The 3rd Victim

by Sydney Bauer

  ‘You are going to have to sit here and hear word for word how little Eliza Walker lost her life and, perhaps even worse, how her body was disposed of. And there will be times when you will want to walk out and run a mile, or at the very least plug your ears and shut your eyes to what is put before you.’ He shook his head. ‘But that would be tantamount to negligence on your part, and so that is the burden we share.

  ‘Further to this warning,’ the Kat went on, now settled into an easy, comfortable flow, ‘I feel that I should tell you that it will be inevitable that you will want to justify the defendant's actions by questioning her state of mind, which once again, ladies and gentlemen, is completely understandable under the circumstances. Yes, we could sit here and attempt to justify her actions with euphemisms such as post-partum depression and diminished responsibility and temporary insanity, but to do so would be an injustice to the child who suffered by her hand. Yes, we could endeavour to consider the defence's likely hypothesis that some faceless, nonexistent passer-by decided to enter Mrs Walker's home and kill her child in a random act of violence – a theory that might be more palatable rather than the reality of the situation at hand – but to do so would almost be cowardly in the face of the task set before you. Yes, we could attempt to try and get our heads around why a mother would plot, plan and execute the bloody slaughter of her child and the macabre concealment of her small body, but in this case we have to be prepared for the fact that we are not going to like the answer when finally it is revealed.’

  Sienna shuddered and David tightened his hand around her wrist. He knew that she knew they were dying here, but there was little he could do to stop it.

  ‘And that brings me to the second offering I need to make to you in my opening statement today, this one coming in the form of an admission. As a prosecutor I feel it is my duty to begin my case in the way that I conclude it – in the vein of openness and honesty. Therefore, I feel it is once again my responsibility to inform you that, as much as you would like to, you may not accomplish a personal sense of closure at the end of this two-week trial. Now, do not misread me here – as mentioned previously, I will present the evidence to prove to you that Sienna Walker killed her daughter, and I will present witnesses who will give you an insight as to her motives, and I will meet, without question, the burden of proof that enables you to convict Mrs Walker with a clear conscience … but, I may not be able to leave you with a complete understanding as to why a mother was capable of the atrocity that she committed.’

  The Kat shifted his weight so that he was now able to focus evenly on to the jury and the defendant, able to turn his neck to face one and back to the other as he made his final point.

  ‘Unfortunately, ladies and gentlemen, every once in a while I try a case where the acts of the person responsible are so reprehensible that they are beyond our understanding. Sometimes,’ he went on, his head turning from Sienna back to the jury, ‘it is a simple matter of someone just born bad.’

  David's breath caught. He could not believe what he was hearing. The DA was truly going for broke.

  ‘As caring, considerate, decent human beings, we like to be able to explain a person's shortcomings, for that gives us faith as members of the human race. But there may be no such closure here, ladies and gentlemen, because some people are beyond saving, rehabilitating, curing of the evil that lies dormant like a cancer inside of them – and there is nothing in this universe that can stop them from eliminating anything or anyone who dares to stand in their way.’

  David could feel it then, the invisible spark of electricity that shot around the room like a bullet. It had the jury riveted, the gallery mesmerised and the media blown away by a prosecution that no one had come close to predicting. The DA was going to label their client a psychopath, an incurable force of malevolence that killed without regard. He was going to try to annihilate any chance David had of building sympathy toward their client – and, David had to admit, this was brilliant.

  ‘And so in closing,’ said the Kat, his mission accomplished above and beyond perhaps what even he had hoped for, ‘I want to thank you in advance for standing up to the challenge set for you – for being strong enough to assess the facts without the satisfaction of being able to explain them as you or I would like to. For in the end we need to remember that this trial is not about tying a tidy bow around the monstrous acts of the defendant, but finding justice for the child entrusted to her. It is about Eliza Walker, and what she would have asked of you if she ever grew old enough to talk.’

  *

  ‘Tell me what just happened.’ It was Sienna who spoke first. They pushed through the door of the small meeting room just down the corridor from Courtroom 17, their heads reeling from what had just occurred.

  David had asked for a recess, a break Judge Stein had finally agreed to after expressing his displeasure at the request. David knew his plea for a temporary halt to the proceedings made him look like a coward, but he'd had no choice, he had to re-think his strategy, in the wake of Katz's genius first play.

  ‘He's going to paint you as a psychopath, as someone born to kill.’ There was no point in sugar-coating it. ‘All this time we thought the Kat would run a mile from any form of prosecution that questioned your psychological competence, but he has used a psychological defence to his advantage – to bury you without compunction.’

  Sienna looked at Sara, starting to panic. ‘Oh god,’ she said. ‘He's going to make it easy for them to put me away. No … he's going to make it their responsibility to lock me up and banish me from society for good.’

  Sara turned to their client, knowing she was right – and that once again there was no point in contradicting her.

  ‘Hold up now.’ This was from Arthur, who slammed the small conference room door behind them. ‘What he says and what he can achieve may be two different things. He needs a psych expert who will attest to Sienna's psychological make-up.’

  ‘But I was interviewed by his psych consult months ago,’ said Sienna.

