“Yes, Your Honor, we would like to make an opening statement, and hopefully it will also be a closing statement, because when we have finished, we believe that you will have no other choice but to dismiss this case.” This drives the press into a frenzy. I think I hear some pencils break. The judge bangs his gavel down with the usual warning that if the court doesn’t come to order, he’ll have the bailiffs clear it of all persons other than the litigants. I know in my heart he’ll never do that, because no performer likes to clear a room before their act starts.
During our strategy conferences we discussed timing, because like any trapeze act, it is crucial. In a case that goes to trial with a jury, jeopardy attaches when the jury is sworn in. This case doesn’t have a jury, so jeopardy won’t attach until Miller’s first witness is called to the stand and gets sworn in. If we give our entire presentation before that first witness was called, then the clients will be in a possible position of being re-tried, without the protection of the double-jeopardy rule. After a long and serious deliberation, it was unanimous between us all. Myra would do her opening statement immediately after Miller’s. Not all attorneys make that choice, often reserving the right to make it at the beginning of their defense presentation, after the prosecution has rested its case.
Myra walks over to the lectern between the counsel tables. Forget what you’ve seen on television. There’s no prancing around in front of those tables. The area between the counsel tables and the judge’s bench is called the ‘well,’ and it’s sacred territory in a courtroom. The only time you’re allowed to go in front of those benches and set foot in the well is with the court’s permission. That’s why in a real case you’ll hear lawyers ask the judge “sidebar, your honor?” or “may we approach, your honor?” or “permission to approach the witness?” Maybe Perry Mason or Matlock can get away with performing in the well or leaning his arm on the rail directly in front of the witness box, but try it in real life and you may be sharing a cell with your client later that afternoon.
As soon as Myra puts her hands on the lectern and clears her throat, I reach under some files that are piled up on the counsel table and press the speed-dial number on my cell phone that’s programmed to call Jack in the limo parked outside. The caller ID on his phone displays my number. I can’t talk on the phone now, but Jack knows that this is his signal to pass out copies of Myra’s opening statement to the press. I wish I could be near a window to see what that scene looks like. Myra starts.
“Your Honor, if it please the court, we have laid out here on this display table several exhibits we intend to introduce into evidence. The prosecution has received copies of every item. It is their failure to analyze them properly that we will be concentrating on.” Miller glances at his assistant with one of those smug ‘yeah, fat chance’ looks. Myra continues “Defense Exhibit A is an affidavit executed by a person on our witness list, a lab technician employed as a DNA sample specialist with the D. Riddle Technical Company in Van Nuys, California. We would ask the court to take Judicial Notice of the fact that on at least four separate occasions during the past twelve months, Mister Miller’s office has presented this person as an expert witness on the matter of DNA sample-taking and analysis. In each case, the court has accepted her credentials and she has been qualified as an expert witness. Each of those case names and numbers are included in the affidavit. When called to the stand, this witness will testify to the fact that she personally took DNA samples from the defendant’s deceased wife, her attending nurse, the defendant, and the defendant’s daughter. Furthermore, the witness will establish that the chain of custody of the samples was not broken. She personally delivered all samples to the laboratory, where she conducted the tests. Her initials appear on all test sample packaging.
“Next is Defense Exhibit B, a videotape of the exhumation of the defendant’s wife. The videographer of said event is present in court, and on our witness list, and is prepared to testify as to the authenticity of the videotape, which when played on the set we have had brought into the courtroom will document the complete exhumation of the defendant’s wife, and also the taking of a DNA sample from the remains by our expert witness, who as previously mentioned is also present in court.” Just as rehearsed, she gracefully moves down the table pointing at each exhibit as it is being described to the judge.
“Defense Exhibit C is an affidavit of our expert DNA witness explaining the results of lab tests run on the aforementioned DNA samples, and Defense Exhibit D is a set of photographs showing comparisons of the samples that conclusively support every statement made in the witness’ Affidavit.”
