Savannah Law

by William Eleazer

  CHAPTER 40

  Tuesday, September 12

  The news of the trial traveled quickly around the Savannah Law campus, spurred on by the front-page article in Tuesday’s morning newspaper. The article read as follows:

  Harrison Trial Opening Statements Scheduled for Today

  The trial of John Harrison, son of former Georgia senator and now gubernatorial candidate David Harrison, began Monday morning in the Chatham County Courthouse teeming with news media.

  Harrison is charged with an armed robbery two years ago at a convenience store on Waters Avenue in Savannah. Nationally prominent criminal defense attorney Max Gordon, of Chicago, assisted by Savannah College of Law Professor Denis Nolan, is in charge of the defense.

  A surprise development in the trial occurred Monday when the assigned prosecutor, Assistant District Attorney Meg Flanders, was hospitalized just an hour before the trial was to begin.

  Assistant District Attorney Daniel Mackay, who was appointed Monday morning to replace Flanders, immediately asked for a continuance to prepare for trial. After determining that a Savannah College of Law clinic student, Scott Marino, had been working with Flanders on the case and was prepared to proceed with the prosecution, the presiding judge, Lawrence J. Desano, denied the request.

  This is the second time Max Gordon has been to Savannah for a criminal trial. On the previous occasion, he was defense counsel for alleged Colombian drug dealer Alberto Escobar who was on trial in Superior Court before the same judge. That trial ended when Escobar escaped from the courthouse during a break in the proceedings. Escobar is believed to be back in Colombia.

  During Monday’s session, five men and seven women were chosen for the jury to hear the case against Harrison. The trial is scheduled to continue this morning at 9 a.m. with opening statements. The trial is expected to take three or four days.

  By the time the first class had started, the Harrison trial was the main buzz on the campus. Scott Marino, the Student Bar president, was going to do battle against not only one of the most famous trial attorneys in the country but also against one of their professors. Some students had already left to get a seat when WSAV-TV, Savannah’s CBS affiliate, announced it would be carrying the trial live, beginning at 9 a.m. Soon a paper banner was hanging over the entrance to the Student Center:

  HARRISON TRIAL ON OUR BIG SCREEN ALL DAY!

  A little after nine that morning, Deborah Channing knocked on Dean Adams’s door. Deborah always dropped by on Tuesday morning when a faculty meeting was scheduled, but none was scheduled for this Tuesday. Today her visit would be brief, so she remained standing after she closed the door.

  “I guess you are aware of the big trial going on downtown?”

  “I am. I read the article in the paper. It took a moment for it to sink in. What do you know about it?”

  “Not much. I know Professor Nolan has canceled all of his classes for the week. And I know many of the students in the school have canceled their classes to watch the trial. I spoke to two professors who had eight o’clock classes, and they both said over half the seats were empty. Most of the absentees are at the Student Center watching the trial on TV.”

  “Denis assisting Max Gordon. That’s rich. I’m not sure what the educational value of this trial will be, but the PR value to the school hopefully will be richer. But to cancel all his classes? That is quite disruptive for first-year students in their third week. Are you sure, Deborah? Perhaps he arranged for someone to cover? That’s a lot of time to make up.”

  “If he has someone covering for him, the students haven’t been told. He sent me an e-mail last Friday, and it read simply, ‘Please post that all my classes for next week have been canceled.’ I did that. Now, I hope you will excuse me. I have a couple of appointments.”

  Deborah opened the door to leave and then added, “This is going to be a very interesting week. Why don’t you go to the Student Center and watch the show on TV with the students? It should be good—I’ve heard about Max Gordon for years. Seeing him in trial in Savannah is special enough, but having one of our clinic students facing him—that tops it all. I wouldn’t miss it for anything; I plan to watch as much as I can.”

  Winston liked Deborah’s suggestion. He walked to the Student Center and joined the students who were gathering to watch the show.

  CHAPTER 41

  “May it please the court, and members of the jury....” Scott Marino began his opening statement to a courtroom overflowing with representatives of the news media and spectators. They had come to see Max Gordon in action but would have to wait until the young prosecutor completed his opening statement.

