Moltke could take a hint. “I ‘m done, your honor.”
“Good. Counsel for the defense?”
Ben went to the podium and began running through the list of questions he had prepared in advance. He did it like they taught him in law school; he avoided questions intended to tarnish opposition witnesses, questions designed to preview opening statement, and questions designed to predispose the jury in his favor. The point of voir dire was to determine whether the jurors could be fair and impartial, and he stuck to it. That was the way it was supposed to work. Right?
Ben was barely halfway through his questions when he sensed the jury’s attention was beginning to wane. They kept peering over his shoulder, trying to size up Christina. The sad fact was that half of them would probably be more influenced by her personal appearance than any evidence they heard at trial.
“I noted that opposing counsel required you to make all kinds of promises during his voir dire examination,” Ben said in conclusion. “I’m only going to ask you to make one. Later in this trial, you will hear the judge use the phrases presumed innocent, and beyond a reasonable doubt, and he will instruct you on the meaning of those phrases. Please listen carefully to what the judge tells you, and bear in mind at all times that Christina McCall is presumed innocent, and that the burden of proving her guilt beyond a reasonable doubt is entirely on the prosecution. All I ask is that you hold them to that legal standard. Will each of you promise to do that?”
There was a general, unenthusiastic nodding of heads.
“What about you, Mrs. McKenzie? Will you make that promise?”
It was a mistake, Ben realized almost immediately. He just didn’t have Moltke’s finesse. She looked stricken, embarrassed to be singled out. “I—why, yes, I suppose,” she said, flustered. She covered the side of her face with her hand.
“Thank you.” He decided not to compound the error by trying anyone else.
“And thank you, counsel,” Derek said. “Both sides will take ten minutes to deliberate, then I want to see counsel in chambers to make their initial challenges.”
All in all, it could have been worse. Ben took off three older women, including Mrs. McKenzie, the one he had mortified. Moltke took off three men, all for reasons that eluded Ben. Perhaps they weren’t responding properly to his charismatic feints.
Derek called for opening statements. Moltke strode up to the jury box and smiled. Derek cleared his throat and pointed at the podium.
“Oh, of course, your honor. I forgot where I was.” He retreated to the podium.
Just another tactic from Moltke He went up front and close to the jury to remind them he was one of them, one of the gang. Ben knew he would never have an opportunity to get that close. They would always perceive him as being more distant.
“It was a dark, moonless night,” Moltke began, setting the mood. “Most law-abiding Tulsans were still asleep in bed. All was calm, silent, still. Until suddenly, the night was shattered”—he pounded on the podium, startling the jurors—“by a sudden act of grisly violence.”
Ben tried to refrain from rolling his eyes. He hated attorneys who thought they were Edgar frigging Allan Poe. He hated seeing what should be a cold, unemotional recitation of the facts turned into “The Fall of the House of Usher.”
“Ladies and gentlemen, the overwhelming evidence will show that on that moonless morning, the defendant, Christina McCall, took her lover’s gun and shot him, at point-blank range, four times in the head. As you might imagine, one such shot would easily have killed him. What kind of woman would stand there and shoot, not once, but four times? The same woman, as the evidence will show, who was found by FBI agents hovering over the body, her fingerprints still fresh on the gun. The same woman whose only statement to the arresting officer was, ‘I killed him.’ ”
There was no point in objecting. It was argumentative, but Moltke was carefully couching his statements in terms of what “the evidence will show,” which theoretically kept him within the scope of opening statement. Derek would simply rule that the jury could listen to the testimony for itself and decide whether the opening remarks were accurate. Then Derek would sneer and make it clear to the jury that he held Ben in complete contempt. No, Ben was going to save his objections for when he needed them.
Moltke continued for about twenty minutes, painting Christina as a spiteful tramp, linking the murder to drug smuggling and organized crime, and evoking sympathy for the bereaved widow, the betrayed woman. He gestured to Margot, now without her sunglasses, poised in the front of the gallery with a stricken expression on her face. Had he arranged for her to get a front-row seat? Probably.
