Bear is Broken

by Lachlan Smith

  “We’ll cross that bridge when we come to it,” Judge Iris said, saving me from having to respond.

  We went back into the courtroom. The reporters and a few spectators had been admitted to the gallery, but the jurors were still outside. The moment of truth was close, and I could not remember how I’d meant to begin. I needed to review my notes. The deputy had brought in Ellis and seated him at the defense table. I gave him a thumbs-up. He shook his head, looking sick to his stomach. He had on his gray suit and a purple shirt with a black tie. Teddy had gone to his house with a sheriff’s deputy the weekend before trial to retrieve a selection of clothes. The judge had been keeping them for us in her chambers.

  “Okay,” I said to Ellis. “The judge is going to ask the jury if they heard about what happened to Teddy, and whether it’s going to affect their deliberations in any way. The jurors want to finish this trial as much as we do. They’ve been sitting here for two weeks the same way we have. So it’s really just a formality. I doubt any of them is going to want to get out of it at this stage.”

  “And then you’re on,” Ellis said in a tense voice, one of regret and fear. He wouldn’t look at me. I knew I ought to ask him whether he wanted to accept the DA’s offer of a mistrial. I didn’t say anything. If someone had told me I didn’t have to give that closing argument, I would have kissed him on the lips.

  “All rise,” the deputy said. “The Superior Court of San Francisco is now in session, the Honorable Catherine Iris presiding.” She came in and took her place on the bench. The court clerk called the case. It was all as ritualized as a church service where the officiants have long since forgotten the meaning of the prayers. “All right,” the judge said. “Anyone have anything to put on the record?”

  “Yes, Your Honor.” Melanie stood, resting her fingertips on the glass-covered table. “The state moves for a mistrial without prejudice, based on the fact that defense attorney Theodore Maxwell was critically wounded in a shooting just a block and a half from this courtroom yesterday prior to the conclusion of arguments. Reports of the shooting have saturated local news media, and it is the state’s belief that the jury has become irrevocably tainted.”

  “Counselor?”

  It took a moment for me to realize that the judge was looking at me. Thinking that we’d been through this, I feared that they were playing a trick on me, that what I had thought would happen was not happening. Perhaps the judge was going to change her mind and rule in the DA’s favor. My face burned. Judge Iris said, “We’re just making a record here, Counselor. What we were talking about in chambers.”

  There was subdued laughter from the gallery. Feeling my face grow hotter, I managed to blurt out something about my client’s constitutional rights, a garbled version of what I’d said before.

  I was barely finished before Melanie said, “Your Honor, the state requests that the jury be polled.”

  “Very well,” Judge Iris said. “I will poll the jury. Deputy, please ask the jurors to come in and take their seats.”

  I felt Ellis stiffen. I didn’t dare look at him now. My eyes were on the notes I’d made for the closing argument. I was too nervous to read them, but I stared down at them just the same, willing the words to resolve into meaning. Then I heard the doors open at the back of the courtroom. I jerked upright, standing as Teddy had taught me whenever the jury came or went, elbowing Ellis to remind him to stand with me, as a gesture of respect for the jury’s service and for the power they held over his life. I glanced at their faces, trying to remember which ones were likely with me and which against me, and which might be on the fence. There were fourteen, twelve jurors and two alternates. A few of the jurors studied me as they followed the deputy through the swinging gate, their movements stiff under the scrutiny of the journalists. One woman around my age gave me a little pursed-lipped smile of sympathy. An older man looked at me suspiciously, as if imagining I might have tried to kill my own brother. Dear God, I prayed, just give me a hung jury.

  For Teddy, it would have been blasphemy to hope for any result short of total acquittal.

  The judge polled the jurors one by one, asking them if they’d heard about the attempted murder, if they realized that it had been Teddy who was shot, if it would affect their deliberations in any way. This was the first time since selection that they’d been called on to speak. Their eyes flashed to the reporters, to the judge, to the DA, but most of all to me. After two jurors answered that they could be fair, Judge Iris began to phrase it as a leading question. “And what’s happened won’t have any effect on your deliberations in this case?” she asked, and each juror answered no, though I could see a few of them wondering if maybe it should. Otherwise, why would she ask?

