Authors: William Lashner
I know how to open a bottle of wine—twist the corkscrew until the cork disintegrates, pour through a strainer. And I know how to open a new CD in its theft-proof package—fire up the chain saw. But the right way for a defense attorney to open up a murder trial, now, that’s always a bit of a puzzle.
Some parts are simple. When the judge calls your name, you stand and button your jacket, step toward the jury. You smile at the fourteen of them, twelve jurors and two alternates, as if they were your bestest, bestest friends, even though all the time you’re thinking, How did we end up with these bozos? And then you begin.
“Ladies and gentlemen, my name is Victor Carl. My partner’s name is Beth Derringer. And today we stand before you with the awesome responsibility of defending our client, François Dubé, against the charge of murdering his wife.”
Now you have to describe the crime scene. You have to talk about Leesa Dubé sprawled on the floor of her bedroom, lying in a pool of her own blood, her neck torn apart by a bullet fired at close range. You even let your voice choke when you talk about the blood soaking her beautiful auburn hair. You can’t minimize the murder, you can’t dismiss it or avoid it—she’s dead, baby, ain’t no use denying that fact—so instead you embrace it. Don’t ever let the prosecution possess the murder, snatch it from them and make it your own.
Then, and this is important, then you have to step over to your client. You have already put him in a suit, a nonyellow tie, you’ve had him don a pair of studious-looking glasses. Now you have him stand and face the jury while you put your arm around his shoulders. The prosecutor has already stuck his finger in your client’s face and called him a murderer, you have to do him one better. You’ve just barely held on as you described the crime, now you stand with your arm around the man the Commonwealth has accused of committing it. You don’t have to say a thing, the jury understands. How could you embrace this man unless you were sure he was innocent. How indeed?
Because it is the job, ladies and gentlemen. If he smelled like a dog dipped in shit, I’d stand just as close. But you don’t say that. Instead you wait there silently, letting the image sink in, before you start the usual tap dance.
“I want to introduce you to François Dubé, a loving father and a loving husband. He is a chef, he owned his own restaurant, he is an artist with artichokes and duck, with butter and lobster and vanilla beans, with the very sustenance of our lives. But most of all, this is a man who loved Leesa Dubé. She was his wife, had been his lover and best friend, was the mother of his beloved daughter. He loved her with all his soul. He loves her still.”
Now you have your client sit back down again. You don’t want the jury to look too closely, after all, you don’t want the jury to see his scarred hands, the insolence in his eyes, you don’t want the jury to feel the same way you feel about him. So you sit him down and slowly walk back to the front of the jury box.
“Was the marriage perfect? Whose is? Certainly not the marriage of the Dubés. Yes, they were having troubles, we won’t deny that. They were young, and François worked crazy hours in his restaurant, and the pressures of a young child in the household often take a toll on newlyweds. And unfortunately, yes, there was infidelity, and yes, they had separated, and yes, they had decided on a divorce. But, you see, they had decided, and they were working it out, and they were both parents to the same beautiful little girl, and they were making accommodations one to the other. This happens every day, everywhere, to half of all marriages in this great country.”
You look over to François and say, “It is a reason for sadness and regret, absolutely.” And now you turn back, raise your voice just enough to show your indignation. “But, ladies and gentlemen,” you say as you slap the rail for emphasis, “this is not a motive for murder.”
Step back now. Take a moment to compose yourself, a little dramatic pause to let the bite of righteous anger settle upon the courtroom. As you calm yourself, you rest your hand on the railing and lean on your straightened arm. This last bit is quite important, as you want to look completely at ease when you begin to mention, however obliquely, the prosecution’s evidence. The prosecutor has stood before this same jury and listed the great gouts of evidence she has against your client. You’d like to ignore it, let it disappear, but you can’t.
“Ms. Dalton spoke about the evidence collected by Detective Torricelli.” You step over to the prosecution table and stand right in front of him as you continue. “She told of all the things he so conveniently found after he determined that my client was the primary suspect. And you shake your head at such convenience, because it never happens like that in your own lives, only in books or movies, pieces of fiction created by quite imaginative folk.” As you make your point, you give the detective a smile, which is in stark contrast to the ugly sneer he gives you back. “But let me tell you, ladies and gentlemen, what you won’t be seeing during this trial. No one will testify that he saw this crime happen. There will be no video or photographs submitted showing the murder. No one will testify that he saw my client anywhere near the scene of the crime at the time of the crime. None of those fancy forensics tests you see on television will prove that François Dubé was in any way involved in this terrible murder that shattered his family and separated for all time his daughter from her mother.”
