Until Proven Innocent

by Gene Grossman

  “Hello Peter. It’s nice to see you too, but to tell the truth, I’m here because Suzi called me in for a consult. I’m sure you know what it’s all about, right?”

  “Well, I like to leave all the minor details of the cases to her. I just do the big things, like going into court and making a fool out of myself. She’s in her stateroom. Her assistant is coming out now to escort you in there.”

  Vaughn follows the dog and disappears into the forensic laboratory formerly known as the foreward stateroom. Aside from the explosion that someone’s .50 caliber gun made when Joe got shot, I don’t know about any other explosions that Vaughn could consult with her about.

  *****

  It’s now the night before Tony’s trial is scheduled and I can’t sleep a wink. I hate this feeling. It’s not butterflies about going to trial that are getting to me, it’s the dread of certain failure. Tony’s not a close friend of mine, but he’s still a client, and he’s depending on me to represent him to the best of my ability. Ordinarily I wouldn’t be worried, but this time is different. I didn’t pick this case, it was dumped in my lap, and it’s a dead-bang loser.

  The prosecution has the smoking gun, complete with spent shell casing. The defendant had the means, motive, and opportunity. After Myra gets a successful conviction, I wouldn’t be surprised if District Attorneys all around the country use a transcript of this trial as a textbook example of how to win a case.

  My career won’t suffer too much, because everyone already believes Tony is guilty, so they’ll respect me for trying to do my best on his behalf. My career isn’t what’s in danger. It’s my ego. I really don’t like to lose. And to make matters worse, they’re going to use the kid against me.

  I’ve gone over the case hundreds of times in my mind and other than the film pirates, the only thing that I can possibly use to create some reasonable doubt is that empty shell casing, and how ridiculous it is to believe that an experienced detective like Tony would leave it in his weapon’s cylinder and then call the cops to the scene. If I can get them to believe that it may have been planted in his gun by someone else then I’ve got a slim chance of getting at least one of the jurors on our side who will vote for an acquittal.

  But even if the jury hangs up with no decision, Myra will probably re-file the case and try him over again, so all I’d be doing is creating another chance to lose. This is not a good situation. I can’t remember ever going to trial before with less of a defense to offer.

  As long as I’m awake, I might as well watch some late night television and see how April and Hershel are doing. The movie is an old black-and-white one featuring Edward G. Robinson as a bad guy. When the commercial break comes up I see Hershel riding on a Segway scooter from car to car on his trade-in lot. Then, as usual, April slowly rides by him in a convertible, but it’s a full-sized one, and not the little one she used in her first commercial.

  The next thing Hershel does really takes me by surprise. He asks April to stop her car and step out of it. When she does, I can see a noticeable weight loss. She lifts up her arms, proudly rotates for the camera, then gets back into the convertible and drives out of the picture.

  Hershel is now holding up some container and talking about how April decided to go on a diet, and the stuff he’s holding up is the product she’s using. He goes on to say that he didn’t ask her to lose weight, but she insisted on doing it anyway, and he was so impressed with the stuff she’s using that he decided to become a main distributor.

  As Hershel talks more about the stuff and how you can order it through his dealership, a close-up of the container appears on the screen and I see that it’s Stuart’s weight-loss snake oil. Hershel goes on and on about how wonderful it is, and that when used in conjunction with a suggested plan of reducing caloric intake and regular exercise, it can work for you too. Well duh. Even a glass of water will make you lose weight if you combine it with diet and exercise.

  He goes so far as to offer a free case of the stuff with the purchase of any new or used car from his dealership. Only in America. I press the ‘power’ button and the screen fades to black.

  * * * * * *

  THE TRIAL

  The first day or so of any jury trial is usually taken up with the seating of a jury, during which time each side has a certain amount of chances to bounce prospective jurors that they’re not happy with, for one reason or another. In this particular case the prosecution wants to get rid of any juror who has a relative on any police force, for fear that they might sympathize with the defendant. On the other hand, I want to cleanse the jury pool of anyone who feels they’ve been victimized by a police officer by any means, from a wrongful traffic ticket, bad rap or brutality.

  Jury selection is going faster than I’ve ever seen before, so the judge tells us to be ready for opening statements after the lunch break. I join Tony and several of his investigating team in the courthouse cafeteria. He looks like he’s lost about twenty pounds since this mess started, but by the way he’s eating, the weight loss didn’t come from any loss of appetite.

  After lunch Myra’s trial deputy presents her opening argument, and it’s a textbook statement. She starts out by introducing herself and then goes on to explain the charge against the defendant and how she will introduce evidence to support every element of the crime and the defendant’s connection with it. By the time she’s finished, she almost has me believing in Tony’s guilt. This makes my job even harder because in my opening I not only have to convince the jury that there’s reasonable doubt in his guilt, but I also have to talk myself into believing it.

  She finishes her opening statement in less than an hour, so there’s time for me to get mine in today. I always like to have the jury conclude their day after having heard something good for my client’s case. If I time things right, after I finish my opening statement, I’ll try to talk the judge into recessing until tomorrow morning. I look around to see if Myra’s sitting somewhere in the back, but she’s nowhere to be seen. There are a few reporters present, along with the usual amount of trial-watchers. I’m sure the main contingency of bottom feeders are waiting until tomorrow, when the prosecution’s evidence starts to come in.