  After the judge had finished polling the jurors she sent them back out into the hall. They filed out as meekly and mysteriously as they had entered, resigned by now to the interminable routine of entering and leaving and waiting without any explanations, their paperbacks and their knitting baskets always close at hand.

  When they’d filed out she denied the mistrial motion on the record, finding that the jury had not been tainted. Beside me Ellis had begun sketching furiously on his legal pad, his usual reaction to moments of stress and tension in the trial. “All right,” Judge Iris said, giving me a significant look, her eyebrows raised seemingly in encouragement. “Let’s bring the jury back in. If you need anything moved around in here, Counselor, why don’t you go ahead and do that.”

  Teddy always made a point of changing something in the courtroom before he gave his opening and closing statements, a subtle way of demonstrating to the jurors that he owned the space he was about to occupy, that he belonged in it just as much as the DA or the deputy or the judge. But that would mean my coming out from behind the defense table and wrestling with the podium or the easel. I shook my head.

  “Ladies and Gentlemen,” Judge Iris droned when the jurors were back in their places, “the defense will now give its closing argument. Since it’s been a whole day I will repeat the instructions I gave you yesterday morning before the assistant district attorney gave her closing argument. What the lawyers say is not evidence . . .”

  They didn’t listen to the instructions then, I thought, and they won’t listen now. They’ll decide based on some illogical detail that has nothing to do with the facts, something they think makes them cleverer than the attorneys or the police or anyone else, some coincidence that has nothing to do with anything. She was finishing: “After Mr. Maxwell speaks, Ms. McRae will have ten minutes for rebuttal. Counselor, you may proceed.”

  I thought of giving the whole thing sitting down, staring at my notes. But then I was standing and moving away from the relative safety of the defense table, walking around it to the well at the center of the courtroom and turning to address the jury as I’d seen Teddy address them. I was like a swimmer who’d cast off from the edge of the pool and was treading water; now I had to put my face down and open my eyes. I had to take a deep breath. I had to swim.

  “Ladies and Gentlemen,” I began, “I want to thank you for your service in this difficult case.” I had to pause for breath. “I’m not going to tell you how this case should come out. It’s not my job to do your thinking for you. You heard the evidence, you saw the witnesses. Often in these cases we have expert witnesses who come in and tell the jury all about some technical aspect. Forensics, fingerprint analysis, that sort of thing. But in this case you are the experts. This case does not hinge on chemical analysis or accident reconstruction or any of those things. This case hinges on human nature, on basic questions like who has a motive to lie and what that person stands to gain. And every one of you, based on your lifetime of experience as a human being, is an expert in human nature.”

  My pants had not fallen down. My voice had not cracked. I was starting to feel as if I could breathe again. “The night before last I had a chance to listen to my brother practice t
he closing statement he was planning to give.” I waited half a beat for an objection, since I was arguably appealing for personal sympathy from the jurors, but Melanie kept her seat. “Yesterday afternoon he was planning to stand where I’m standing now and tell you that the one of those two women, either Lorlee Bradley or Sharla Johnson, sat in that witness stand, took an oath to tell the truth, and then immediately began to tell the most fabulous lies. Now, I don’t know about you, but I cringed when I heard that. I like to think the best of people. When a person’s story doesn’t square with the truth I like to tell myself that human memory is uncertain, that my fellow citizens make mistakes and don’t intentionally lie, especially not in a courtroom when they’ve taken an oath to tell the truth, the whole truth, and nothing but the truth, under the penalty of perjury.

