Talon Winter Legal Thrillers Box Set

by Stephen Penner

“By a show of hands,” she started, and raised her own hand, “who walked into the courtroom, saw my client, and thought, ‘I wonder what he did?’”

  A few hands went up tentatively, but not more than a quarter of the panel.

  “Come on,” she prompted. “You swore to tell the truth.”

  The rest of the hands came up then. Almost all of them. The handful of people who didn’t raise their hands were either still lying, or not paying attention. Or one other possibility, which she’d get to.

  “Okay,” Talon accepted the increased response. She pointed to Juror #4, a middle-aged White guy in the front row. “Why?”

  The juror shifted uncomfortably in his seat. “Well, I don’t know. I mean, I know he’s presumed innocent, so maybe…”

  Talon wagged a finger at him. “No, don’t wriggle out of it. You said you wondered what he’d done. You saw all the other hands. That’s pretty common. What I want to know is why you’d think that, especially if, as you say, a criminal defendant is supposed to be presumed innocent.”

  Juror #4 shrugged. “I don’t know. I just did, I guess. I’m not sure why.”

  Talon wasn’t surprised. She moved down the row. “Juror Number Eight. Why do you think you had that thought?”

  Juror #8 was an older, White woman, with curly gray hair and glasses. “Well,” she answered, “they didn’t just pick him off the street.”

  Talon smiled. Now, they were getting somewhere. “Okay, fair enough. At least we hope not, right?”

  That prompted a murmur of agreement from the panel.

  She moved to the next row. A young Asian woman in athletic clothing. “Juror Number Thirteen, do you want to live in a country where people are just stopped at random on the street and end up getting charged with crimes?”

  The juror shook her head. “No, of course not.”

  And now it was time to call on one of those few people who didn’t raise their hands. Juror #36, way in the back. There was no way they’d get to him. The first twelve were the presumed jury, and each side could strike up to six. Even with the alternates, they wouldn’t get past Juror #28, unless somebody had a scheduling conflict or other hardship. But he hadn’t raised his hands. And he’d crossed his arms as he’d listened to the other jurors’ responses.

  “Juror Number Thirty-Six,” Talon asked the older African-American man, with graying temples and plastic-rimmed glasses, “what do you think about this?”

  He uncrossed his arms, but his face remained stoic. “I’m not sure it matters what I think. He’s here. He’s presumed innocent. That’s how the system works.”

  “So, you don’t think the police just stop people randomly,” Talon asked him, “and they end up here even if they didn’t do anything?”

  “I think the police stop people,” the juror answered, “and they end up here. But I don’t think it’s random.”

  “And you’ve thought about this before this morning?” Talon followed up.

  “I’ve had to think about it my whole life,” he answered. “I don’t have the luxury of not thinking about it.”

  Talon looked back to Juror #4. He’d dropped his eyes, just waiting for the conversation to move on, back to something abstract like snowfalls and snow machines. But she didn’t call on him again. She was done with him. She pointed at the only other African-American on the panel, a middle-aged woman in a business suit.

  “What about you, Juror Number Seventeen?” she asked. “Do you want to live in a country where police and prosecutors put innocent people on trial?”

  “Do I want to live in a country like that?” the juror clarified. “No. Do I think it happens anyway? Absolutely.”

  “But almost everyone who walked in wondered what my client had done,” Talon pointed out. “How am I supposed to believe you all will presume him innocent if you’re already trying to figure out what he did?”

  “You can’t,” Juror #6 piped up from the front row. He was a thin, White man, with dry-looking skin and raised shoulders. Probably a runner. Typical Northwest guy. “Because we won’t. That’s why the judge has to keep telling us that.”

  Talon smiled at him. “You have prior jury experience, right?”

  Maybe that line of questioning wasn’t completely worthless after all.

  “Right.”

  “Criminal?”

  “Yes,” the juror confirmed.

  “And you had difficulty presuming the defendant innocent, didn’t you?” Talon probed.

