“There was one particular guest who surely will interest you.”
“And who would that be—George Bush?”
“No, but close. Max Gordon, Harrison’s attorney.”
“Sneak Gordon?”
“I don’t know about the ‘Sneak’ part, but he’s Harrison’s attorney, the guy we saw on TV. And I guess you know that Professor Nolan is on the case as local counsel.”
“You aren’t serious, are you?”
“I am serious. Apparently, you didn’t know.”
“I knew Judge Desano demanded that he associate with a member of the Georgia Bar. A copy of the Notice of Appearance was to be delivered to Grady Wilder. Grady may have told Meg Flanders, but this is the first I’ve heard that Nolan will be assisting with the case.”
“I’m not sure you would call it assisting. Gordon said he was just renting his Georgia Bar license for a week. All he’s to do is sit there and stay awake. I thought it was pretty insulting, but Professor Nolan just laughed. How is the case coming for you prosecutors?”
“Good. Very good. Meg hasn’t fully recovered from some recent surgery, so she has given me all of the witnesses—direct and cross. Plus, the opening. She’s going to do the jury selection and closing argument. I’ve been working full time on it. Yesterday, we learned that our second eyewitness has agreed to fly in from Colorado. So things are looking up. If we had gone to trial on schedule, we would have had only one ID witness. Now we have two.”
They lingered in the restaurant about an hour, discussing the latest news and gossip around the law school. Scott wasn’t sure how long the trial would last, but he thought it would be over by Thursday, or Friday at the latest. They made plans for Friday night.
“Are you sure I can’t talk you into coming with me to Hilton Head?”
“There is nothing I would rather do. You know that. But I still have a lot of work to do. I can’t let a sneaky Chicago lawyer come to town and show me up.”
Scott walked Jennifer to her car. “Call me as soon as you get there,” he said.
He could not help but be a bit apprehensive as he watched her drive away alone. But on this trip, she would not be driving at night, and the engine of the “ugly Aztek” sounded smooth and strong. However, he would anxiously await her phone call telling him that she had arrived safely.
Jennifer drove across Talmadge Bridge and on to Hilton Head. She had not breathed a word about her walk on the beach with Professor Nolan. And she had given no further thought to the question that he had posed.
CHAPTER 39
Monday, September 11
It was 8:30 a.m. on Monday, and Scott was in Judge Desano’s courtroom, seated at the prosecution table, awaiting the arrival of Meg Flanders. He was up early that morning. He had practiced his opening statement twice and was at the courthouse by eight. He had organized his table in the courtroom in perfect order: his trial notebook immediately in front of him, a yellow pad at its side, and four #2 pencils, newly sharpened and carefully aligned to point in the same direction. He would look organized, even if his mind was a jumbled maze of witness questions, opening statement, evidentiary objections, and complicated legal arguments.
He had promised Meg that he would bring all of the exhibits. He had at least a dozen photos and diagrams of the crime scene. Each was tagged and organized to be readily accessible during the examination of the appropriate witness. He had prepared for and offered—actually he had asked—to make the closing argument, but Meg had decided to reserve that for herself. Except for jury selection and the closing, the rest of the trial was his. And it seemed to be falling into place quite well. Last week, he had interviewed Mr. Patel and gone over the questions he would be asking. Patel would be a good witness, Scott thought. And Saturday afternoon, he made phone contact with Josh Johnson, the other eyewitness. Josh had his airline tickets in hand and said he was looking forward to revisiting Savannah, where he had spent many weekends while stationed at Fort Stewart. Josh assured Scott he could identify the man holding the gun on the clerk. He said it was a clear mental picture “still indelible in my mind.”
Meg had not arrived when Max Gordon and Professor Nolan walked in. Even though Scott knew both would be in court, he was momentarily startled. Nolan took a seat at the defense table, but Gordon walked over and shook Scott’s hand. Gordon was wearing the same ostentatious clothing and jewelry that he was wearing the first time Scott met him, except the yellow power-tie had been replaced with a purple one. The pink handkerchief hanging from his front breast pocket gave him a clownish appearance. At least Scott thought so, and he hoped Savannah jurors would agree.