  “In this case, however, it simply isn’t possible that we’re dealing with just a mistake, given that the testimony of these women is diametrically opposed.” I gave a summary of the differences. “With the contradictions between these women’s stories, there are only two possible conclusions. Either Lorlee invented the rape accusation to get back at Ellis and get custody of her kids, lying about it when she called the police and lying again here in court. Or Sharla Johnson came in here in a matter in which she has no direct stake in the outcome, took the oath, and lied about those phone conversations with Lorlee in which Lorlee admitted making up the rape.

  “Now, I’m not going to tell you who lied and who told the truth. I’m sure you can guess what I think, but that’s beside the point. The point is what you think, what you heard, what you saw, and what you know. You heard those two witnesses testify. You listened to their words and you listened to the sound of their voices. You watched their faces, and you noticed the way they held themselves. With all your lifetime’s knowledge of human nature, you know in your heart of hearts which one was lying and which one was telling the truth. That knowledge may sit well with you, or it may not. You may feel in your mind that my client is a scoundrel for having an affair with his wife’s best friend, and it would be hard not to agree with you. But that’s not what you’re here to decide today, whether Ellis Bradley is a scoundrel. What you’re here to decide is whether the DA proved beyond a reasonable doubt that he raped his wife and beat her on those specific occasions named in the charges.

  “It’s the DA’s burden to prove her case beyond a reasonable doubt. This means that if at any point in the DA’s chain of proof you have a doubt, and a reason for that doubt, you must vote to acquit Mr. Bradley. In that sense your job is easy. If you have a doubt, and you have a reason, you’re finished. That’s the safeguard that’s built into our system, because our forefathers decreed that before a man can be branded a criminal, the state must bring an extraordinary amount of proof. Proof beyond a reasonable doubt.”

  I launched into a fairly standard set piece about Ellis’s decision not to testify, explaining that he had the right to remain silent, that the DA was required to prove the case against him and that he was not obligated to prove himself innocent. Also, that neither he nor Teddy nor I had to say one word, that we could have sat there with our arms folded all through the trial. Then I talked about the other evidence in the case, showing how ultimately everything came back to Lorlee’s credibility.

  I’d stopped being aware of myself as a person standing in a courtroom giving a closing statement. Instead, I was wholly the words I was speaking, the jurors I was persuading; for several minutes now I had been living not in myself but in their gazes. Their eyes were still on me, some guarded and hostile, others open and frank, but all engaged, all listening. Their pens were poised over their notebooks, but they were not writing. The only person who was writing was Ellis. I heard the scratch of his pen as he furiously sketched.

  “What you saw revealed here in court was an ugly situation, a situation that must fill you with distaste. Ellis Bradley was having an affair with his wife’s best friend, and Sharla was sleeping with her best friend’s husband. That’s repugnant. But Sharla was Lorlee’s best friend, and Lorlee had no reason to suspect that Sharla would reveal what she told her in confidence. What she didn’t know was that Sharla was Ellis’s lover, and that she couldn’t stand to see Lorlee do that to him. Remember, too, Lorlee’s stake in the outcome. If Ellis Bradley is convicted, she’ll get full custody of the children.”

  At last Melanie rose. “Your Honor, that’s completely speculative.”

  Judge Iris looked over her glasses at the jury. “I’ll remind the jurors that what the lawyers say is not evidence. Proceed.”

  The objection took the wind out of my sails. I ran through a shortened version of the conclusion I’d planned, a quick summary of the points I’d made. “When you get back there in the jury room and start talking about the evidence, and thinking about how what you’ve heard fits into what you know about human nature from your life experiences, I’m confident you’ll come to only one conclusion. I’m confident that you’ll find Mr. Bradley not guilty on every charge.”

  I walked back to my chair on stiff legs, feeling the way I’d once felt after I’d hiked up Mount Diablo in the heat of summer with Jeanie and had to come back down on burned-out quads, my legs wobbling every step of the way. Ellis gave me a nod, and relief flooded through me.

