The Trial

by Robert Whitlow

  Joe Whetstone wasn’t praying. His source of strength was an abundance of the inner confidence, ego, and concentration it took to be a success- ful trial lawyer. He could listen to everything an opposing lawyer said and simultaneously block out the persuasive power of an adversary’s position so that it didn’t weaken his capacity to present his argument with zeal and fire. He alone in the courtroom was unmoved by Mac’s argument, and when he stood to speak he had no doubt that he could convince the jury to convict Peter Thomason of murder.

  “You may proceed, Mr. Whetstone,” the judge said.

  Joe stood. Every hair was in place, and Joe’s expensive suit and tie were billboards proclaiming his success. He positioned himself directly in front of the jury and began.

  “Ladies and gentlemen, Mr. McClain is an excellent lawyer and delivered a fine closing argument. I applaud his eloquence and the passion with which he spoke.” He nodded in Mac’s direction. “I don’t expect you to forget what Mr. McClain has told you, but on behalf of the State and Angela’s parents, I ask you to consider what I have to say as well.

  “We are not here so that Mr. McClain and I can try to impress you with our oratory or legal skills. We are not here at the request of Alexander and Sarah Hightower. We are here because the life of Angela Hightower was brutally ended before it had time to blossom. Hear her voice. Because only you can make sure her voice is heard and her life given the respect and dignity denied her on the night of August second.”

  Joe picked up the indictment. “This is the legal document charging Peter Thomason with murder. The defense technique used by the defendant and his lawyers against these charges is called a red herring defense. A red herring is a fish that protects its eggs from predators by boldly darting in front of its enemy to divert attention from the place where the eggs are hidden. In this trial, the defendant views you as an enemy because you have the power to take away his freedom. He is desperate and has resorted to skillful measures to distract you from your rightful goal. The red herring is a very smart fish. It knows just how close it can come to an enemy without letting the predator catch it for supper. The key tactic it uses is distraction.” Joe put the indictment behind his back and held his other hand away from his body and moved it back and forth. “The red herring gets the eye of the other fish away from what’s important.”

  Joe brought the indictment out from behind his back and placed it in the center of the jury rail. “Every one of the defenses raised by Mr. McClain is a red herring calculated to divert you and keep you from focusing on the common-sense, reliable evidence that proves beyond reasonable doubt that Peter Thomason murdered Angela Hightower. It’s only on a one-hour TV show and in cheap novels that the real killer is lurking in the shadows, waiting to be exposed in the final five minutes or last ten pages. Reality is different from fiction, and the case laid out by the State is logical and supported by every reasonable interpretation of the evidence presented to you.”

  Joe replayed a lengthy summary of the evidence and countered most of Mac’s points along the way. The only thing he didn’t discuss was the presence of GHB in Pete’s blood. That was a briar patch he didn’t enter.

  “On behalf of Angela, I have complete confidence in your ability to sift and weigh the evidence within the guidelines Judge Danielson will provide in a few minutes and render the only just verdict possible in this case—a verdict of guilty.”

  Judge Danielson had memorized sections of the instructions given to juries in criminal cases but to be sure he didn’t swap an “and” for an “or,” he read everything directly from the sheets of paper submitted by the lawyers and the sections of the law he had chosen himself. He used the same phrases mentioned by Mac about presumption of innocence, circumstantial evidence, and reasonable doubt. Mac hoped the jury would conclude that because he accurately foretold the words of the judge, the rest of his argument would be the guide for their deliberations.

  The judge concluded, “Let your decision be unanimous and signed and dated by the person selected as foreperson. You may now retire to the jury room and begin your deliberations.”

  Everyone stood as the jury filed out.

  35

  The jury, passing on the prisoner’s life,may in the sworn twelve have a thief or two guiltier than him they try.

  MEASURE FOR MEASURE, ACT 2, SCENE 1

  During the five days they’d spent together, the jury in State v. Thomason had divided into two camps, one led by Lyman Bakerfield, the former Hightower employee, and the other influenced by John Terry, the owner of a janitorial cleaning service.