  The juror shrugged those tight shoulders. “I’m not sure about that. But I do think innocent people get convicted. So that must mean some defendants are innocent when the trial starts.”

  Talon nodded. That was what she wanted to get out. And it needed to come from one of the jurors, not her. If she said it, she was just an advocate—a hired gun—lecturing them, which would only have made it seem more likely that her client was probably guilty after all.

  There was something else that needed to come from the jurors, and not her.

  “So what else did you think when you walked in and saw my client?” she opened the question to the whole panel.

  When no one volunteered a response, she started calling on people again. “Juror Number Twelve?” A young White guy, probably barely old enough to sit on a jury.

  “Uh,” the juror looked around, “I don’t know. Nothing, I guess.”

  Talon nodded, and moved down the row. “Juror Number Fifteen?” Middle-aged White woman, long brown hair. “Did you wonder what Mr. Frazier had done to get himself into this mess?”

  The juror took a moment to consider. “I suppose I did.”

  “Did you wonder anything else?”

  Talon waited. She probably wasn’t going to be able to get through asking a third juror without Alcott figuring out what she was doing.

  “I guess I wondered,” Juror #15 answered, “what kind of punishment he’s facing.”

  Alcott shot to her feet. “Objection! Your Honor,” she gestured vaguely at Talon and the jurors, “we talked about this.”

  Judge Haroldson glowered at Talon. “Ms. Winter.” That was all he said, but it was all in the way he said it.

  Talon played innocent. “I didn’t say anything, Your Honor. The juror did.”

  So now everyone in the room knew it was really important what sentence the defendant was facing. Which meant they were all dying to know it. And now the prosecutor and the judge would refuse to tell them. It wouldn’t take twelve of them to know who would benefit from that.

  “I think perhaps,” Alcott suggested, “the Court should read the jury instruction regarding the jury not having anything to do with punishment.”

  From Washington Pattern Jury Instruction Number 1.02, Talon knew. The basic concluding instruction, normally read at the end of the trial, just before closing arguments. But there was nothing to prevent a judge from reading it at the beginning of the trial too.

  Haroldson turned and pulled the burgundy volume of jury instructions from the shelf behind him and turned to the appropriate instruction.

  “Ladies and gentlemen, I am now going to instruct you on the law regarding this particular point,” he announced. Then he pulled on his reading glasses and quoted from the instruction. “You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law.”

  He clapped the book shut, but Talon interjected. “Your Honor, could you please also read the second sentence of that paragraph?”

  Haroldson hesitated, daggers forming in his eyes. But he could hardly refuse the request in front of the jury. He’d be reading it to them at the end of the trial anyway. He huffed and reopened the book. “You may not consider,” he read aloud, “the fact that punishment may follow conviction except insofar as it may tend to make you careful.”

  Talon nodded, then turned back to the jurors, her index finger extended at all of them. “Be. Careful.”

  CHAPTER 28

  Once the questioning was over and both sides had exercised t
heir challenges, they were left a typical Washington jury: half men and half women; ten White, three Asian, and one African-American—Juror #17. Talon had expected Alcott to strike her. And if she had, Talon was ready to raise holy hell about it. You can’t strike a juror because of their race. Alcott must have decided she didn’t want that fight. No one likes being called a racist. Better to let the defense attorney think you a racist than strike the only Black juror and prove it.

  The judge swore the jury in, their oath changing from a promise to answer questions truthfully to a promise to ‘well and truly try the case with an earnest desire to reach a proper verdict.’ This was followed by a fifteen-minute break for the attorneys to gather their thoughts before opening statements.

  Talon didn’t need to gather her thoughts. But she didn’t need Alcott to gather hers either.

  “Last chance,” Talon stepped over to Alcott’s table, interrupting her attempt to review her notes of her opening statement. “My guy will plead to the drugs if you drop the gun.”

  Alcott’s eyebrows knitted together. “Why would I do that?”

  “Because you can’t prove the gun was his,” Talon answered.

  “Yes, I can,” Alcott insisted. “And even if I can’t, the worst result is they convict him of the drugs anyway. So why shouldn’t I just try the case?”

