Michael frowned. “That’s not very encouraging.”
“I’m not about encouragement,” Talon answered. “I’m about hard work.”
She reached out and clasped his arm. “And I have a lot of it to do before tomorrow” she said. “Go home. See your family. Get some sleep. I’ll see you first thing tomorrow.”
“Okay. But I’m not going to get any sleep tonight.”
Talon nodded. “Me either.”
Chapter 28
There was a lot to consider when it came to opening statement. It wasn’t as simple as just standing in front of the jurors and telling them what you thought they should do. Talon sat in her office contemplating her options, weighing the conflicting, sometimes contradictory, philosophies of what made a winning opening statement.
The first decision, at least for a defendant, was whether to give an opening statement at the beginning of trial, right after the prosecution, or reserve it, and give it after the State rested its case. The advantage to waiting was the ability to tailor your case to whatever evidence the prosecution actually put on. The disadvantage was, that advantage was pretty obvious to the jury. It also sacrificed the opportunity to orient the jury to the defendant’s theory of the case before hearing the evidence. When a State’s witness testified, would you want the jury to only have the State’s version of events in their head, or both the State’s and the defendant’s? If they had only heard from the prosecutor at the outset, it was a pretty good bet that prosecution witnesses’ testimony was going to fit into what the prosecutor said in opening statement. But if the jurors heard from the defense attorney, too, now they had something to test a witness’ testimony against—a different lens through which to view a witness’ testimony. But they could only look through that lens if Talon gave it to them before the witnesses started talking.
No, there was no way she was going to reserve argument. As soon as Quinlan—or, God forbid, McDaniels—sat down, Talon would be on her feet to give the jury her competing version of events. The true version of events.
Or at least, that’s what she’d tell them.
Which led to the other major consideration: the format of opening statement. What made for the most compelling opening statement? The structure most likely to convince the jurors that maybe, just maybe, the prosecution got it wrong? That maybe, just maybe, this great nation of ours does occasionally charge citizens with crimes they didn’t commit? That ‘innocent until proven guilty’ was more than a catch phrase?
Fortunately, there was a general consensus that the best way to deliver an opening statement was to just tell a story. Opening statement was supposed to be a preview of what the lawyer expected the evidence to show, not an argument as to why the jury should return a certain verdict. Any such attempt would be objectionable as ‘argumentative.’ So just tell a story. Convert those thousands of pages of police reports and witness interviews into a compelling narrative that explained to the jury what happened, why they were there, and what they were about to hear. And also suggested a particular verdict without actually asking for it.
Unfortunately, that was usually a lot easier for the prosecution. The prosecutor already had a story: the defendant committed a crime. It was the same, case after case. But the defense might be anything from alibi, to self-defense, to ‘prove it.’ And ‘prove it’ wasn’t much of a story. The only thing that kind of opening statement would communicate was that there was no defense story—which strongly suggested the accuracy of the prosecution story the jurors just heard.
For every stage of a trial—jury selection, opening statement, witness testimony, closing argument—there was a lawyer who would swear, ‘You win the case in jury selection,’ or ‘You win the case in closing argument.’ Talon figured it probably depended on the facts of a given case. But if she had to pick one segment of a trial being the one that, above all others, determined the outcome, she would have put her money on opening statement. Whichever attorney gave the better opening statement went into the rest of the trial with a lead. The question was whether it would be a one-run lead, a two-run lead, or—if she really knocked it out of the park—maybe even more. The kind of opening that, when a witness testified differently, the jurors doubted the witness’s word.
That happened when the story was so good, so rich, so compelling, the jurors felt like they were experiencing it themselves. So that the witness’s inconsistent testimony didn’t just contradict the lawyer’s opening statement, it contradicted the juror’s own (false) memory of the event.
“So,” Talon wondered aloud, “what’s my story?”
* * *
Talon was so focused on her opening statement that she didn’t think to look at the caller I.D. when the phone rang a little before 6:00 p.m.
“Talon Winter,” she answered, almost absently, her eyes and concentration still on the notepad on her desk.