  ‘Neil Shoebridge,’ said Sara, looking at David.

  ‘Yes,’ said David, who was completely aware of the mandatory examination by one of Katz's regular shrinks for hire. ‘But from what you said, Sienna, there was nothing unusual about his examination. I mean, he wasn't trying to steer it toward …’

  ‘Questions relating to psychopathy … no,’ she answered.

  David looked at Arthur. ‘Then I have no idea how he's going to manage this.’

  Arthur nodded. ‘It's something we have to work on,’ he said. ‘But perhaps not right now, given you are due to deliver your own opening statement in a matter of minutes.’

  Arthur was right and David knew it. They needed to think fast.

  ‘There is something else that worries me,’ said Sara then, the rest of the group turning toward her. ‘I know we expected the Kat to list his evidence in his opening statement rather than just promising to provide it. And part of me thinks that whole speech was just his way of getting the fourteen on board, but …’

  She looked at David, who knew exactly what she was thinking.

  ‘What?’ asked Sienna. ‘Don't tell me this gets worse? Do you think he was hiding something from the jury on purpose, or …?’

  ‘Not from the jury,’ said David.

  ‘Then who?’

  ‘From us,’ he said.

  ‘You think he has something beyond what we know he has? Beyond the evidence found at the crime scene? Beyond the forensics, and the lack of a viable alternative theory?’ She started to pace the small space around her, her pale hands twisting in knots. ‘But what else could there be? We understand the evidence he has is damning, we've seen the list of witnesses he intends to call. So what else could he be hiding? What else does he know that we don't?’

  David moved toward her. ‘The DA intends to win this case at all costs, Sienna. It may not be about what he has, but what he can manipulate.’

  ‘But he has a solid case without anything unexpected
.’ Sienna was starting to panic. ‘We've known from the beginning that our only chance here is proving that alternative theory, that I had no motive to kill Eliza, and that somebody else had something to gain. But this psychopathy prosecution, teamed with whatever else he has that we are not aware of … David, I'm scared.’

  It was the first time she had actually said it, and in that moment he felt an all-encompassing need to protect her. He could feel her eyes and Sara's and Arthur's upon him – they were four souls who, when it came down to it, were just as terrified as one another.

  ‘David,’ said Arthur after a time. He pointed at his watch, indicating the recess was almost over. ‘I think you need to postpone your opening. It's more than within your rights as defence counsel.’

  He was right. The defence counsel had the right to delay their opening statement until it was time to begin their case – after the prosecution had examined their witnesses, and indicated to the court that their case was now closed. But David knew any delay at this point would only act to consolidate Katz's early dominance, reinforcing the jury's current image of Sienna's attorney as uncertain, cowardly, weak.

  ‘No,’ he said then.

  ‘No?’ said Sara.

  ‘David,’ chimed in Arthur, obviously desperate to shake some sense into him. ‘We need time to regroup, to decide how to play this.’

  ‘No,’ said David. ‘We let the DA start his case after that opening, we are well and truly screwed.’

  He turned to Sienna. ‘I need to take him out, Sienna.’

  She met his eye. ‘You think you can reverse this?’

  David thought no such thing, but he saw in his client's eyes that what she needed most right now was the slightest inkling of hope. ‘Yes,’ he answered her.

  ‘Then I trust you,’ she said, ‘have done since that very first morning when you asked me how I wanted to plea.’

  ‘And you said you did not kill your daughter.’

  She nodded. ‘Then perhaps it is time we told them who did.’

  *

  ‘I didn't need a coffee,’ said David after he got to his feet, the courtroom now motionless, the air settled, thick.

  ‘That break just then, the recess I requested – I didn't need a coffee, I needed to think. My colleagues and I, we needed to talk about what went down this morning and the fact that the District Attorney's opening did not go as we expected.’

  What we expected, thought David, ironic considering he had just floored the entire room with the last thing they would have expected – an open admission of unpreparedness.

  ‘The opening I prepared,’ he said then, ‘it was all about countering the list of evidence I expected the District Attorney to mention – the evidence we have counterevidence to refute, the so-called proof that is not proof after all.’

  He stood still in the middle of the room, not daring to approach the jury yet, letting them consider him – the idiot who was admitting to screwing things up before he had even had a chance to begin.

  ‘The guys over there,’ he said, now gesturing toward the media gallery. ‘I know what they're doing, they're writing this afternoon's headlines as I speak.’ His eyes flicked toward Rigotti, whose mouth was slightly agape. ‘They're thinking that this is the most suicidal opening statement they've ever encountered – one where defence counsel admits to being caught short, to being bowled over to such an extent that they don't have a leg to stand on.’

  He shook his head then, taking the slightest of steps forward. He could see the DA out of the corner of his eye, trying desperately to control the smile that was threatening to escape on his face.

  ‘The truth is, for me to go on about how I will refute the evidence at this point is probably a waste of your time, given the DA failed to list any evidence for me to stand here and argue. He told you Eliza Walker was murdered, which is true, he said the defendant killed her, which isn't, and then he went on about warnings and admissions and to be honest that was when he kind of lost me given this trial isn't about Mr Katz, it's about my client and the lies that have been told about her.

