Proof of Intent

by William J. Coughlin

  There was some laughter from the reporters in the gallery. Judge Mark Evola scowled down at me from his full six-foot-six-inch height.

  The prosecuting attorney jumped in. “By all means, Your Honor, Mr. Sloan is exactly right. As it happens, I was just getting there.”

  “Proceed then,” the judge said.

  “By all means.” Stash Olesky frowned at his notes, like I’d made him lose his place. I knew for a fact that he memorized his opening statement, that his “notes”—like his put-on ruralisms—were actually a device to increase his folksy appeal, to make him seem less like the courtroom shark that he really was. “What the state of Michigan will prove in the trial, and what the evidence will demonstrate, my friends, is chillingly simple. You peel back all the hype, all the publicity, all the cameras and newspaper reporters, all the jokes on late-night television—you look past all that ephemeral noise, and, folks, this evidence is real, real simple. Real, real stark.

  “What the state will prove and what the evidence will clearly show is that on the night of October 21 of last year, someone took a weapon off the wall of the locked room where Miles Dane stores his vast collection of dirks and daggers and samurai swords and guns and ninja throwing stars and halberds and all manner of other nasty-looking weapons, and that person walked up the stairs of his lovely home over there by the river, and that same person beat Miles Dane’s wife Diana to death. Didn’t just hit her a lick or two that killed her by mistake. No, the evidence will show Diana Dane was beaten relentlessly, for approximately ten to fifteen minutes. Possibly more. Furthermore, the evidence will indicate that she was killed either by someone she knew or that she was killed while she slept. Then the killer stood there and watched her while she died. The forensic evidence and the testimony of witnesses will show all of this clearly.

  “Statements made by Miles Dane himself will show that Mr. Dane was in the house while the murder was committed. The evidence will also show that the defendant, after discovering his wife, waited for a significant period of time before calling anyone. And when Mr. Dane finally got around to making a phone call—one phone call, I might add . . .” Here, just in case no one had understood, Stash Olesky held up his index finger and stared at it accusingly.

  “He made one phone call. And who did Mr. Dane call? The ambulance? Nope. The police? Nope. Nine-one-one? No, sir. Sheriff, fire department, priest, funeral home? No, ma’am. No, my friends, the evidence will show that when he finally got around to picking up the phone, he called Charley Sloan. His lawyer. These are the plain facts, people. Plain facts, undisputed by Mr. Dane.”

  The prosecuting attorney shrugged theatrically, put his hands in his pockets, strolled toward the jury. “I guess I could run on for a while, take up your time telling you all about the mountain of incriminating evidence that the state of Michigan has managed to pile up against this cold-blooded killer. But I won’t. I could tell about all the lies and inconsistencies in the story Mr. Dane told the Pickeral Point police. But I won’t. I could tell you about how the state police lab found the defendant’s fingerprints on the murder weapon. But I won’t. I could tell you about the defendant’s bloodstained clothes.” Stash Olesky took his time, studied the face of each juror in turn. “But, folks, your time is valuable, and this case is dead simple, and the evidence will be clear. You don’t need to hear me give some long tedious speech. So let’s just forge right on. I’m just going to step out of the way, my friends, and let the evidence speak.”

  Stash Olesky stepped to his left and made a big, sweeping motion with his arm, like a toreador avoiding the unstoppable rush of a huge oncoming bull.

  “And when you’re done hearing and seeing that evidence, you will be as outraged and saddened and horrified as I am. And, I predict—notwithstanding all of Charley Sloan’s well-known theatrics and razzle-dazzle—that you will not require a great deal of deliberation before you find Miles Dane guilty of murder.”

  He stood in the middle of the courtroom one hand still shoved deep in his pocket, and surveyed the jury again for what seemed a very long time.

  “Murder?” he said finally. “Wait. No, not just murder. First-degree murder. Premeditated murder. That’s how the criminal code of Michigan characterizes the worst crime a human being can commit. Premeditation. Maliciously planning the crime in advance. I have prosecuted hundreds of cases in my life, but never have I prosecuted a case where the premeditation of the act was so coldly and clearly and shamelessly and unambiguously laid out in advance. After you see the evidence, I think you’ll agree with me. And when you do, you’ll have to find Miles Dane guilty of the premeditated murder of his own wife. It’s that simple.