Moltke seemed to go back and forth on motive, sometimes suggesting the killing was the product of a lover’s spat, sometimes suggesting Christina was after Lombardi’s drug stash. It didn’t really matter. The motives weren’t entirely contradictory. Besides, this was a jury trial, not Logic 101. Ben watched the jurors follow Moltke’s. words, gestures, and facial expressions. He held them spellbound throughout his presentation.
When Moltke was finished, Ben took the podium. He would be the voice of reason, he thought, presenting the hard facts in a calm, even-handed manner, without Moltke’s manipulative gimmicks. “Ladies and gentlemen of the jury,” Ben began. “Everything counsel for the prosecution has just told you is disputed. You will hear evidence refuting every fact of importance in their case. And the judge will instruct you to make your ultimate decision based upon the evidence, not the things attorneys tell you. I merely ask that you listen carefully to the evidence presented, and that you remember the promise you made to me earlier.”
He saw a puzzled expression on Mr. Svenson’s face. Promise? Oh yes, you had one, too, didn’t you? What was it about? Ben could tell he didn’t remember. He wondered if any of them did.
Ben carefully sorted through the facts previewed in Moltke’s opening, presenting Christina’s denial, or refutation, or explanation. He covered the forensic evidence, the medical evidence, the ballistics evidence, and the inconclusive drug analysis. All the hard-core facts. All the nitty-gritty detail that Moltke left out of his opening.
For good reason. Again, Ben could feel the jury’s attention drifting. He was boring them. It was hard to believe a drug-related homicide could be boring, but he was making it so. Of course they loved Moltke. He fulfilled their expectations; he made the lugubrious trial process almost as compelling as it was on television. Ben turned it into algebra in a courtroom.
Ben saw them stretch, twist, and glance at the clock on the wall, but there was nothing he could do. He stuck to the script he had prepared in advance; he couldn’t improvise a Stephen King subplot just to grab the jury’s attention. He finished his preview of the evidence and began identifying the anticipated defense witnesses.
“Excuse me, counsel.”
Ben glanced back at Derek. He was yawning. Thanks, Judge, very subtle.
“I believe your time has expired.”
“Time?” Ben said. “I wasn’t aware the court was imposing time restraints on opening statement.”
“Well, normally I wouldn’t, but…” His voice trailed off. Several of the jurors smiled. “Try to wrap it up, okay?”
Ben could argue, but it would be pointless. The jury clearly sympathized with Derek. He listed his witnesses quickly and returned to defendant’s table.
Christina was still focusing straight ahead, looking alert, but not otherwise displaying emotion, just as he had told her to do. But Ben could see past that. He could see the tiny crinkles encircling her eyes, the near invisible trembling of her hands. She’d been in the courtroom many times before—more times than Ben for that matter. She knew who was winning. And who wasn’t.
“Splendid,” Derek said, popping another tablet. “Let’s move right along. Mr. Prosecutor, call your first witness.”
34
“THE UNITED STATES CALLS James Abshire to the stand.” Ben was surprised. They were foregoing the usual slow buildup and le
ading with a heavy hitter first out of the box. Abshire was wearing a blue sports jacket, khaki pants, and a dark tie—standard government witness costuming. In solemn sonorous tones, he repeated his oath to tell the whole truth. Moltke ran through Abshire’s résumé, eliciting a laundry list of qualifications and experience that made Abshire sound like the J. Edgar Hoover of the 1990s. Summa cum laude from Georgetown, top of his trainee class at Quantico, junior agent on several important investigations. Then Moltke traced the history of the Lombardi investigation, beginning with an account of how the FBI first obtained evidence of the so-called Tulsa connection, the purported narcotics pipeline flowing from South America to Oklahoma via small planes and smuggled goods.
“Do you know a man named Tony Lombardi?” Moltke asked.