“Talon? Oh, I thought I’d get your voice mail.”
It was Sullivan. Talon’s heart dropped. “Oh. Hey, Sam. Uh, no. Working late tonight. Opening statements in the morning.
Although she would have preferred to keep the conversation on her murder trial, she knew that wasn’t why Sullivan was calling.
“You must be pretty focused on that,” he replied. “You forgot to pay me the retainer.”
Talon hesitated. There wasn’t much point in lying. “I didn’t exactly forget,” she admitted. Besides, the truth would make the conversation go faster.
“I know,” Sullivan answered.
He didn’t say anything else for a moment. Talon wasn’t sure what to say either. Finally, Sullivan broke the silence.
“So, are you ready for your opening statement?”
Talon smiled weakly to herself, surprised by the question, but not by what it meant. “I’m getting there.”
“Do you have a plan for the trial?” Sullivan asked.
Talon thought for a moment. “Yeah. I think so.”
“Good, good,” Sullivan said.
After a few more moments of awkward silence, Sullivan asked, “You’re not going to pay the retainer, are you?”
Talon frowned. “No,” she admitted. “Not right now. I can’t.”
She could practically hear him nodding over the phone. “Okay,” he said simply. “I knew that. I have a plan, too.”
“You do?” Talon asked.
“Of course,” he replied. “But don’t worry about it right now. Worry about your opening statement. I’ll take care of our case.”
Talon closed her eyes and felt at least some of her stress lift off her shoulders. She didn’t ask what his plan was. “Thanks, Sam.”
Sullivan laughed just slightly. “Don’t thank me yet. I’ll call you in a week or so. Focus on your murder trial. Forget about this case until then.”
That was exactly what Talon had already done. But she didn’t say that much. “Sounds good, Sam. I will.”
Sullivan hung up first and Talon returned the receiver to the cradle and considered.
She considered wondering what Sullivan’s plan was. She considered spending time trying to guess what it might be or how it would affect her. She considered caring about it.
But she couldn’t. She didn’t.
She stood up and stepped over to the mirror she had finally hung up on the wall.
“Ladies and gentlemen,” Talon said to her reflection, “let me tell you Michael Jameson’s story…”
Chapter 29
The next morning, Michael Jameson was waiting for Talon outside the courtroom, sitting on the bench in the hallway, holding his wife’s hand. They stood up and Michael shook her hand when she reached them.
“Talon,” was all he said. What more was there to say really?
Alicia just smiled. No words for the spouse of a man on trial for murder.
“Are you ready?” Talon asked. It was for both of them.
Alicia looked down and shook her head slightly.
But Michael looked Talon in the eye. “Ready? Of course I'm not
ready. How could anybody be ready for this?”
Talon nodded. “You prepare,” she answered. Then she grabbed a hold of the courtroom door. “And then you execute.”
Ten minutes later, Talon and Michael were seated at the defense table, Alicia was behind them in the gallery, and Quinlan and McDaniels were at the prosecution table. Judge Kirshner entered and took the bench.
“Mr. Quinlan,” the judge got right to it, “is the State ready for opening statements?”
Quinlan stood up. He didn’t look as nervous as Talon had hoped he would. “Yes, Your Honor.”
Kirchner looked to the defense table. “Ms. Winter, is the defense ready for opening statements?”
Talon stood up as well. Time to execute. “Yes, Your Honor. The defense is ready.”
Judge Kirshner nodded to her bailiff, who stood up and fetched the jurors who had been told to arrive thirty minutes earlier and were already waiting in the jury room. As soon as the jurors were all seated in the jury box, Judge Kirshner addressed them.
“Ladies and gentlemen of the jury,” she said, “please give your attention to Mr. Quinlan, who will deliver the opening statement on behalf of the prosecution.”
And they were off.
Quinlan had remained standing while the jurors filed in and sat down, knowing he would be speaking first. He nodded up at the judge and stepped out from behind the prosecution table.
