“To me, it boils down to Mr. Norman’s confessions. There is no dispute about whether he uttered the words. He did. The question is whether the words applied to Senator Wells with a reasonable degree of certainty and whether it is reasonably certain that he understood the reasonable meaning of those words when he uttered them.
“Again, if I apply a literal or strict test, it’s impossible to say that the words applied to Wells or that Mr. Norman understood what those words meant, but a literal or strict test could invalidate every confession. When I think about this, I can’t abide by such a result.
“Did Mr. Norman mean to include Wells when he used the words he did? Her name was not specifically mentioned, but I have concluded that it is not unreasonable to conclude that Mr. Norman meant to include Senator Wells. First, Norman not only went to the Capitol building, but he went specifically to her office. This evidence was undisputed. Second, Wells was a member of the Senate Finance Committee, one of the specific congressional committees charged with Wall Street oversight. At the heart of Mr. Norman’s rage.
“Similarly, my instincts are that Mr. Norman knew what he was saying. The words he used are just not that complicated. After all, he was able to form and say them.
“There will never be absolute certainty here. However, given my thinking about the proper interpretation of reasonable doubt, I’ve decided I must resolve the question of reasonable doubt against Mr. Norman. While I truly feel sorry for him, and while I have not yet thought through the question of justifiable homicide, I have decided I must change my vote from not guilty to guilty.”
Kessler was impressed. He looked around the room. He was not alone. Gonzalo had given this a lot of thought. Everyone seemed to realize that. The jury process was proving enlightening in more ways than Kessler had first imagined. “Would anyone like to comment on what Humberto just said? Maria, did you want to say something?”
“I do. When I voted not guilty yesterday, I said this was a very close call for me, and very preliminary. Like Mr. Gonzalo, I was also concerned about the proper meaning of the words reasonable doubt.
“I’m not able to express my feelings as well as Mr. Gonzalo. But I did listen very carefully to what he said. I agree with what he said. I also feel badly for Mr. Norman. But I now believe I too must change my vote from not guilty to guilty.”
In not very much time at all, the vote had gone from six not guilty and six guilty to four not guilty and eight guilty. Although Kessler wasn’t yet ready to declare, the vote had actually gone to three not guilty and nine guilty. This left Alicia Jackson, Angie Wright, and Sajid Rajesh as the three remaining not guilty votes.
“Mr. Kessler, may I say a few words?”
“Of course, Sajid.”
“I have listened carefully to what Mr. Gonzalo had to say. His remarks are quite compelling. However, I still believe there is reasonable doubt in this case and I still feel obliged to maintain my vote of not guilty. As I cast it yesterday.
“First, there is the question of who murdered Senator Wells. Mr. Reilly argues that since there is no evidence of another perpetrator, then it must be Mr. Norman. Ms. Klein responded by suggesting that Mr. Reilly was trying to make lemonade out of lemons. I agree with Ms. Klein.
“The prosecution should not win for failing to do its job. If this is to be the result of such failure, then the police would never try to find the truly guilty party. It strikes me as backward, and frivolous, to suggest that the prosecution wins because it can’t find out more than it did here. Or that Mr. Norman must find another villain in order to establish reasonable doubt.
“Also, as Ms. Klein observed, because of the grassroots revolution sweeping the country today, any number of persons might have been motivated to act as Mr. Norman stands accused.
“Then there is the question of Mr. Norman’s so-called confessions. As I see it, there is only one credible confession in this case: the one that occurred at the time of Mr. Norman’s arrest on February eleventh. This is the confession that Officer Marshall wrote down that is in evidence as the People’s Exhibit D. I accept that Mr. Norman uttered these words as Officer Marshall wrote them down.
“However, in my opinion, that does not get us past reasonable doubt. The words do not specifically refer to the senator. The words are not terribly precise. Most importantly, even if we could agree on the meaning of these words, there is reasonable doubt as to whether Mr. Norman understood the meaning of those words.
