Authors: Gene Grossman
They mob us for statements, but all we do is point to the limo and remind them that copies of our opening statement will be available once it’s being given in court.
There are other questions concerning our trial strategy, and to my surprise, Myra stops them cold with a statement: “We don’t anticipate a trial in this matter. Our opening statement should convince the court and Mister Miller that a tremendous miscarriage of justice has taken place by the bringing of this case to trial. Mister Miller was offered evidence to that effect right on these very steps. Many of you were here that day covering Peter Sharp and saw how he was rejected by Mister Miller’s office. Well, Miller can’t stop the truth from coming out today.”
I’m proud of her. She really nailed it. Along with her opening statement, she must have been secretly been rehearsing that announcement to the press. No matter. She did just fine.
The rest of the cast of characters is complete when Miller strides into the courtroom with his entourage. The light isn’t that great in here because Court TV hasn’t yet turned on those thousands of watts, but from where I sit, it looks like Miller is wearing makeup. Vanity roars its ugly head.
Miller’s suit looked like they sewed it on him while he stood there. I haven’t seen clothing fit like that since watching a concert at the Greek Theater in Los Angeles. It was Nat King Cole’s final performance there and I was invited to watch the show from the band pit, courtesy of a good friend of mine who was playing in the orchestra. Being all the way on the right side of the pit next to the tympani, I had a good view of the left wings. Just before it came time for him to appear on stage, I saw Mister Cole coming from the direction of the dressing rooms. He looked great, but he wasn’t wearing any pants! My mouth dropped open, but my friend told me to relax, because it was all under control. As Cole approached the stage, two assistants were waiting there with his freshly pressed pants. They helped him on with them while the announcer was going through his intro; he stepped into the pants, closed the fly and belt, and the assistants used a portable steamer on his outfit, to remove any wrinkle that would have the audacity to exist there! He was the neatest, greatest looking performer I’ve ever seen, and Miller almost comes close. I don’t know how much that tailor-made suit he’s wearing costs, but I’m sure it’s not much less than Nat King Cole paid for that he wore that night.
Big courtrooms are saved for the big cases. Nobody likes to antagonize members of the press, so the reporters and sketch artists fill up most of the front row seats not being used by relatives of the victims or defendants. On the really big cases, remaining seats are usually given out on a lottery basis. This case isn’t in the lottery category, but the tricks played by both sides in manipulating the media make it a big draw anyway.
Miller knows that his re-election may depend on the successful prosecution of this case, so he’s decided to try it himself, instead of giving it to someone actually competent. We’ve both already stipulated to having the case heard without a jury. Judge Ronald Axelrod has a good reputation for fairness, so both sides feel good about having the case heard without a jury and we’re all happy to save the time. Miller doesn’t care that there’s no jury present, because now he can prance and perform only for the television cameras, which will carry his image to a bigger crowd of potential voters than just twelve in a jury box and some alternates. He works the room like a celebrity in a nightclub, table-hopping from one reporter to the other.
Just like a Broadway show, a hush falls over the crowd when everyone hears the low double-buzz on the clerk’s desk, signaling that the judge is going to take the bench. Court TV switches on the bright lights, little red lights start to blink on the front of each camera, and the uniformed bailiff addresses everyone in the courtroom.
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Remain seated and come to order. This Department of the Los Angeles Superior Court is now in session, the Honorable Ronald B. Axelrod presiding.” Like a choreographed performance, the judge enters the courtroom through his private back door, just as the bailiff is saying his name. I always pictured judges and bailiffs rehearsing this dance routine in an empty courtroom when no one else is around. All that seems to be missing is an off-stage Las Vegas-style announcer shouting into a microphone with a drum roll in the background “Ladies and Gentlemen, the Superior Court of California proudly presents…”
No matter how many trials you take part in, those first few minutes when the case is called and each lawyer has to stand up, state his or her name and representation for the record and announce “Ready for the Defendant, your honor,” it’s always a rush. Fifteen minutes later when you’re in the midst of arguing with opposing counsel or trying to get your objection sustained, you wouldn’t notice it if the building was on fire, but those first few minutes are still always exciting.
Miller’s opening statement is good. Most of what he wanted to say was blocked by our pre-trial motions that prevent him from using any facts about the doc’s past trial for murder or previous indictment and arrest for insurance fraud. Nevertheless, he does it by the numbers, mentioning each piece of evidence he intends to introduce, to prove up each element of the crime charged in the current indictments.
