Brooks-Lotello Collection

by Ronald S. Barak

“And sir, wouldn’t you say then that Mr. Norman might have had no idea what he was ranting?”

  “Objection.”

  “I’ll withdraw the question, Your Honor.”

  Brooks knew the withdrawal didn’t really matter. Once again, Klein has planted the seed in the jury’s mind that Norman might not have had a clue what he was rambling about. She should probably send Reilly a thank-you note for his objection. Klein’s better off with no answer to the question than what Marshall might have answered if she had not withdrawn her question in the face of Reilly’s objection. Reilly’s objection was valid. I would have had to sustain it. Klein obviously knew that. I’m impressed. She’s quite on top of her game.

  “No further questions, Your Honor.”

  “Any redirect, Mr. Reilly?”

  “Briefly, Your Honor. I have here marked as People’s Exhibit E a document that I would like to question the witness on. I am handing copies of Exhibit E to the witness and to Ms. Klein and to Your Honor’s clerk. There is also an accompanying DVD that I would like the jury to see as part of Exhibit E. May I proceed, Your Honor?”

  “Just a minute, Mr. Reilly. Let me look at this material first.”

  Klein was immediately on her feet. “Objection, Your Honor, this is outrageous. There’s no way this material can be used in this case.”

  Brooks maintained his command. “The clerk will please remove the jury to the jury room so that this matter may be discussed outside of the jury’s presence. We’ll be in recess for ten minutes while the jury is removed. And while I review these materials.”

  CHAPTER 102

  Wednesday, August 5, 11:35 a.m.–12:00 p.m.

  BROOKS WAS UPSET. AFTER the jury was first removed, he ordered counsel up to the bench and spoke in hushed tones solely for counsel and the court reporter. “Mr. Reilly. What are these two items?”

  “This is a computer-generated note and a DVD that were left at the scene of the murder of SEC Chairman Derrick Johnson. As you know, the defendant is also under arrest for the murder of Chairman Johnson.”

  “Unfortunately, I understand perfectly well what this document is, Mr. Reilly. I was hoping I was mistaken. You will recall that I granted the defense motion to bifurcate Mr. Norman’s trial for the murder of Senator Wells from the pending trials relating to the other two murders. I did so reluctantly, due to the inefficiency and expense of multiple trials, and over your objections, because I believed the defendant’s due process entitled him to such bifurcation.

  “Now, here you are, Mr. Reilly, attempting, willy-nilly, to introduce evidence from the Johnson murder scene in this trial with full knowledge of my bifurcation order. To say I’m unhappy with you would be a gross understatement. Tell me, Mr. Reilly, why I shouldn’t hold you in contempt and allow you to spend a few nights in the slammer after this case is concluded? Frankly, I’d like to send you there right now, but we have a trial to finish.”

  “With all due respect, Judge, I think you’re overreacting. I am fully aware of the bifurcation of these cases. However, it is Ms. Klein who just made the use of this material crucial. And therefore appropriate despite your previous bifurcation order.”

  “What in the world are you talking about?”

  “At the end of her cross of Officer Marshall, Ms. Klein asked Officer Marshall whether he thought Mr. Norman had any sense of the words he was uttering at the time of his arrest on February eleventh, 2013. Ms. Klein knew that question was beyond Marshall’s purview and was entirely inappropriate. That’s why she withdrew it as soon as I objected. Still, as was no doubt her objective, Ms. Klein raised doubt in the minds of the jurors as to whether Mr. Norman knew what he was saying. The timing of these materials from the killer is virtually the only way I have to combat the seed Ms. Klein unfairly planted in the jury’s mind in the face of your earlier order.”

  Brooks hesitated. Shit. Reilly’s got a valid point. Klein was out of line. Even if she was just trying to be a good advocate for her client. In her position, I might have done the same. But she did go too far. Reilly has got to have a chance to rebut what she did. However, I can’t let the murder of Johnson, and implicitly the murder of DiMarco, cloud this trial at this late point in time. Especially since it’s not clear what connection, if any, Norman has to these materials. I’ve got to keep this case under control. Damned if I do; damned if I don’t. Must be extremely careful here in order to be fair to all. And to avoid having to declare a mistrial and starting this process all over again with a new jury.