  “Again, folks, I’m not asking you to believe me. All you have to do is believe the words of the defendant. Because we will introduce a written plan, a veritable confession, a virtual road map of this crime.” Stash Olesky held up a shiny paperback book with a bright red cover, waved it in the air. “It’s all right here. We will admit into evidence the very words of the defendant, and when you hear them read out in open court, believe me, your blood will run cold.”

  He tossed the stack of paper on the table next to him, then finally pulled out the inevitable last stop. Sad-faced and shaking his head, Stash Olesky slid his hand out of his pocket, trotted out the trusty index finger again, pointed it directly at Miles Dane.

  “Premeditation, folks. Murder in the first degree. The plain facts will show this. Mr. Dane is guilty, guilty, guilty.”

  Then he sat down.

  “Bravo!” I said enthusiastically, clapping my hands three times in slow succession. “What a courageous and self-effacing fellow we have in our prosecuting attorney.”

  I smiled broadly and approached the box. “Isn’t that brave of Mr. Olesky? He’s not even going to make a case against my client. He’s just going to . . .” I did a quick little shuffle step to the side, felt my left knee creak. Stash Olesky is half a dozen years younger and a great deal more graceful than I. “He’s just going to step aside. He’s going to let the evidence speak!”

  I aimed my most aggrieved smile at the prosecuting attorney.

  “Well, folks, I want you to do something before I tell you what our evidence will show. Ladies? Gentlemen? If you would, just turn your heads and look to the back of the courtroom.” I pointed at the Court TV camera that was aiming directly back at me. The jury members turned and looked. As did everybody in the courtroom, craning their heads, trying see where I was about to take them. “Right back there you will see the biggest liar in this courtroom. The TV camera. During my statement, during this trial, during every moment you weigh the evidence in front of you I want to you to remember one thing. Remember that camera.”

  I let a few moments pass. “Now, let’s get back to the evidence. You notice Mr. Olesky, in his rather brief statement, didn’t tell you a whale of a lot about that evidence, did he? Oh, he talked about me. Said a great deal about me. Threw in a few nasty asides about my client, too. Told you how horrible this crime was. But, my gracious, when it came down to brass tacks, to the facts of the case, he just said there was—what was the word? A mountain of evidence? When he got to the part where he had to draw a line connecting my client and the actual commission of the crime, well, he just stood mute, didn’t he? What arrogance! As though it might bore you to actually hear the nature of the case he plans to present against my client.” I gave him a hard stare.

  “I give Mr. Olesky credit for one thing, though. He and his vast array of state-employed minions have indeed assembled a mountain. A mountain of distortions. A mountain of half-truths. A mountain of insinuations. A mountain of hype. A mountain of . . . well, decorum doesn’t permit me to use the term that springs immediately to mind.” I winked at the hatchet-faced old farmer in overalls, Dahlgren, who sat on the front row of the jury box. He grinned back. Every defense lawyer needs an ally, an emissary into the jury room—and I planned to make Dahlgren mine.

  “No, I take that back. In fact, there is a word
. There is a single, simple, clear word that encompasses Mr. Olesky’s entire case against Miles Dane.” I stalked across the room and snatched a paperback book off the defense table, then brandished it in the air, showing off the lurid picture of a man holding a curved black stick over a bosomy, cowering woman.

  “Fiction!” I slammed the book on the table. “What Mr. Olesky—in fact—has assembled is a vast mountain of fiction.” I stalked toward the jury. “Fiction.

  “So when you hear and consider this vast mountain of so-called evidence, keep asking yourself this: Fact or fiction? Fact or fiction?

  “So let’s talk about the plain facts that Mr. Olesky is so proud of. What is a fact anyway? I’ll tell you what a fact is. In the context of this case, a fact would be the direct, sworn testimony of somebody who saw this man coldly bludgeon his wife to death. You will hear no such fact in this trial. A fact would be a sworn confession by the defendant that he did what Mr. Olesky says he did. You will hear no such fact in this trial. A fact would be the existence of a videotape showing Mr. Dane walking into his wife’s room and killing her. You will neither hear, nor see, nor smell, nor taste any such factual evidence in this trial.