  I don’t have much of a defense to give them a preview of, so I take the opposite tack by urging them to use their common sense. There’s hardly ever a way for prosecutors to make a visual presentation of a defendant actually committing a murder, so these are all circumstantial cases that require the jury to connect the dots in their own minds and come to a conclusion.

  In this case, it’s the dot-connection process that I want them to concentrate on, because it’s just too illogical to expect things to go down the way the prosecution contends. It would require Tony to have the knowledge that the victim would be working late in his office and that the rear door to the soundstage would be open after hours, allowing him to enter. It would also require the luck of having no other people in the entire building.

  The prosecution would also have them believe that the defendant, who had been involved in several previous altercations where racism was involved, shot and killed a black man and then without removing the spent cartridge from his weapon, called the police to report the killing.

  Not too long ago, a talented journalist named Sebastian Junger wrote a book that was made into a motion picture, coincidentally starring my neighbor. It was entitled The Perfect Storm, and depicted a situation at sea wherein every condition possible turned into a storm of perfection. What I’m trying to do in my opening statement is show that with all the evidence that the prosecution has against the defendant, what they’re arguing took place is really ‘The Perfect Frame,’ and that in no way could all the facts pointing to my client’s guilt have lined up in such a manner without being arranged by others. This is not an uncontrollable force of nature we’re dealing with here, it’s a set of man-made circumstances.

  I want this jury to see that the odds are so great against the evidence in this case to be laid out in such a perfect w
ay for prosecution, that this must be the result of some devious person who planned the whole affair. I’m trying to liken it to opening up a box that contains a jigsaw puzzle, pouring the pieces out onto a table, and having them fall into place forming the completed puzzle. An occurrence like this isn’t impossible, but it’s so highly unlikely that I urge them to use their intelligence to find the reasonable doubt that truly exists here.

  Tony knows what I’m up against. He doesn’t say anything, but I’m sure he knows that what I did with my opening statement was about all that anyone could do.

  Before we were sent out for trial, the People estimated that they would need two days to put on their case. They probably never realized that the jury would get seated so quickly, so I would say that they plan on wrapping up their entire case and resting by the lunch break tomorrow. If this is right, then all of the action including the kid’s testimony will have to take place tomorrow morning. That works for me, because that’s when I’ve got seats reserved for the three film pirates.

  *****

  I’m not riding back and forth to court with Tony. He’s with his gang, and I’ve got Jack B. chauffeuring me in the Hummer. Whenever I’m involved in a big case I find that driving can be injurious to my health. In view of the fact that so many traffic accidents are caused by inattention, I don’t want to get behind the wheel of this yellow tank while I’m completely pre-occupied with what’s going to happen in the courtroom.

  I know exactly what’s going to happen tomorrow morning, so there probably won’t be any surprises awaiting us. It’ll probably be a lot like the prelim, only with more explanations, for the jury’s sake. They’ll do it by the numbers starting with the coroner and then move on to the motive argument and finally the ballistics. About the only thing I’ll have any chance of keeping out is several complaints of excessive force against Tony that were made by black people. Police personnel files are usually sealed, especially if the investigations haven’t been completed. Tony told me that as of this date there has been no final determination of his misconduct with respect to persons of color, so maybe we can dodge that bullet.

  This isn’t normal procedure for me, but on the way back to the boat I tell Jack to stop at the Marina del Rey Liquor Store, where I pick up a six-pack of medicine. I intend to sleep tonight, even if it takes the entire container of six doses to get the job done.

  *****

  It worked. I slept like a baby. No need to worry about a dulling of my senses, because they won’t be needed today. The prosecution will put on their case, I’ll make a few objections that will be overruled, and then I’ll lose. What’s got me unnerved most may be the fact that Tony is a calm as he is. He must have nerves of steel, if he has any nerves at all.

  As we approach the Santa Monica courthouse I see the press trucks with their satellite dishes extended up in the air, waiting for the juicy news item that a policeman has been convicted of murder. I’m sure they’ll be groups of protesters on both side of the issues waiting for their fifteen seconds of fame, when a newscaster desperate for an item to fill some dead air asks them a question about why they’re here and waving that sign.

  I always wondered about the instantaneous protests I see covered on the news. If they’re so instantaneous, where do those nice signs they have come from?

  Up ahead is a group of reporters who have spotted my yellow Hummer approaching and they’re waiting to ambush me as I walk up from the street to the courthouse entrance. In Santa Monica there’s no underground parking lot from which you can sneak in and out. No matter where you park or get dropped off, the press has a good chance to get at you.

  From the time that Jack drops me off in front to the time I get to the courthouse door, they shout questions at me. There must be some instruction book that they’ve read, because their questions follow the same pattern. “Mister Sharp, will your client take the stand today?” “Do you have any alibi witness for your client?” “Are you going to try to blame the crime on someone else?” “Have you negotiated a plea bargain with the D.A.?”