  “Okay. I’m not happy. I have no idea what the Court of Appeals may in due course say about all of this. However, I don’t see any alternative. Here’s what we’re going to do.

  “We have two items here, the note and the DVD. I am going to allow the computer-generated note into evidence in a very limited and controlled manner.

  “I am not going to allow Mr. Marshall to be questioned about the note. He has no competent knowledge about the document whatsoever. To allow him to be questioned on it would make a mockery of this whole proceeding. Instead, I will read this note to the jury and tell them I’m admitting it into evidence based solely on what is an unsubstantiated claim of the prosecution that it was prepared by Mr. Norman and is offered by the prosecution solely as support for its argument that Mr. Norman knew what he was saying at the time of his arrest on February eleventh. I will tell the jury it will be up to them to decide what weight to give to this note. If any.

  “As for the DVD, there is no way it’s going to see the light of day in this case. It is simply too inflammatory and too speculative. I am ruling right here and now that any evidentiary value it might have is far outweighed by the prejudice it would pose to the defendant. If I see this DVD uploaded to the internet, you will do time, Mr. Reilly.

  “To be clear, there will be no further examination of Mr. Marshall. His examination is concluded. For that matter, so is the prosecution’s case, because there are no other witnesses on the prosecution’s witness list.

  “We are going to adjourn for lunch. Because there is no way I can control what the media is going to report about this development, I am going to immediately sequester the jury, not only our twelve jurors, but our two alternate jurors as well. I have no choice.” Ordinarily, alternate jurors are not permitted to join the other jurors in the jury room prior to any actual need for their services. However, in this instance, I can’t run the risk of either alternate being exposed to public comment.

  “Thus, we will actually adjourn for the balance of the day so that I can arrange for all of the jurors, under controlled supervision and transportation, to go home, pack their bags, and go to the hotel where they will be sequestered, housed, and fed until this trial is concluded. We will also have to confiscate all of their cell phones and electronic devices to be sure they don’t have internet access or any other access to the outside world while sequestered.

  “I have half a mind to require the two of you to personally reimburse the District for the cost all of this will entail. I’m not going to do that now. But any more indiscretions on the part of either of you and I may still do that. Step back. Now.

  “The clerk will return the jury to the jury box.”

  The jury returned to the courtroom and to the jury box, puzzled by whatever had just taken place outside their presence. They didn’t have to wait long to find out.

  “Officer Marshall. Your testimony is concluded, sir. You may step down and leave the courtroom with the thanks of the court for your testimony and cooperation.” Didn’t want the jury to think there was any impropriety on his part. Or anything defective in his testimony.

  “Ladies and gentlemen of the jury, as indicated on the witness lists submitted at the start of the trial, the people have no further witnesses to call. When I finish the remarks I am about to make, the people’s case-in-chief will be concluded. We will take our lunch recess. In fact, as I will explain in a moment, we will be in recess for the balance of the day and until tomorrow morning at eight thirty, when the
defense will begin the presentation of its case-in-chief.

  “You will recall that at the end of Ms. Klein’s cross-examination of Officer Marshall, she asked whether he thought Mr. Norman understood the meaning of the words he spoke at the time of his February eleventh arrest. Mr. Reilly objected to the question, and Ms. Klein quickly withdrew it. Obviating any need for me to rule on Mr. Reilly’s objection.

  “Had Ms. Klein not withdrawn her question, I would have sustained Mr. Reilly’s objection. While the issue is certainly a fair one for the jury to ponder, it was not a proper question for Ms. Klein to have put to Officer Marshall. There was no basis for Ms. Klein to believe Mr. Marshall possesses the credentials to properly answer such a question.

