Brooks-Lotello Collection

by Ronald S. Barak

  “Let’s turn to the people’s next quote confession, People’s Exhibit E, a computer-generated confession. There is absolutely no evidence of where this quote confession came from. To be sure, it resembles words that Mr. Norman had been heard uttering. Words that were publicly reported. Thanks to the likes of Rachel Santana. Who’s not exactly a paragon of truth in reporting. There is simply no evidence that Mr. Norman created this document. It could just as well have been created by the real murderer. Trying to cover his or her own tracks by setting Norman up to take the fall because of his own vulnerability. It might have been created by Rachel Santana to prop up another one of her stories. As you saw, it wouldn’t be the first time she stooped to something like that.

  “Finally, there is the last quote confession offered up by the prosecution. The one that Mr. Norman was heard uttering at the time of his February eleventh arrest for the murder of Senator Wells. To be sure, we are not speaking of the January twenty-third first arrest. When no one really knows what Mr. Norman said. What we are talking about now is Mr. Norman’s second arrest. Where Mr. Marshall did clearly document Mr. Norman’s words. Admitted into evidence in the form of people’s Exhibit D.

  “Mr. Marshall certainly did a better job than Mr. Randall. However, inescapably, we again have reasonable doubt. You have heard two well-qualified medical experts discuss—and disagree on—whether Mr. Norman understood the meaning of those words he uttered in the presence of Mr. Marshall. The people’s own expert, Dr. Bartholomew, admitted to you right here this morning that Dr. Farnsworth’s opinion that Mr. Norman did not understand the import of what he was saying at the time, and was not likely confessing to anything, is quite possibly correct. That’s reasonable doubt per se, ladies and gentlemen of the jury—admitted to you by the prosecution’s own medical expert.

  “And, if that’s not enough to dispose of Mr. Norman’s so-called confession, let me ask you this, ladies and gentlemen of the jury: who among us has never made an ill-chosen remark in the heat of passion? Such as ‘Knock it off or I’ll beat your brains in.’ That doesn’t mean you’d actually do it. Angry people say angry things. It doesn’t mean anything. Certainly not beyond a reasonable doubt.

  “Throughout this trial, the people have tried to make much out of the fact that the defense has quote failed to identify another possible assailant. Wow, I’ve heard of trying to turn lemons into lemonade, but this takes the cake.”

  “Ms. Klein,” interrupted Brooks, “must we suffer yet another one of your mixed metaphors: lemons, lemonade, and cake? One would think you are hosting some kind of a tea party. Let’s keep it moving along. You’re going to run out of your allotted time if you’re not careful, and then you may be the one who is left … eating cake.” Who says I don’t have a sense of humor?

  Undaunted, and not skipping a beat, Klein continued. “What is undisputed here—both as a matter of law and as a matter of logic—is that Mr. Norman has no duty to find another suspect to establish reasonable doubt. What if Mr. Norman proved he was out of the country at the time of the murder? Would he still need to find another suspect to establish reasonable doubt that he did not commit the murder? I have every confidence that you will not fall for such silly tactics.”

  Klein paused, signaling a seminal moment was about to take place. “I have but one concluding point to make …”

  Brooks jumped in, “Ms. Klein you have only five minutes left. You better make your last point quickly.”

  “Ladies and gentlemen of the jury, I ask you to wonder why Mr. Norman should arbitrarily be cut short from having as much time as needed to make his closing argument to you in a cogent and clear manner. But it is what it is. And I will have to be quick about it. Quicker, I submit, than I should have to be when a man’s life is at stake.”

  Brooks remained somber. Feisty young lawyer, Klein is. She’s going to be good someday. Especially when she learns to budget her time better. Besides, she doesn’t need more than a minute or two to effectively make this point. I did her a favor gathering the jury’s attention.