  “Just over two years ago, a well-dressed and well-spoken young man walked into Fast Eddie’s at 1443 Waters Avenue, here in Savannah. This is a small convenience store. It has no gas pumps, but because it’s the only store in this residential area, it is a busy place. Except late on a Monday night, especially this Monday night.

  “The man who walked into the store that night was alone. So was the clerk behind the counter, Vijay Patel. Mr. Patel is the owner of Fast Eddie’s. He had been operating this family business, at this location, for over twenty years. This night, because business was slow, he sent his only assistant home early. It was late, and he would be closing soon.

  “The man who walked into the store that night was the defendant, John Harrison, seated right there.” Scott turned and pointed directly at the defendant. “John Harrison walked to the beverage cooler, opened a door, then shut it without removing anything. He turned around and could see that no one else was in the store except Mr. Patel. He then proceeded along the glass windows that face the parking lot. As he reached the checkout counter at the front of the store, he pulled a short, shiny revolver from his coat pocket. With the pistol pointed at Mr. Patel’s head, he demanded money from the cash register, and Mr. Patel gave it to him.

  “He then ordered Mr. Patel to disconnect the handset from the phone behind the counter and place it in the bag with the money. As soon as this was accomplished, he quickly departed, leaving through the back door into an alley, and disappeared.”

  Scott then described the 911 call, the investigation, and the eventual arrest. He concluded his opening statement by walking over to the defense table and standing next to the defendant.

  “When all the evidence is in, you will be convinced beyond any reasonable doubt that this man, John Harrison, is guilty of robbery as charged in the indictment.” Scott took his seat.

  Judge Desano looked over at Gordon. “Would you like to make your opening now, or reserve it?”

  “Now, Your Honor.” Gordon got up from his chair, walked to the side of the lectern, and smiled broadly at the jury.

  “May it please the court, and ladies and gentlemen of the jury. Your selection to be members of this jury makes you a part of the most admired and envied criminal justice system in the world. You will have a chance—no, not a chance—but rather a duty, to correct an injustice that occurred right here in your home county, when the district attorney decided to prosecute this young man for a crime that he did not commit.”

  “Objection!” Scott was rising from his seat. “Pure argument, Your Honor.”

  “Not sure how pure it is Mr. Marino, but it is argument,” said Judge Desano. “Mr. Gordon, no argument during the opening, please.”

  “Yes, Your Honor, of course not,” replied Gordon. Then he walked over to the prosecutors’ table and slapped it smartly with an open hand. “Members of the jury, the burden of proof in this case rests right here. It’s their obligation to convince you beyond every reasonable doubt, that not only was there a robbery, and that the robbery was an armed robbery, but they must prove it occurred at 1443 Waters Avenue, here in Savannah, on the date alleged in the indictment.”

  For a moment, Scott had a sinking feeling. Had he missed something again? Did he have the right date and the right address? The shocked surprise that he had felt two weeks earlier during his first felony trial momentar
ily returned. Was this indictment also defective? Could not be, he thought. He had carefully reviewed every part of the indictment.

  Gordon continued. “But there is something else, something more important, that the prosecutors must prove. They must prove that the man who they claim entered that store was Mr. John Harrison, seated right there. And you know what, members of the jury?” Gordon paused and looked slowly from one juror to the other. “They can’t do it!” Gordon was getting louder.

  Scott thought to himself, more argument, but he would let it go. It wasn’t prudent to object to every small matter.

  “The prosecutors have only one witness to this robbery,” said Gordon. “A witness who had a pistol pointed right in his face.”

  That’s a strange statement, thought Scott. One witness? The names, addresses, and phone numbers of both Mr. Patel and Josh Johnson were given to the defense, as required by reciprocal discovery. Not only that, but Josh had confirmed to Scott in their phone conversation that one of Gordon’s team members had contacted Josh at his home in Colorado and had questioned him about his expected testimony. Josh told Scott that he had spoken freely with the caller, telling the caller he would be flying in for the trial on Tuesday. Had Gordon forgotten about this second eyewitness? If so, he was in for an unpleasant surprise.