  “Mr. Reilly was rightly concerned that the jury might unfairly conclude that Mr. Norman did not understand the nature of his remarks at the time of his arrest. As a result, Mr. Reilly sought to introduce a document, the proposed People’s Exhibit E, supposedly prepared by Mr. Norman at or about the same time as his arrest on February eleventh. Exhibit E contains wording substantially the same as the wording contained in Mr. Norman’s February eleventh oral remarks outside the Capitol building, when he was arrested. Mr. Reilly wants to offer Exhibit E into evidence so that he may ultimately argue to you that Mr. Norman indeed knew the meaning of the words he stated on February eleventh.

  “There are two problems with Mr. Reilly’s request to introduce Exhibit E. First of all, the circumstances under which Exhibit E was created and discovered are beyond what can properly be presented to you in this case as a matter of law. I am not at liberty to explain this to you beyond what I have just said. Second, Exhibit E is a computer-generated note, and there is no evidence before you that in any way establishes that Mr. Norman in fact prepared or authored Exhibit E. He might have. He might not have.

  “I want us all to be perfectly clear about the accuracy of what I have just said. So, Mr. Reilly, do you have any evidence whatsoever to demonstrate that Mr. Norman prepared or authored, or caused to be prepared or authored, the Exhibit E document that you asked be admitted into evidence?”

  “I believe I do, Your Honor.”

  “And what is that, Mr. Reilly?”

  “As you have said, the text of Exhibit E is virtually identical to the text of Mr. Norman’s oral remarks outside the Capitol building on February eleventh, at the time of his arrest. While it can be debated whether Mr. Norman understood the significance of his remarks, it cannot be debated that he made the remarks outside the Capitol building. Because Exhibit E was discovered prior to Mr. Norman’s oral remarks on February eleventh, the similarity of Exhibit E to Mr. Norman’s remarks is at least circumstantial evidence that Mr. Norman prepared Exhibit E. In turn, this is circumstantial evidence that Mr. Norman, having uttered the remarks on at least two occasions, did indeed know the meaning of his words.”

  “Your Honor,” Klein spoke up. “Mr. Norman’s supposed earlier words, whether accurately recalled by Mr. Randall or embellished by some combination of Mr. Randall and The Washington Post’s Rachel Santana, were highly publicized by Ms. Santana in her article. Which preceded Mr. Norman’s oral remarks on the eleventh. Anyone wanting to implicate Mr. Norman could easily have prepared Exhibit E. The similarity of Exhibit E to Mr. Norman’s subsequent remarks doesn’t mean anything under these circumstances.”

  “Mr. Reilly, aside from your claimed circumstantial evidence that Mr. Norman is the author of Exhibit E, do you have any physical evidence whatsoever to support your contention? For example, do you have a computer or a printer attributable to Mr. Norman that would corroborate your circumstantial claim that Mr. Norman authored Exhibit E?”

  “I do not, Your Honor. We have looked high and low, but cannot find any personal property that belonged to Mr. Norman.”

  Klein interrupted: “And whose fault is that, Mr. Reilly? Mr. Norman lost everything he had, much more than just a computer and a printer.”

  “Enough, Ms. Klein,” snapped Brooks.

  “Ladies and gentlemen of the jury, while much of what you have just heard is akin to an offer of proof that would normally be conducted outside your presence, I decided to allow you to hear the preceding discussion due to the unusual circumstances in which we find ourselves. I will also momentarily read to you the content of Exhibit E, which I will be admitting into evidence. This means that you’ll have Exhibit E before you in the jury room when in due course you deliberate and decide the outcome of this case. However, before I do so, I must again emphasize to you that you will not have before you the circumstances of how and where Exhibit E was prepared. Or found. I cannot emphasize to you enough that you must not make any assumptions in that regard. You also must bear in mind that you have no physical evidence that ties Exhibit E to Mr. Norman.

  “I need to tell you one other thing before I read Exhibit E to you. Moments ago, I advised you that we would be adjourning shortly, not only for lunch but for the balance of the day. The reason for that is because I’m required by these developments to sequester the jury for the balance of this case. What that means is that you will each be housed and fed in a local hotel for the duration of this case. This is to assure that you’ll not come in contact with the inevitable media reports and speculation about these events, including the content of the DVD I have ruled you cannot hear or consider in your deliberations.”