“Dr. Farnsworth testified that in her opinion Mr. Norman did not know the meaning of those words. Dr. Bartholomew testified that in his opinion Mr. Norman did know the meaning of those words. I am a pharmacist, not a psychiatrist or a psychologist. I have no idea which of their opinions is more reliable. However, as Ms. Klein strategically and effectively elicited from Dr. Bartholomew, even Dr. Bartholomew could not say with certainty which of their opinions is the more reliable.
“Ms. Klein constructed this point very convincingly. Mr. Reilly did not even try to refute it. In my opinion, the defense established reasonable doubt. Therefore, with apologies to Humberto, I cannot reconsider my vote of not guilty.”
Once again Kessler found himself impressed by a presentation he had not anticipated. “Thank you for your remarks, Sajid. Very helpful. You and Humberto have very effectively presented the opposite sides of this coin.”
“Mr. Kessler?”
“Yes, Angie? Is there something you want to say?”
“Yes and no. I still don’t know where I come out on all of this, but I do have some points I would like to make.”
“Please.”
“First, although I am sensitive to our obligations to Mr. Norman, I’ve been having a hard time getting very interested in these discussions. I am now finally interested. But do any of you know what time it is? It’s time for our lunch break. I don’t say this because I am that hungry. Or want us to stop. But rather because we worked right through our midmorning break without skipping a beat and without one juror pointing that out. It seems like we’ve become pretty intense at this point. I think that’s a good thing. And certainly something Mr. Norman deserves. Whether he’s not guilty or guilty.
“Second, I haven’t heard you say how you feel about reasonable doubt, Mr. Kessler. You spoke this morning about procedure and stuff like that, but you haven’t told us anything about how you feel and why you voted not guilty yesterday. I’d like to know how you’re feeling at this juncture.”
“Wow. You’re right, Angie. We worked right through our scheduled morning break without anyone speaking up about that. Wish I could make my daily exercise go by that quickly! I do think our jury, and our jury system, deserve high marks based on our deliberations this morning.
“I for one am getting hungry and would like us to get our lunch break. Since you ask, I will share my current feelings on reasonable doubt and then we’ll stop for lunch.
“I voted not guilty yesterday because I didn’t think the prosecution had met its burden of proof. I’ve been impressed and intrigued by the remarks of Humberto and Sajid this morning. I don’t believe there’s a clear right or wrong here. I think this is a very close call. One for each person’s individual conscience.
“For two separate reasons, I’ve decided to change my vote from not guilty to guilty. First, Humberto persuaded me that if we don’t reject a literal or strict approach to reasonable doubt, our judicial system will collapse under its own weight. For a variety of reasons I’ve not yet organized well enough to express, I’ve also concluded that justice will best be served if we ultimately decide this case on the basis of justification rather than not guilty versus guilty. I’m less confident in this second reason than I am in the first reason. My feelings in this regard could change before we finish our work.
“There is one thing I can say right now about my second conclusion. Either based on justification or reasonable doubt, I think we have to address the social context in which this case is to be decided. The social unrest we’re all observing is n
ot only relevant to the defense of justifiable homicide. It also impacts reasonable doubt in that it increases the number of persons who might have been motivated to kill Senator Wells.
“So, that’s where I am. It’s also not hard to do the math to see where we are right now. We presently have only three not guilty votes, Alicia, Angie, and Sajid, and we are now up to nine guilty votes. I must say that this is exactly the opposite of what I would have predicted when we began our deliberations yesterday.”
With just a bit of dramatic flair, Professor Jackson took the floor. “One more change. I’m changing my vote from not guilty to guilty. We’re now at two not guilty and ten guilty.”
Alicia Jackson voting guilty caught most people off guard. Kessler watched her react to the surprised looks on their faces. “Hey, people, it’s not really that complicated. I’m just reading the handwriting on the wall. Not only in this room, but all around the country. While Mr. Norman is being tried in this court, our political representatives are being tried in the court of public opinion. Someone needs to decide the case against our political representatives. I think it might as well be us. Right here and right now. In my opinion, our focus must be on defining and applying the meaning of justifiable homicide.”