  “Why not? The reason is simple. You see, since the courageous Mr. Olesky lacks any such facts, any such direct and unimpeachable evidence that Mr. Dane in fact killed his wife, he will rely on a huge number of small, trivial, arcane, technical details which, like a child’s wooden blocks, may be assembled in a thousand million different ways. Moreover . . . as he piles up this mountain of blocks, he will attempt to blur the line between fact and fiction. He’ll show you a fact, then he’ll show you some fiction, he’ll show you a fact again, then more fiction again, fact, fiction, fact, fiction. And then, finally, he’ll wave his wand and try to hypnotize you into thinking they’re the same thing.

  “So every time he tells you he’s stepping aside to let the facts speak, Watch out! Because he’s probably trying to pull a fast one on you. Every time he shows you a ‘fact’ ask yourself: Is this really a fact or not? Is it a fact or is it the opinion of some supposed expert in the field, who, because of their position in the law enforcement bureaucracy, is predisposed to believing in Mr. Dane’s guilt? Ask yourself: At what point does a fact shade over into fiction? At what point does fiction become fact?

  “Oh, yes, there will be a great number of little pieces of information here that the prosecuting attorney will refer to as facts. But when piled into a mountain, they will rapidly turn to fiction. A pile of blocks may be as big as a mountain, but that doesn’t make it a mountain. It’s still just a pile of blocks. And when this trial is over we will show you just how that same pile of blocks can be assembled to tell an entirely different story than the one Mr. Olesky is about to tell.”

  I walked back to the defense table and stood by my client. He stared straight ahead as I placed my hands on his shoulders.

  “There will be one small difference between Mr. Olesky’s story and our story. The difference will be that our story will not be fiction. Our story will be true.

  “So. Let me address the evidence. Let me tell you what we will show.”

  I walked over to the jury box, turned my back to them and pointed at my client. “Exhibit A. The man you see right here is Miles Dane. Famous writer. Chiseled features. Strong jaw. You’ve seem him on TV wearing the black cowboy boots and the black turtleneck and the black jeans and what the TV reporters always refer to as his ‘omnipresent shoulder holster.’ ” I lowered my arm and strolled across the courtroom. “Maybe you’ve heard on TV about how he gets in fights with movie stars at Hollywood extravaganzas and how he shoots holes in the walls of New York office buildings. Oh yes, my friends, you’ve got the evidence of your own eyes!”

  My laugh came out full of scorn. “But there’s something rotten about all that supposed evidence showing Mr. Dane as some kind of brawling tough guy. What we will show you in this trial is that all that supposed evidence comes straight out of the boob tube. In this trial you won’t hear testimony from a single soul in Pickeral Point, Michigan, who’ll show Mr. Dane to be a violent man. The evidence will show that he never got in a fistfight with anybody over at Freddie’s Fish Barn. Never wore his gun into Klein’s Five-and-Dime down on Main. Never pistol-whipped anybody over in the produce section at Kroger’s. Why will the evidence fail to show anything like that? Because there are no TV cameras in Pickeral Point, Michigan!

  “No TV cameras in Pickeral Point, you say? What’s that got to do with the price of tea in China? What’s that got to do with Miles Dane being charged with murder?” I spread my hands. “Sadly—a lot.

  “Let me tell you a story.” I walked over to the jury box, with my hands clasped earnestly together, Father O’Reilly about to make a solemn moral point to his boys at the orphanage. “The evidence will show that when Miles Dane was sixteen years old, he dropped out of high school and hit the road. He left the town of Pickeral Point as a short, skinny, dreamy, pimply, despised kid from the crummiest house on the crummiest street in the crummiest neighborhood in Pickeral Point, Michigan. But he left with a dream. And when he came back, he was the man you see before you. A man seemingly transformed. Tough guy, famous writer, barroom brawler, shoulder holster, black cowboy boots.