  “Judge Brooks has already instructed you about the law of justifiable homicide as a defense. Time doesn’t permit me to go through this in as much detail as I would like. And as is warranted. However, the key point to this defense is the belief that one is striking out to protect his or her family from an imminent threat. You heard the expert testimony of Dr. Farnsworth yesterday. She believes that if Mr. Norman was Senator Wells’s assailant—a fact that Dr. Farnsworth does not believe—then it was indeed because he believed he was defending his family from imminent, life-endangering threats visited on him and his extended family by our corrupt and greedy political representatives. In complete abandonment of their public trust.

  “Even if you somehow believe, beyond a reasonable doubt, that Mr. Norman murdered and assaulted Senator Wells, I submit to you that you must still find him not guilty by reason of the affirmative defense of justifiable homicide.

  “Whether you conclude Mr. Norman didn’t murder Senator Wells or that he did but was justified in doing so, you must find him not guilty.

  “Mr. Norman and I thank you, ladies and gentlemen of the jury, for your attention and for seeing this case through to a proper result.”

  Brooks wasted no time. “Mr. Reilly, you said that you wanted to save some of your time to follow Ms. Klein. You have ten minutes left if you still wish to use them.”

  “I do, Your Honor. Thank you.”

  “Ladies and gentlemen of the jury, you have heard Ms. Klein. There are those who would condemn and convict our form of government without a trial, without a chance to defend itself. Even someone like Mr. Norman gets a chance to defend himself.

  “Senator Wells was murdered and then sexually assaulted. There is no doubt about that. Someone did it. And should pay for it. Mr. Norman clearly confessed. Dr. Bartholomew testified that, in his opinion, Mr. Norman’s confession on his second arrest was credible and understood by him. There is no reason to conclude otherwise and no one else who might have committed these crimes.

  “As for the notion of letting Mr. Norman off because some of our political representatives may supposedly not be doing their jobs: Who says they are not doing their jobs? And even if that’s so, the answer is to select other political representatives, not to allow self-appointed vigilantes like Mr. Norman to run around killing and sexually attacking innocent people. If you fail to convict Mr. Norman, it will be a sad day indeed in the judicial history of our fine country. You must not allow that to happen. You must bring in a guilty verdict, not only to convict the man who is obviously guilty as charged, but also to acquit political representatives from these cheap and scurrilous shots against them that they had no opportunity to defend.

  “And even if you disagree. Even if you find that the murder of Senator Wells was justified. To bring a halt to the threat to Mr. Norman and his quote family by our political representatives. Let me ask you this: why was Mr. Norman justified in sexually molesting Senator Wells after she was already dead?

  “Thank you.”

  Closing arguments were over. The case was now back in the hands of Judge Brooks. “Ladies and gentlemen of the jury, you have heard the evidence and you have now heard closing arguments. We will recess for lunch. At one thirty this afternoon we will reconvene. I will then instruct you on the law concerning your jury deliberations. Following that, the case will be in your good hands. See you at one thirty. Please don’t be late. We still have work to do.”

  CHAPTER 119

  Friday, August 7, 1:30 p.m.

  COURT WAS BACK IN session. Brooks instructed the jury as to the rules that govern how jury deliberations are carried out. He explained that the instructions he delivered consisted of standard form instructions developed by the bench and the bar that have been around as long as there has been a judicial system in this country. Improved and revised from time to time. And then supplemented by customized additional instructions collaboratively developed and tailored to this case by the
court and the attorneys for each side.

  Brooks read verbatim a number of specific instructions for what no doubt seemed to the jury to have dragged on forever. It was only about twenty minutes, but it was still way too much for lay jurors to possibly comprehend. They were visibly relieved when Brooks explained that a copy of his instructions would be available in the jury room for them to refer to during their work.

  By the time Brooks finished reading the jury instructions, most of the jurors seemed ready to get down to work. Or were simply bored. Some also seem puzzled, as if they had questions they would like to have asked. However, Brooks did not invite or take any questions. He did suggest that the jurors begin their work by first picking a jury foreperson, then perhaps getting a preliminary sense of where they stood in order to see how close they were to any kind of a consensus. Brooks also suggested that the jury decide whether they wanted to work through the weekend or take the weekend off. However, either way, he made clear that the jury would remain sequestered in their hotel through the weekend.

