by Teri Ames
“But, if he’s convincing, that could help, right?” his dad said.
“Maybe. But it’s not likely that he’ll be convincing.” Barry said.
“Why not? I can do this,” Keenan said. He had to. If he didn’t and got convicted, he would spend the rest of his life wishing he had. He had thought about it enough to know that he was not going to change his mind.
“Because you’ll be nervous. And any mistakes you make, however minor, will be held against you. The jury will be scrutinizing your every reaction and expression. And when the state’s attorney cross-examines you, he’ll bring up every inconsistent statement you ever made. The judge ruled that most of your statements to Shores are inadmissible, but if you testify, it’s a game changer. All that stuff that we just managed to keep out will come in.”
“What kind of stuff are we talking about?” his dad said.
“Anything that Keenan said before that’s not completely consistent with what he says on the witness stand. Fred Dutton’s been doing this for decades. He knows how to cross-examine a defendant. He’ll paint Keenan as a liar and we’ll have a whole lot of explaining to do.” Barry looked back at Keenan again. “And even if we do manage to explain away all the inconsistencies, the jury’s not likely to believe you. They know you’ll say anything to get out of these charges.”
“But I’m not going to lie. They’ve got to know it’s the truth.” Why were they still talking about this? Barry kept saying it was his decision.
“In a perfect world or in a perfect system, that might be true. But what we have is an adversarial system, and like I said, Fred Dutton is going to do everything in his power to make you look like a liar.”
“This isn’t fair,” his mom said.
“You’re right. It’s not, but it’s what we have to work with. My advice is to make the decision not to testify and let me start working the jury during jury selection.”
“I’m innocent,” Keenan said. “I need to tell them that.”
“Take a few days to think about it. Talk it over with your parents. You hired me because you wanted my advice. This is one time you should take it. And keep in mind that ideally you give me your decision before we draw a jury. And I need to say this one last time...” Barry made eye contact with each of the Brodys individually before he continued. “It’s still not too late to take a plea deal.”
Chapter 46
Saturday, September 6, 2014
BARRY SAT at his desk with a fresh legal pad in front of him. He needed to come up with a theme for his case. Something that would tie the defense case together. Something the jury could come back to when they were trying to decide whose version of events was more believable.
“This case is about...,” Barry said aloud to the empty room.
“Police ineptitude.” He snorted. It was troubling how flawed the investigation had been, but blaming the police would likely not sit well with the jury.
He tried again. “Finding someone to blame.” That could work. He would need to build on it, but it was a good starting point. He started scribbling notes.
Two hours later, he had an outline for his opening statement. He would need to tweak it and practice it, but it helped to go into jury draw with a clear idea of how he planned to present his case.
With five days to go until jury draw, Keenan was still insisting on testifying. Barry wished there was some way to get through to the kid, but he understood it. On some level it was probably Barry’s fault for insisting that the kid keep his mouth shut during all the months that the media had been painting him as a monster. If he had let the kid publicly proclaim his innocence, even briefly, it might have helped to suppress the need that was clearly growing inside him, threatening his judgment.
Barry took it as a personal learning experience. He’d had high-profile cases before, but never anything with this level of media attention. Combine that with a young client and a reputation worth protecting, and it was a recipe for disaster. He should have seen it coming. Next time he would. If there ever was a next time.
FRED WAS getting tired of working weekends, especially while there was still good golfing weather. The golfing season in Vermont was short to begin with. When he was a young prosecutor, Fred had worked more than his share of weekends. And he knew that his deputies put in a lot of weekend time. But it seemed like he’d worked most of the weekends in August getting ready for the Brody trial, and there was still a lot to do.
The trick to beating Barry was to anticipate his defense and head him off. Much easier said than done. It had always felt like the discovery rules were unfair to the prosecution. Fred had to let Barry know everything about the state’s case, but Barry didn’t have to tell him anything but the names of potential witnesses. It was like playing Battleship where the other side could see your ships, but you couldn’t see any of theirs.
Fred had used a summer intern to summarize and catalog all the witness statements and depositions. It had taken the law student most of the summer, but could prove invaluable. You never knew when Barry would pull out a witness that had seemed inconsequential and make his or her testimony pivotal. Fred had gone through all the summaries looking for such a witnesses but had no luck. The problem was he couldn’t think the way Barry did. And he didn’t have access to the same information, even if he could.
That morning, after Fred’s wife had commented that he’d gained weight that summer, she’d packed him a lunch. By ten thirty he was starving, so he got his lunch out of the fridge. Tuna fish on wheat with almost no mayo. And a bag of carrot sticks. He loved his wife, and he knew that Kathy was watching out for his health, but she didn’t understand that, in times of stress, a man needed comfort food. He called the deli down the street and ordered a pastrami grinder with cole slaw and a bag of chips. Delivered. While he was waiting for his comfort food, he ate the tuna fish.
Dustin Shores arrived as Fred was finishing his second sandwich.
“I went over the files this morning, like you requested,” Dustin said.
“Is there anybody else we should interview before the trial?”
