by David Ellis
Ogren pauses again. He walks over to the tagged wooden bench, sitting by the prosecution table. He picks it up and walks back over to the jury box. “The defendant took this wooden bench off the porch”—Ogren lifts it up to chest level—“and he threw it against the sliding glass door that separates the porch from the den.” Ogren makes a throwing motion with the bench. Then he sets it down.
“And then,” he continues, “the defendant was inside the house. He attacked Dr. Reinardt. He punched Dr. Reinardt. He struggled with him. Then he threw Dr. Reinardt to the ground. At this point, Dr. Reinardt was lying on the floor. He was not moving. He was not fighting. He was lying helplessly on the carpet of his den.” Ogren lets that one sink in.
But something I’ve heard Paul say hits me here: If you aren’t going to be able to prove it, don’t say it in the opening statement. Don’t break a promise to the jury. And Ogren is going out on a limb here. From what we know, at least, Rachel has said only that she saw the doctor and some unknown intruder struggling while she crawled into the living room to call 911. The stuff about Dr. Reinardt lying helplessly on the carpet—how will Ogren prove that?
“The defendant then went to the oak cabinet in the den,” Ogren continues, “and opened it up. Dr. Reinardt was still lying on the carpet at this time.” All right, we get the point. “And the defendant opened that cabinet. He reached in, and he pulled out a handgun.”
This is an interesting development; he’s saying I knew where the gun was. We figured he’d say Dr. Reinardt pulled the gun out, and I disarmed him and used it on him. The problem with that, Paul pointed out, is that it makes the shooting look less premeditated. So Ogren is going for the better story: that I planned all along to use the gun, that I went to the oak cabinet when I walked in. Only problem is, how can he prove that? How can he prove I knew where the gun was?
“He pulled out a .38-caliber handgun, ladies and gentlemen. Dr. Reinardt’s handgun.”
I’m sure Ogren wishes like hell that he had that gun so he could hold it up impressively to the jury, instead of having to make the shape of a gun with his hand. But they still haven’t found it.
“The defendant stood in Dr. Reinardt’s den, ladies and gentlemen. He stood over Dr. Reinardt, who was lying there helplessly. He stood over Dr. Reinardt, holding Dr. Reinardt’s gun. And then he fulfilled his dream. His dream of having Rachel Reinardt all to himself. The defendant pulled the trigger of that gun, and he shot Dr. Reinardt.” Pause. “And then . . . he pulled the trigger again.” Ogren takes two steps to his left, the jury following him, and stops again. “He killed Dr. Reinardt, ladies and gentlemen. He broke into his house and he killed him. And then he took the body away.
“The People will prove, beyond a reasonable doubt, that these events happened. The People will prove that the defendant went to the Reinardts’ home that night for one reason, and one reason only: to murder Dr. Derrick Reinardt. We will prove that the defendant broke into that house and fought with Dr. Reinardt until he was on the floor, immobile, perhaps unconscious. And we will prove that the defendant then went to the oak cabinet, removed the gun, and shot Dr. Reinardt dead. We will prove that the defendant was desperately in love with Dr. Reinardt’s wife, Rachel, and that this was the reason he killed Dr. Reinardt. How will the People prove this?”
Ogren doesn’t have any charisma, no flare for the dramatic. He’s very mechanical up there. But as I listen to him, I realize that this works pretty well for him. The sober prosecutor. No flash. All substance. When he was picking the jury, he made the mistake so many people make, didn’t realize his own limitations, tried to be all cozy with them when it wasn’t in his personality. He has overcome that now, unfortunately, and found his mark. Just the facts.
“You will hear from Mrs. Reinardt herself, the widow. Mrs. Reinardt will tell you that she met the defendant over a year ago. She worked with the defendant at the Reinardt Family Children’s Foundation, a charity that she founded and ran. She will testify that the defendant became obsessed with her, that, in the defendant’s own words, he had fallen in love with her. The defendant would follow her around at foundation functions. He would offer to give her rides home, which she usually refused. He would ask her out, ask her to spend time with him privately. He tried to persuade her to leave her husband. He would stand outside her house at night, just hoping for one glimpse of her.” In my peripheral vision, I think I notice Paul’s jaw clench. “Just like he stood outside her house the night he murdered Dr. Reinardt.” My heart is racing. Some of the jurors’ eyes go off Ogren, getting an image of me lurking outside Rachel’s house. Paul stands and objects to the use of this evidence. Ogren isn’t allowed to suggest that, because I allegedly visited Rachel’s house earlier, it’s more likely that I did so on November 18, too. The judge sustains the objection. But the jury heard it; the bell can’t be unrung.