  “Ladies and gentlemen of the jury, I thank you for your attention and hard work to date, and for continuing to work hard until completion of your deliberations. I know you are anxious to get back to your families and to your personal lives. However, our system depends on the service you are providing and are about to provide. So does the fate of the defendant. Godspeed.”

  PART SIX

  DELIBERATION

  August 7–10

  When you resort to attacking the messenger

  And not the message, you have lost the debate.

  —WHITHECOMB

  CHAPTER 120

  Friday, August 7, 2:00–8:00 p.m.

  WHILE THEY OFTEN SAT in close proximity in the jury box and out in the hallway, and had recently been sequestered in the same hotel, apart from the occasional nod or greeting, the jury had yet to function as a group.

  They were from diverse backgrounds. They didn’t know each other. Any possible common interests remained to be discovered. Moreover, they had been specifically instructed by Judge Cyrus Brooks not to discuss the case before the jury deliberations began.

  All of that was about to change. They would now be working together. As a group. In a reasonably comfortable conference room in the hotel. To the extent they decided to work through some of their meals, they would also be eating together.

  This was their opening session together. Only a few of them had prior jury experience. Things began with an awkward silence. A natural reluctance to be the first to speak. Everyone seemed to be waiting. For someone else to say something. Anything.

  One juror finally broke the ice. “Did any of you see the movie 12 Angry Men? I saw it when it first came out. And was fascinated. When I was called for jury duty, I rented and watched it again. Just fiction. But I found it more useful than those jury instructions read to us this afternoon.”

  That remark provoked another. “I thought we’re not supposed to consider anything in our deliberations except the evidence we heard during the trial. And the instructions we were just given by the judge.”

  “Sorry. I didn’t mean to suggest otherwise. It just offered me some context.”

  More silence followed. Moments later: “Hi, my name’s Clyde Morris. I was on a jury once before. We were a little slow getting started. No one was sure what to do. No one wanted to seem too pushy. Or to make any mistakes. I learned from that experience that there are some early decisions we have to make.

  “We need to pick a jury foreperson. Are we going to work through the weekend? Do we want to work through dinner tonight? I don’t want to hog the show. And I don’t have any desire to be the jury foreperson. But I would be happy to lead things to get us started.”

  Another juror spoke up. “That’s a great idea, Clyde. You can start us off. And we’ll then go from there. Anyone feel differently?”

  No objections were voiced. The jury now had a temporary leader. Agreed upon by silent acclamation. By default.

  “Okay then,” continued Morris, “the sooner we get started and the harder we work, the sooner we’ll finish and get to go home. I suggest we work through the weekend. Bring in dinner, work until ten tonight, and then break for the evening. Anyone disagree?”

  Someone suggested stopping for the night at eight. They compromised on nine.

  Morris next asked for a show of hands of all those who did not want to serve as the jury foreperson. Eight hands were raised. Morris, in turn, asked each of the remaining four, in the order of their jury number, to indicate why he or she would like to serve.

  “My name’s Steve Kessler. I’m a retired businessman. I don’t have any great desire to be jury foreperson, but I do have some experience running business organizations. I’d be willing to serve. Try to help us get this process completed efficiently. If you all think that would be helpful.”

  “My name’s George Remington. I run an investment fund. My feelings are pretty much the same as Steve’s.”

  “I’m Alicia Jackson, an urban studies college professor. I would make a good foreperson because I consider this to be an important case from a social and political perspective. I could help lead us to a just result.”

  “Hi, my name’s Hamilton Reynolds. I’m a real estate developer. Struggling in our present economy a bit more than usual, but still managing to stay afloat. I’m willing to serve as foreperson because I’d like to get out of here and back to my day job.”