It’s time to pop a jab at the prosecution. “Ms. Dalton told you that the evidence in the case is wholly circumstantial. And we all know, ladies and gentlemen, what circumstantial means. It means that no one really knows what the heck happened, we’re all just guessing, and when anyone tells you otherwise, she is lying.”
This is when the prosecutor hops up and objects. It’s fun to see her jump, like a frog poked with a stick. Hop, hop. And her objection is a good thing, even when the judge sustains it, because it allows you to shrug, and smile a little half smile, and act as if you and the jury are all in on a little secret that the prosecution is trying to hide.
“Ms. Dalton told you that direct evidence is when you go outside and see for yourself that it’s raining, but unfortunately for her, she doesn’t have any of that type of evidence in this case. No one saw the murder of Leesa Dubé. And Ms. Dalton also told you that circumstantial evidence is when you see someone come in the front door and his hair and clothes are soaked, and from that you can infer that it’s raining. But the problem with circumstantial evidence is that the inferences drawn are only as sharp as the person drawing them. Now, we know that Ms. Dalton is a very sharp lawyer, otherwise why would she be pulling down the big bucks at the district attorney’s office and driving a Chevette?”
This time, as the jury chuckles, you glance back at the prosecutor, so the whole jury follows your gaze. The prosecutor will be doing a slow burn. You wait, patiently, until her obligation to the truth forces her to her feet and she says, through clenched teeth, “Objection, Judge. Mr. Carl knows full well I drive a Civic.”
Then you turn back to the jury, raise an eyebrow, watch as they all crack up at that. “A Civic,” you say, raising your hands high in the air. “I stand corrected. But even a lawyer as sharp as Ms. Dalton, tooling around town in her Civic, ladies and gentlemen, can see someone walk through her front door all sopping wet and assume that it is raining outside, when really she simply forgot to turn off her sprinkler.”
Bada-bing.
A fun little gag, sure, but all of this is routine, all of this any legal hack could pull off without breaking a sweat. But what to do now, there’s the puzzle.
Do you play it safe and do the old Reasonable Doubt Shuffle, a sort of jazzy dance in which you raise your arms and shake your legs and repeat those two words over and again, as if the jury had never heard them before? It is the safe opening, the no-opening opening, which leaves you free to create your theory of the case on the fly. But with no story of your own to tell at the outset, you’re playing defense the whole trial, and by the time you figure something out, the jury might have already made up its mind.
Or do you go right out and tell the jury your story from the get-go? If the story is convincing enough, and the evidence doesn’t contradict it, then the jury will do your work for you. On the downside, it’s like one of those cigars Curly Howard used to smoke—one contradictory piece of evidence and it can all blow up in your face.
What to do? What to do? Do you play it safe? Or do you take the gamble? Oh, what the hell. It’s only François’s neck on the line.
“Now, Ms. Dalton told you about François’s affairs, as if that was some big revelation. Yes, François had affairs. We admit it. He was a hound dog, even in his marriage. Nothing to be proud of, certainly. But now I need to tell you the other side of the equation. I’m not here to cast aspersions, the Dubés were separated, this is not a matter of blaming the victim, this is just the truth. Leesa Dubé, lonely after the separation from her husband, found solace of her own with another man. You will hear testimony about that, and about the nature of their relationship, and about the violence that was lurking within it.
“Why did Ms. Dalton not tell you this? I don’t know. Maybe she didn’t think it important enough to mention to you in her opening. Maybe she’s a little too eager to discount anything that doesn’t fit neatly within her theory. Or maybe so quick was the rush to judgment against François Dubé that she and Detective Torricelli never took the time to even learn of this man who had entered Leesa Dubé’s life. But he existed, and you will hear all about him, and it is far more likely that he, rather than the loving husband, committed this horrible crime.
“So this is what I beg of you, ladies and gentlemen. Listen carefully to all the evidence, and as you do, ask yourself who is the more likely culprit, Leesa’s husband, the father of her child, or the violent stranger who swept into her life shortly before her murder and swept out of it just as quickly. And when this is over, and you’ve heard everything, I’m going to come back to you and ask you to return the only verdict you possibly can, a verdict that finds François Dubé not guilty of the murder of his wife.”
Mia Dalton was livid at my argument.
You could tell by her easy grin as she came up to me after the jury had been dismissed for the day, by her insouciant pose, by the hand calmly resting in her skirt pocket. Dalton didn’t grin unless she was angry, she was one of those lawyers who snarled at good news and smiled at trouble. At least I hoped so, because if Mia Dalton wasn’t livid after my opening, then I had done something seriously wrong.
