by Jay Brandon
“May we approach the bench, Your Honor?” Jordan was already doing so, walking stiffly. At the bench they all leaned their heads close, including Laura, to make the record. Jordan’s first words were fierce. “Your Honor, this trial will be a foregone conclusion if I’m not allowed to ask these questions. In order to intelligently exercise the defense’s peremptory strikes on the panel, I have to know which of them already believes that my client is a double murderer. If they’ve already convicted him in their minds of Jenny Fecklewhite’s murder, it won’t matter what the evidence in this trial shows.”
Judge Waverly leaned forward and spoke as if giving comfort. “At the conclusion of the evidence, I will instruct the jury to consider only the evidence in this case.”
“You’ll instruct them, Your Honor, but the question is whether they can obey that instruction. That’s what I need to ask.”
Still Jordan looked for a sign in the judge’s face. Don’t you want to know yourself? Don’t you want me to solve Jenny’s murder?
“That’s denied,” the judge said kindly.
“I object.”
Judge Waverly’s face dropped into its habitual sternness. “Did I make a mistake, Mr. Marshall? I appointed you to this case because I thought you were an experienced trial lawyer. You led me to believe you understood the law.”
Maybe you did make a mistake, Jordan thought.
His questioning of the jury panel was perfunctory after the bench conference. Wayne leaned over once to say, “That guy hates me, he’s owed me twenty dollars for two years.” Jordan made a silent mark on the jury list. No other words passed between him and his client.
In the end, he didn’t have the nerve to leave Mrs. McElroy on the jury. She was too strong a personality, if she turned against him, she’d lead others. When Cindy called out the names of the jurors who had been chosen, and passed over Mrs. McElroy to name the woman behind her, Jordan looked at Mrs. McElroy in surprise, as if to say, Gee, I guess the other side must have struck you. Mrs. McElroy remained huffily in her seat when the unchosen panelists were dismissed with the court’s thanks, and the lawyers turned their chairs around to face front.
“How do you plead?”
Wayne stood straight, but his voice was shaky. “Not guilty, sir.”
“Mr. Arriendez, do you have an opening statement?”
The district attorney spoke earnestly and at some length, explaining what he expected his evidence to prove and what he did not have to prove.
“That’s right,” Jordan said when it was his turn. “The State doesn’t have to prove motive. But if they don’t, what have they proven? The defendant is charged with murder, which means he intended to kill someone and he did it in what we used to call cold blood. If he had a good reason for what he did, then it wasn’t murder. If he was so consumed with rage that he couldn’t help himself, for good reason, that’s not murder. If he had no intention of killing anyone, that’s not murder either. So if the State doesn’t show you something of what was in Wayne Orkney’s mind when he attacked Kevin Wainwright, they haven’t proven their case.”
Jordan hurried on. “Wayne’s state of mind is one of the defenses we expect to bring up. We also intend to suggest that someone else might actually have killed Kevin Wainwright after he was supposedly safe in the hospital. And remember, the defense can throw out as many theories as we want because we don’t have the burden of proving anything. The State does. Their case has to tie up all the loose ends; it has to satisfy all your questions. Otherwise what’s left is reasonable doubt, and your verdict will have to be not guilty.”
The jurors listened politely. The district attorney began his case.
“Where were you, Joyce, when you first saw the defendant here that July fifteenth?”
“I was getting into my car in front of the Kwik Wash,” the twenty-eight-year-old math teacher said precisely. Perhaps she had felt compelled to come to court as a cliched version of her life in a prim print dress buttoned to the neck and harsh dark-rimmed glasses. The glasses turned her pale eyes into huge aqueous doorknobs. “I was still standing with my car door open when there was a screech of brakes and I almost choked in the dust. Wayne Orkney had just stopped his pickup right behind me, sideways, blocking my car, and he jumped out.”
“How did he appear?”
“I thought he was going to hurt me. His face was red, the cords were standing out in his neck, and he screamed, ‘I’m going to kill you!’ I thought he meant me, and I ducked into my car.”
