by Jeanne Winer
A few more jurors uncrossed their arms, which didn’t mean they’d acquit the defendant, but it meant they were thinking. That the case was no longer a simple slam-dunk for the prosecution.
When Lee was finished, Dan waved a dismissive hand toward the witness.
“Again, nothing from the People.” But then he changed his mind. “Actually, wait a minute, I think I will ask a couple of questions. Sorry, Judge.”
As Dan walked to the podium, he regarded Peggy and said, “So let me get this straight: After he was tossed out of his home in Colorado Springs, you offered the defendant a place to live with the promise that you would take care of him?”
“Yes, but he—”
“But he turned you down?”
“Right,” Peggy said. “Because he was too ashamed to stay.”
“So, unlike most kids on the street,” Dan continued, “the defendant actually had a safe, loving alternative?”
“But he didn’t feel like he deserved it. He’d been thrown out for being gay, which he believed was a mortal sin. He hated himself and didn’t feel that he deserved anything good.”
“Are you saying he’s not accountable for his choices?”
“Well of course he’s accountable, but there were huge, extenuating circumstances.” She was beginning to look frustrated.
“I hear what you’re saying, Ms. O’Neill, but the bottom line is that your nephew chose to live on the streets and ended up becoming a skinhead.”
“He didn’t think he had a choice.”
“But he did have a choice.” Dan glanced at the jury. “Nobody pushed him off your couch. Nobody made him rip up your check for a thousand dollars. And because he chose to live on the streets, he risked becoming involved with dangerous people.”
“He wasn’t thinking clearly.”
“Well, you obviously love him a lot. No further questions.”
Thursday was a short day because the judge agreed to hold an emergency bond hearing on another case, which lasted from eight till eleven. At eleven-fifteen, Lee called her next witness, Mrs. Weissmann, who immediately charmed the jury with her dignity and keen intelligence. She was, as Carla predicted, everyone’s dream grandmother, even for people who already had nice grandmothers.
The witness described Jeremy as one of the gentlest boys she’d ever met, someone she’d slowly come to trust. She testified that he’d visited her at least twice a week for months, that he’d shoveled her walkway, carried her groceries, and performed whatever chores she asked of him. His only reward was a plate of cookies and a glass of lemonade.
“I offered him money,” she added, “but he refused to take it.”
Without being reminded, she remembered to mention that Jeremy had dreamt of going to college and that she’d encouraged him. Finally, she described the day she saw the swastika on his arm and decided to tell him about her year in Auschwitz.
“He was very naïve and hadn’t realized how badly the Nazis treated us. He was horrified by what I told him, and then … and then he was profoundly ashamed. During one of his last visits, a week or two before they took him away, he promised to have the tattoo removed as soon as he had the money. I believed him.”
When Lee was done, Dan stood up and thanked Mrs. Weissmann for taking the time to testify.
After the lunch break, Lee advised Dan that her next witness would be Tim Reynolds, whom they all called Mr. Clean. As she’d expected, Dan demanded an immediate hearing outside the presence of the jury. While the guard waited in the hallway, Lee asked the court to allow her witness to describe Jeremy’s on-going nightmares, refusal to eat, flat affect, and obvious distress, all of it culminating in a serious attempt to commit suicide. As soon as she finished speaking, Dan stood up, shaking his head.
“The defendant’s suffering as well as his attempt to commit suicide is very sad but of course irrelevant. Ms. Isaacs is simply trying to garner sympathy from the jury. That’s not allowed and she knows it.”
Actually, besides garnering sympathy, the proposed testimony would help Lee argue in closing that her client’s statements to the police had been influenced by grief; the statements, however, hadn’t been mentioned yet, and Lee wanted to keep her options open.
After thinking about it, she said, “The information is relevant to bolster our theory that my client’s behavior during and after the murder was the result of extreme grief.”
It sounded good, but would the judge buy it?
Before the judge could respond, Dan jumped in again.
“If that’s the case, Ms. Isaacs is offering evidence of the defendant’s mental state, which is governed by the statute on impaired mental condition. As Ms. Isaacs well knows, the statute requires that she inform the court before trial of her intention to assert this defense, and then there’s a whole procedure that follows, including ordering the defendant to submit to a court ordered examination.”
Lee turned to Phil, who handed her a brief on the issue.
“Your Honor,” she said, “we anticipated the prosecution’s argument and have prepared a brief clarifying that evidence of the defendant’s emotional distress which doesn’t seek to negate the existence of a required culpable mental state isn’t subject to the statute. I am not arguing that he wasn’t capable of acting ‘knowingly’ or ‘intentionally.’ Instead, I am simply offering evidence of my client’s grief and his attempt to kill himself as relevant to explain his behavior on the night of the murder and afterward. The prosecution’s argument is a red herring, because it is totally inapplicable.”
Dan pulled out his own brief and offered it to the judge.
“I, too, anticipated the issue and hereby submit a brief in opposition.”
The Court then called a short recess. Lee remained where she was. After a moment, she closed her eyes, signaling her desire to be left alone. She needed the proposed testimony and was trying to think of how she could get it in later if the judge ruled against her. Jeremy sat quietly beside her, his arm pressed lightly against hers.