“You going to bring it into the courtroom?” said Dalton. “Give it a number, lay a foundation to introduce it into evidence?”
“Bring in what?” I said.
“My Civic.”
“Liked that, did you?”
“It’s always fun when opposing counsel claims I’m too stupid to figure out the truth of a case because of the car I drive.”
“I wasn’t blaming the car. It’s not the car’s fault.”
“Why don’t you tell us the name of the deceased’s lover who you claimed murdered her?”
“Not quite yet.”
“If he’s a murderer, shouldn’t we take him off the street as a matter of public safety?”
“You’ve waited this long to get the right guy, I suppose a few more days won’t matter.”
“I suppose not,” said Dalton. “It’s never good practice to make a promise to the jury you won’t be able to fulfill.”
“Watch me.”
“Oh, I will, Victor, believe you me.” She winked. “And I’ll enjoy it, too.”
I didn’t like that wink. There was something in it that gave me a chill. Probably the usual Mia Dalton intimidation, but still, as I watched her walk out the courtroom door, I suspected she wasn’t as livid as I had hoped.
Mia Dalton wasn’t a rock star in court. She didn’t hold the jury spellbound in her fist, didn’t shoot off pyrotechnics in the middle of the trial, didn’t croon out like a crooner her sad, sweet ballad of blood and murder. More stonemason than Rolling Stone, she left the fireworks to the defense attorneys trying to bring down the house as she slowly and carefully laid her bricks of evidence. And that is precisely what made her such a devastating prosecutor. In the confines of the courtroom, never underestimate the riveting brilliance of sheer competence.
“She was a lovely girl, bright and lively, full of love, she was,” said Mrs. Cullen.
“And do you remember when she met the defendant?” asked Dalton.
“Oh, yes, I do, of course I do. She was head over heels. So happy she was, my little girl. So full of life and love.”
I could have stood and objected at that point. I could have yelled out “Hearsay” and the judge would have sustained my objection, and the love that Leesa Dubé told her mother she felt for my client could have been erased from the record, but what kind of idiot would do something like that? So I sat on my hands, and I let Mrs. Cullen have her say. Yes, Leesa was in love with François, yes, their wedding was storybook, yes, they were both excited about the baby, yes, everything was going so well. But of course François worked late hours at the restaurant, and of course there were the inevitable problems with money, and yes, of course, Leesa did feel abandoned and depressed after the baby came and François was less and less in evidence at their apartment.
“And then,” said Mrs. Cullen, “she found out about the affairs.”
“What was her reaction when she found out?”
“What do you think? She was devastated.”
Of course she was.
“And what did she do when she found out?”
“What do you think? She kicked the slime right out of the house and filed for divorce.”
Of course she did.
“Objection to the epithet,” I chirped.
“Sustained,” said the judge.
“Please try not to label the defendant a slime, Mrs. Cullen,” said Mia Dalton.
“I’ll try,” she said, “but it will be no easy task, Ms. Dalton, because he’s a slime if ever there was one.”
Of course he is.
Every murder trial has two questions: How and Why. When the answer to How is strong, when five people and a video camera catch the defendant take out a gun and pop the deceased, who the hell cares about the Why? But when the How is based on a mess of circumstantial evidence, as in the François Dubé case, suddenly the Why becomes powerfully important. Which explains why Dalton, ever the artisan, was holding the How for later and leading her case with Why.
After Mrs. Cullen testified about the deteriorating relationship between her daughter and her son-in-law, after she testified about the acrimonious divorce proceedings and the fights over Amber, after Mrs. Cullen was able to vent all the bile from her spleen, Dalton turned to me and said, “Your witness.”
There was so much I was ready to ask Mrs. Cullen, about her strained relations with her daughter, about how her daughter would never have confided in her about a lover, especially a bad boy like Clem, about her utter ignorance of what actually happened on the night of her daughter’s death. There was so much ammunition. I stood up, stared at Mrs. Cullen, and leaned forward as if readying to unleash the furious fusillade of my cross-examination.
“I am so sorry for your loss, Mrs. Cullen,” I said finally. “No questions for this witness.”
I have learned from our first president that sometimes retreat is the most aggressive strategy. She was the grieving mother, she had taken on the burden of the young granddaughter, she could do my client no good up there on the stand. Get her off, as quickly as possible, and move on, that was my plan. And as a side benefit, there was a little message to the twelve and two alternates who mattered.
I am not going to ask her any questions
,I was telling the jury,
because nothing that she said is of any import to the meat of the case. Nothing she can say makes it more likely that my client killed his wife.