  “Because you can’t prove the drugs were his either,” Talon asserted.

  Alcott took a moment. “They were in his pants pocket.”

  “Mm-hm.” Talon nodded. “But how are you going to prove they were his pants?”

  Alcott cocked her head. “What?”

  “You can’t prove they were his pants,” Talon repeated. “Not his pants, not his drugs.”

  Alcott was dumbstruck.

  Talon shrugged at her. “Just sayin’. There’s nothing in the police reports about you guys connecting the pants to him. No store receipts. No I.D. in his back pocket. Nothing.”

  “They were on his body,” Alcott pointed out.

  “You’ve never borrowed someone else’s things?” Talon asked rhetorically. “I’m sure some of the jurors have.”

  She gave Alcott a moment to process what she was alleging, but only that one moment. “Well, never mind then. We’ll just see how things play out. That’s why we have trials, right?”

  She left Alcott to consider what had just happened and sat down next to her client.

  “Why did you tell her that?” Zeke whispered to his lawyer. “Don’t you want to keep our defense a secret?”

  Talon smiled. “Three reasons. First, the jury is never going to believe ‘Not my pants’…unless the prosecutor says it first. Second, she’s going to say it now, which means she’s going to veer off her prepared opening, which is always good for us. And third, when she does, I’m going to make her pay.”

  Zeke smiled. “Well, then. I guess maybe you do know what you’re doing.”

  “Damn right I do,” Talon replied. “And I know what she’s doing too. Because I’m making her do it.”

  Breaks usually ran long, so seventeen minutes after the recess began, the jurors filed back into the courtroom and Judge Haroldson instructed them, “Now, ladies and gentlemen, please give your attention to Ms. Alcott, who will deliver the opening statement on behalf of the State of Washington.”

  Alcott stood up and jerked her suit coat down into place. She buttoned it and stepped around her table to take a place in front of the jury box.

  “May it please the Court,” she started formally, with a backward glance at the judge. Then a quick look to Talon. “Counsel.” Then, finally back to the jurors. “Ladies and gentlemen of the jury.”

  It was a stalling technique, Talon could tell. Alcott was still trying to figure out how to address Talon’s defense. Which meant she hadn’t considered whether she should address it.

  She took a deep breath, then finally started in earnest. “We have laws for a reason,” she began.

  She didn’t get another word out before Talon stood up. “Objection, Your Honor,” she said calmly enough. “Argumentative.”

  That was the most common objection during an opening statement. Theoretically, a lawyer was only supposed to tell the jurors what the evidence would show. The facts. The lawyer couldn’t also argue how those facts fit the law, i.e., why a defendant was or wasn’t guilty. It was an archaic rule, and one that was routinely blurred by anyone with halfway decent advocacy skills. A prosecutor wasn’t going to tell a jury that a defendant ‘took’ items from a store, or ‘caused the death’ of a victim. The prosecutor was going to say the defendant ‘stole’ the merchandise, ‘murdered’ the victim—both of which were, technically speaking, legal conclusions.

  So starting with something other than facts. Something like, ‘We have laws for a reason’—well, there was no way Talon was going to let that go by unchallenged. Especially when objecting meant disrupting Alcott’s flow, which would piss her off, which would keep her from thinking clearly about that new piece of information Talon had fed her during the break.

  Judge Haroldson sighed. He knew the objection was technically correct. He was also loathe to sustain it, lest he support or encourage Talon’s efforts to disrupt Alcott. So he did what a lot of the older judges did: he declined to rule on the objection one way or another. Instead, he simply instructed Alcott, “Move along.”

  Alcott took a moment again, then proceeded. “The defendant, Ezekiel Frazier, is charged with the crime of unlawful possession of a controlled substance. He is also charged with committing that crime while armed with a firearm. The evidence will show that he committed each of these crimes.”

  Now, that was argumentative. But Talon couldn’t credibly object to every sentence. And she needed to be credible when she made the objection she expected to make a few minutes later.