After twenty minutes, the judge returned and agreed to allow it. Lee nodded as if she’d had no doubt how the judge would rule.
When Mr. Clean explained to the jury that he’d been Jeremy’s guard for the last eight months, the jurors all sat forward, clearly interested in his observations. His description of finding Jeremy after he’d slit his wrists was emotionally riveting. Dan couldn’t afford not to question him.
On cross, he quickly drew out the guard’s clear bias in favor of the defense and an admission that he had no actual knowledge of the facts of the case and thus didn’t know whether the defendant was guilty or not. After that, Dan could have sat down but decided to emphasize what he would argue in closing.
“Mr. Reynolds, when you were in college, you didn’t major in psychology, did you?”
“No. History.”
“So you’re not a doctor, a psychologist, or a psychiatrist?”
“No.”
“You have a degree in history and, if I remember correctly from our interview, you’d like to go back to school and get a masters in criminology.”
“Yes,” the guard said, “you have a good memory.”
Dan came around the podium and took a couple of steps forward.
“People feel suicidal for many reasons, don’t they?”
“I guess so, yes.”
“It’s possible the defendant felt suicidal because he was scared of going to prison?”
“It’s possible.”
“Or because he was ashamed of being gay?”
“Yes, maybe.”
“Or because his parents had forsaken him?”
“Yes, that’s possible.”
“Or because he felt lonely, misunderstood, and powerless?”
“Yes, that’s possible, too.”
Dan stared at the witness, daring him to disagree.
“Or because he felt guilty about helping his brothers murder a member of their gang and wished he’d behaved differently?”
&n
bsp; After a number of seconds, the guard said, “I guess it’s possible.”
“Thank you, Mr. Reynolds. No further questions.”
On re-direct, Lee asked, “Is it possible Jeremy felt suicidal due to intense grief?”
This time, the guard nodded vigorously.
“I think so, yes.”
Because her next witness, Barry Simmons, hadn’t arrived yet, Lee was forced to ask for another recess. The judge looked irritated, but he gave her thirty minutes. Earlier, Barry had called to say his ride had fallen through and that he would have to take the bus. While Carla searched for him, Lee waited outside the courtroom. Finally, at the last possible moment, she saw her investigator pulling Barry down the hallway. He was devouring a burrito from the first floor cafeteria.
“He hadn’t eaten since yesterday morning,” Carla explained.
“Thanks, Carla.” Then Lee turned to Barry. “Are you ready?”
His mouth was full, but he nodded. He was wearing a brown cotton sweater and matching slacks that Carla had found at a thrift store in Denver.
After taking the stand, Barry sat up straight and answered all of Lee’s initial questions without hesitation. With his new teeth and haircut, he looked like a respectable, middle-class man, someone the jurors could relate to. Occasionally, he’d reach up to cover his mouth and then realize he didn’t have to. The look of joy on his face was almost worth the cost of his makeover. On direct, he described serving Jeremy and Sam on three different occasions at The Cave.
“How close did they seem?” Lee asked.
“Like real good friends. They sat with their heads together and they were smiling. I thought maybe they were relatives like me and my cousin Clark. They were totally at ease, you know?”
“Anything else?”
Barry pretended to think, although he’d been prepped to answer the question.
“Well, it struck me as kind of different. Most skinheads don’t act like they like each other much. These guys did.”
Because the prosecution knew that Barry had worked unofficially for his cousin, Lee asked her witness to explain it. She’d spent a lot of time tweaking his answer.
“Okay, so my cousin was desperate to keep his job and I was, in fact, a real bartender. So we didn’t think too much about it. The owner paid for a bartender and he got one. Clark assured me that it was cool.”
“Nothing further,” Lee said. “Thanks.”
On cross, Dan belabored the fact that Barry never guessed the defendant and Sam were gay, and certainly never thought they were lovers. Finally, he moved on.
“The tables in the back room are pretty small?” He’d obviously sent one of his investigators to the bar.
“Yeah, all the tables are. Not the booths.”
Then Dan took out a photograph and asked Barry to identify it.
“That’s the room they sat in,” Barry said.
“And the tables are so little that, if two people sit there, they can’t help sitting close.”
“True, but they seemed very comfortable.”
“Judge, I’d like to offer the photograph into evidence.” Dan glanced at his notes. “I think it’s our fifty-sixth exhibit, Your Honor.”
“It is,” Lee said. “And no objection.”
After marking the photograph and handing it to the court reporter, Dan turned back to the witness, his expression much more serious now, signaling to the jury how he felt about the next set of questions.
“So, you and your cousin Clark were involved in a fraudulent scheme?”
“Fraudulent?” To his credit, Barry kept his eyes on the prosecutor. Lee had warned him not to look at her on cross, that he was on his own. That the jury would be carefully watching him.
“Yes, you pretended to be him and worked at the bar without the owner’s permission.”
“Okay, yeah, but it wasn’t fraudulent. It was …”
“Deceptive?”
“Yeah, it was deceptive.”