As Mrs. Cullen climbed down from the stand and made her way out of the courtroom, Dalton stood and said, “Prosecution calls Darcy DeAngelo.”
Of course it does.
She looked quite tasty as she walked down the aisle, Darcy DeAngelo, one of the women who’d had an affair with François. She was a sturdy woman, with her hands tightly clasped and a thin, pretty face, and she was dressed for court, a modest skirt, low pumps, her hair pinned up. She made quite the tasteful impression, though probably not the one Dalton would have liked. If Mia Dalton had dressed her, she would have worn a black bustier and high-heeled shoes with straps that climbed her thigh, she would have had long, clawlike nails and makeup smeared bright, and she would have looked like she had just come in off a late-night shift on South Street. But no such luck for Dalton, although it might have been a nice sight to see.
As Darcy DeAngelo was sworn in, I took a quick look at the audience in the courtroom. A high-profile murder case always draws a nice crowd, and this was no exception: a few reporters, an artist trying to get my jawline right, the usual gang of time wasters finding their entertainment in the criminal courts. And then a more interested crew: the Cullens and their entourage; Detective Torricelli, sitting alongside Mia Dalton at the prosecution table; and my old friend Whitney Robinson III, keeping tabs on everything.
It wasn’t much of a story, Darcy DeAngelo’s story of the affair. She worked under François in the kitchen, that she would end up under François in the bedroom was only to be expected. Commercial kitchens are like the bathhouses of the culinary set, bubbling pots of stock, prep guys with big knives, Wellfleet oysters, duck confit, earthy black truffles, demiglace,
oui, oui
. Late nights, after the crowd had gone home and the doors had been locked, sitting at the zinc bar François had imported from France, drinking champagne at cost, feeling the exhausted exuberance of two comrades who had just survived another night of the gastronomic wars. And she didn’t say it on the stand, but I could bet it was atop that very same bar that their affair was consummated. I have it on good authority that champagne and zinc are the two primary ingredients of Viagra.
“Mr. Carl,” said the judge after Dalton had led Darcy DeAngelo through the recitation of her affair with my client. “Do you have any questions?”
I did, actually, and I must admit that during most of her direct, I had been playing them out in my mind.
“Do you like Mexican food, Ms. DeAngelo?” “Yes, actually, I do, Mr. Carl.” “I know this place on Thirteenth Street, supposed to be excellent.” “I’ve heard that it is.” “Do you think, Ms. DeAngelo, you can join me for dinner there on Saturday night?” “Oh, I think I can, Mr. Carl.” “Call me Victor.” “Okay, Victor. And please, call me—”
“Mr. Carl,” said the judge impatiently. “Do you have any questions for this witness?”
I stood, buttoned my jacket, looked at the pleasing figure of Darcy DeAngelo on the stand. The affair was a problem, absolutely, but I couldn’t deny its existence, and the witness, in her direct, had made it seem almost banal. Banal adultery was good, banal adultery is not an incentive for murder, simply an incentive for more and better adultery. There was one moment that had caused a tremor, when she testified that François had told her, “I’ll never let Leesa take my daughter from me, never.” Not good, absolutely, but in it came, over my useless objection, and there wasn’t much I could do with it. I could ask her if she ever saw violence in François, I could ask her if he was a tender lover and a tender man, I could try to use François’s adulterous lover as a character witness, but that seemed a little unseemly, didn’t it?
“No questions for this witness, Your Honor.”
“All right, Ms. DeAngelo, you are excused,” said the judge. “And I assume, Mr. Carl, at some point in these proceedings you’re going to ask a question or two.”
“I haven’t needed to yet, Judge, but I’m guessing that eventually Ms. Dalton will come up with something in this trial that’s actually relevant to the murder.”
“I’m sure she will. Next witness, Ms. Dalton.”
“The prosecution calls Arthur Gullicksen to the stand.”
This was trouble, totally expected, but trouble still. Arthur Gullicksen was an out-and-out shark, with three rows of pointy teeth and a shiny gray suit. Normally these are traits I greatly admire and do my best to emulate, but Dalton wasn’t calling Gullicksen to the stand to show off his bite.
Beth stood up as soon as Dalton stated the name. “Can we approach, Judge?” she said.
“Will this take a while, Ms. Derringer?”
“I suspect it will,” she said.
“Let’s have a recess, then. Fifteen minutes. Lawyers in my chambers.”
“Mr. Gullicksen, the prosecution’s next intended witness,” said Beth when all the lawyers, along with the clerk and the court reporter, had been wedged uncomfortably into the judge’s chambers, “was Leesa Dubé’s divorce attorney.”
