Try Fear

by James Scott Bell

  Much of the ground had been covered in a three-page juror questionnaire approved by the judge. Now Radavich and I had the chance to talk to them directly.

  There were a couple of jurors I knew I had to get rid of—a retired television technician who looked and sounded like he’d convict Mother Teresa for stealing sheets, and a woman from Whittier who seemed entirely too anxious to be seated, and kept looking at Eric the way a coyote eyes an unattended chihuahua.

  That’s not a good look to be getting so early in the game.

  Radavich, of course, started tossing off jurors, too. And the first juror he excused was one I really wanted.

  Part of trial work is trusting your instincts, and a thought jumped out at me.

  I leaned over and whispered to Sister Mary, and she quickly got up and left the room.

  Radavich and Judge Hughes looked at me like I was some sort of sneak.

  Which, of course, I am.

  And on we went.

  By noon, Radavich had eliminated eight jurors, and I’d knocked out ten, two for cause.

  You’re never fully happy with a jury. There are always one or two wild cards.

  But it turns out I had a card of my own yet to play.

  87

  WE BROKE FOR lunch and I huddled with Sister Mary over pan-fried noodles in Little Tokyo. Sister Mary gave me a report on what I’d tasked her to do. It made me extremely happy.

  Which is why I was smiling when we got back to court at two.

  This time I was the one who asked for a meeting in the judge’s chambers.

  “I’m going to ask for a Wheeler hearing,” I said. Wheeler is the Supreme Court case that says you can’t systematically exclude certain groups from a jury.

  Radavich practically jumped out of his suit. Which is a picture I do not want in my mind. “What a load of—”

  “Now, now,” I said.

  “What group has he been excusing?” Judge Hughes said.

  “Catholics,” I said.

  “That’s a damn lie,” Radavich said.

  “I think it was three Catholics and four of the Protestant side of the fence,” I said.

  “I don’t recall us asking for religious affiliation,” the judge said.

  “You didn’t. I did.”

  Judge Hughes and Radavich just looked at me. It was Radavich’s mouth that twitched.

  “Explain yourself,” Judge Hughes said.

  “Very simply, my investigator stood in the hallway and, as each excused juror came out, she greeted them and thanked them for their service, and engaged in a bit of conversation, during which time the juror, of their own free will, revealed his or her religious affiliation. Sister Mary is quite ready to take the stand and testify to that.”

  The judge’s chambers became as silent as a country graveyard. Radavich, I was sure, was going to have a minor stroke. Instead, he said, “And just how was I supposed to know what church they went to?”

  “Are you working with a jury consultant?” I said.

  “That’s privileged information.”

  “There is no such privilege,” I said. “I am prepared to prove that Mr. Radavich has systematically excluded religious people, because he is prejudiced against my investigator.”

  “You’re trying to say that because you have a nun working for you, Mr. Radavich is trying to exclude Catholics?”

  “It’s worth looking into, isn’t it?”

  Judge Hughes said, “Tom, can you provide a justification for every one of your challenges?”

  “Of course I can.”

  The judge sighed. “Then you better do it. I’ll give you until tomorrow. And now I get to tell the jury that they won’t be hearing any evidence today. You know how happy that’s going to make them? You know how happy that makes me? Make it good, Tom, or I’m going to be even more upset.”

  The look Radavich gave me, the one framed with red cheeks, made my day. I’d sent him reeling right off the bat. It’s always fun when you can do that.

  88

  BUT YOU PUNCH a good fighter, it sometimes wakes him up.

  The next morning, Tuesday, we started with the Wheeler motion, and Tom Radavich was the “Three C” prosecutor—cool, clear, convincing. The judge accepted his reasons for kicking off the jurors he did, and the trial began.

  Radavich delivered a perfect opening statement, too.

  I had to follow with my own Three C’s, what I try to establish in every case: competence, credibility, and control.

  So when it was my turn, I said, “Ladies and gentlemen, in criminal trials it is common for lawyers to stand before you during opening statement and tell you what the evidence will show. You just heard Mr. Radavich say that, over and over again. But as the judge told you just before opening statements began, that is only what the prosecutor thinks the evidence shows. I’m going to give you the other side of that argument. I am going to tell you what the evidence will not show.

  “The evidence will not show that my client, Eric Richess, committed murder. The evidence will not show that my client is the only one who could have committed the murder in question. Indeed, there is another—”

  Radavich was on his feet like a spring-loaded shotgun. “Objection. May we approach?”

  “With the reporter,” Judge Hughes said.

  I tromped up to the bench with Radavich, knowing exactly what he was going to say. Which was: “Your Honor, Mr. Buchanan is attempting to inject an alternative theory of the shooting, but unless he can offer proof to support it, it is prejudicial and immaterial.”

  Judge Hughes looked at me. “Have you an offer of proof?”

  “I’ll get it,” I said with about as much predictive power as my friend Only.

  “Until you do, you will not say anything like that to the jury. And I will admonish them on this.”