Silence. Jackson seemed to have that effect on people. Kessler filled the void. “Anyone have anything further to say before we adjourn for lunch?” All eyes were on Angie and Sajid. Neither voiced any word.
* * *
AT 1:30, EVERYONE WAS back from lunch and again settling in around the conference table. Most of the jury had lunched together, chitchatting about this and that, but nothing more about the case. Others had gone off and lunched on their own. No doubt needing some space. A couple of them napped through the break.
“Welcome back, everyone,” Kessler said. “During the recess Angie told me she had some fresh thoughts she wanted to share with us. Angie?”
“Nothing profound; I just thought some more during the recess about reasonable doubt. I still think it’s a close call. I have mixed emotions. On the one hand, part of me thinks the case against Mr. Norman has not been made and he deserves to be acquitted. That part of me feels I should stand on my not guilty vote. On the other hand, I believe in the value of the jury system and the notion that juries are supposed to reach unanimous decisions if possible.
“Because it’s now obvious that Mr. Norman’s fate is going to turn on how the jury decides the question of justifiable homicide no matter how I vote, I’ve decided to change my vote from not guilty to guilty to see how we come out on justifiable homicide. I’m doing so with the understanding that I reserve the right to change my vote back to not guilty if I’m not satisfied with our discussion of that point. At the end of the day, based on my current thinking, I will likely force a hung jury before I allow Mr. Norman to be found guilty without a defense of justifiable homicide. If there’s any question about my right to change my vote back, then I’ll stand on my vote of not guilty.”
Kessler responded. “Angie, I haven’t seen anything in the jury instructions that prevent a juror from changing his or her vote at any time before the actual verdict is signed by me as foreperson and returned to Judge Brooks. As far as I’m concerned, that’s the very purpose of our jury system of deliberation. You are fine to do exactly as you have stated.
“Momentarily, then, this brings the vote to one not guilty and eleven guilty. The same thought occurred to me over the recess. It really doesn’t matter whether the vote is eleven to one or twelve to zero. This is more packaging than anything else. Either way, the result is going to turn on whether any who vote guilty find in favor of justifiable homicide. With that in mind, I’d like to ask you, Sajid, how you feel about possibly changing your vote on the same basis as Angie has done.”
“Mr. Kessler, I must respectfully decline. I believe I understand what Angie is saying and I believe I understand what you are saying. However, as a matter of principle, I cannot agree. I think our jury system puts the defendant ahead of everything. If we dishonor that, we dishonor the entire process. For the reasons I have expressed earlier today, I believe that Mr. Norman is actually innocent. Not just not guilty. For that reason, I simply cannot agree under any circumstances to create a record in which this jury unanimously finds Mr. Norman guilty. Even if we find unanimously in favor of justifiable homicide, Mr. Norman would have to live the rest of his life under the stigma that a jury unanimously found him guilty of first-degree murder. I’m sorry, but I cannot be a party to that. If Mr. Norman doesn’t deserve better, our judicial system does.
“I think my position is also compelled by one of the jury instructions I read. It says that every juror is at all times obliged to vote as he or she truly believes and not simply to achieve a unanimous vote.”
Kessler nodded thoughtfully. “Fair enough, Sajid.
“Okay, then. Here’s where I think we are. On the question of not guilty or guilty, before we take up the question of justification, we are a hung jury. Judge Brooks may not like that, but I’m satisfied we’re not going to end up with a unanimous verdict before considering justification.
“This does then bring us to the question of justifiable homicide. If everyone who voted guilty also votes that Mr. Norman is entitled to a defense of justifiable homicide, then we will end up with the equivalent of a unanimous verdict of not guilty. If less than all of those who vote guilty also entitle Mr. Norman to this defense, then we will indeed have a hung jury overall, unless all those who vote against the defense change their vote from guilty to not guilty, which would then again result in the equivalent of a unanimous verdict of not guilty.