  Melanie strode confidently around the table to the far side of the courtroom, lifted the easel and her gigantic writing pad, and carried them into a position in the well right in front of the jury, placing the easel at an angle where neither Ellis nor I could see what she wrote on the pad. I knew my brother would have taken the opportunity to move both himself and Ellis over to the gallery right beside the jurors, but after speaking for an hour I didn’t have the energy to budge.

  I checked my cell phone under the table. The hospital hadn’t called. Teddy must still be alive. I wished, suddenly, that I was with him.

  Beside me Ellis was still drawing.

  Melanie was ready. “Ladies and Gentlemen, you’ve just heard the defense attorney concede that his client is, in his words, a scoundrel who was sleeping with his wife’s best friend and that the only witness in Mr. Bradley’s favor is the woman with whom for four years he cheated and lied. When you look at this situation from your life experiences, you’ll see at once that Sharla Johnson is the obvious liar, the kind of woman who would chase after her friend’s husband. What motive does she have to lie? To get him off the hook, of course, and to harm and humiliate Lorlee, supposedly her best friend but in reality her rival, the person who stands in the way of her being with Mr. Bradley. You’re all experts in human nature, the defense attorney said. Think about the attitude of a mistress toward her lover’s wife. Think about the jealousy Sharla Johnson feels for Lorlee. The hatred. You all saw it in her face, the sheer ill will that comes from having to settle for another woman’s leftovers.”

  She went on like that for ten minutes. As she spoke, my breath seemed to die in my throat, and all the exhilaration and satisfaction I’d felt after my own performance withered away, my heartbeat slowing to a crawl. It seemed to me that Melanie had picked up my whole speech and neatly inverted it against me, showing all the points I shouldn’t have conceded, showing the jurors that the portrait I’d painted of Ellis was in fact the portrait of a guilty man.

  By the time Melanie finished with her rebuttal I was certain Ellis was going down, guilty on all counts. Judge Iris was kind enough, but she would throw the book at him.

  Ellis was still sketching, withdrawn into his private world. It was a good hobby for prison. He would have a lot of time to work on his art.

  I glanced back and saw Detective Anderson sitting in the back row of the courtroom.

  All that was left now was the jury instructions. The judge had to read them verbatim. This usually took more than an hour. We had to sit there pretending to follow along while the jury pretended to listen.

  About halfway through, between the instructions f
or the battery charge and the rape charge, Ellis ripped the sheet from the pad and pushed it over to me. It was the page he’d been drawing on all through the closing arguments, a lifelike caricature of a hero, half-monkey, half-boy, wearing an oversize suit but with bare clawed feet and a short cape embroidered with a stylized “MB.” The monkey boy was swinging down into the courtroom with a law book in one hand, his lips parted in savage ferocity, while a sexed-up version of Melanie cowered behind the prosecution table, her easel and pad fallen beside her.

  Monkey Boy to the rescue. I supposed it was his way of saying no hard feelings, Monkey Boy, you did your best.

  Ellis’s drawing remained in the file for over a year. Eventually I rediscovered it and had it enlarged on matte paper. I even got him to sign it and had it framed. To this day it occupies a place of honor on the wall behind my desk.

  Chapter 8

  The daylight surprised me. A high wisp of cloud dispersed the light without dimming it, leaving nowhere to rest the eyes. I had to fight the urge to close mine and leave them closed.

  I walked down across Market and managed to hail a cab before I reached Teddy’s office. “SFGH,” I told the driver, then let myself back into the corner of the stinking vinyl seat and closed my eyes.

  I’d shaken Ellis’s hand and left him to the peanut butter sandwiches and daytime television in the lockup. Judge Iris’s clerk had my cell phone number so the court could call me if there was any news, a verdict or a question from the jury.

  Teddy was in the neurotrauma intensive-care unit at San Francisco General. I later learned that there was no better place for him to have ended up, that he was in the care of some of the best neurologists in the country.

  At the desk in the ward I told the nurse I was there to see Teddy Maxwell. I had to present an ID before she showed me to his room. She pointed out a chair, promising to be back in a minute.