“What happened then?” Arriendez asked.
“Oh, he just ignored me. That was when I noticed that Kevin was passing on the sidewalk. He was the one Wayne had screamed at.”
“Kevin— ?” Mike Arriendez asked easily.
“Wainwright. Wayne’s friend. Actually I relaxed a little when I saw Kevin, because I knew he and Wayne were friends, and I thought for a minute they were just playing around, the way boys do, but then Wayne ran up and hit Kevin very hard right in the face. Kevin fell back against the wall — I was afraid he was going to go through the plate glass window of the Kwik Wash—and then Wayne hit him again.”
“Did they exchange any words?” the prosecutor asked. Joyce Livingston shook her head doubtfully, not liking to let imprecision creep into her testimony. “I don’t think I heard either of them say anything else after that, but they were rolling around on the ground on top of each other, and other people were running up and there was shouting…”
“Did you see the defendant hit Kevin again?”
“Oh, yes.”
“How many times?”
“At least five or six. Probably more.”
“Hard blows, like the first one you saw?”
“Very hard,” the teacher said, wincing with the memory.
“Your witness,” the DA said with what Jordan thought was a note of satisfaction.
“Hello, Ms. Livingston, my name is Jordan Marshall, I’m representing Wayne Orkney here—”
“I remember you, Mr. Marshall.” She smiled warily, politeness prevailing over apprehension.
“Good. Now, Ms. Livingston, if I don’t make myself clear, please ask me to repeat or put the question differently. I don’t want to confuse you.”
“All right”
“Now, while this fight was going on, did you stay in your car?”
She blinked hugely behind the lenses. Her arms moved, trying to recreate her actions. “I believe I did. It happened so quickly. I got out some time to see if I could help, but I believe that was afterward.”
Jordan asked kindly, “So you saw the fight through your windshield or a side window of the car?”
“Yes, sir. The windshield.”
“Were you wearing your glasses?”
There was a faint collective sigh from the audience, relief that Jordan had asked the obvious question. Jordan half- turned surreptitiously and saw out of the corner of his eye that the jury panel had been replaced in the spectator seats by a small crowd that more than half-filled the benches.
“I always wear my glasses,” Ms. Livingston said. “I can’t see three feet without them.”
“All right. But you were looking through the windshield, you said, over the hood of your car, so once Wayne and Kevin fell to the ground and were—What did you say?— wrestling around?”
Joyce Livingston nodded.
“—you couldn’t see them any more, could you?”
The witness blinked again perplexedly. “But I could,” she said. “I can still picture it.”
“You can imagine it,” Jordan said patiently, “but how could you actually have seen it? Once they had fallen below the level of the car hood, your line of sight—”
“I understand angles,” the math teacher said sharply, because Jordan was intruding on her thoughts. He let her sit and try to work it out, hands moving vaguely as if shifting playing pieces around a board. “I suppose,” she finally said slowly, “that’s when I got out of the car and came around to
the front.”
“Are you sure?”
“It must have been,” she said, “because I saw it.”
“All right.” Jordan didn’t press her, he just let the jury see her uncertainty. “From the portion of the fight you did see, Ms. Livingston, did you see Kevin hit back at Wayne?”
“No, I never did.”
“Never?” Jordan asked. “You never saw him hit Wayne at all? Was Kevin unconscious then, from the first punch?”
“No, sir. He stayed on his feet for a while, and he put up his hands but only to try to protect himself.”
Jordan was not altogether displeased with this testimony. It sounded so unbelievable it called the rest of Joyce Livingston’s answers into question. At least that was the defense lawyer’s reaction.
“Let’s go back to the very beginning, Ms. Livingston. What were the exact words that you heard Wayne shout when he first pulled up?”
“ ‘I’m going to kill you,’ ” Ms. Livingston said distinctly.
“Have you ever threatened to kill anyone, Ms. Livingston?”
“No, sir.”
“No?” Jordan said amazedly. “Aren’t you a teacher?” There was a titter behind him. Judge Waverly’s stern eyes sought its source, and the titter died.