  “The State will call several witnesses in this trial,” Alcott continued. “You will hear first from Tacoma Police Officer Michael Flaherty. He will testify that he was on routine patrol in the City of Tacoma when he observed a vehicle, driven by the defendant, without a working license plate light during the hours of darkness.”

  Talon looked at the jury to see what they thought of that basis for a stop. There were a couple of quizzical looks, but those might have been from the awkward cop-speak phrase ‘during the hours of darkness.’

  “Officer Flaherty activated his patrol vehicle’s emergency lights and effectuated a traffic stop.”

  More cop-speak. That was probably good for Talon. The more the prosecutor looked like she wanted to be one of the cops, the less objective she would seem. At least in theory.

  “Officer Flaherty will testify that he contacted the driver,” Alcott continued, “and that he identified the driver as the defendant, Ezekiel Frazier.”

  The reason lawyers drifted into argument during opening statement was that a bare recitation of the facts was usually pretty boring. Alcott’s stiff demeanor didn’t help matters. Talon had to force herself to keep listening and not let her thoughts drift to her own imminent opening statement.

  “Officer Flaherty will also testify that after identifying the defendant, he ran a computer check that showed the defendant’s privilege to drive was suspended in the third degree. That’s a crime, so Officer Flaherty removed the defendant from his vehicle and placed him under arrest.”

  Alcott then moved on to Officer Ruck and what she would say. It wasn’t anything different from what she’d said at the suppression hearing, and it wasn’t any more interesting. Search incident to arrest. Drugs in pocket, gun under the seat. But then Talon leaned forward. If Alcott was going to take the bait, this is when the hook would pierce her flesh.

  “Now,” Alcott’s tone changed to almost conversational as she deviated from her prepared remarks to the ones she’d decided to add after Talon’s visit during the break. “I expect the defense may argue that the defendant was wearing someone else’s pants,” she practically scoffed, “but—“

  “Objection!” Talon shouted as she
sprang to her feet, and slammed the table for good measure. “Your Honor, I’d like to be heard outside the presence of the jury.” Then, so he—and Alcott—knew she was serious, “I have a motion.”

  That meant a motion for mistrial. Most likely followed by a motion to dismiss for prosecutorial misconduct. Alcott looked confused, because she didn’t understand why Talon had objected. Haroldson looked angry, because he did.

  “Ladies and gentlemen,” the judge addressed the jurors, “I’m going to ask you to step into the jury room while I discuss a matter with the attorneys.”

  The jurors looked askance at each other, but shrugged and complied, standing up to file into the jury room. Once the door closed, Judge Haroldson turned quickly to Talon.

  “What’s your motion, counsel?” he demanded.

  “Well, first, Your Honor, is my objection,” Talon answered. “Counsel for the State just told the jury that the defense would make a claim that the pants he was wearing weren’t his own.”

  “That’s what you told me,” Alcott protested, still standing in the middle of the courtroom near the jury box.

  “Your Honor,” Talon ignored her, “the defense has absolutely no burden to present any evidence or make any argument whatsoever. Mr. Frazier is presumed innocent and that presumption endures until and unless the State proves the charges beyond a reasonable doubt. If they fail to do that, then I don’t have to do anything and I would still win the case.”

  “Get to the point,” Haroldson grumbled.

  “The point is,” Talon replied, “when the prosecutor gets up in opening statement and tells the jury what she thinks the defendant will say, that’s burden-shifting. Ms. Alcott just told the jury that I was going to put on evidence. What if I don’t? They’ll hold that against my client. And the evidence I would put on would be that the pants weren’t my client’s. Well, who would be able to say that besides my client? So, Ms. Alcott also just essentially told the jury my client would testify, when he has an absolute right not to. The prosecution cannot suggest to the jury that the defense has to put on any evidence, and they absolutely cannot tell the jury that the defendant will testify. Ms. Alcott’s outrageous comments have tainted this jury and made it impossible for my client to receive the benefits of his constitutional rights which she so casually flouted. The Court should declare a mistrial and dismiss the case.”