  “I have been trying cases for over a quarter of a century, and during those years, I’ve defended about every crime there is in the books and faced every kind of prosecutor you will find in this country—good ones, bad ones, and crooked ones. And then there are those who use their office as a political stepping stone. Now, what I think we have here is a case....”

  “Objection!” said Scott. “Counsel is continuing to argue, and now he’s adding his opinion.”

  “Sustained. Counsel—all of you, come up to the bench,” said Judge Desano. Scott, Daniel, Gordon, and Nolan walked quickly forward.

  Once they were assembled in front of Judge Desano, he waved them to a side position, farther from the jury box. A bailiff moved over in front of the jury, a deliberate but mostly ineffective attempt to block the view and sound that he knew would be coming from the bench. Judge Desano had a stern look on his face, and his voice grew louder as he spoke. “Mr. Gordon, you’re trying my patience. I have no doubt you know how to make a proper opening statement. But in case you have forgotten, let me explain: it is the time you have to relate the facts to be presented so the jury can understand what is to follow. It is not a time for argument, nor a time for your personal opinion. Do you understand?”

  “I do, Your Honor. I apologize.”

  Judge Desano motioned them back to their seats, and Gordon once again took a position front and center of the jury. “What you are going to learn from the evidence in this case is that the defendant, John Harrison, is the son of Senator David Harrison, presently campaigning for governor of Georgia. Politicians have many friends, and they have many enemies. There is an old rule for politicians: ‘Keep your friends close and your enemies closer.’ Unfortunately for John Harrison, his father did not keep his enemies close enough.”

  “Objection, Your Honor. Counsel continues to argue,” Scott said, rising from his chair.

  “Sustained!” said Judge Desano. “Bailiff, take the jury to the jury room, please. This court will be in recess for fifteen minutes. Counsel, I want to see you in my chambers.”

  When the four counsel arrived in Judge Desano’s chambers, they found the court reporter seated next to a visibly angry judge. Desano asked the attorneys to be seated and looked sternly at Gordon. “Mr. Gordon, perhaps you take me for a tolerant old fool. You may be partially right, but not the tolerant part. I am not going to put up with your contemptuous and unprofessional conduct. I am confident you know the appropriate content and the limits of an opening statement. There is to be no personal opinion, no argument or explanation of what the evidence means. Do you understand that?”

  “Yes, Your Honor. But may I just say that in Chicago, Dallas, Houston, and other jurisdictions where I try criminal cases, we are given more leeway in the opening.”

  “Unfortunately for you, Mr. Gordon, this case will continue to be tried in Savannah, Georgia. Now I have given you the rules you must follow. Do you understand those rules?”

  “I do.”

  “Good. Let me explain something else. If you again argue your case or state your personal opinion during the opening, I promise you that I will throw you off the case, or hold you in contempt, or both. Now understanding that, do you want to continue with the opening statement, or just forget it and let the prosecution proceed with its case?”

  “Of course I want to finish my opening, Your Honor.”

  “Fine. This conference is ended.”

  Scott and Daniel were soon back in the courtroom waiting for the court to reconvene. “What do you think Gordon is up to?” asked Scott.

  “I think he’s baiting Desano,” said Daniel. “Wants to get him angry so that he will make some big mistake on the record for an appeal. He’ll also argue that the judge was prejudiced against him. Gordon knows Desano won’t throw him off the case. But he might hold him in contempt, because he’s pretty pissed off right now. He knows Gordon’s deliberately testing him. But Desano’s smart. He’s pretty much got Gordon cornered on the record. He can’t say he didn’t understand the limitations.”

  “I agree,” said Scott. “He claimed he knew the rules before we started. He’s tried cases in Georgia, one here in Savannah. He may be right about some states allowing argument in openings, but Desano has a right to hold him to his rules. I think Gordon’s making a big mistake by continuing to test Desano. We’ll see.”