“And your point is?” said the judge.
“In light of that unique relationship,” said Beth, “we believe it necessary to limit the bounds of his testimony.”
“Yes, yes, of course,” said the judge. “Mr. Gullicksen will not be able to testify about his privileged communications with the deceased. It would all be hearsay anyway. Is that satisfactory, Ms. Derringer?”
“As a start, yes, Judge. But we’d also like to limit any testimony that can be seen as the fruits of those privileged and hearsay communications.”
“Meaning what?”
“Meaning, we would like the prosecution to be barred from asking Mr. Gullicksen about the pleadings in the divorce case, as they would necessarily be based on statements you have already barred.”
“Interesting. Ms. Dalton?”
“The pleadings are public records, Judge,” said Dalton calmly, “and we intend to introduce them not to show the truth of the allegations within but as proof of their very existence and of their effect on the defendant’s state of mind.”
“But, Your Honor,” said Beth, “some of these allegations are so inflammatory as to be unduly prejudicial to our client.”
“What exactly are we talking about here, Counselor?”
“There was an allegation of harassment, of infidelity, of failure to pay child support, all of which had not yet been litigated at the time of the murder, and so no legal determination had yet been made.”
“I see,” said the judge.
“And there was also a rather spurious allegation of physical abuse of both Mrs. Dubé and the couple’s daughter, lodged by Leesa Dubé against her husband, along with a request for a restraining order.”
“Yes, I do see.”
“Your Honor, there was never any evidence presented in the divorce proceedings to support these allegations. They are entirely unsubstantiated, unduly prejudicial, and based solely on the hearsay statements of the deceased. Their introduction would unfairly inflame the jury and irrevocably taint these proceedings against our client.” Beth reached into her briefcase, pulled out numerous copies of a thick memorandum. “There are cases that support our position, and I have briefed the issue.”
“Anything in this jurisdiction on point?”
“Not directly, Judge, but there is a case from Alaska that is startlingly similar.”
“Which would be useful if we were trying this case in Nome. Ms. Dalton?”
“I understand Ms. Derringer’s anger. These are hurtful accusations that would upset anyone, especially if untrue. Which is the whole point here, Judge. Mr. Carl, in his opening, seemed to indicate that the Dubé divorce was amicable, which is absolutely false. This was a brutal, no-holds-barred fight for money and custody, with the direst accusations being thrown about.”
“And you believe the nature of the proceedings is an important part of the defendant’s motive?”
“A crucial part, Judge.”
“What will Mr. Gullicksen be testifying to?”
“The allegations in the divorce case coming from both sides and his observations of Mr. Dubé’s reaction to his wife’s accusations.”
“He wasn’t pleased, I take it.”
“No, sir, he was not. In fact, threats were made.”
“This is why I stay away from family court, criminal trials are so much more civil. And what would you have Mr. Gullicksen limited to testifying about, Ms. Derringer?”
“The weather?” said Beth.
“Okay,” said Judge Armstrong. “I’ve heard enough. I will read your memorandum, Ms. Derringer, because I so enjoy your writing, but I can tell you all now, I am inclined to give Ms. Dalton a free hand here. I, too, took note of Mr. Carl’s characterization of the divorce proceedings in his opening. He said the Dubés were working it out. The jury has the right to see exactly how. I will instruct the jury not to consider the truth of the accusations, only their effect on the defendant, but that’s as far as I will go.”
A few minutes later, as we waited in the courtroom for the judge to finish reading Beth’s memorandum before he could dismiss it outright and rule against us, Beth was still fretting over Gullicksen’s testimony.
“Calm down,” I told her. “It will be all right.”
“He’s going to kill us,” she said. “I don’t care how the judge instructs the jury, once they hear the claim of spousal and child abuse, the jury will never look at François the same again.”
“How about you? Do you see him differently?”
“I know it’s a lie.”
“How do you know?”
“I just know,” she said, steely voiced.
“Then maybe the jury will be able to tell it’s a lie, too.”
“The judge is getting it wrong,” she said, “flat wrong.”
“That’s what judges do, but we’ll be okay. Maybe we can turn this whole thing to our advantage, build some sympathy for François.”
“How?”
“I’ve been doing some research. That year, four of Gullicksen’s other clients made the same claim of physical abuse by their spouses. It was a standard ploy in his practice before he was sanctioned for it by the bar association.”
“You have the proof?”
“The pleadings are in my bag, along with the sanction. The language in each case is startlingly similar.”