“Where’s the DA?” Gordon asked.
“She will be here shortly,” said Scott.
“She? Where’s the black guy?”
“If you mean Grady Wilder, he’s in Atlanta. He’s now with the U.S. Attorney’s office there.”
“So she’s had the case only since last week?”
Scott didn’t like the inquisition so decided to give as little information as possible. And he felt no need to answer that specific question. “She’s been with the office for several years.”
Gordon responded with a frown, but he had no further questions and walked back to the defense table.
Shortly afterwards, the defendant entered. He was dressed as he was the previous week: blue, polyester suit, white dress shirt, and red tie. He obviously had not made bail, as he had an armed bailiff by his side. Apparently, Scott thought, even his dad wasn’t sure he would show up for trial. There appeared to be something different about him, though Scott couldn’t tell exactly what, as his view was hindered by Gordon’s wide body.
Scott had been so busy reviewing his notes at the prosecutor’s table that he had not noticed the courtroom filling rapidly. Richard Evans arrived with an enlarged photo of the crime scene mounted on foam board, and for the first time, Scott turned to face the spectator area. He noted that most of the seats had been taken, except for several rows on the left side of the courtroom, which had been roped off to accommodate the jury panel when called from its assembly room. Then, on the other side, he noted a large tripod holding a TV camera. Lettering on the camera read “WSAV/TV.” Two men were laying electrical and video cabling down the far wall. Scott recognized a newspaper reporter who was already seated in the front row. And there was a young lady with a steno pad, and a digital camera hung from her neck. He did not recognize her, but she was obviously from some news service. He wondered why the cameras were present. He had never seen cameras in any Chatham County courtroom. He was sure they were not going to be allowed in Desano’s courtroom.
He looked at his watch. It was a few minutes before nine. Judge Desano would be entering promptly at nine and would expect counsel to be ready to begin. He was concerned that Meg had not arrived. Being only a few minutes late can put a judge in a very bad humor—or worse. From what Scott had heard, with Judge Desano, it was always worse. He was about to ask Richard to go locate Meg when he saw a young man rushing into the courtroom, heading directly for Scott and Richard. Scott recognized him from the DA’s office but had not met him and did not know his name.
“Who is that, Richard? He’s heading our way.”
“That’s Daniel Mackay.”
Daniel arrived with a serious look on his face. He was a tall, young redhead, soft-spoken and not much older than Scott. He had been with the DA’s Office for almost three years. His present assignment was with felony intake, while finishing his misdemeanor cases. Scott stood and faced him.
“You are Scott Marino, helping Meg on this case?”
“That’s right.”
“Meg had to go to the emergency room at Candler. Hemorrhaging. She’s been admitted, but I don’t know anything else about her condition. Nick Cox sent me to request a postponement.”
It was now 9 a.m., and as expected, the judge’s door, which leads directly to the bench, opened, and Judge Desano walked into the courtroom. A bailiff took his long wooden staff an
d pounded it three times on the floor.
“All rise,” he commanded.
The first-time visitors were startled as usual by the loud raps of the heavy staff, but all in the courtroom were quickly on their feet. The trial of State of Georgia versus John Harrison was called to order, and the spectators were instructed to be seated.
Daniel Mackay remained standing, prepared to make his motion for a continuance. But Judge Desano spoke first, and Daniel sat down.
“There is a matter to take up before we begin this trial. Thursday, I was presented with written requests from several parties, among them WSAV-TV, the South Georgia Times, and Savannah radio station WTKS. I mention these in particular because they were the first of their particular media to make a written request. Subsequently, I had similar requests from other news media. Specifically, these parties wish to broadcast live or take photos of this trial. I ordered counsel for these parties to be present this morning for a hearing on this issue. Are counsel for these parties present?”
Several attorneys in the spectator section stood and announced their names and the party or parties each represented. Judge Desano invited them to come within the bar and be seated in the jury box. Ten of the fourteen seats in the jury box were quickly occupied.