Ogren returns his attention quickly to the jury. “Mrs. Reinardt will testify about the night of the murder, too. She was in the den when the defendant crashed through the window. She will tell you that she heard the noise of glass shattering. She will recount for you how the defendant struggled with her husband. And as they struggled, Mrs. Reinardt crawled out of the den, through the hallway, and into the living room to reach a phone. She called 911, ladies and gentlemen, in an effort to save her husband. And we will play that tape for you. You will hear the cries of a woman desperately trying to save her husband.”
The jury is fixated on Ogren again. The retired nurse steals a look in my direction. I look away.
“It was from the living room, just after she made her call to 911, that Mrs. Reinardt heard two gunshots. The two shots that took the life of Dr. Derrick Reinardt, her husband.” Ogren’s hands open slightly. “Mrs. Reinardt never saw her husband again.”
Ogren moves on to other witnesses who will testify. He talks about Detective Cummings. From Cummings, Ogren goes to the confession. I admitted I killed the doctor, Ogren tells them.
I pick up only bits and pieces of what he’s saying now. I’m thinking of Rachel. She told Ogren that I was following her around like a puppy. That I was desperately in love with her. This is not news to me, of course, but there’s something about hearing it in open court that makes it more real, more tangible. More painful.
“Now,” Ogren continues, “I want to talk about something else that you will hear about in this trial. You will hear, ladies and gentlemen, about a very painful subject. You will hear about spousal abuse.” The jurors do not seem surprised; most of them already know about this. But I’m a little surprised that Ogren is bringing this up, even though Paul predicted he would so he could defuse the issue.
“Mrs. Reinardt was the victim of spousal abuse. It wasn’t something that occurred very often, but it did occur at times. And yes, the night Dr. Reinardt was murdered was one of those times. He slapped Mrs. Reinardt in the face twice. That was all. I’m not condoning it.” He holds his hands up. “I’m not. People who abuse their spouses should be punished. But they should not be murdered. Whatever Dr. Reinardt may have had coming to him, it’s not death at the hands of a jealous would-be lover.”
Ogren takes a step forward toward the jury. “Mrs. Reinardt will testify that, in her opinion, her life was never—never—in danger that night from her husband. He hit her twice, and she didn’t enjoy it, but he had stopped hitting her. She was upset, yes, but she was not afraid for her life.
“Mrs. Reinardt will also tell you that, obviously, she hated the fact that her husband hit her sometimes. But she’ll tell you that she loved her husband, and she wanted to get him help. She thought, with counseling, maybe her husband would get better. She still loved her husband. She didn’t want to see him dead. And any suggestion the defense might make about this will not square up with the evidence you will hear.”
Ogren is doing a nice job of fronting this issue, taking some of the sting out of it. It’s a nice seed to plant in the jury’s head.
“Ladies and gentlemen, Gretchen Flaherty and
I represent the People in this matter. Today is the People’s day in court. And as the representatives of the People, we carry a burden of proof in this case to prove the defendant guilty beyond a reasonable doubt. We are happy to assume that burden. And we will satisfy that burden. We will prove, beyond a reasonable doubt, that the defendant committed this crime. We will prove that he killed Dr. Derrick Reinardt. That he did so in order to have the doctor’s wife, Rachel Reinardt, all to himself. That he confessed to doing so to the Highland Woods Police Department. And that he committed this crime with premeditation. And at the end of this trial, we will ask you to return a verdict of guilty on the charge of first-degree murder. We will ask you to vindicate Dr. Reinardt, in the only way any of us can now. By convicting his killer.”