“Thank you, Your Honor. May it please the Court, counsel, ladies and gentlemen of the jury.”
It was an overly formal, outdated way to begin an opening statement. Good, Talon thought. Anything to get in the way of Quinlan actually establishing a bond with the jurors. He took up a spot directly in front of the jury and probably one step too close to the jury box. Then he began his opening statement in earnest.
Talon had allowed herself to hope, maybe even expect, that Quinlan would do a poor job in his opening statement. Unfortunately, as much of a jerk as Quinlan was outside of court, there was still a reason he was allowed to try murder cases. He could turn on the charm when he needed to. And right then, unfortunately for her, he needed to.
“Justice delayed,” he began, then pausing to exploit the attention he was afforded by the formality of the situation, “is still better than justice denied.”
Talon frowned inside. It was a good opening line. Memorable, but not too cheesy. And it encapsulated the strongest argument for the State’s case, namely that it was never too late to hold someone accountable for murder.
Talon knew what she had to do. The only question was when to do it. But she had faith in Quinlan…
He continued. “Almost twenty-five years ago, a young man named Jordan McCabe was murdered just a few short blocks from this very courthouse.”
Talon knew that wasn’t exactly true. The County-City Building was near the top of the steep hill up from the Tacoma waterfront, near the edge of the aptly named Hilltop neighborhood where the shooting had taken place. But it was still outside of it. And the murder had happened deep inside the Hilltop. It was a small inaccuracy, Talon knew, but those could add up, if Quinlan kept choosing dramatic effect over the factual precision.
“He was shot twice in the chest,” Quinlan continued, “and left to bleed to death in the middle of Cushman Avenue. His killer disappeared into the night, never to be found. Literally, getting away with murder. Almost.”
Quinlan turned and pointed at Jameson.
“Until twenty-five years later, the killer was finally identified. That man. The defendant. Michael Jameson.”
Talon had made a point of looking down to take notes, rather than watch Quinlan as if he were actually interesting or something. That was in case a juror or two happened to glance over at her. But the naming of her client guaranteed all the jurors would be looking over at the defense table. No one likes being called out in a crowd, let alone singled out as a murderer. Michael looked appropriately distressed, but Talon patted his arm confidently and shook her head just the right amount. ‘No, he’s not,’ she was telling the jury.
Quinlan turned back to the jury box. “You’re going to hear from a lot of witnesses during this trial.”
Talon went back to sort of taking notes. But she was listening intently, waiting for it.
“You’ll hear from the first officers who were dispatched to the scene. You’ll hear from the original detectives who investigated what few leads they had back then. You’ll hear from the current detective who picked up the case once the trail became hot again. And you’ll hear from the victims.”
Talon looked up.
“Well, not the murder victim, of course,” Quinlan corrected, “but the victims of the other crimes the def—”
“Objection!” Talon pounced. “Objection, Your Honor!” she repeated as she stood and slapped the table.
All eyes turned to her. Quinlan’s were wide. Kirchner’s were curious.
Before the judge could say anything, Talon added, “I’d like to be heard outside the presence of the jury.”
Quinlan let out an exasperated sigh. “This is opening statement,” he complained, as if that alone should result in the objection being overruled.
“I’d prefer not to interrupt Mr. Quinlan’s opening statement,” Kirchner echoed his sentiment. “You’ll have your chance to speak, Ms. Winter.”
“Based on what Mr. Quinlan just said, the damage may be irreparable by that point, Your Honor,” Talon answered. “I’m trying to protect the integrity of this trial.”
That sounded pretty good in front of the jury.
Kirchner could see showmanship for what it was. But she wanted to protect the trial as much, or more, than anyone. And she was experienced enough, she could probably guess what Talon’s objection was. The judge sighed herself, then looked to the jurors.
“I’m going to ask you to retire to the jury room for a moment, ladies and gentleman,” she explained. Quinlan’s shoulders dropped and he stepped back toward the prosecution table. “My bailiff will bring you back into the courtroom very shortly.”