“Personally, I am opposed to cameras and other recording devices in a courtroom, and I could enumerate my objections. But my personal opinion is unimportant because the State of Georgia has a policy favoring open judicial proceedings. Last year the Georgia Supreme Court addressed this issue in Morris Communications versus Griffin. The trial court had denied permission for cameras in the courtroom, after finding specifically that the defendant objected. However, the Supreme Court reversed. And just a few months ago, in our neighboring jurisdiction, Effingham County, Judge Turner denied a request from the Savannah Morning News to place a camera in the courtroom during a criminal trial. That decision was also reversed. Now, despite the outcome in those cases, the Supreme Court says I still have discretion, so I want to hear the position of the defense. Mr. Gordon, does the defense have any objection?”
“Absolutely not, Your Honor. The public has an absolute right to be invited into any and every courtroom in America, and because no courtroom can hold all the public, it is essential that the press, TV, and radio be permitted to be present. We emphatically support opening the court to not only still cameras but radio and TV broadcasts.”
“How about the district attorney? I don’t see Mr. Wilder. Who is representing the state?” asked Judge Desano.
Scott and Daniel eyed each other. “I think I should take this, Scott,” Daniel said, as he rose from his chair to address the judge.
“Your Honor. I am Daniel Mackay, an assistant district attorney. The assigned assistant DA to this case, Meg Flanders, became acutely ill this morning and has been hospitalized. I was sent here to request a continuance in this case.”
“I’m sorry to hear about Ms. Flanders. We’ll take up that continuance request after we finish this hearing. What is the state’s position on cameras and TV and radio broadcasts in this trial?”
“We are opposed. This trial already has the earmark of a media frenzy. I personally noted a half-dozen vehicles in front of the courthouse this morning with satellite equipment and cables running everywhere. This case, involving a member of a prominent family being defended by a nationally known trial attorney, is quickly turning into a high-profile spectacle instead of a calm search for truth and justice. From the prosecution’s perspective, we don’t need any further trial exposure.”
Judge Desano turned to the attorneys seated in the jury box. “I’ve carefully read the briefs that were submitted. All of them. I’ve also read the Memorandum of Agreement signed by the parties concerning pooling and sharing the photos and broadcasts. Does anyone have any additional argument to present before I rule?”
One attorney rose to address the court. “Just this, Your Honor, and I’m sure I speak for others here in apologizing for the lateness in submitting our requests. However, most of us were not aware of the name of the defendant and his relationship to Senator Harrison until the Channel 11 interview of Mr. Gordon last Wednesday night. We know that you would have desired more time to consider these requests, but we were simply unaware until then.”
“You were on TV regarding this case last Wednesday, Mr. Gordon?”
“Eh... yes, Your Honor, but only briefly. No real facts were discussed.”
“You heard me warn you last Tuesday about my distaste for issuing gag orders, didn’t you, Mr. Gordon?”
“Yes, I recall that, Your Honor.”
“Well, consider the gag rule now in place. As much as I dislike policing them, I will. I’ll be signing a written order, but in the meantime, use your better judgment. I know it will be difficult for you, Mr. Gordon, but I suggest you be neither seen nor heard by the media outside this courtroom.”
The judge then turned to the jury box and continued: “Now, with regard to the request for still cameras and TV and radio broadcasts of this trial. Each request is granted. The pooling of the photos and broadcasts as set forth in the memorandum is also approved. There will be only one TV camera, one radio microphone, and one photographer with a still camera. If any of the equipment makes a sound, out it goes. I expect you attorneys to ensure that everyone involved is familiar with Superior Court Rule 22. That rule will be enforced. This hearing is terminated. We will take a fifteen-minute recess before calling the jury, to allow the media to set up their equipment and implement their pooling plan.”
At the command “All rise,” as the judge departed the courtroom, Daniel and Scott scrambled to their feet, looking puzzled at each other. There had been no resolution to Daniel’s request for a continuance. Daniel was confident he could get a continuance at least long enough to determine when—or if—Meg could return. Scott wasn’t so sure and didn’t particularly care. He was ready for trial and his witnesses were ready. He expected the defense to agree to a continuance, since they had made the same request last Tuesday.