“Not that I can see.”
“Okay, then let’s focus on your testimony. We’re going to go over direct and cross until you know exactly how I want you to answer every question. We’re going to be ready no matter what Barry throws at you, so don’t make any plans for next weekend either.”
Chapter 47
Friday, December 20, 2013
“YOU SAID you’d call,” Keenan said before he realized it was the wrong thing to say. He hoped he didn’t sound desperate.
“I’m sorry. I’ve been meaning to.”
“That’s okay. Sounds like you guys are having a good time.” Keenan could hear loud music and voices in the background.
“Yeah. Give me a minute. I need to find a quieter place to talk.” After a few minutes of muffled conversation Shannon came back on the line. “I can’t believe finals are finally over. It was the week from hell.”
“I bet. Having three was bad enough. I can’t imagine having five. Where are you guys?”
“We’re in Jenna’s room.”
“Sounds like you guys are drinking.”
“Just a little. You know I’m not much of a drinker.”
“What’s the plan for the rest of the night?”
“I don’t know. I think we’re going to that party.”
“The one on Maple Street?”
“Yeah.”
“Do you want to come back here afterward? My roommate’s going to be here, but we can still hang out.”
“I don’t think so. I said I’d drive, so I need to stay with my friends.”
“Okay.” Keenan was disappointed, but it was the answer he’d expected.
“Keenan?”
“Yeah.”
“There’s something I need to tell you.”
“Okay. Go ahead.”
“In person.”
“Okay, I can meet you at the party.”
“No. N
ot tonight.”
“Tomorrow then.”
“Okay. Tomorrow. I’ll tell you tomorrow.”
SHANNON PUT the phone back in her pocket. She’d managed to buy herself one more day.
“Was that Keenan?” Jenna asked.
“Yup.”
“Did you tell him about Jake, yet?”
“Nope.”
“When are you going to?”
“The next time I see him. I can’t go home for break without coming clean. I just hope he doesn’t hate me.”
“He’s not going to be happy.”
“I know, but it’s the right thing to do.”
KEENAN POCKETED his phone. He didn’t like the sound of the pending conversation. Shannon probably wanted to break up with him. So why make him wait? Now, he got to spend the whole night wondering if it was over. It sucked. Mostly because he really loved her, and he had thought maybe, just maybe, she was falling in love with him. Was love always this painful?
Wait a minute. If she wanted to end their relationship, he deserved to know. He was going to find her and make her tell him. It was a free country and there was nothing stopping him from going to the party on Maple Street.
Chapter 48
Tuesday, September 9, 2004
BARRY WAS studying the jury questionnaires when Fred called.
“I don’t suppose you’re calling to tell me you’ve decided to dismiss the charges against Keenan Brody,” Barry said. “I won’t hold it against you that I spent the last week preparing for trial.”
“Wishful thinking, Barry. Actually, I’m calling because I just got the inside scoop on Judge Whippet from Jerry Niven.”
“What’s that?”
“You probably know we had an acting judge for arraignments today?”
“Yeah. I saw that Bill Jensen was covering for Whippet.”
“Apparently Ted Whippet had a heart attack last night.”
Barry dropped his pen as the potential impact registered. “Oh my God. Is he alive?”
“Yeah. But he’s in the ICU up in Burlington.”
“Are they going to continue the Brody trial?”
“No. Apparently, Jerry had a discussion with the court administrator in Montpelier. They don’t know how long Whippet is going to be out, or if he’s even coming back. They decided that, since the trial is going to be here in Adams County, Judge Jenkins should just step in. It will be least disruptive for the system.”
Oh shit. If he had known they were going to get Jenkins, he would have filed a motion to change venue. Jenkins would be a disaster. And now that they had two hundred people coming on Thursday morning, a request for a change of venue would not be well received. His best hope was to pull out all the stops to get a fair panel. Failing that, he would have to show it would be impossible to get an impartial jury in Adams County.
Chapter 49
Thursday, September 11, 2014
FRED SAT at the counsel table facing the twenty-four people who were the first juror candidates for the Brody trial. There were another hundred and fifty or so sitting on the gallery benches and in the folding chairs brought in to accommodate the large numbers summoned in hopes of impanelling a jury. The few reporters who bothered to attend this first phase of the trial were forced to stand in the back by the door.
Barry and the defendant sat to his right. The Honorable Patrick Jenkins reigned at the bench. Fred had chosen at least a couple hundred juries in his career. He knew it was more art than science, despite what the so-called jury consultants would say. He had reviewed the questionnaires that the jurors had completed. Unfortunately, the rule requiring jurors to complete the questionnaire was never enforced, so not everybody had turned one in. That wasn’t a big problem. The fact that someone chose not to submit the requested information was information in itself. He preferred to stay away from those nonconformists––they were too likely to acquit. Fred had also had the state police run records checks on all the jurors, information he had no intention of sharing with Barry because it was technically not required.