The jurors stood and filed out of the courtroom, curious, but mindful not to speak. The lot of the audience as the drama played out in front of them. When the door to the jury room closed, Quinlan beat everyone to the verbal punch.
“This is outrageous, Your Honor! I was in the middle of my opening statement. The only valid objection in opening statement is that it’s argumentative, and I was nowhere near arguing the case. I was simply explaining to the jurors who they were going to hear from. Ms. Winter objected for the sole purpose of interrupting my flow.”
Talon couldn’t help but smirk at Quinlan having a ‘flow.’ But she knew to wait for the judge to take control of the discussion before speaking.
“I understand why you’re upset, Mr. Quinlan,” Judge Kirchner said. “And I share your concerns. But I’d like to hear from Ms. Winter first.” She looked down at Talon. “What’s your objection, counsel, and why couldn’t it wait until Mr. Quinlan had finished his opening statement?”
“My objection, Your Honor,” Talon answered, “is that the prosecutor just told the jury that my client committed more crimes than he is charged with, thereby prejudicing him by inviting the jury to convict him of murder regardless of the actual evidence as to that one and only charge.”
Kirchner’s face scrunched into thought as she tried to recall exactly what Quinlan had said.
Quinlan didn’t bother thinking. “I said no such thing, Your Honor,” he insisted.
“He said,” Talon was ready to answer, “the jurors would hear, not from the victim of the murder, but the victims of the other crimes my client allegedly committed. Or he was about to when I objected. There are no other crimes charged. Telling the jury Mr. Jameson committed other crimes is a textbook case of hoping jurors will convict a defendant because they think he’s a bad person generally, rather than because of whatever evidence might have been presented.” Then a jab: “Obviously, Mr. Quinlan knows he won’t be able to prove the charged crime be
yond a reasonable doubt and is already hedging his bets and lowering expectations.”
“I am not,” Quinlan shot back. “And your client did commit other crimes. He was dealing drugs, for one thing. That’s why this happened in the first place.”
“He’s not charged with drug dealing,” Talon answered.
“That’s because the statute of limitations on drug dealing ran years ago,” Quinlan said. “The only crime that doesn’t have a statute of limitations is murder and that’s why it’s the only crime he’s charged with.”
Judge Kirchner stepped in. “Counsel, stop arguing with each other and direct your comments to the bench. Ms. Winter, I understand your point, but if this case arose out of a drug deal gone wrong, how can the State explain the evidence without mentioning the crime of unlawful delivery of a controlled substance?”
Talon nodded. “In all candor, Your Honor, that’s not my problem. The State is the one who chose to bring the charge on the flimsiest of evidence. They could sanitize it and have their witnesses simply say it was a business transaction without mentioning drugs.”
“That won’t work, Your Honor,” Quinlan started, but Kirchner cut him off.
“Wait your turn, Mr. Quinlan,” she instructed. He nodded in compliance, and the judge turned back to Talon.
“Isn’t the drug dealing part of the res gestae, Ms. Winter?” the judge asked. “It’s just part of what happened. Gunshots aren’t usually fired at your run-of-the-mill business transaction, but it’s not uncommon that a drug deal can turn violent very quickly.”
Talon shrugged. “Maybe, Your Honor. Maybe not. The State hasn’t endorsed any expert witnesses to discuss the statistics of drug deals gone wrong. But regardless, the State can’t call it a crime. My client is charged with one crime: murder. And that’s the only thing in this trial that should be labeled a crime.”
“I think the jury will know,” Kirchner pointed out, “that selling drugs is a crime.”
Another shrug. “Maybe,” Talon conceded, “but the State can’t be allowed to call it that. It’s irrelevant. Would you allow the State to say Mr. Jameson committed a crime if he’d had some marijuana in his pocket? It was a crime then, but isn’t now. What was illegal then is irrelevant unless it’s charged now. And nothing is charged except murder. The State cannot be allowed to smear my client by claiming he committed other crimes that are uncharged and for which I haven’t been put on notice I would need to defend against. It violates his right to prepared counsel and a fair trial.”
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