“Yes, I am,” Ms. Livingston said.
“And you’ve never said, even to yourself, ‘I’m going to kill that kid if he smarts off to me again’? Or words to that effect?”
“No, sir.”
“You have remarkable patience,” Jordan said and before Arriendez could object hastened to say, “I just want to take up one more topic, Ms. Livingston. You said Wayne screeched his truck to a stop. Which direction was it coming from?”
Joyce Livingston’s hands moved again. “From the west,” she said confidently.
“You were on Main Street about two blocks from where we sit today, and Wayne was coming from the opposite direction, is that right? What lies in that direction, Ms. Livingston? Where might Wayne have been coming from?”
“Objection,” the prosecutor stood to say. “Calls for speculation.”
Testing, testing. Some lawyers got too nervous during trial to object or couldn’t think fast enough. Mike Arriendez was obviously not one of those. Jordan rose and said innocently, “I’m just trying to set the scene, Your Honor. So the jury can picture it.”
The judge studied Jordan untrustingly. “Briefly,” he said.
“What landmarks lie in the direction Wayne was coming from, Ms. Livingston?”
The witness had had time to compile a mental list “Well, the Texaco where Wayne worked sometimes. The interstate. Any number of places. The hospital, the park.”
“Pleasant Grove Park?” Jordan seized on the answer, and Mike Arriendez gathered his feet under him. “Do you know what had happened in Pleasant Grove Park earlier that afternoon?”
“Objection, Your Honor. Irrelevant.”
“It’s relevant to the defense,” Jordan said testily.
“Sustained,” was Judge Waverly’s only reply.
They let Ms. Livingston go on her way. Jordan thought he had done a nice job of undermining the reliability of her recollection of the fight, but he had a lot more undermining to do, because as the prosecution called witness after witness, it began to appear that Wayne had beaten his best friend in front of half the population of the town. Joyce Livingston had not been the only person getting her laundry done on a summer weekday afternoon. Mike Arriendez called three other women who’d been inside the laundromat and seen at least part of the fight He called shopkeepers and shopkeepers’ customers, the people who’d watched the beating and the men who had broken it up. And all of their testimony agreed, more or less, with Joyce Livingston’s.
“How many times did you see Kevin hit back at Wayne?” Jordan asked.
“Not any,” said Hiram Lester, the hardware store owner.
“Now, Mr. Lester”—Jordan let exasperation be apparent in his voice—“have you seen very many fights?”
“A few.” Lester looked quite at ease in the witness stand, as if he were sitting around his store.
“Have you ever seen another one like you’ve just described, where a man just let himself get beaten up and didn’t try to defend himself?”
“Don’t believe I have. It was unique. ’Course, I didn’t catch the beginning of this one.”
But witnesses who had caught the beginning of this one claimed not to have seen Kevin throw any punches either, though, as is always true, the eyewitnesses didn’t agree on details. One man said he’d seen Kevin get in a punch or two. One woman thought she’d seen him claw Wayne’s face. But Jordan had his client’s arrest photo in the file before him, and though Wayne had looked disheveled and dusty, he hadn’t had a mark on his face. After a while, after Jordan’s questions had raised the issue, Mike Arriendez thought of introducing the photo to show just that. Jordan objected, but the photograph of a relatively undamaged Wayne was admitted into evidence.
After the first witness, Judge Waverly no longer let Jordan “set the scene” by asking what local landmarks lay in the direction from which Wayne had been driving just before the beating, but Jordan continued to ask each witness whether he or she knew what had happened in Pleasant Grove Park earlier that afternoon. After the third time the district attorney’s objection was sustained, Jordan approached the bench in a huff. He kept his voice down, but the ferocity of its tone might have carried to the jury. “Your Honor, I have to object to the court’s not allowing me to get into this perfectly relevant line of questioning.”
Judge Waverly asked mildly, “Is this going to be a lengthy, heated objection?”
“Yes, sir.”