  When I returned to the lectern, Judge Hughes said to the jury, “Ladies and gentlemen, counsel expressed that there might be another explanation for this crime, but you are to disregard that statement. All right? Disregard it. Continue, Mr. Buchanan.”

  I didn’t hesitate. “The evidence will not show that the conclusion the prosecution wants you to draw is a conclusion that is supported by law or fact.

  “I say this to you during opening statement because the highest protection in our Constitution is for citizens who are accused of crimes. As you look at Mr. Richess right now, he is innocent. That is what the Constitution says. He is innocent. The only way he can move from innocence to guilt is for the prosecution to prove its case beyond a reasonable doubt.”

  Radavich stood up. “Your Honor, this is a closing argument, and therefore not appropriate.”

  “I agree,” the judge said. “Mr. Buchanan, confine yourself to a statement of what you think the evidence will show.”

  “A gaping hole,” I said, turning back to the jury. “A great, big hole where evidence ought to be. It’s not there.

  “You will hear, for example, about DNA. Now, I know you have all seen David Caruso on TV, or any one of those other CSI shows, and you might be led to believe that an expert sitting in the witness chair talking about DNA evidence pretty much determines the entire case. Not so here. Because we will show you that there is another explanation for why blood was found on the gun in question. It happened when my client went shooting with his brother at a shooting range. We will have a witness from the shooting range testify to that.”

  I covered a few other areas, but didn’t want to overstay my welcome. Most lawyers yap too much when they address the jury. But they do like a big finish.

  So to end, I walked to the front of the prosecution table, which is closest to the jury box. I pointed at the table. Radavich looked like he wanted to bite my finger.

  “But here is the most important thing,” I said. “You see what’s on the prosecutor’s table? It’s a giant boulder. I want you to imagine that right now. A big boulder that the law says sits there right now. That boulder is called the burden of proof. And what the prosecutor ha
s to do, using only admissible evidence, is chip away at that boulder until it’s all gone. Because any bit of it that’s left is called reasonable doubt, and—”

  “Objection,” Radavich said.

  “Sustained,” the judge said. “Conclude, Mr. Buchanan.”

  I wagged my finger at the table once more for good measure. Then I said, “Simply put, the evidence is not there, and the prosecutor will not prove to you beyond a reasonable doubt that my client committed the murder of his brother.”

  I sat down. Eric seemed half calm, half tense. Exactly like me. “Sounded good,” he whispered.

  But was it good enough?

  89

  RADAVICH CALLED HIS first witness, Detective Lonnie Zebker, who was sworn.

  “Good morning, Detective,” Radavich said.

  “Good morning.”

  Yes, it’s always a good morning when you start a murder trial. I thought of Pick McNitt, and his rant against Good morning. Maybe I’d call Pick as a witness, just for entertainment.

  “What is your current position?” Radavich said.

  “I am a detective-two with the LAPD.”

  “Describe what that is, please.”

  Zebker looked at the jury. “There are three detective ranks in the department, three being highest. As a detective-two, in addition to conducting the investigation of crimes, I also provide supervision in the training of detective-ones.”

  “So you actually train detectives in proper crime scene procedure?”

  “That’s right.”

  “How long have you been a detective?”

  “I’ve been a D-two for three years, before that a D-one for six years.”

  “Where are you currently assigned?”

  “Hollywood Division.”

  “In your capacity as a detective, approximately how many homicides have you worked?”

  “Oh, I’d estimate two hundred, including those I helped other detectives on in one way or another.”

  “Referring now to the night of January thirtieth of this year, were you notified about a homicide?”

  “I was.”

  “At what time?”

  “I was called at home a little after eleven p.m.”

  “And what time did you arrive at the scene?”

  “Eleven-forty-five.”

  “Did you meet a police officer at the scene?”

  “Yes, I met Officer Baron and asked him to brief me.”

  “Were the criminalists there?”

  “SID arrived about five minutes after I did.”

  Radavich signaled to his assistant, who moused at his keyboard. Up popped a photo of the interior of Carl’s apartment on the flat-screen monitor set up for the jury. “Showing you now People’s Exhibit One, do you recognize the photograph?”

  “Yes. That is a photograph of the crime scene, apartment 102.”

  “Did you see any signs of a struggle in apartment 102?”

  “No.”

  “Any drawers pulled out?”

  “No.”

  “Signs of a burglary?”

  “No.”

  “What did you do next?”

  “I entered the kitchen and saw a white male, deceased. He was seated in a chair at the kitchen table.”

  “Did you find a suicide note?”

  “No.”

  “Any signs of struggle in the kitchen?”

  “No.”

  “Which would lead you to believe what?”

  I objected. “That calls for speculation, Your Honor.”

  “This is a veteran detective of the LAPD,” Radavich said. “Surely his training and experience is more than mere speculation.”

  “Go ahead, Mr. Radavich,” Judge Hughes said.

  “You may answer the question, Detective.”

  “Leads me to believe he knew the killer.”

  “What did you do next?”

  “I began to process the crime scene.”

  “Was the defendant present at the scene?”

  “Yes, along with his mother.”