Although it’s not usually done during your opponent’s opening statement, Miller stands up and objects. “Your honor, the mere fact that the defense has pieces of paper marked as exhibits doesn’t really prove anything. Everyone’s got exhibits. Having Affidavits does not an opening statement make.” It looks like the judge wants to give Myra the benefit of the doubt, but he’s getting a little impatient.
“Counsel, I’m inclined to agree with the prosecution. You’ve obviously got a nice display laid out there on the table, but sooner or later in your opening statement you’ve got to tell us what they will be showing. That’s what an opening statement is you know, an opportunity to lay out your entire case by showing what you intend to prove, not just the fact that you’ve got exhibits.”
This is what we wanted. Not only will she now stick her sword in with a ‘thrust ho,’ it will be done at the specific request of the stickee.
“Very well, your honor, we were just about to do exactly that, before being so rudely interrupted by Mister Miller. By using the previously mentioned Defense Exhibits A, B, C and D, we will finish our documentary evidence with Defense Exhibit E, and these exhibits, and the testimony of our witnesses, will prove the following three irrefutable facts: One, that the person buried in what we contend is the Defendant’s wife’s grave on Catalina Island is in fact the defendant’s wife. Two, that the person who the district attorney mistakenly believes to be the defendant’s wife and in this courtroom today is in fact his sister-in-law, the fraternal sister of the defendant’s deceased wife, as shown by Defense Exhibit F, which is a copy of their birth certificates. And Thirdly, that the prosecution has absolutely no case at all against the defendant, all due to its failure to properly analyze the results which were provided in advance of trial. They were so intent on convicting this innocent doctor because their ineptitude prevented them from wrongly convicting him twice before, and we hope that by the court’s dismissal of this case, the district attorney’s personal vendetta against this doctor, the victim of Mister Miller’s misdirected vengeance, will forever be brought to an end. Thank you, your honor.”
Myra sits down and I swear I hear some muffled applause from the press in the gallery jumping up to run out to the hall, as they dial out on their cell phones. Several classic old black and white courtroom drama movies showed a bunch of character types wearing their vests in the courthouse pressroom. They would all have cigarettes in their mouths, making wisecracks and using their two-part dial telephones, yelling into the round, separate microphone part of the phone, “hold the presses!” Unfortunately, that doesn’t happen any more. Now the reporters just go outside into the hallway and call their story in to a re-write person who has probably been watching the scene on Court TV and has most of the story written already. The lucky ones go downstairs to the waiting news vans and broadcast their stories directly to the television stations via those satellite dishes elevated up over each van on a satellite dish tower.
As the seats empty, the judge keeps banging his gavel, calling for order in the court. There is no need for him to threaten clearing the court, because Myra just did it for him. When she sits down, every reporter has already jumped up and run out. The judge calls for a conference with both counsel in chambers and asks his bailiff to bring all the exhibits in there. I have a feeling the case will end in there, because the judge signals to the court reporter that she s
hould also join them in chambers.
I take this opportunity to call Jack and tell him what’s going on. The reporters ran out so fast, they missed the judge calling for the chambers conference, and it was definitely a newsworthy item for them to mention in their stories.
During the twenty minutes of the chambers conference, the press has completely acquitted the defendants. When the conference is over, Miller uses the chambers hallway and takes the building’s back elevator up to his office. When Myra comes back in, she has a strange look on her face, displaying a pained expression of success. She goes to doc first.
“Congratulations, doctor Gault, you’ve won. The case has been dismissed and you’ll probably never hear from Mister Miller again.” The Doctor and Rita shake our hands and everyone hugs. That is, everyone except Myra and I. She waits until Doc, Rita, and the witnesses all head for the exit, telling us that they’ll be waiting in the limo. “Peter, I won’t be riding back with you all of you in the limo.”
“What’s wrong? Don’t you want to celebrate with us?”
