prevent lawyers from physically intimidating a witness. If the lawyer has an exhibit or a document to give to the witness, the lawyer must ask the court for permission to do so. Even then, he or she is not allowed to hover over the witness. That behavior is a TV and movie thing and is not acceptable conduct.

  “May I call you Jackie?” Hart asked trying to be as friendly as possible.

  “No, I told you before, I hate that name,” Jackson answered with obvious annoyance which elicited restrained laughter through the courtroom. “Jack or Jackson.”

  “I’m sorry. You’re right, I forgot and apologize,” A slightly red-faced, chastened Hart replied. Marc Kadella, suppressing a smile, made a mental note to ask Hart what it’s like to get slapped down in open court by a ten-year-old.

  “Jackson,” she said, starting over, “do you remember what happened on October third of last year?”

  “I don’t think I’ll ever forget it,” Jackson said as he leaned forward a few inches to speak directly into the microphone.

  Hart, having conducted hundreds of direct examinations over the course of her career, expertly walked Jackson through the events of that day. When questioning a witness that you have called to help your case, the lawyer’s role is to ask short, open-ended questions. The idea is to let the witness tell the jury what he or she saw or did that is pertinent to your case. Let the witness tell his story.

  Since this was the first witness of the trial, Hart decided to let the jury hear all of it. Let Jackson tell them everything he did from the time he woke up until the sheriff’s office was done questioning him and they went home. Obviously, none of this had anything to do with Brittany Rileys’ guilt or innocence. It was necessary, however, since an element of the crime is to establish that the jury could reasonably infer the crime took place in Dakota County. Or, at least enough of the crime took place there to support the question of jurisdiction.

  Hart then spent a little time going over the fact that Jackson had no idea how the body got there. That he did not see anyone carrying anything into the river and leaving it. “How have you been since this happened?” Hart asked.

  “Okay,” Jackson quietly answered, uncomfortable being asked personal questions about his well-being.

  “Are you sleeping okay?”

  “Most of the time,” he answered.

  “Are you seeing a counselor?”

  “Your Honor,” Marc politely said as he rose from his chair. This line of questioning was clearly objectionable. It was entirely designed to draw on the jurors’ emotions. “Look what this has done to this bright, delightful, young boy. Someone needs to pay for it.” Except, these questions have nothing to do with guilt or innocence.

  “That’s enough, Ms. Hart,” Connors told her.

  “Yes, your Honor,” Hart said. “I have no further questions.”

  Marc took a moment to mentally debate whether or not to ask him anything. He finally decided on a couple of quick questions.

  “Hello, Jackson,” Marc lightly began. “My name is Marc Kadella and I am the lawyer for Brittany Riley. I have just a couple of questions for you.

  “Have you ever seen Brittany before?” he asked indicating the young woman to his left.

  “I’ve seen her on TV a lot.”

  “Sure. But before the day you were hunting with your dad, had you ever seen her?”

  “No, sir. I haven’t,” Jackson answered.

  Jackson was excused and calmly strolled out of the courtroom.

  Jackson’s father, Eric, was called next. The prosecution had originally listed every member of the hunting party on their witness list. Connors had pressured them into cutting the number down to just two, Eric and his friend Chris Givens. The other three had nothing more to offer so Connors wanted them dropped to move the trial along.

  Vanderbeck took the testimony of the two hunters. Unlike young Jackson, these two had little to offer except confirming what Jackson found and where he found it and then calling the sheriff. What they did after that wasn’t much.

  Marc asked very few questions of either of them on cross-examination. Questions designed to have the men verify that they had not seen anyone dump the body, had never seen Brittany before except on TV and had nothing to offer regarding guilt or innocence.

  By the time Chris Givens was done, it was almost 2:30 and the jury was looking uninterested. When Marc finished and Givens was excused, Connors called for a break.

  Next up was the man who led the forensics team that conducted the search of the area where the body was found. The jury had to endure the showing of the film of the search in its entirety. When it was finished Vanderbeck took almost another hour going over the removal of the body and the pictures taken of the scene at the water’s edge, including showing a color photo of Becky’s remains still in the water.

  Marc had warned Brittany about this and did his best to prepare her for the picture of her daughter as she was when found in the river. Brittany did her best to look as neutral as possible but was unable to keep her eyes on the TV screen where the picture was displayed. Marc watched the jury and to his dismay, almost every one of them at some point glanced at Brittany to see her reaction. Fortunately, she held her composure fairly well except for a few tears that leaked out and trickled down her cheeks.

  When the show was over, Vanderbeck passed the witness to Marc. The only question he had was to elicit an admission that the crime scene crew uncovered no physical evidence that could be tied to Brittany Riley or anyone else.

  Marc finished his short cross-exam, the witnes
s was excused and Connors called the lawyers up to the bench.

  “Do you have a quick witness to put on?” he asked Vanderbeck.

  “Not really your Honor,” Hart replied. “We’re going to get into investigators now.”

  “Okay. We’ll call it a day but this took too long today. The jury got bored. Everybody needs to step it up. If I need to we’ll start early and stay late. That could include the weekend.” He continued sternly looking at all of them. “We’ll start tomorrow promptly at nine. Have your witnesses ready to go.”

  On her live 6:30 show, Melinda Pace had two guests. A man named Steve Farben and Andrea Briscomb. Farben was a former federal prosecutor who was now a partner in a well-known personal injury firm. In his late fifties, the mostly bald lawyer had taken his government pension and moved to private practice to make some serious money before retirement. Farben had agreed to be an on-air talking head for the publicity to his firm. Commercial exposure like this could not be purchased.

  Melinda’s other guest was the criminal defense lawyer she had been using, Andrea Briscomb. Briscomb was suppressing her annoyance at sharing the spotlight with anyone especially Farben. She had conducted a couple of trials against him while he was with the U.S. Attorney’s office and considered him a snake. Borderline ethical with a win at all costs, the truth be damned attitude. Thanks to Robbie Nelson’s research, Melinda knew all about the animosity between them and was perfectly willing to poke them both to bring it out on-air.

  Farben’s take on the day’s proceedings was decidedly favorable toward the prosecution. He went over everything ignoring the bad parts and emphasizing only the good on behalf of the state’s case.

  Briscomb, put on the defensive, stuck to the obvious that it was the first day of testimony and nothing of significance came out. Farben stuck her with a mild put down that defense lawyers always downplayed evidence against their client, ignoring the fact that he was doing the very same thing. The show wrapped up with Briscomb taking a pretty good shot at Hart by telling the audience that a ten-year-old boy had put the lawyer in her place. When Melinda was finishing up with a final remark, the two lawyers sat quietly with forced smiles and annoyed expressions.