“And you did it more than once?”
“Six or seven times I think.”
“And each time you were being deceptive.”
“Okay.”
Dan crossed his arms and looked sternly at the witness.
“Do you realize you could be charged with trespass and criminal impersonation?”
“That’s what Ms. Isaacs told me.”
“Ms. Isaacs told you that?”
“Yes, she said you might try to intimidate me by threatening to charge me, but it would be pure harassment.”
Dan recovered like a pro.
“Well, you don’t seem to be very intimidated. So your cousin Clark assured you it was cool?”
“Right.”
“Is that the cousin Clark who is presently facing charges for vehicular homicide?”
“Yeah.”
“Well, no wonder you trusted him. No further questions.”
Lee could have objected to Dan’s comment, but didn’t. The point she’d been trying to make had been diluted enough. She glanced at the jury and wondered what they were thinking.
It was almost five o’clock. The judge banged his gavel, announcing the end of court for the day. Tired, rumpled-looking spectators stood up and stretched. Tomorrow, the defense would call Jeremy Matthews, who would tell his story to the twelve poker-faced jurors filing out of the room. Tonight, Lee, Carla, and Phil would drive to the detention center to prepare their client to be cross-examined by one of the wiliest prosecutors in the business.
After everyone left, it was so quiet. Lee looked around, marveling as she always did at this seemingly ordinary room where people’s lives were determined, where they went on trial to justify or minimize their behavior, blame others, or simply beg for mercy. A room where judgments were pronounced and sentences handed down. A place where people squirmed, schemed, laughed, cried, sweated, shouted, or sat, calmly accepting their fate. And for the past thirty-five years, Lee’s domain. Where she represented people accused of terrible things and did her best, whether they deserved it or not, to save them.
During her first month as a public defender, Lee had memorized the definition of a reasonable doubt. Since then, she’d recited it hundreds of times to hundreds of juries, never hurrying, acting as if the words were holy, the most important thing they might ever hear. If she had a mantra, it was this: Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative, or imaginary doubt, but a doubt that would ’cause reasonable people to hesitate to act in matters of importance to themselves.
Amen.
CHAPTER SEVENTEEN
During a multi-day trial where the stakes are high, it’s difficult for the lawyers involved not to succumb to trial psychosis—a state of mind where things seem to be going extraordinarily well even if they aren’t—because they’ve invested so much of their energy, skill, and attention that the idea of losing becomes unimaginable. Lee understood the phenomenon well and was working hard to resist it. Dan, as far as she could tell, had succumbed on Tuesday or Wednesday and would be unreachable until after the verdict.
Still, after Jeremy’s direct examination, Lee felt quite optimistic. For four tense hours, her client had managed to be totally present without being overly emotional or histrionic. The jurors were clearly affected by his description of Sam’s murder. How could they not be? She ended her examination with a series of questions about her client’s statements to the police, preempting Dan, who would have liked to be the first to bring them up.
She’d stepped away from the podium and walked halfway to the witness stand, as far as the judge would allow, and began by asking Jeremy about his state of mind after the murder. Jeremy thought for at least ten seconds, taking his time, the way Lee had recommended.
“Okay,” he finally said. “So-so it was like I was stuck in a nightmare and I couldn’t wake up. Part of me couldn’t believe Sam
was dead, and part of me knew he was and wanted to curl up next to him. When I got into the car, I felt kind of like an astronaut floating in space. Nothing seemed real. I felt so sad, I couldn’t breathe.”
Perfect, Lee thought, and then asked why he’d told Detective Roberts that Sam was just a faggot who deserved to die.
“It’s what the others were shouting as they kicked him. I guess it just stuck in my head. Also, I hated myself for not saving him, so I was kind of talking about gays in general, that we were, you know, just faggots who deserved to die.” He hesitated. “I-I don’t feel that way anymore.”
Lee smiled and then asked about kicking Sam.
“I wish I hadn’t. I did it cause Rab told me to, so the others would think I was down with it. He was already dead, of course, so it didn’t matter. But I still wish I hadn’t.”
“Jeremy,” she continued, “you told Detective Roberts that you acted as the lookout. Was that true?”
“No. All I did was cry and puke, which was kind of embarrassing. I just said it ’cause that’s what Rab told Casey and Johnny.”
“Why do you think Rab told them that?”
“So the others would think I was helping.”
“Last question: While you were speaking with the detective, was there a part of you that wanted to be punished?”
“Definitely. I didn’t do anything to stop them. I-I didn’t really even try. So I was kind of thinking I was just as guilty as the others. That if I couldn’t kill myself, I should spend the rest of my life in prison.” He looked directly at the jurors the way Lee suggested. “I don’t believe that anymore.”
“Thank you for testifying,” Lee said. “No further questions.”
During lunch, Lee allowed herself a five-minute daydream in which she and Jeremy were facing the judge while he read the not-guilty verdict: the drug-like rush, the wild relief, the eruption of joy behind them. The curiously short-lived happiness she’d feel. And then she opened her eyes and warned herself to stop, though her client had truly done better than all of them had hoped.