I ask Laurie to join me for the Victor Markham deposition, and we head over to the office of one Bradley Anderson, Victor's lawyer. I bring Laurie with me because she's smart, and in this case two heads are better than one, especially since one has just recently been punched in.
Bradley Anderson is one of the few attorneys I've ever met for whom the moniker “Esquire” fits. His office is spacious and ornately furnished in an elegant prewar building in Ridge-wood. The conference room would seem more appropriate for a state dinner than for a criminal law deposition, but that is what we're here to conduct.
There is a fruit plate set out for us to sample, along with cheese and crackers, except they are so thin and delicate that they're probably called something a lot classier than “crackers.” There is also a silver coffee urn with cups smaller than your average test tube.
Victor feigns graciousness when we arrive, even expressing sympathy for my bruises. It is as if he has absolutely nothing better to do than have a little chat with us over coffee. Bradley is distant but polite, though my impression is that he feels like he's soiling himself by talking to us. Bradley explains that he does not usually do criminal law, but Victor is a dear friend, so if we can move this along …
Once the stenographer is ready, I ask Victor some preliminary questions about his business and family. Actually, I beat these questions to death with boring minutiae, and I can feel Laurie staring daggers at me, wondering what the hell I am doing.
What I am doing is trying to annoy Victor Markham, to get him out of his glossy little shell and dig under his skin. I accomplish this when I ask him for perhaps the fifth time about his son, Edward's, grades at Fairleigh Dickinson. Victor snarls his response and Bradley threatens to terminate the deposition. I threaten to bring Victor in front of Hatchet for unresponsive-ness. Now that I've achieved the warm tone I've been looking for, it's time to get to the matter at hand.
The goal of a deposition, at least one of an adversarial witness, is not necessarily to accumulate information, and certainly not to trip him up. Rather it is to get the witness under oath, and thereby lock him or her into answers. Those answers then serve as a basis for cross-examination, and the witness cannot come up with a new story when painted into a corner.
“How well did you know Denise McGregor?”
“I didn't know her very well,” Victor says. “But Edward hoped to marry her.”
“Were they engaged?”
“No, I don't believe so.”
“You don't know for sure whether your own son was engaged?”
“He was not engaged.” He's annoyed, snapping out his words.
“Do you know what story Denise was working on when she died?”
“Of course not.”
The questioning moves to the night of the murder. “Why did Edward call you from the bar?”
“As I would assume you can imagine, he was terribly upset. He always turned to his father in times of crisis. He still does. I encourage it.”
“Where were you at the time?”
“At the club.”
“Which club might that be?”
“Preakness Country Club. We have been members for many years.”
“How did he know you were there?”
“It was a Friday night. I am always at the club on Friday nights.”
“So when Edward called you, what did he say?”
“He told me where he was, and that his girlfriend had been murdered. He asked me to come there immediately.”
“And you did?”
He nods. “I did.”
I take out the picture that I found in my father's house. “Can you please point to yourself in this photograph?”
Bradley has obviously been primed for this. He jumps in instantly and advises Victor not to answer on the grounds that it is not relevant to the Miller case. No amount of badgering on my part, not even the threat of Hatchet, can get him to change his mind.
My last question for Victor concerns the current whereabouts of Edward, since Laurie has been unable to locate him.
Victor smiles. “He's in Africa, on one of those safaris. I'm afraid he's simply not reachable.”
I return the smile. “Then we'll just have to talk to him on the stand.”
TEN DAYSFLY BY AS IF THEY ARE TEN MINUTES, AND THE next thing I know the bailiff is intoning, “In the matter of the people versus William Miller, the Honorable Justice Walter Henderson presiding …”
“William” sits at the defense table in a new suit I had Edna purchase for the occasion, and he looks terrific. He also looks calm and collected; he's been a lot lower, and faced a lot tougher, than this and he thinks the momentum has turned upward. He's not thinking very clearly.
There is a special feeling, an excitement combined with queasiness, that hits me every time a trial is about to begin. The only thing I can liken it to is former Boston Celtics great Bill Russell saying that no matter how long he played, he still threw up in the locker room before every game. I don't think throwing up on the defense table is the right way to get on Hatchet's good side, so I control the impulse.
For me trials are about strategy and confrontations. Strategy is one of my strong suits, but in real life I don't do well with confrontations, so I have to deal with that in another way.
My father used to lecture me that a trial is serious business, not a game, but I have come to disagree. For me a trial and the investigation surrounding it is in fact a game. I turn it into one, so that I can handle and thrive in the midst of all these confrontations. In sports, every play between the participants is a confrontation, but I can deal with that because that is the purpose of the game. Once I can put trials into the same category, it becomes depersonalized and I'm home free.
Jury selection is especially difficult and dangerous for the defense in a capital trial. That is because each juror must be death-qualified, which is to say that he or she must be willing to vote for the death penalty if it seems warranted. Such juries are by definition more conservative and more favorable to the prosecution.