“Yes,” Abshire replied. He was restraining himself, maintaining a flat, even tone. He gave no indication that he might have a personal stake in the success of the investigation. “Mr. Lombardi was engaged in the importation of parrots and other rare birds from South and Central America.”
“And why did that interest you?”
“Drug smugglers often use legitimate importation avenues to cover the movement of illegal goods. We suspected Mr. Lombardi was using his parrot network to bring cocaine and other narcotics into this country. Mr. Lombardi transferred his imported goods to another company for distribution in the United States.” He paused and made eye contact with the jurors. “A company owned by a man named Albert DeCarlo.”
Ben watched the jurors’ eyes widen. There was no misunderstanding the point of that little exercise in guilt by association.
“And do you know the defendant, Miss Christina McCall?”
“Yes I do.”
“How did you first come to know her?”
“During the course of our investigation of Mr. Lombardi. Miss McCall was his…” Abshire paused, allowing the jury to run all the possible synonyms through their minds. By the time he finished his sentence, it didn’t matter what word he used. “His special friend.”
“Was this friendship romantic in nature?”
“We believe it was, yes. They met as a result of her work for a local law firm, but the relationship became more than simply professional.”
Ben watched the jurors’ gazes shift to Christina, the scarlet woman. Well, thank God he got Mrs. McKenzie off the jury.
“Please tell us what happened on the night of Monday, April first.”
“The evidence we’d gathered indicated that major drug shipments were made on Monday nights, about every other week, and we were expecting one that night. We had been unable to determine the drop site—that is, the place where the drugs, were delivered. We hoped to follow Lombardi to the site, or at least to witness an intermediate exchange.”
“What did you do?”
“We watched Mr. Lombardi. Unfortunately, he remained at his office, apparently alone, until after midnight. When he finally left, we followed him directly to his apartment. He went inside”—another meaningful glance at the jury—“and never came out. Not alive, anyway.”
“Did you hear a gunshot?”
“No. After Lombardi went inside, we returned to headquarters and tried to obtain a search warrant. From one to two, the apparent time of death, none of our agents were—”
“Objection,” Ben said. “Lack of personal knowledge regarding apparent time of death. He’s not the coroner.”
“That objection will be sustained,” Derek said with an air that clearly suggested that he considered the matter trivial and that Ben was a petty pain in the butt for mentioning it.
“What happened next?” Moltke asked.
“No disrespect for the court intended, but the wheels of justice sometimes move rather slowly. About two A.M., we returned to the apartment building with a warrant and moved in.”
“Were you personally involved in the raid on Lombardi’s apartment?”
“I was. In fact, I had what police officers call the death seat. I led the way.”
How heroic. J. Edgar Hoover becomes Teddy Roosevelt. Ben tried not to gag.
“What did you find in the apartment?”
Several jurors, ever so imperceptibly, leaned forward. They knew they were coming to the juicy part.
“The front living room was dark, except for the blue glow of a television set. I turned on the lights and saw the defendant, Christina McCall, hovering over the body of Tony Lombardi. The gun was lying on the floor, just a few inches from her right foot. When she saw us, she screamed, panicked. As if she’d been caught in the act.”
“Objection,” Ben said. “Move to strike.”
“Sustained and granted,” Derek said. “The witness will stick to the facts.” As usual, it was barely a hand slap. Derek was keeping a clean record, ruling against the prosecution when he knew he had to, but all the while sending the jury a clear indication of his disdain for everyone at the defense table.
“Mr. Stanford and I examined Lombardi’s body. It was immediately clear he was dead—a huge section of his head was blown off; the entire cranium appeared shattered—”
“Objection—”
“Yes, yes,” Derek said. “We know. Not the coroner. Sustained. Let’s move along, gentlemen.”
“What did you do?”
“I proceeded to take the defendant into custody.”
“Did she resist?”
“Well…”A slight smile. “She didn’t exactly cooperate. Of course, we’re trained to handle that.”