  Morris asked if anyone had any questions for any of the candidates. Silence. “Okay. Why don’t we put this to a vote. I’ll pass around some sheets of paper. We’ll do this by secret ballot. To make sure we won’t have any hard feelings.”

  “Excuse me, Mr. Morris. My name is Maria Sanchez. You seem to be doing a pretty nice job. Can’t you just continue as our foreperson?”

  Two other jurors expressed the same view before Morris could respond. “I appreciate the kind remarks. It’s not that I have anything against being foreperson, but I really just wanted to help us get off to a good start. I felt I could do that without appearing to overreach. So long as I wasn’t interested in being the foreperson. I think it best that we choose from one of our four candidates. But I do thank you again for thinking of me.”

  No one else had anything to say. Morris circulated the ballots. “Pass them back after you vote. I’ll do a quick count and announce the results.”

  Morris looked at the returned ballots. Only nine jurors had bothered to vote. Morris wondered if this reflected shyness or disinterest. He noted that Jackson and Reynolds received only one vote apiece. Presumably their own. Morris speculated that no one voted for them for the same reasons he had not: their brief remarks seemed a little too aggressive. Kessler received five votes and Remington two. Given the economy, perhaps people were reluctant to empower an investment banker. Kessler just seemed to be the safest choice.

  “Okay, we have our foreperson, Steve Kessler. Congratulations, Steve. It’s all yours.” Morris tore up the secret ballots.

  “Speech, speech,” cracked one of the jurors. Other than to smile and say this was his first election to anything, Kessler didn’t bite.

  * * *

  THE MANTLE PASSES SMOOTHLY FROM Morris to Kessler. “First, thanks to Clyde for efficiently bringing us to this point. I’ll try to keep the ball rolling.” Advancing the concept of edict by silence, at least in baby steps: “Let’s plan to work until six thirty. Then we’ll order dinner in and continue until nine as agreed.

  “How about an informal survey to see where we stand right now? If we’re unanimous on innocent or guilty at the get-go, we could be done before we even get started. If not, we should at least gain some sense of where to begin our discussions.”

  A juror yet to speak raised his hand and was acknowledged by Kessler. “My name is Kenzo Miyagi. First of all, we may informally use the term ‘innocent.’ But I think the correct term is actually ‘not guilty.’ As I understand the jury instructions, that we don’t find Norman guilty, doesn’
t mean he’s … innocent. It just means he’s … not guilty.

  “Also, I agree that it makes good sense to take an initial vote. However, I’m a little uncertain about what we’ll be voting on. If I followed Judge Brooks correctly, there is first the question of not guilty or guilty. If Norman is guilty, then there is a second question of whether we believe he is entitled to the defense of justifiable homicide. I’m also confused that there doesn’t seem to be a separate defense based on insanity. So, what exactly is it that we are going to be voting on?”

  “Good point, Kenzo,” Kessler responded. “Here’s what I believe Judge Brooks instructed us this afternoon. If we’re unanimous on not guilty, we’re done. If we have any guilty votes, then we are to consider the possibility of a defense of justifiable homicide. A justifiable homicide defense vote legally amounts to a vote of not guilty. And we are not to consider the question of not guilty by reason of insanity in our present deliberations. I’m not sure I understand why.”

  “My name is Sajid Rajesh. I believe Steve correctly described the instructions we received.”

  Kessler reasserted his authority. “I think we can vote not guilty or guilty by a show of hands because unless we’re unanimous, we’re going to have to openly discuss our views.”

  Six voted not guilty and six voted guilty. “Okay, again by a show of hands, let’s poll the six guilty votes to see if any believe Norman is entitled to a defense of justifiable homicide.”

  No hands went up.

  It occurred to Kessler that people might be a bit saturated and/or in need of the facilities. “Let’s take a ten-minute break. We’ll then go around the room and get a preliminary explanation from everyone as to why they’ve voted the way they did.”