The first prospective juror is brought in for Wallace and me to question. Marjorie is at my side as we go through the tedious process, made more so by Hatchet's insistence on throwing questions in of his own.
Number one is a doorman who claims to know nothing about the case. He also claims to have an entirely open mind, to have no predispositions about the police or the justice system, and to be willing to consider capital punishment if called upon to do so. This is clearly a guy who'd rather sit in the jury box for a few weeks than open doors. Marjorie's okay with him, but Wallace challenges, and he's excused.
It takes us two days to empanel a jury of twelve and two alternates. There are seven whites, four blacks, and one Hispanic, five men and seven women. All twelve of them claim to have a completely open mind. I don't think I've met twelve people in my entire life with completely open minds, but I'm reasonably satisfied with this group. Marjorie is positively euphoric, but if she thought we had a bunch of turkeys, it would mean she did a poor job.
The real action in a trial begins with the opening statements. The prosecutor stands up and gives the jury a road map of the trial. He tells them what they are going to hear, what he is going to prove, and what it will all mean. His goal is to sound confident and to convince the jury that he has the goods on this guy, then his task will be to deliver a case that makes good on the promises he's made in the opening statement.
Richard thanks the jury for their willingness to serve, then talks for a while about their obligations under the law. It's all straightforward, boilerplate stuff, until he finally turns to Willie Miller.
“So he got drunk,” Wallace says, pointing to Willie. “Happens to a lot of us, right? But what do you and I do when we have too much to drink?”
He laughs to himself as if remembering past nights at the frat house.
“Well, I have to admit, I fall asleep. Knocks me right out. But I'm a little unusual in that regard. Other people, maybe
even some of you, get a little wild, have some fun, maybe even say a few things they shouldn't.”
Most of the jurors are nodding along with him. This is starting to feel like an AA meeting.
Wallace turns serious. “But not Willie Miller. No, Willie handles his liquor a little differently. Willie kills people. And on June 14, 1994, Willie Miller killed Denise McGregor. She was a hardworking, intelligent young woman, a loving daughter, full of life, who is not here today because Willie Miller spent a night drinking and killing.
“Your job is a very serious one, have no doubt about that. But in this case it is not a particularly difficult one. That is because we will prove everything I am telling you about that night. Every single, ugly moment of it. We will show you who Willie Miller is, and what he did. We will present overwhelming physical evidence to you, and you will hear from an eyewitness to the crime. That's right, an eyewitness. Someone saw Willie Miller standing over the body, moments after committing the crime. She will come in here and tell you what she saw. And you will have no doubt that she is telling the truth.
“On behalf of the state, we will prove that Willie Miller is a cold-blooded murderer. We will prove it not just beyond a reasonable doubt; we will prove it beyond any doubt. Thank you.”
Wallace finishes just before lunch, and Laurie, Kevin, and I have two hours to decide whether I should give my opening statement now or wait until after the prosecution's case is finished and it's time to present ours.
I include Willie in our discussions, as I always do with my clients. It makes them feel better, even though I never listen to anything they have to say. Willie thinks I should speak now, since he's just been made to look like a monster by Wallace, and he thinks I'll provide him some vindication. Laurie feels I should hold off, that Wallace didn't go as far as he might have, and that we'll need our best ammunition after his case in chief, which she expects to be devastating. Kevin feels I should go now, since otherwise the jury will think I have nothing to refute what was just said.
My decision is to speak now, since it feels like there could be a steamroller effect if I don't. I want the jury to understand that there is a serious, other side to this argument, and if I don't tell them so right now, I'm afraid they won't get it.
When court reconvenes, I tell Hatchet that I want to make my opening statement now. I stand and face the jury.
“I'm going to start by answering a question that must be on your minds. You must be wondering why, if this murder was committed so long ago, and if Willie Miller was captured so soon after the murder, he is just being brought to trial now. Well, the truth is, he was tried once before, and found guilty. That verdict was overturned, and we're back here.”
I can see Wallace almost getting up, trying to decide if he should object. This is information he should want included, and he doesn't know why I'm bringing it up.
I continue. “Actually, I shouldn't say that we're back here. I didn't represent Mr. Miller last time. In fact, his lawyer was not really a lawyer. He was a fake, brought in to ensure that Mr. Miller would lose. It is convincing evidence of a conspiracy that resulted in-”
“Objection!” Wallace leaps to his feet.
“-my client losing seven years of his life-”
“Objection!” Wallace is going nuts, and Hatchet slams down his gavel.
“Bailiff, remove the jury. I'll see both counsel in chambers.”
I've accomplished my task, the jury has been shaken up and hopefully will now expect to see a fight between two competitive positions. It's put our side on a more equal footing, which is all we can hope for at this point.