“No, it’s not that at all. It’s because the judge did something in chambers that’s going to make us part company for a while, professionally, I mean.” I’m completely puzzled by this.
“What’s going on, did he propose to you in there?”
“Not exactly, Pete. It seems that while we were conducting our brilliant performance here today, the police made an arrest in the Chinese restaurant owner’s parking lot murder. They brought Vito Renzi in and charged him with the murder. I believe he’s one of your potential defendant’s in Maggie’s sexual harassment suit.”
This is certainly interesting news, but I still don’t see why it would make Myra not want to ride back to the Marina in the limo with us and join our celebration, until she gives me the latest news: “Vito Renzi’s case has been assigned to judge Axelrod, and because he was so impressed by my performance and handling of the district attorney, he asked me to stay behind after Miller left chambers. He then made me Court-appointed counsel, to defend Renzi on the murder charge… for killing Suzi’s uncle.”
*****
Chapter 21
I feel bad that Stuart couldn’t join us in the limo, but even with his recent success at losing weight, there just wasn’t enough room. He’s already heard the news about our victory, and by the time we get back to the Marina, there he is on the boat, having a heated discussion with Suzi. He’s another person she talks to, instead of me.
She is definitely not amused by Stuart’s pointing out that while her best friend is a Saint Bernard, the people in her homeland are eating Saint Bernard meat. She admits to knowing about the Chinese practice, which infuriates the Swiss. The breed was named after Saint Bernard de Menthon, who founded his famous ‘Hospice,’ 8,000 feet up in the Swiss Alps back in 980 A.D. Although they were originally brought to the Hospice to serve as watchdogs, monks soon discovered that the breed was a great rescue animal, allegedly able to smell a human being up to two miles away, or buried under as much as ten feet of snow. They’re also supposed to be able to predict an avalanche up to twenty minutes before it occurs. I don’t know what that last talent is good for, unless they can talk too. I guess if you’re in the Alps, and all of a sudden the dog takes off, it might be a good idea to follow it.
Suzi’s dog is really a big one. A full-grown male of the species can weigh as much as two hundred pounds, and this one is probably very close to the limit. The most famous of all Saint Bernards was only half the size, weighing in at about one hundred pounds. “Barry,” who lived for fourteen years back in the early 1800’s, was one of the original compact, shorthaired types, born a good thirty years before the breed was crossed with the Newfoundland, creating today’s longhaired variety. Over a period of twelve years, Barry was credited with saving forty people from death in the Saint Bernard Pass in Switzerland, including a half-frozen child who rode back into town on the dog’s back.
Stuart was surprised to learn that Suzi is part of a volunteer organization that is trying to lobby the Chinese government to stop its practice of eating Saint Bernard meat. In response to their government’s questioning what was wrong with eating that dog’s meat, Suzi’s organization suggested that the Swiss people inform the Chinese government that Switzerland is designating the Panda as their national food. Maybe that will help the Chinese to see the light.
The dog acts happy to see us all arrive at the boat. He couldn’t have been too pleased with the subject matter of the conversation going on before we arrived. Stuart is also happy, because Maggie’s tormenter is now behind bars, and with his credibility seriously damaged, it should be easier to prove up Maggie’s case against Palmer’s organization.
With the doc’s criminal case now out of the way, I intend to give one hundred percent of my efforts to Maggie’s case, and going after doc’s insurance company. I’ve known lawyers who have hundreds of cases in their file cabinets. Even with a big staff to help out, how can a client really expect any degree of personal attention from a lawyer with that many cases going on? I guess I’m just old-fashioned, which is probably why I don’t own my own large law building like so many of those other guys do.
When it gets to the point where you don’t recognize the client’s name or what the case is about when they call, then you’re just too big for your britches. I suggest that whenever a client calls an attorney, they should time the minutes they’re kept on hold. If it’s more than three, it means the attorney forgot who they were and had to look at the file to re-familiarize himself with their case.