“Then we’ll do it in chambers.” Raising his voice, the judge ordered a ten-minute recess and in a rapid swirl of robe led the procession to his office. Mike Arriendez and Laura carrying her transcribing machine followed quietly in Jordan’s wake. Jordan didn’t offer to help Laura. He’d scrupulously avoided casting any significant glances in her direction since trial had begun. Laura wouldn’t have caught them anyway. Her face had been turned resolutely to the far windows, wearing its mannequin blankness. Her only animation was in her fingers.
“Your Honor,” Jordan began reasonably once the judge’s office door had closed behind them, “this line of questioning that you won’t let me pursue is essential to the defense. It goes to the defendant’s state of mind. What Wayne Orkney found in Pleasant Grove Park was the sole cause of what he did to Kevin Wainwright.”
“There’s no evidence of that,” Mike Arriendez said.
“I’ll provide the evidence. It’s not going to promote court efficiency to have to recall all these witnesses after I do. Furthermore,” he added hastily before the judge could rule, “because the court prevented me from asking the jurors during voir dire whether they thought my client guilty of Jenny Fecklewhite’s murder, I now have to prove to their satisfaction that he did not kill her.”
Silence followed the sudden stopping of Jordan’s voice. Jordan had turned his attention solely on the judge, who sat slightly slumped behind his desk. His eyes were on Jordan. Jordan saw in the dark eyes shadings their blackness had never revealed to him before. Memory tugged at the judge. His right hand closed on something invisible.
“Can you?” Mike Arriendez asked quietly.
“Prove that Wayne didn’t kill Jenny? Yes, I can.” Jordan’s eyes were still on the judge. If you let me, he tried to make his face say. If you really want to know what happened to your girl friend.
Judge Waverly was the cause of the silence. He understood that, but didn’t let silence goad him. The line of his thin lips pursed, straightened. His eyes were lost in thought.
He recovered himself abruptly. The judge’s eyes were as penetrating as ever when he turned them on Jordan. “Mr. Marshall, you promise me as an officer of the court that the testimony you want to elicit is relevant to the defendant’s state of mind and that you will demonstrate
that relevance?”
“Yes, sir, I do.”
“Then I will let you get into it. But we’re not going to have two murder trials in one. I’ll let you develop the circumstances of the other case just so far as they’re relevant to this one. And if your proof fails to show your client’s innocence of Je—of the other murder, remember that you’re the one who wanted to bring in the extraneous offense, Mr. Marshall. Is that clear?”
“Yes, sir.” Jordan was standing stiffly. “And now I have something else to say to the court. In private.”
“No privacy during a trial,” the prosecutor scoffed.
“It’s a private matter between Judge Waverly and me,” Jordan said to the judge, ignoring Arriendez. “I promise it has nothing to do with the case.”
“I don’t care if it’s about a shortcut back to San Antonio,” Mike Arriendez said more heatedly, feeling left out of the silent exchange between Jordan and the judge. “During trial—”
Judge Waverly’s stare at Jordan was not threatening. It was curious at first, then for a moment Jordan could have sworn it was frightened. But the judge’s voice was perfectly calm and authoritative when he spoke to the prosecutor.
“I believe you can trust me not to receive an ex parte communication concerning this case, Mr. Arriendez. If anything comes up the State should be informed about, I’ll let you know.”
No one moved until the judge glanced sharply, surprised, at Mike Arriendez, and the prosecutor closed his mouth tightly and abruptly stalked out, leaving the door open.
“Off the record,” Jordan said.
Laura didn’t protest the way the district attorney had, but for the first time since trial had begun, she became something other than an automaton. She stood slowly and looked at the judge, obviously willing him to do something or at least to understand something. Judge Waverly didn’t turn to receive her look.
“Thank you, Ms. Stefone,” he said.
Laura hadn’t looked at Jordan, but as she left the room, her shoulder brushed his back. Jordan felt the threat in the contact.
The door closed. Judge Waverly turned his mild and exclusive attention on Jordan, who found his mouth dry.