  After listening to Judge Danielson’s instruction, the jurors were escorted back to the jury room they’d occupied during breaks in the trial. They took their customary seats around the table. One of John Terry’s followers immediately spoke up.

  “I nominate John Terry to serve as foreman of this jury. We talked about it over lunch yesterday, and he is willing to serve.”

  Another of Terry’s followers, a woman named Florence Stone, piped in, “I second the nomination and call for a vote.”

  Lyman kicked Paul Sumter under the table, the signal they had agreed upon for Paul to nominate Lyman to head the jury.

  “Ouch!” Paul said.

  “What?” John Terry asked.

  “I mean, I nominate Lyman Bakerfield as foreman of the jury.”

  “I second the nomination,” said another.

  The room was silent as they waited to see if any other frogs rose to the surface of the little pond.

  “Well, I guess we need to vote,” Lyman said.

  “I don’t see how this is going to work, “ said Florence Stone. “The judge said our decision had to be unanimous.”

  “Don’t be ridiculous,” Lyman quickly responded. “That only applies to the verdict.”

  “Hold on there, Lyman,” John Terry said. “Show Mrs. Stone a little respect. I was listening closely to the judge, and he told us our decision had to be unanimous.”

  “We could be here a long time,” someone groaned.

  “Why don’t we flip a coin?” another suggested

  “I don’t think that would be legal,” Lyman said.

  “Maybe we should ask the judge to settle this?” someone else suggested.

  “I think that would be okay,” said John.

  “Fine with me, too,” said Lyman. “We need to write out a question and send it to him.”

  So, after several more minutes of discussion and a few minor disagreements, Florence Stone wrote on a sheet of paper, “We are having trouble selecting a foreman. Does the vote have to be unanimous? One person wants to flip a coin if we can’t agree.”

  Lyman handed the sheet of paper to the bailiff sitting outside the jury room door.

  Judge Danielson was in his office sorting through the pile of paperwork that had accumulated on his desk during the course of the trial when the bailiff knocked on his door. “The jury has a question, Your Honor.”

  “Already? Gather the lawyers in the courtroom.”

  David was sitting at the defense table. Mac and Joe Whetstone were coming up the stairs when the bailiff found them.

  Once everyone was present, the judge said, “Gentlemen, the jury has not been able to elect a foreperson. Apparently, there are several jurors who believe the vote must be unanimous and one who wants to flip a coin. Unless there is an objection, I will not have the jury brought out to the courtroom but simply write a response that the foreperson is elected by majority vote and that no aspect of the case should be decided by a coin flip.”

  “That’s fine, Your Honor,” Mac said.

  “I agree,” said Joe.

  “That’s crazy,” David whispered to Mac.

  “Welcome to the insane asylum of trial by jury,” Mac replied.

  Ten minutes after the bailiff delivered the judge’s response, the jury, by a vote of eight to four, elected Lyman Bakerfield foreman. As soon as the votes were counted, Florence nominated John Terry to serve as vice-foreman. Paul
Sumter was poised to object when Lyman kicked him under the table again and shook his head.

  “I think that’s an excellent idea,” Lyman said.

  The vote was unanimous.

  With the jury deliberating, activity in the courtroom came to a screeching halt. The trial of the case was as intense as driving a racecar at 150 miles per hour through the streets of Monaco. Waiting for the jury was like sitting at a Dennison Springs red light that never seemed to turn green. David walked to the spectator section of the courtroom and sat down next to Mindy, who had come in the back door during Mac’s closing argument.

  “The judge really liked the charges you typed,” David said. “I think he enjoyed reading them to the jury.”

  “Right,” she said, sticking out her tongue. “Watch out because I owe you one.”

  “I’ll be careful.”

  “How do you think it’s going to turn out?” she asked.

  “Not guilty,” David said confidently. “I don’t think Whetstone answered the questions raised by Mac about the State’s case. It would only take one of Mac’s points to create a reasonable doubt.”