  ‘This trial isn't about whether or not you achieve closure by the time it reaches its end. This trial is about Eliza Walker and her mother, who has been wrongly accused of killing her – and it's also about working out who should be made accountable, and why they are still running free.’

  He paused then, letting this sink in – the possibility that there was someone out there, achieving his own form of closure.

  ‘I like my client,’ he said then. ‘I believe in her, and I respect her, and I can only hope that, god forbid, in the years ahead, if I am sent any form of tragedy, that I handle it with half the dignity Sienna Walker has displayed. About ten minutes ago she stood in front of me and told me she trusted me, and that made me feel …’ he searched for the words, ‘privileged, honoured – and I guess more than a little bit scared.’

  He felt he needed to say it to them, for if he was going to ask the people in front of him to trust him, he knew he needed to trust them from the outset, with the complete and absolute truth.

  ‘Some of you might have read that I was asked to take this case by a District Court judge, which is true, and some of you might have heard that I made a promise to myself years ago never to defend the guilty, which is also true, and some of you may be wondering how on earth I could have got it so wrong, which I suppose is your prerogative considering the information you have had access to and, perhaps more importantly, you have not.

  ‘But maybe things went wrong some time before I entered this picture, before I was engaged, before Sienna Walker was arrested, before Eliza Walker was killed and maybe, just maybe, even a ways before that, perhaps even before Eliza Walker was born.’

  The mood in the room shifted then, ever so subtly, as the jury and all about them tried to come to terms with what David was suggesting. And David realised that this was because none of them had ever really considered it – the involvement of another party – because for them it had never been about whether Sienna Walker killed her daughter, but why.

  ‘Sienna Walker did not kill her daughter,’ he said. ‘She is not a heartless killer without empathy or compassion. Mr Katz told you earlier that it would be difficult to justify her actions – and he is right – but not because she is a psychopathic force of evil, but because she is a mom who loved her daughter and when it comes down to it, seeing the truth is a whole lot more plausible than the lie the prosecution is preparing to lay out before you.’

  He took another step toward them then, before changing his mind and retreating. Not because he feared their reaction, but because he sensed that it was time he put his money where his mouth was, to promise them something the DA did not.

  He walked directly toward his client, before moving behind his desk and standing next to her and asking her to get to her feet.

  ‘This is where I belong in this trial, next to the person who has suffered the most, next to the woman so wrongly accused, the mother mourning the death of her baby, the woman I call my friend.’

  Sienna's shoulders hunched as her handcuffed hands hung limp and she began to cry.

  ‘And that's why I promise you absolute proof,’ he said, before he had a chance to change his mind. ‘That's why I promise that every fact the prosecution delivers, my defence team will explain. I promise that every seemingly damning piece of evidence against our client, our team will counteract. I promise that every doubt you have as to her innocence will be extinguished before my case comes to a close, and I promise that, by the end of this trial, you will know who is really responsible for Eliza Walker's murder and why.’

  He took a breath as the room froze around him. He understood that he should have been as terrified as his fellow defence team members were beside him, but in truth, for the first time in months he felt the burden of fear drop away from him. He knew that Hunt would hear of this opening statement and that he had, in no uncertain terms, thrown down the gauntlet, but perhaps that was what David had
wanted all along, from the moment Hunt had called him and told him what Sienna had done.

  He turned toward the Judge. ‘Your Honor, might I ask for another short recess before the prosecution begin their case?’

  The Judge considered him. ‘Well, I suppose …’

  ‘I need that coffee now, Judge,’ he said, and the room relaxed around him, the jury breaking into smiles.

  ‘And I need more than a coffee, Counsellor,’ said the Judge. ‘We'll break for an early lunch,’ he added, before lifting his cloak behind him and getting to his feet.

  ‘All rise,’ said the bailiff, as the Judge went to leave the room, and David turned to his client.

  ‘You're mad,’ said Sienna, but he could read the gratitude in her eyes.

  ‘Perhaps I should have told you that before you agreed to take me on,’ he smiled.

  She managed a half-smile in return. ‘They thought we were defenceless – both me and my daughter,’ she said.

  ‘I know.’

  ‘But they were wrong.’

  ‘Yes.’

  ‘About everything.’

  ‘Yes.’

  She nodded. ‘I think we just scared them,’ she said.

  ‘I think so too.’

  69

  Dick Davenport was in his car when he heard the newsflash on the radio. It was all a bit of a blur. It began with words like ‘Walker’, ‘trial’, ‘prosecution’, ‘DA’, ‘opening’, ‘convincing’, ‘jury’, but then was followed by other words such as ‘defence’, ‘Cavanaugh’, ‘savvy’, ‘compelling’, ‘promise’, ‘pledge’, ‘real killer’ and so forth.

  By now Davenport was convinced that Cavanaugh was on to him and he suspected the attorney was on the verge of proving it. It had something to do with Madonna and that clandestine call she had made to Sophia, and perhaps what Cavanaugh had learnt from his investigations into Daniel Hunt.