Fifteen minutes later, the court reconvened. As soon as the opening ritual was complete, Judge Desano looked over at Daniel and asked if he still had a motion for continuance.
“I do, Your Honor. I ask for a continuance of two weeks. Our office is quite swamped now with active cases set for trial, but that should provide sufficient time for another prosecutor to be assigned and get ready for this trial, or, hopefully, Ms. Flanders will be sufficiently healthy to continue.”
“And you, Mr. Gordon, what is your position on this request?”
“Absolutely opposed. My trial calendar is booked solid through January.”
“Last week you urged the court to grant you a continuance until December. What has changed?”
“My calendar has been restructured with additional cases set for trial in at least four different states between now and January. Besides, John Harrison has been incarcerated on exceedingly weak evidence for many months. He has previously demanded a speedy trial and is entitled to one. We are ready for trial now. Today. This courtroom. Just as you ordered last week. We renew our demand for speedy trial.”
“I agree,” said Judge Desano, and then he turned to the prosecution table. “There can’t be one sauce for the goose and another for the gander when setting trial dates. This trial was set in stone last Tuesday. I was the stonemason. Your motion for a continuance is denied.”
“But, Your Honor, there is simply no one available from the DA’s office to represent the state.”
“You are here. Aren’t you a sworn assistant district attorney?”
“I am, Your Honor, but, frankly, all I know is the name of the defendant and that he is charged with robbery. I don’t know who the witnesses are. I haven’t read a single page of the investigative file.”
“Have you ever supervised a student intern at a trial?”
“Yes, sir, I have. In misdemeanor trials.”
“I believe that under the Georgia Practice Rules, before a
student may participate in any trial, the student must be certified by the dean of the law school, take the required oath, and have permission of the trial judge. Any other requirements, Mr. Mackay?”
“No, sir, except a supervising attorney must be present at all times.”
“Mr. Marino, how long have you been working on the case and what parts?”
“A couple of weeks, sir. I’ve been preparing for most all of it, except jury selection.”
“So, there you have it, Mr. Mackay. You do the jury selection, and Mr. Marino can handle the rest of the trial. Problem solved.” The judge then turned to a nearby bailiff. “Send for the jurors. We are ready to start jury selection.”
Scott and Daniel, who had been standing during the judge’s questioning, now sat down at the prosecution table.
“Scott, my good friend, I hope you are as prepared as the judge thinks you are,” said Daniel. “I still can’t believe this situation. There’s not a damn thing we can do about it. And cases don’t get reversed when the prosecutors get squeezed. When that jury’s sworn, jeopardy attaches, and if we fuck it up—well, that’s it. Too bad.”
Daniel turned to Richard Evans, who was sitting in a chair on the right edge of the prosecution table. Richard, who had been observing criminal trials for over twenty years, was grinning like Lewis Carroll’s Cheshire Cat. In fact, the whole scene reminded him of something out of Alice’s Adventures in Wonderland.
“Down the rabbit hole,” he said, just loud enough to be heard by Scott and Daniel.
“Richard, we need to tell the DA what’s going on, in case he hasn’t been watching TV. So, if you have a clue, go tell him. And if, like me, you don’t have a clue, still go tell him. Say something clever, like, ‘Surrender hell, we’ve just begun to fight.’ And Richard, tomorrow wear a blue dress shirt—it shows up better on TV.”
Scott appreciated the humor Daniel displayed in the face of Judge Desano’s ruling, but he thought the situation was not so dire. No doubt it was a shock to Daniel to suddenly have responsibility for prosecuting a felony trial that he had not prepared for. And especially so when the defense counsel was one of the best known in the country and the trial was being broadcast across the state and perhaps across the nation. But Scott was not at all disappointed by the ruling. Yes, he was nervous, but he felt as prepared for this trial as anyone was likely to be.
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