Back in chambers, Hatchet doesn't come down on me as hard as I expected. Wallace complains that I cannot go making wild charges about alleged conspiracies, but Hatchet still wants to rule on it step by step as we go along. He knows I'm trying to develop evidence on the fly, and he may well be feeling guilty about rushing me to trial. He says that I can talk about a conspiracy and frame-up in my opening statement, but before I can give further specifics I have to clear it with the court. It's a reasonable decision and elevates my opinion of Hatchet.
Wallace is displeased with the result of this conference, but he and I both know he will be upset often during the trial. My style as a defense attorney is often to ridicule the prosecution's case, to make it look not worthy of serious consideration by the jury.
Lawyers, even those who know it is crazy to personally identify with their respective positions, have a tendency to become their case during the course of a trial. If their side loses, then they lose, and the key for the attorney is to allow objectivity and passion to coexist in his or her mind.
As I try to make Wallace's case look bad, he will have a knee-jerk reaction that I am making him look bad. He's a professional, and it won't destroy the level of his work, but it will be tough to deal with, and occasionally he will erupt in anger. It's unfortunate that I have to bring this out in him, but for me it's just part of the game.
When we return to the courtroom, I continue with my statement to the jury. “The interesting question that you will face is not whether or not Willie Miller committed this terrible crime. He simply did not, and the evidence will bear that out. The proof to which Mr. Wallace refers does not exist, no matter what he claims. He will present a manufactured proof, no doubt one in which he sincerely believes, but an illusion nonetheless.
“But the really fascinating part is why Willie Miller stands before you at all. Because there has been no accident here, no case of mistaken identity. Nothing in this case has happened by chance. Willie Miller has been framed … cleverly, diabolically, and ruthlessly. It is a frame-up that began the night of the murder, in fact well before that night, and which has continued to this very moment.
“Denise McGregor died tragically that night, but Willie Miller is a second victim, and the extent to which he has been victimized will astonish you.”
I take a drink of water from my glass at the defense table, and nod very slightly to Kevin's cousin, sitting in the first row behind the defense table, right where we planted him. The word “astonish” was the trigger, so he gets up and walks the few feet to me, leaning in and pretending to whisper something in my ear. I nod, and he leaves the courtroom through the rear doors.
I turn again and face the jury. “When I finish, the prosecution is going to be presenting their case. I already know what it consists of, and take my word for it, the most significant part of that case is an eyewitness.”
I stop, as if seriously considering the import of such a witness.
“An eyewitness. Sounds pretty momentous, doesn't it? The word almost sounds as if a drumroll should precede it. The average person thinks, well, he might as well plead guilty, because they've got an …”
I beat a drumroll with my hands on the railing of the jury box.
“… eyewitness.”
The jury laughs, which is what I'm looking for.
“Every moment of every day, we are eyewitnesses to what happens before us. Moments ago, a man got up from that chair, spoke to me, and left the court. Since there's not much else to do around here, I assume most of you watched him. You were eyewitnesses to it.”
There is a slight murmuring among the jury, as Kevin reaches under the defense table and picks up a large piece of paperboard. He hands it to me, and I bring it over to the jury, after first registering it as a defense exhibit.
The board has six photos on it of six different men. They all look vaguely similar and are all dressed alike. Any one of them could be Kevin's cousin, as long as no one was watching closely.
“One of these pictures is of the man that just spoke to me. I wonder if any of you could identify him. And if you were to try, would you also be willing to say, ‘I am so sure that was him, that I would send someone to be put to death, based on my certainty.’ ”
The look on their faces clearly reflects the fact that they have no idea which photo is the correct one, and they are afraid that they will actually be calle
d upon to try and pick it out.
“I think not. And remember, there was no shock or excitement connected with this. You were paying attention, but nobody had a knife, no one was bleeding to death in front of you, and you weren't afraid for your lives. Do you think that would have made your job easier, or harder?”
A pause for effect. “I'd guess a lot harder.”
Many of the jurors are nodding along with me.
“Tough, huh? And just think, you were all …”
Again I beat a drumroll on the jury railing.
“… eyewitnesses.”
I don't go on much longer, mainly because I don't want to screw up a good thing. Also, Wallace hasn't gotten deeply into the specifics of the evidence to be presented, so I don't have to go into how I will refute it. If I will refute it.
When I walk back to the defense table and sit down, Willie looks positively giddy. I'm afraid he's going to give me a high five and a chest bump, but he manages to stifle the impulse. I'm going to have to talk to him about looking impassive. My guess, however, is that Lee Strasberg couldn't teach Willie to look impassive.
Hatchet decides that it's too late in the day to start calling witnesses, so he adjourns. As we are filling our briefcases, with the jury already dismissed for the day, Wallace comes up to me, a slight smile on his face.
“Upper right,” he says.
“Excuse me?”
He points to the board with the six pictures on it. “The guy who was in the courtroom is the photo in the upper right hand corner.”
The truth is, I have no idea which is the correct picture. I look to Kevin, who has heard Wallace and who obviously knows which one his cousin is. Kevin nods. Wallace is correct.
I smile. “Lucky for me you're not on the jury.”
He returns the smile. “You got that right.”
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