  Pointing toward Mac and Joe, who were quietly talking in front of the jury box, Mindy asked, “They look like best friends. How can they act as if nothing has happened?”

  David smiled. “Oh, lawyers are like professional wrestlers. They pretend to get mad and fight, but then they socialize after a trial is over.”

  “Lawyers are strange.”

  “They live in an artificial world,” David admitted.

  Mindy stood up. “I’d better get back to the office. Vicki is answering the phone calls for me.”

  Mac motioned to David, who walked over to the railing that separated the two areas of the courtroom. “Call Dr. Wilkes and tell her the status of the case.”

  “Yes, sir.”

  David caught up with Mindy at the bottom of the stairs. “I’ll walk with you,” he said.

  They stepped outside into a brilliant afternoon.

  “It’s a beautiful day, isn’t it?” she asked as they passed through the ring of crepe myrtles. “Not the sort of day for a murder trial.”

  “What do you mean?” David asked.

  “Oh, it should be overcast with a misty rain and clouds on the mountains. That’s the right weather for a murder case.”

  David looked sideways. He couldn’t tell if this was payback time or not.

  “I’ll try to get Dr. Wilkes on the line for you,” Mindy offered when they reached the office.

  “Okay. I’ll be in the library.”

  After several minutes, David stuck his head into the reception room. Mindy was on the phone and silently mouthed, “Just a minute.”

  David went back to the library.

  The phone buzzed. “She’s on line two,” Mindy said. “We had a couple of things to talk about first.”

  David introduced himself to Anna.

  “Mac told me about you,” she said. “What’s happening in the trial? I’ve been thinking about it all day.”

  “It’s with the jury.”

  “Dr. Newburn didn’t testify?”

  “No. We subpoenaed his patient list and could have shown his bias because of the doctor/patient relationship with members of the Hightower family. Also, he can’t testify about Pete’s alleged psychopathic tendencies unless the jury returns a guilty verdict.”

  “But the trial went well?”

  “Mac did a great job. He was very smooth but had passion when it counted. It beat Judge Judy by a mile.”

  Anna laughed. “Maybe I can talk to him about it later.”

  “Sure. Where can we reach you this weekend?”

  “At home. Mac has the number. I’ve reviewed the proposed questions he sent me.”

  “Actually, I prepared the questions. How did they look?”

  “Fine.”

  In the jury room, Lyman Bakerfield took off his glasses and rubbed his eyes. “Let’s take a vote before we talk any more and see where we are. John, please tear up twelve pieces of paper and give one to everyone. Write ‘guilty’ or ‘not guilty’ and pass them around to me.”

  In a minute Lyman had two equal stacks in front of him. “That’s six to six. I guess we have some more things to discuss.”

  An hour later it was eight to four. An hour after that it was nine to three. By then, it was after six o’clock, and the judge sent a message by a bailiff asking if they wanted to continue into the night or come back in the morning.

  “Let’s give it another hour,” Florence said.

  After another hour and a very heated discussion, they took another vote. It was ten to two.

  “Let’s sleep on it,” one of the holdouts said. “We can come back in the morning, and if everything is as clear to all of you then as you think it is now, I’ll reconsider.”

  “I’m ready to get it over with,” Paul Sumter said.

  “No, in fairness to everyone we ought to sleep on it,” Lyman said. “We’ll come back in the morning.”

  “Yeah, I can use one last night of free room and board,” the other holdout said.

  36

  It is better that ten guilty persons escape than one innocent suffer.

  SIR WILLIAM BLACKSTONE

  David lay in bed and catalogued his thoughts from the day. The trial had been different than he anticipated. He hadn’t been as content watching Mac do most of the work as he thought he would. Every young lawyer expects to serve a time of apprenticeship, but time and time again he wanted to be the one who stood to his feet to question a witness or explain the applicable law to the judge. He’d even fantasized about arguing the case to the jury and felt a touch of disappointment when he realized that his hard work on the sentencing phase would not be needed. But that was fine. An acquittal was, of course, their goal for Pete. David’s time to be a full-fledged trial lawyer would come. Someday.