Of course, Ben thought. And you never actually answered the question, did you? Although you left a clear, negative impression that she resisted arrest.
“I searched her, then handcuffed her. That’s when she made the statement.”
Moltke’s eyebrows rose, feigning surprise for the jury. “Statement? What statement was that?”
“She said, and these are her exact words, ‘I killed him.’ ”
“Are you sure that’s what she said?”
“Absolutely positive.”
“And did you provoke or elicit this statement in any way?”
“No, I did not.” He faced the jury. “I had no reason to. Frankly, it was perfectly obvious she had killed him. I didn’t need a confession. She volunteered it.”
“Objection, your honor!”
“That’s all right, your honor,” Moltke said. “We’ll strike the last remark. Are you aware of any other evidence indicating Ms. McCall’s guilt?”
“Yes. Just last week—”
“Again I object,” Ben said. “Your honor, this touches upon my motion in limine. Regarding the events of last week.”
“Well,” Derek said, “was Mr. Abshire personally involved in the investigation of last week’s incident?”
“No,” Moltke admitted, “he wasn’t.”
“Well.…then we’d better not have him testifying about it,” Derek said grudgingly. It was always a struggle to do the right thing, huh, Dick?
“Very well,” Moltke said. “Nothing more at this time, your honor.”
“Excellent,” Derek said. “And let me commend you, Mr. Prosecutor, for your succinct, straight-to-the-point examination.” He glanced at Ben. “I only hope defense counsel has been paying attention.”
Ben repeated all the points he’d made at the preliminary examination—that Abshire didn’t see Christina holding the gun, that he found no drugs on her (at that time) or elsewhere in the apartment, and that he found no weapon on her person. Ben decided not to pursue the theory that Abshire’s zeal for conviction biased his testimony. He could tell the jury liked Abshire, and they would probably find his zeal admirable, not impeaching. No, he would have to see what he could do with the gun.…
“You found no gun of any kind on Christina’s person, right?” Ben’s job was to humanize his client, to make her seem like a real person to the jury. Therefore, he would always call her by her first name (and refer to prosecution witnesses by their last).
“True,” Abshire said. “We found the gun on
the floor beside her.”
“You don’t know that she actually used that gun, right?”
“Of course we do. There were clear latent fingerprints on the gun. The prints belonged to Christina McCall.”
Ben could object to this evidentiary harpoon—Abshire was not the forensics expert. But the evidence would come out eventually, and he had a different plan of attack in mind.
“Well, let’s talk about that, Mr. Abshire. You say Christina’s prints were on the gun.”
“That’s right.”
“But—didn’t the FBI also perform a paraffin test?”
“Objection, your honor,” Moltke said. “We have an expert who will testify about that.”
“This witness opened the door,” Ben insisted. “He inserted the fingerprint evidence into his testimony. Now I’m permitted to cross-examine him about his statement.”
Derek sighed. “I will allow limited cross-examination regarding the testimony given by the witness. Don’t exceed that scope.”
“Thank you, your honor.” Ben turned back to Abshire. “Was a paraffin test performed on Christina?”
“I believe so.”
“Can you explain what a paraffin test is to the jury?”
Reluctantly, Abshire did so.
“And did the paraffin test reveal any nitrous traces on Christina’s skin?”
“No, it did not.”
“Well, doesn’t that prove she didn’t kill Lombardi?”
Abshire made a snorting noise. “Obviously, she wore gloves.”
“Really.” Ben leaned forward against the podium. “Tell me, Mr. Abshire. If she wore gloves, why were her fingerprints on the gun?”
Abshire stuttered for a moment. “I…I suppose she must’ve taken the gloves off later.”
“I see,” Ben said. “Although she was smart enough to wear gloves when she fired the gun, she later removed the gloves and rubbed her prints all over it.”
“Something like that.”
“Mr. Abshire, does that make any sense to you?”
Blind Justice Page 22