  Brooks’s remarks were met by a collective sigh of discontent from the jurors.

  “I recognize the hardship that this may impose on you. After lunch, which will be paid for by the District and will be similarly controlled to assure no access to outside sources, you’ll be escorted to your respective homes to pack what items you’ll need and then transported to the hotel where you’ll be staying, and fed, for the duration of this case, again entirely on the District’s nickel. Please recognize that you’ll not be permitted to have any cell phones or other electronic devices while you’re sequestered because we can’t allow you to have any access to the internet or to the outside world in general. My administrative assistant and jury services will answer any procedural questions you may have and will work with you to address and solve any hardships this sequestration may cause any of you, including arranging for family members to be able to communicate with you as necessary during this time through my administrative assistant. Again, I apologize for the need to employ these arrangements, but under the circumstances, it simply cannot be helped.

  “I’m now going to read Exhibit E to you. We will then adjourn until eight thirty tomorrow morning, when the defense will begin its case. At least we won’t have to worry about any of you being late. Although you have all been terrific in that regard of late. Exhibit E reads as follows: quote, It’s all your fault, you did it, you killed Ryan, now I got you, unquote.

  “We are recessed until tomorrow morning at eight thirty. Thank you for your understanding and cooperation.”

  Brooks stepped down from the bench and headed for his chambers. What a mess! I’m not tossing in the towel and declaring a mistrial. It will be a miracle if the Court of Appeals doesn’t in all of its wisdom ultimately do so.

  CHAPTER 103

  Wednesday, August 5, 12:00 p.m.

  CLIFF NORMAN CONTINUED TO keep his own counsel, remaining quietly within himself. To convict me, the jury must believe, beyond a reasonable doubt, that I did exactly what the prosecution claims I did. Murdered and violated Senator Wells. And then walked around town confessing what I had done. Of course, there’s no denying my remarks. Won’t the jury have to conclude that I was nuttier than a fruitcake—legally insane—to walk around shouting at the top of my lungs for all to hear what supposedly I had just done? This is precisely why I put on that act. To set up my alibi. I’ve got to stay with it. And the justifiable homicide defense that never even occurred to me. High praise for Klein’s clever strategy. If that defense becomes important.

  * * *

  LOTELLO WAS A BALL of pent-up nervous energy. According to Jeremy, Hollister and Thomas are j
ust sitting out there in the hallway. Exactly as Brooks directed. No way for anyone to know what they’re thinking. This afternoon is showdown time with Foster. I’m almost out of time. I’ve got to take him down quickly. It seems to me the jury could go either way. At least as things stand right now. But it’s hard to believe that Norman killed anyone. Doing all I can, Beth.

  * * *

  AFTER LEAVING COURT, AYRES picked up a sandwich and took it back to his office. He was behind on his work for Wells’s interim successor. Testified twice so far. Wonder what Klein has in mind for me. And what luck Lotello might be having with the leads I anonymously provided to him in the form of Wells’s calendar. More than I may have bargained for here.

  CHAPTER 104

  Wednesday, August 5, 1:00 p.m.

  AP Online News

  Rachel Santana

  SECOND DAY OF NORMAN TRIAL RECESSED; JURY SEQUESTERED PROSECUTION 2, NORMAN 2

  THE PROSECUTION DID A much better job this morning than yesterday. Norman was hung on his own words today. As the prosecution concluded its case, it managed to tie Norman to Senator Wells. At least somewhat. If the case were to be sent to the jury today, it would be too close to call. But this case isn’t going to the jury today. And it’s not clear when it will.

  Norman still must put on his defense case. Then closing arguments must be made. And the court has to give its final instructions to the jury.

  Today’s real shocker came when DA Vincent Reilly tried to present certain evidence to the jury from the murder of SEC Chairman Derrick Johnson that had been ruled off-limits in pretrial proceedings.

  In a preview of what is likely to be given considerable attention in the pending defense case, PD Leah Klein one-upped the more experienced district attorney by surreptitiously giving the jury the impression that Norman’s mental state was such that he could not possibly have understood the meaning of his alleged confession.