  He fell asleep but woke up in the night and couldn’t go back to sleep. He turned on the light, and read some of the verses from Psalm 35 that he’d been using as prayers during the trial. “Contend, O Lord, with those who contend with me . . . May those who seek my life be disgraced and put to shame . . . Vindicate me in your righteousness, O Lord my God . . . May those who delight in my vindication shout for joy and gladness.”

  Slipping out of bed, he walked from room to room in his apartment, praying and imagining the scene in the courtroom when the jury announced its verdict of not guilty. “My tongue will speak of your righteousness and of your praises all day long.”

  Yes, in the morning, God would vindicate one falsely accused. And David, like his biblical namesake, would rejoice with all his might.

  An hour after they resumed deliberations in the morning, and four hours and thirty-six minutes after they elected Lyman Bakerfield foreman, the jury sent word to the judge that they had reached a verdict. After reporting to the judge, the bailiff stuck his head in the courtroom and announced, “Jury’s ready.”

  Everyone scrambled to their seat.

  The deputy assigned to Pete quickly brought him from the holding cell. Mac’s heart began to pound. He looked across the courtroom and saw the muscles in Joe Whetstone’s jaw twitch.

  Pete sat down between his lawyers. “Is this a quick decision?” he asked Mac.

  “Somewhat. I’ve waited up to two days for a verdict.”

  Pete’s hands were sweaty. He stole a glance at Mr. and Mrs. Hightower, who were sitting behind the prosecution table. Joe Whetstone, grim-faced, leaned over and said something to them seconds before the first juror came back into the courtroom.

  Everyone stood as the jurors filed into the jury box. Pete looked closely at the now-familiar faces, seeking a hint of their decision. None of them looked directly at either the prosecution table or the defense.

  Judge Danielson cleared his throat. “Ladies and gentlemen, have you reached a verdict?”

  Lyman Bakerfield stood. “Yes, Your Honor.”

  “What is your verdict?”


  Bakerfield looked directly at Pete and said in a clear voice, “We find the defendant, Peter Thomason, guilty of first-degree murder.”

  Sarah Hightower began to sob. In total shock, Pete stared sightlessly down at the defense table.

  Mac gripped Pete’s arm for a second before he rose. “I ask that the jury be polled, Your Honor.”

  The judge asked each juror whether he or she consented to the verdict to make sure there had been no undue pressure in the privacy of the jury room. One by one the jurors stood and responded, “Yes,” when asked if they supported the decision.

  “Mr. Foreman, have you signed and dated the verdict on your copy of the indictment?” the judge asked.

  “Yes, sir.”

  “All right. Hand it to the clerk of court.”

  The clerk took the sheet from Lyman.

  The judge continued, “Ladies and gentlemen, we will begin the sentencing phase of the trial in one hour. Court will be in recess until that time.”

  Mac felt as if he had been punched in the stomach, but he showed no emotion. There was still a job to do—a young man’s life was at stake.

  All the color had drained from David’s face. Mac turned to him and said calmly, “Call Anna Wilkes and tell her to come immediately to the courthouse.” He patted Pete on the shoulder. “Do you want us to use Charles Gallegly? He said he would testify if you needed him, too.”

  Pete nodded.

  Mac turned back to David. “Also, contact Mr. Gallegly. He’s been on standby. Vicki has his number.”

  David walked quickly to the office. He was quiet on the outside, but inside he was shouting at the top of his lungs, Why, God? Why? You promised!

  “Guilty,” he announced soberly to the women at the office. “Mindy, please get Dr. Wilkes on the line. Mac needs her to come ASAP. Vicki, do the same for Charles Gallegly.”

  “It will take an hour and a half for me to get ready and drive down there,” Anna said.

  “That will be fine,” David replied. “The State won’t finish before lunch.”