  The court was called to order, and Gordon began once again. “Members of the jury, as I was saying before I was interrupted, the evidence in this case will show that Mr. John Harrison was not in Savannah, Georgia, when the store on Waters Avenue was robbed.”

  That’s not at all what he was saying when he was interrupted, thought Scott. But Scott was pleased to hear some clue as to what the defense will be claiming, and maybe Desano’s warnings were now going to be heeded.

  Gordon continued: “As you may imagine, it would be impossible for Mr. Harrison to know precisely where he was two years ago when this crime occurred, but he is sure of one thing, and that is that he was not in Savannah, Georgia, and was not, and never has been, in Fast Eddie’s on Waters Avenue of this fair city. Mr. Harrison is not required to prove anything at this trial. Proof is required of the prosecution—proof beyond any reasonable doubt. And where can you find that reasonable doubt? From the evidence, of course. But just as important, from the lack of evidence. During this trial I ask you to look carefully in both places, and when you do, you will find no credible evidence linking Mr. Harrison to this robbery. What you will find is a corrupt link to Georgia politics. Now you may wonder how politics....”

  Scott was quickly on his feet. “Objection, Your Honor, argument!”

  Judge Desano was equally quick. “Sustained. The jury will disregard counsel’s comment.” The judge gave Gordon a scathing look but nodded his head slightly and said, “Continue, Mr. Gordon.”

  Gordon continued. “This is not a criminal trial but a political campaign....”

  Those ten words were all Gordon was able to utter before Judge Desano rapped his gavel soundly on the bench. The startled courtroom became silent.

  “Bailiff, please escort the jury from the courtroom.”

  This time, Judge Desano did not order counsel to his chambers. When the jury had departed, he looked sternly at Gordon. He did not appear angry, but he had a determined look on his face, as if he had anticipated Gordon’s continued defiance of his instructions. Gordon was still standing in front of the jury box, and Scott was standing at the prosecution table.

  “Counsel, be seated,” he said. Gordon returned to the defense table, and when both counsel were seated, Judge Desano continued. “Mr. Gordon, you seem to be determined to continue your contemptuous conduct. I fail to see
how such conduct can benefit your client. As judge for this trial, I must ensure that your client receives a fair trial, so I will deal with that now and you and your contemptuous conduct later. You are relieved as counsel in this case.”

  Then, looking directly at the defendant, the judge said, “Mr. Harrison, Mr. Gordon will no longer be participating in this trial. The trial will continue with Mr. Nolan as your defense counsel.”

  The courtroom burst into a din of voices that prompted a series of raps by the judge’s gavel. Several from the news media quickly departed for the door.

  “Your Honor, may I be heard before you take such action?” said Gordon.

  “Mr. Gordon, I have already taken the action. You are no longer counsel in this case, so you have no standing to be heard. Should counsel for the defendant, Mr. Nolan, wish to speak, he may do so.”

  Nolan looked at the judge. It was a look of bewilderment, followed by a long pause.

  Finally, he spoke. “Your Honor, I don’t think... eh... I don’t think you can just so summarily dismiss primary counsel.”

  “Oh, but I have, Mr. Nolan. Do you have anything else you wish to say?”

  “But I’m not a criminal lawyer.”

  “You are now, Mr. Nolan. Do you wish to finish with the opening statement, or reserve it until you are ready to present your defense? And Mr. Nolan, may I suggest you stand when you address the court. It makes the judge happy.”

  Nolan got to his feet but said nothing. He looked at Gordon, who was now seated. Gordon gave him no help, not even making eye contact. There was a long pause before the silence was broken by the judge.

  “In fairness to you and the defendant, Mr. Nolan, I’m going to recess the court until 2 p.m. I believe you deserve some time to better prepare and to consider your options. And Mr. Gordon, when the court reconvenes at two, you are not to be within the bar. Of course, if you can find a seat elsewhere in the courtroom, you are welcome as a spectator. Court is now in recess.”