  Now that Myra’s been elected as District Attorney, there are new questions that they ask me. “Mister Sharp, how does it feel going up against your ex-wife?” Just before I enter the courtroom door and reach the metal-detector, I hear the last question. “Mister Sharp, is it true that your ex-wife is going to use your daughter to testify against your client?”

  That’s a new one. I hope the kid was watching on television so she can see how her being cute can work to get her friend Tony the death penalty.

  Inside the courtroom it looks like a sardine can. They purposely moved this case into the biggest room they have, but it sure doesn’t look that big with all these people packed in here. Renaldo is here with Evelyn and her daughter and those two women look great. What a shame they’re not going home tonight. And what an interesting seating arrangement there is here. The piracy gang is completely surrounded by Snell and his men.

  The first few rows of the spectator seats are full of representatives from quite a few news organizations. Because of past cases in our County with police being charged with crimes, the press is always looking for another Rodney King type of case to help sell their newspapers for the next month.

  The judge made a decision to allow one Court TV camera cover the trial, but because it’s mounted on a moveable platform controlled remotely, one camera is all they’ll need. They can swing the camera around to see everything but the jurors. Neither side objected to the camera coverage. Myra wants the publicity for her office, and I couldn’t care less one way or the other. There’s going to be no way to hide my loss this time, so they might as well televise it as a perfect negative example for future lawyers to see how not to conduct a trial.

  There’s an empty seat in the back of the room that one of the bailiffs is guarding, probably for Myra to sit in when she gets here. Her chief trial deputy is an experienced woman who has handled many major cases here, but she doesn’t attract the press attention that I do, because she wasn’t married to the District Attorney. And, she doesn’t’ have a ‘daughter’ testifying against her case today.

  Tony managed to have the bailiff save some seats for the members of his team. I’ve also been told that more cops will be coming later, including some top brass in the department. There’s a lot riding on this trial other than Tony’s fate, and local law enforcement agencies are all concerned about their images with the public. They’ve had some serious hits in the recent past, and they aren’t looking forward to another one. I guess they want to see the loss with their own eyes, so when it comes time to face the reporters they can say that they were there during the trial, and comment on it intelligently.

  *****

  As expected, the prosecution starts with the medical examiner. He testifies as to the cause of death. They arrested Tony at about eight-fifteen that evening, and know from his own statement that he arrived at the soundstage twenty minutes earlier, so it wasn’t too much of a stretch to expect the coroner to put the time of death at around eight PM.

  On cross-examination, the only thing I can do is to try and push my perfect frame theory ahead, so I ask him if it was possible for the time of death to have been one hour earlier. Grudgingly, he finally admits that time of death is always a tough thing to pin down exactly, but yes, the murder could have possibly taken place an hour before Tony got there. Fine. That’s all I need from this guy, so I let him go and the D.A. doesn’t have any further questions for him on re-direct.

  At least I’ve got the first part of the perfect frame in place. It is possible that the murder took place before Tony got there. Because possibilities are the only things I have to work with in this case, I’m happy to have the first one in place.

  After the coroner, they play the recording of Tony’s call to the station, when he reported the shooting. We both stipulated to let it in. They’re using it to show how calm he sounded, and I’m using it to make sure the jury knows that Tony did in fact report the crime at least five or
ten minutes before the cops arrived, giving him plenty of time to get that empty casing out of his gun - if he knew it was there.

  Their next witness is the police supervisor who was first on the scene. They make sure that a cop calling in a shooting death is responded to by someone in a supervisory position instead of some rookie beat cop. The cop testifying is no young punk, and having been on the job at least fifteen years, he knows who Tony is, and it looks like he’s feeling the pressure of being torn between trying to put a bad guy away and trying to protect a fellow police officer.

  When the D.A. is through with him, I only ask a few questions about Tony’s cooperation. This cop has made a lot of arrests, and I want him to let the jury know that Tony didn’t act like the typical guy who was guilty of something. This is another link in my chain of events that I hope will lead the jury to believe that Tony had no idea that empty shell casing was in his gun when he called in the crime and surrendered his weapon to the police.

  A forensics lab tech is next, and after the supervising cop identifies Tony’s gun and the five shells removed from it, the tech testifies as to all five of them. He tells the jury that four of them were still unfired and the one empty shell casing was in the cylinder in the exact place it should be if it the gun had just fired the fatal shot.

  Responding to a well-prepared set of questions, he also brings in some blow-ups of pictures taken of two fired shell casings, both from Tony’s weapon. One of them is the empty one that they found in the cylinder and another is one of the unfired rounds that they subsequently fired in the testing lab. The purpose of this display is to show the marks left on both casings from the firing pin and being slammed back against the breech. The tech shows that the firing pin indentation and breech mark patterns are identical on both bullets. In his expert opinion, they were both fired from the same weapon: Tony’s gun.

  He does an adequate job of testifying to what the D.A. wants. On cross-examination, I get him to repeat how positive he is that both shells were fired from Tony’s weapon and then ask him the one question I want to pin him down with. “Can you testify with any certainty as to when the empty shell casing you found in the defendant’s weapon was fired?”