“Mr. Norman either goes home a free man or he stands in limbo waiting to see if the prosecution will decide to retry him before a new jury. We now need to turn to the question of whether Mr. Norman is entitled to the defense of justifiable homicide.
“If we stick to the schedule we agreed on this morning, we have another couple of hours to spend today on the defense issue. I don’t think that’s going to be enough time to finish our deliberations today. Not based on the discussions I anticipate.
“During the lunch recess, several of you suggested that we recess for the balance of the day and then resume tomorrow morning at eight thirty. The thought is this will allow each of us some quiet time to carefully think about the notion of justifiable homicide in Norman’s circumstances before we take it up together. Those who already know where they are on this point may simply want to take a break and read a good book.
“I think we’ve done very well so far and have made a lot of progress. I hope that we will be able to conclude our work by the end of the day tomorrow and report back to Judge Brooks first thing on Monday. If we were to continue working this afternoon, I don’t think we’d be ready to report to Judge Brooks before Monday morning anyway. So, unless anyone objects, we will recess now and resume tomorrow morning at eight thirty.”
No one said anything except George Remington. He wanted to know if anyone was interested in a good game of poker. Several were.
CHAPTER 124
Saturday, August 8, 12:30 p.m.
LOTELLO WAS REGAINING AWARENESS. He just didn’t know of what. Or where. Or when.
But at least it was a start. It couldn’t be all bad. Better than nothing. Except for the pain he was feeling. And the fact that he couldn’t move. At least he was … feeling. And groaning.
He heard someone call out, “Hey, I think he’s waking up. Can someone do something?”
A nurse came into the room. “I’ve paged the doctor, Mr. Barnet. Good afternoon, Detective, welcome back to the living. You reportedly had quite a morning. I trust this is not routine.” Checking his IV and vitals, she asked, “How are you feeling?”
“Nauseous … thirsty … pain. Where … am I? What’s going on? What time is it? Where are Maddie and Charlie? What’s the matter with me?”
The doctor entered the room and took over. “Detective. Take it easy. Slow down. Suck on this ice. Just a littl
e. You’ve been through quite an ordeal. In case you’re not yet processing, you were shot earlier this morning. About nine hours ago. In your left shoulder. Just above your chest. Your body’s still in shock.
“You’ve suffered some significant damage. Nothing that won’t heal. You were lucky. An inch or so lower and we wouldn’t be having this conversation. You wouldn’t be having any conversation.”
Lotello ignored the doctor’s bedside manner. “What about Maddie and Charlie?”
“It’s Jeremy, Frank. Maddie and Charlie are fine. Elena has them. They don’t know anything. They just think you were called away on some big case before you could tell them.”
“Good. Doctor, please. I need to talk to my partner. Privately.”
“What you need is to rest. I need to put you back to sleep for a while.”
“I need a few minutes first. Then I’m all yours.”
“Five minutes.”
“Ten. I don’t want to sound dramatic, but lives are at stake. Literally. It can’t wait. It’s urgent.”
“I’ll be back, Detective.” The doctor retreated with the nurse. Shutting the door behind them.
“J, tell me what you can. Quickly. Have you been to the scene?”
“No. I’ve been right here since the paramedics called me. They found my contact info in your wallet. To call in case of emergency. I got what I could. Once they realized I was a homicide detective. And your partner.”
“And?”
“Blaine Hollister, who Klein has under subpoena, and, believe it or not—” Lotello interrupted Barnet and blurted out, “James Ayres.”
“That’s right, our old buddy, James Ayres. How did you know that? He had a hoodie still drawn tightly over his head. Hollister and Ayres apparently shot each other. At close range. They’re both dead. Do you know why?”
Lotello was having a hard time concentrating. He ignored Barnet’s question. “Other bodies?”
“None. Not in the hallway. Not in any of the apartment units in the building. They checked.”
The Puppet Master Page 35