By killing his killer, he means. Will this vindicate Dr. Reinardt? Will my conviction somehow add dignity to his life, his memory? Will his friends now say, ah yes, he tortured his wife, subjected her to years of abuse, and was killed for doing it—but, now that we’ve executed his killer, now he is vindicated?
Paul doesn’t even flinch. He just sits comfortably, hands together on the table, watching Roger Ogren take his seat.
“Does the defense wish to give an opening statement?” Judge Mack asks.
“We certainly do, Your Honor,” Paul says, rising to his feet.
The jury turns to Paul. He takes two steps away from the defense table, stopping between ours and the prosecution table. I turn my head to watch him. He pauses a moment, then opens his hands. “Mr. Ogren gave you a lot of answers. When this trial is over, you will have only questions. Questions like, how could Marty Kalish have killed Dr. Reinardt when he was twenty miles away, at work downtown? If Marty did this, then why didn’t they find his fingerprints at the Reinardts’ house? Why didn’t they find follicles of his hair there? Shoe prints? Anything?
“Questions like, how does a police department arrest a man when there’s no physical evidence—no physical evidence—that he committed this crime? When there’s no proof that he was anywhere near the Reinardts’ house on November eighteenth? And where is Dr. Reinardt now? Why have the police stopped looking for him?
“Questions like, why did the police arrest Rachel Reinardt for her husband’s murder, and then drop all the charges?”
Paul surveys the jury, letting his questions find their mark.
“Your job is not to answer all of these questions. You only have to answer one: Did the prosecution prove, beyond a reasonable doubt, that Marty Kalish is guilty of murder? The answer to that question will be no.”
I feel Paul’s hands on my shoulders. “Marty did not commit this crime. He didn’t kill anybody. Marty Kalish was at work at the time of this attack and he can prove it. The prosecution will argue that he wasn’t at work, but even so they will not show you any proof—not any—that he was near the Reinardts’ home that night.”
Paul moves from me now, walking purposefully around the far side of the defense table toward the center of the courtroom, his theater. My emotions are swelling, Paul’s comments finding a safer landing in my gut than anyone else’s.
“Mr. Ogren told you that this is the story of a man obsessed. The evidence will show you that this is the story of a police department obsessed. Obsessed, as they should be, with finding the perpetrator of the most highly publicized crime in the history of the small, peaceful town of Highland Woods. But obsessed, as they should not be, with arresting someone, anyone.”
Roger Ogren stands and politely objects. Paul is arguing, not simply reciting his prediction of the evidence. The judge sustains the objection.
“Mr. Ogren is correct,” says Paul. “I should stick to what the evidence will show. The evidence will show that Dr. Derrick Reinardt disappeared from his house on November eighteenth. The evidence will show that when the police arrived on the scene, they found no clues. They didn’t find fingerprints. They found some strands of hair, but none that were Marty’s. They found no prints, no hairs, no carpet fibers, nothing that was attributable to Marty or to anyone else.”
Paul takes a step toward the jury. “I want to underscore that last point. Or anyone else. The police found themselves with a murder, or a kidnapping, that made the front pages of the newspapers, and with no leads. No clues. Days and days went by, ladies and gentlemen, and they had nothing. Every day or so, a story ran in the paper. ‘No Leads in the Reinardt Case.’ No suspects.”
Paul is a natural in front of the jury. He has a deep, resounding voice; he speaks slowly and punctuates his points like a TV anchorman. He speaks of the charges with indignation. He is sincere, not condescending or flashy. He uses his hands expressively but not nervously. He has mastered the art of the pregnant pause, taking a step or two to one side or another while he lets a point sink in. My spirits, in the gutter only moments ago while Ogren spoke, are lifted now.
He opens his hand to me. “So how’d they end up with Marty Kalish? Well, the police had conducted many interviews, many, many interviews. They talked to a lot of people who worked with the Reinardts at their charity. Marty was one of them. They asked him questions about Dr. Reinardt. About Mrs. Reinardt. One of the things they asked was, do you know if Mrs. Reinardt cheated on her husband? Marty thought that question was out of line, that Mrs. Reinardt wouldn’t do something like that. He told the police so. And they marked that down, ladies and gentlemen. They marked that one for the file. Mistake number one for Marty: He got mad when they insulted Dr. Reinardt’s widow.