  “Did you question them?”

  “No. The mother was distraught, and I thought it best to let the defendant take her home.”

  “Did you question any other potential witnesses?”

  “Yes.”

  “You may refer to your report. Who was the first witness you interviewed?”

  Zebker opened the notebook he’d brought with him to the witness chair. “That would be Ms. Alana Phong.”

  “And who is she?”

  “She lives in apartment 104.”

  Radavich had another picture brought up, this one a map of the apartment building, with the apartments numbered.

  “Showing you People’s Two, sir, is that an accurate representation of the scene?”

  “It is,” Zebker said.

  “Please give us the substance of what Ms. Phong told you.”

  “Objection,” I said. “Hearsay.”

  “Goes to state of mind,” Radavich said.

  “Overruled,” Judge Hughes said.

  “She told me that there had been loud music playing in the apartment next to hers, when she got home sometime after nine. She let it go, she didn’t complain, she put on her noise-canceling headphones. She didn’t think much of it because it had happened before, and he, meaning the victim, Carl Richess, never kept it up that long. But this time he did. Eventually she started pounding on the wall. When that didn’t get any response, she went outside and knocked several times on the door. Finally, she called in a complaint.”

  “Did Ms. Phong give you any other information?”

  “Yes, she offered that the victim’s brother, the defendant, had been there in the past, and that the two of them had had loud arguments.”

  “Objection,” I said. “I doubt the woman used the term ‘defendant’ when talking to the detective. I move to strike.”

  “That’s just my paraphrase,” Detective Zebker said.

  The judge said, “The witness will not speak when there is an objection pending.”

  “Sorry, Your Honor,” said Zebker.

  “Overruled,” said the judge.

  Radavich said, “Did you interview the defendant?”

  “The following morning, yes.”

  “Where was this?”

  “At his townhome in Woodland Hills.”

  “Did you consider him a suspect?”

  “At that time, no.”

  “Please give us the substance of that conversation.”

  “I asked him to talk to me about his relationship with his brother and he seemed nervous. I told him to take his time, and then he asked me what this was all about and if he was a suspect.”

  “Did he offer that first? That he might be a suspect?”

  “Yes. He used the word ‘suspect’ first. I told him he wasn’t a suspect but that I wanted to know some things, such as his relationship with his brother. He said that he had a fine relationship with his brother and I asked if he had been in any arguments with him lately, and he said he would only talk with a lawyer present.”

  “Did you arrest him?”

  “Not at that time.”

  “When did you arrest him?”

  “When we got the blood result. His blood was found on the murder weapon—”

  “Objection,” I said. “Assumes facts not in evidence, and assumes this was a murder.”

  “Sustained,” Judge Hughes said.

  Radavich went right on, smooth as butter. “You did place the defendant under arrest, correct?”

  “Yes.”

  “Did you question him again?”

  “I Mirandized him and he refused to answer questions. He asked for a lawyer.”

  “Would that be Mr. Buchanan?”

  “Yes.”

  Radavich had Zebker detail more of the crime scene investigation, including the collection of the forensics evidence. All according to Hoyle, as they say.

  “I have no further questions at this time,” Radavich said.
/>   “Cross-examine,” the judge said.

  90

  CROSS-EXAMINATION IS THE most abused aspect of trial work.

  Most lawyers badly mishandle it. They go on fishing expeditions, like drunken businessmen angling for marlin on the weekend. Or, worse, try to act like James Woods in Shark to get witnesses to say things they otherwise wouldn’t, through the sheer ferocity of their questioning.

  That dramatic stuff hardly ever happens. You have to know exactly what you’re trying to do, and it’s not usually to break down the witness. Very rarely do you even attempt to do that.

  Especially when it’s an experienced cop on the stand.

  Eager-beaver trial lawyers may attempt to show up a witness in front of the jury, but that is almost always a bad move. Unless the witness is clearly lying, or is otherwise vulnerable, what you should do is try to elicit testimony that’s favorable to your cause. And if you get it, save it for closing argument.

  In other words, shut up.

  When lawyers try to win their case right then and there, by hammering a witness, they usually end up slamming themselves on the foot.

  Only when the witness gives you a wide door should you try to drive a tank through it. And then, when you do, go for the kill.

  Zebker was not the kind of witness who was going to give me any openings. He was professional, and had testified a whole bunch of times. So I gave him the friendly treatment.

  “Good morning, Detective,” I said from the lectern.

  “Good morning.”

  Just a couple guys meeting over coffee.

  “In your direct testimony you made a great deal of the fact that you found no signs of struggle, correct?”

  “I don’t know that I made a great deal out of it, I just mentioned it.”

  “But you did draw a conclusion from it, that you thought the victim must have known the killer, is that right?”

  “Yes.”

  “Do you think the victim knew himself?”

  “I don’t understand the question.”

  “There would be no signs of struggle if the victim killed himself, correct?”

  “We have ruled out suicide.”

  “That’s not what I asked you, Detective. The question is, if someone commits suicide, there would not be a sign of struggle either, isn’t that right?”