From the records and completed questionnaires, Fred had made a list of the people he wanted to keep off the jury. They included anybody with any sort of criminal record and anyone who said they would have difficulty judging others. He also included on that list anybody with a background in engineering or science––their personalities tended to demand more certainty than most, and a case as circumstantial as his would not sit well with them.
Fred also had a list of people he wanted as jurors. Tops on the list were those who had been on juries before and convicted. He also liked people who were older with long-term employment. Anyone with a college-aged daughter would have sympathy for the Dawsons and want to give them justice, so he had to consider that factor as well.
Each side would get six peremptory challenges plus two more for alternates. Given the number of possible jurors, it wasn’t many. Fred was planning to save his peremptories as long as possible. It only took one problem person to hang a jury, and he didn’t want to go into the trial with anyone who might screw up the process.
Fred prepared mentally while the judge explained the process to the jurors. Fortunately, Vermont was one of the states that allowed the attorneys a lot of leeway in voir dire. Unfortunately, voir dire was more a popularity contest than anything else, and his friend Barry had undeniable charisma. Fred’s best bet was to make the jurors feel comfortable with him and use the questions as an opportunity to plant some bias in his favor.
Fred stood, took a deep breath, and began.
He asked standard questions, trying to weed out anybody who knew anybody involved in the case or anyone unlikely to convict due to personal bias. Then, he got to the meat of his voir dire.
“How many of you have watched CSI?” Approximately half the jury pool raised their hands.
“Come on. Let’s be completely honest.” Fred raised his own hand slowly. “I watch it sometimes. Anybody else seen it? Maybe CSI Miami or CSI New York?” A few more hands went up.
“Okay. CSI is a great show. I really enjoy it. I’ve even learned a few things from those guys. But it’s not real, is it? Anybody think CSI is real?” There were a few dubious looks from the jurors, but nobody raised their hands.
“In real life, we’re rarely able to prove our cases with scientific certainty. In real life, we have to prove our cases with circumstantial evidence. Can anybody explain what circumstantial evidence is?”
A young guy in the first row raised his hand. Fred pointed to him. “Circumstantial evidence is evidence that relies on inference to prove a fact,” he said.
“I’m impressed. Are you a lawyer?”
“No, I’m a criminal justice student.” Excellent. Fred looked down at his seating chart.
“Mr. Bledsoe, right?”
“Yes.”
“Mr. Bledsoe is correct. If a witness sees someone commit a crime, that’s direct evidence. But if we find evidence that a person was the perpetrator, such as a fingerprint, that’s circumstantial evidence. Mr. Bledsoe, would you be able to convict someone if all the evidence against him was circumstantial?”
“I don’t see why not. I mean, fingerprints don’t lie.”
Fred nodded. He loved this kid. Too bad Barry would likely strike him.
Fred explained reasonable doubt to a sea of blank faces, emphasizing that the state did not need to prove its case beyond all doubt.
He had been questioning the jurors for well over an hour, and they were probably getting bored, but he needed to address the issue of the media. He wanted to touch on it, but not belabor it. Barry would have to do that. Better to let Barry bore them. Fred decided to ask only one question.
“There’s been a lot of media coverage in this case, so it’s been hard to avoid all exposure to the case. Does anyone think that the media coverage will affect their ability to be fair in this case?”
There were no hands. Good. He decided to end strong.
“I have only a few more questions and then
I’ll pass you over to Mr. Densmore. How many of you have children?”
Three-quarters of the jurors raised their hands.
“How would you feel if you lost your child, Ms. Bauer?”
“Just awful. I can’t imagine.” The jurors were all nodding. It was a good place to leave things.
“Thank you, ladies and gentlemen, for your patience. I will now turn you over to Attorney Densmore for his questions.”
Chapter 50
Thursday, September 11, 2014
BARRY WAS a little surprised Fred didn’t have a deputy sitting with him as second chair. It was always helpful to have a second set of eyes and ears during the trial. Fred had probably decided it would sit better with the jury if the prosecutors didn’t outnumber the defense lawyers. During trial, every decision involved strategy. Barry always sat alone at the counsel table, but for complicated trials, he frequently had his investigator in the gallery to take notes and run down any last-minute gaps in the testimony. In this case, Barry had also had Toni do basic background checks on the potential jurors. He didn’t normally do that, but with the stakes so high, he figured it was worth the expense to weed out anyone likely to convict. She had flushed out one security guard and one former Navy SEAL who had not filled out questionnaires.
Barry nodded reassuringly at Keenan as Fred made his way back to the counsel table. The kid looked petrified. Barry had met with him for a few minutes that morning for last-minute instructions.
“You need to keep your head up and make eye contact with as many jurors as possible,” Barry had said. “Watch their faces. I’m going to give you a notepad and pen. Take notes if anything concerns you.”
“What kinds of things should I be looking for?”
“Just reactions to the questions. If somebody has a strong reaction, sometimes they involuntarily nod or shake their heads. They don’t always raise their hands, even though they’re supposed to. Sometimes it’s because they don’t want to call attention to themselves, but the reality is, most people don’t even recognize their own biases. That’s why if you see anybody who should not be on this jury, you need to make a note of it.”