  “But who is Miles Dane? Who is he really? Is he the man that the prosecuting attorney is about to parade before you, the brawler that this supposed mountain of evidence will portray? Or is he still, when you get down to it, the sweet boy who left this town with the wild, secret, unlikely, ambitious dream of turning himself into a writer? Which one is fact, folks? Which one is fiction?

  “You talk about a mountain of evidence, Mr. Olesky? Well I may not have the whole state of Michigan standing behind me. I may not have an army of police investigators and assistant prosecuting attorneys and paralegals and forensic technicians from the state police. I may not have a troop of bureaucrats at my beck and call. Over at that table it’s just me and my loyal daughter sitting there next to Mr. Dane. But we’ve got our own little mountain of evidence. And what we will show you is that the real Miles Dane, the one who lives at 221 Riverside Boulevard, is not the same fellow that the world sees through that lens back there—he’s not a brawler, not an abusive person, not a crazy man, not a gun-toting, knife-wielding maniac. He is a gentle, loving family man, a man who has suffered the cruelest and most ironic tragedy of all: Not only has his beloved wife, his very soul mate, been snatched away from him—but he has been accused of committing the awful crime which removed her from his life.

  “Oh, we’ll bring out experts with fancy degrees and diplomas and high-sounding titles who will paint a very different picture of the supposed evidence, the circumstantial evidence, in this case. But, folks, that will not be the mountain on which this case will ultimately rest.

  “Our mountain will not be circumstantial, folks. Our mountain sits right there in that seat—a man of uncommon decency and devotion and loyalty. But to see him, you must look skeptically at all of the fiction and circumstantial detail with which Mr. Olesky is about to bombard you. You must try to see it as it is. It is all an illusion. It is Court TV. It is CNN. It is the airy magic of bright lights and camera lenses, of fancy charts and graphs, of complicated scientific words.

  “Did Mr. Dane contribute to this fiction? Indeed, he did. The evidence will show that he invented a mask, a fictional version of himself. The evidence will show that as an ambitious and driven young man, Miles Dane invented, quite frankly, a scary mask. Armed brawler in black. Gun-carrying loudmouth. Testy, hot-tempered little tough guy. All that was missing was an eye patch and a hook. And he wore that mask with great discipline for a long time, showing nothing of his real self to the world. That mask is the invention of an ambitious young man, come back to haunt him. But that mask, folks, like the prosecuting attorney’s case, is utterly fiction.”

  I pointed to the back of the courtroom. “The mask is the camera’s lie.”

  I looked sadly at my client and then walked
across the courtroom, my back to the jury. When I finally turned toward them, I said, “So I ask you to examine the evidence as adults, not as credulous children. I ask you to pierce through all the Hollywood magic, all the New York folderol. Because if you look hard enough, you will not only see through this illusory mountain of circumstantial evidence, but you will also see through the somewhat unappealing mask that an ambitious, callow Miles Dane created many, many years ago as a means to keep food on his table while he pursued his craft, his calling, his passion. Look hard, and you will see through to this man’s warm and decent heart.”

  I walked slowly across the courtroom again, savoring the sound of my footsteps on the hard old marble floor. I’d been keyed up for weeks about this trial, fearing it. But now that I was here, now that I was finally working, I felt like a man who’d been allowed to breathe after being held for a long time underwater. I’d been talking about masks, about reality, about being the person you really are, and it struck me in that moment that whoever Charley Sloan is, I guess I am most him when I’m standing up there trying to save a client’s bacon. When I reached Miles Dane, I put my hands on his shoulders and squeezed him hard enough to make him wince.

  “Inside this man,” I said, “you will not find the heart of a killer. You simply will not.

  “So as you examine the evidence, don’t let that camera back there sell you the same lie it has sold to Mr. Olesky and his bureaucratic minions. Just look at the facts.

  “Fact.” Another squeeze of the shoulders. “If your hearts are clear, then your eyes will see the truth. I beg you. Open your hearts to this man, and the fact of who he really is will blossom before you like a flower.” Okay, a little cornpone, maybe. But Hallmark Cards doesn’t stay in business because the American public is afraid of a little schmaltz. I looked scornfully toward the electronic eye in the back of the room, then let my face soften as I looked back down at Miles Dane. “This man.”