Having decided to concentrate all my efforts on just those two matters, I try to explain to Stuart why it will be impossible at this time for me to help him on his newest cause. He wants to bring a class action lawsuit against the fast food market, his contention being that like the tobacco industry, the fast food manufacturers knew the dangers of using their product as specified: the high fat, high calorie, high sugar, low nutritional value has damaged more people than cigarettes. Stuart quotes studies of wartime autopsies on servicemen, showing early signs of heart damage, even at their young ages, due mostly to poor nutrition and a diet of fast food. In further support of his contention he talks about the deaths of two people from heart disease who obviously didn’t think that eating fat was dangerous to one’s health: Doctor Atkins and the CEO of McDonald’s.
He also cites the Saturday morning children’s television shows with commercial ads featuring fast foods, violent toys and games. “Take a look at those frosted cereal boxes. All that junk food features cartoon characters, like the cigarette people used Joe Camel.” He’s obviously emotional about the matter and I personally agree with him only up to a certain extent, and that extent is the filing of a lawsuit. I’ve seen some of those commercials, and at times I would actually wince watching them try to convince young kids who don’t know any better to eat that crap. You never see a vegetable commercial on Saturday morning, and we’ve even had past presidents who bragged how they either ate jellybeans or avoided eating broccoli.
A recent physical exam showed that my cholesterol was way too high, so the doctor enrolled me in a ‘cholesterol class.’ When the teaching dietician walked into the room for the first class, she greeted us with “good afternoon cheese and ice cream lovers.” The entire class realized that she had our numbers, and so do all the commercial ad makers. I try to tell Stuart that perhaps the answer is to get the schools to try something new, like educating students about the four R’s: Reading, ‘Riting, ‘Rithmetic and Reducing fat, cholesterol and calories.
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Myra is busy preparing for Vito Renzi’s murder trial, and I promised to stay out of her way with my sexual harassment case until her trial is over. I fax her the official police report I have on the murder, just in case she had received only a ‘doctored’ copy. The district attorney’s been known to play that trick on defense attorneys in the past, and he’ll surely be out for blood this time around, after what Myra did to him on the do
c’s case.
Suzi isn’t too happy with my helping Myra on her murder defense. The kid was obviously quite attached to the victim. In one of her brief moments, she consented to listening to my explanation that until the triers of fact, whether they be judge or jury convict, the defendant is presumed to be innocent. It’s the prosecution’s burden to prove him guilty, not the defendant’s job to prove his own innocence. This is all nice textbook stuff, but when it hits close to home and you personally know a victim, a lynch mob looks like a much better alternative. I sympathize with her. She doesn’t know it at the time, but she really doesn’t have much to worry about. The case looks like a slam-dunk for the prosecution. So easy in fact, that Miller has once again decided to try it himself. He wants his chance to humiliate Myra and make a last ditch effort to gain back the voters’ confidence. Poll numbers show that his favorable rating is taking a nosedive. If he doesn’t win this murder trial, he’d better start updating his résumé.
Part of any defense attorney’s job is to also investigate the victim. I know that Myra will be doing this, so I give Suzi a heads-up and let her know (by e-mail) that if she knows anything about the victim that might affect the case, she’d better be completely honest about it and tell Myra.
I can tell that she’s conflicted over my request. Over the weeks that we were working on the doc’s case, it looked like she was getting quite friendly with Myra and certainly respects her as a trial lawyer. In some way she probably felt betrayed when someone she considered a friend wound up defending the guy accused of killing someone very close to her. I tried to explain to her that neither Myra nor I would normally go out of our way to represent that man, but this was different because it was a court-ordered appointment, and as a sworn member of the Bar and officer of the court, you can’t turn it down just because you’d rather not do it. Myra even went so far as to notify the clerk that any fee she was to be awarded for her work on the case should be donated to a charity of the victim’s family’s choice.
Single Jeopardy Page 21