“But even still, they had nothing on Marty. They will tell you that themselves: They did not consider Marty to be a suspect.”
This was one of the benefits Paul was talking about when we tried to suppress my confession. In order to avoid the Miranda requirement, the cops had to say I wasn’t a suspect when they interrogated me. And now Paul is using that against them.
“Another week, ten days, went by after they interviewed Marty. And still, nothing on Marty. And nothing on anyone else. More headlines. More pressure.” Paul raises a hand. “I should clarify that. The police did have one suspect, ladies and gentlemen. But it wasn’t Marty. It was Dr. Reinardt’s wife, Rachel.
“The police were learning that Mrs. Reinardt was the victim of spousal abuse, just like Mr. Ogren told you. And that would supply a motive for Mrs. Reinardt to hurt her husband. And that stuff I mentioned about her cheating on her husband? Well, the police were starting to believe that, too. They didn’t know for sure, but they were investigating that. It supplied a motive, and it supplied the second person who came through that glass door: her lover.”
Roger Ogren starts to his feet but thinks better of it. He probably figures it’s better not to look worried about this.
“I’m not saying this is what happened,” Paul says. “But it was something they were thinking about. It made sense to them. So they kept an eye on Mrs. Reinardt. On December third, they sent an undercover officer to the Christmas party the Children’s Foundation was holding. They watched Mrs. Reinardt.”
Paul lets out a grave sigh. “Then, mistake number two for Marty Kalish. His mistake was going to the party. He was a volunteer, and he was invited, and he wanted to go. He didn’t go to have a good time. There wasn’t much of that at the party. The leader of the group was missing and presumed dead. His wife was grieving. But like so many other volunteers, Marty wanted to show his support. So he went, said a few words of condolences to Mrs. Reinardt, and left.
“But the police”—Paul waves a finger—“they thought it was odd that Marty just stopped in so briefly and left. That gave them strike two. So the next morning—we’re talking over two weeks after the disappearance of Dr. Reinardt—they brought Marty back in for questioning. This time it wasn’t a friendly visit to his house. This time, it was at the police station, in a small room, with other detectives watching behind the one-way mirror.
“The detectives who questioned Marty will testify in this case. They will tell you that at the time they questioned Marty, they had no reason to s
uspect him in this case. No reason. The only person they suspected at the time was Rachel Reinardt. And they wanted to know more about her. They just wanted to ask Marty about her.
“And that’s what they did. When they got Marty to the police station, they asked him about Mrs. Reinardt. They told him that they suspected Mrs. Reinardt in her husband’s disappearance. Marty said she couldn’t have had anything to do with it. Ridiculous, he said. Then they asked him if he was having an affair with Mrs. Reinardt. He told them the truth. No. He wasn’t having an affair with Mrs. Reinardt.
“Then they told him about how Dr. Reinardt abused his wife. How he beat her. And this upset Marty, like it would anybody. And they kept talking about that. About how he beat her. How he raped her. How he humiliated her. How he degraded her.
“Marty listened to what they said about Dr. Reinardt abusing Mrs. Reinardt, a woman Marty considered a good friend. A woman whom everyone at the foundation admired. He listened to them go on and on about this abuse.” Paul pauses a moment for effect. “And then, ladies and gentlemen, Marty made a mistake that will haunt him the rest of his life.”
Paul and I have gone over this point many times. My favorite was the first time.
“I’m not sorry I killed him,” I said to Paul.
Paul grimaced and blew out an exhale. “That’s what you said?”
“I think so.”
He seized on that, my qualification. “I know those interrogations can be pretty terrifying, Marty,” he said. “Sometimes, they get you so tangled up, you don’t know what you said.”
That was the truth. I was in a bit of a fog at the end of that conversation with Cummings. I really was talking more to myself than him, anyway. I don’t remember what I said.
“I remember saying, ‘I’m not sorry,’” I said to Paul.
He waved his hands. “‘I’m not sorry’ is fine. ‘I’m not sorry I killed him’ is not. Jesus, Marty, if you’re not sure, then you certainly shouldn’t admit to that.”