This is the first time I’ve ever seen him perform where Court TV was broadcasting live, and he looks maahvalous. And, like a generous pro, he even gives the judge a chance to react for the camera, hopefully forming a bond between them as acting partners. His finale includes a promise to prove that not only is the defendant’s wife not dead, but she is sitting in the courtroom, and he will call her to the stand, to prove beyond any reasonable doubt that the defendant is guilty of conspiracy to defraud the insurance company. I estimate no less than six cases of severe whiplash in the courtroom after that announcement as heads of the press spin around, trying to figure out where the reincarnated doctor’s is seated.
By the time Miller finishes, he almost has me sold. If not for the fact that I know for sure that his case is going directly into the toilet in the next fifteen minutes, he would be assured of my vote next time he runs. Miller sits down and there is complete silence in the courtroom. You can hear the feverish note writing and sketch drawing being done by the press. Miller sits at the counsel table looking smug, no doubt feeling he has intimidated Myra into a state of fear. He glances over towards her with one of those ‘you’re in the big leagues now, kiddo’ looks. Myra just sits there, ignoring his glance. She decides to let everyone wait while her silence builds up the tension. Finally, the judge becomes anxious. “Miss Scot, would you like to make an opening statement?” Myra slowly stands. She carries no note pad or notes. She’s going to do this like we rehearsed it, from memory. I can hear the shuffle as everyone in the room starts to move to the edge of their seats.
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Yes, Your Honor, we would like to make an opening statement, and hopefully it will also be a closing statement, because when we have finished, we believe that you will have no other choice but to dismiss this case.” This drives the press into a frenzy. I think I hear some pencils break. The judge bangs his gavel down with the usual warning that if the court doesn’t come to order, he’ll have the bailiffs clear it of all persons other than the litigants. I know in my heart he’ll never do that, because no performer likes to clear a room before their act starts.
During our strategy conferences we discussed timing, because like any trapeze act, it is crucial. In a case that goes to trial with a jury, jeopardy attaches when the jury is sworn in. This case doesn’t have a jury, so jeopardy won’t attach until Miller’s first witness is called to the stand and gets sworn in. If we give our entire presentation before that first witness was called, then the clients will be in a possible position of being re-tried, without the protection of the double-jeopardy rule. After a long and serious deliberation, it was unanimous between us all. Myra would do her opening statement immediately after Miller’s. Not all attorneys make that choice, often reserving the right to make it at the beginning of their defense presentation, after the prosecution has rested its case.
Myra walks over to the lectern between the counsel tables. Forget what you’ve seen on television. There’s no prancing around in front of those tables. The area between the counsel tables and the judge’s bench is called the ‘well,’ and it’s sacred territory in a courtroom. The only time you’re allowed to go in front of those benches and set foot in the well is with the court’s permission. That’s why in a real case you’ll hear lawyers ask the judge “sidebar, your honor?” or “may we approach, your honor?” or “permission to approach the witness?” Maybe Perry Mason or Matlock can get away with performing in the well or leaning his arm on the rail directly in front of the witness box, but try it in real life and you may be sharing a cell with your client later that afternoon.
As soon as Myra puts her hands on the lectern and clears her throat, I reach under some files that are piled up on the counsel table and press the speed-dial number on my cell phone that’s programmed to call Jack in the limo parked outside. The caller ID on his phone displays my number. I can’t talk on the phone now, but Jack knows that this is his signal to pass out copies of Myra’s opening statement to the press. I wish I could be near a window to see what that scene looks like. Myra starts.
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Your Honor, if it please the court, we have laid out here on this display table several exhibits we intend to introduce into evidence. The prosecution has received copies of every item. It is their failure to analyze them properly that we will be concentrating on.” Miller glances at his assistant with one of those smug ‘yeah, fat chance’ looks. Myra continues “Defense Exhibit A is an affidavit executed by a person on our witness list, a lab technician employed as a DNA sample specialist with the D. Riddle Technical Company in Van Nuys, California. We would ask the court to take Judicial Notice of the fact that on at least four separate occasions during the past twelve months, Mister Miller’s office has presented this person as an expert witness on the matter of DNA sample-taking and analysis. In each case, the court has accepted her credentials and she has been qualified as an expert witness. Each of those case names and numbers are included in the affidavit. When called to the stand, this witness will testify to the fact that she personally took DNA samples from the defendant’s deceased wife, her attending nurse, the defendant, and the defendant’s daughter. Furthermore, the witness will establish that the chain of custody of the samples was not broken. She personally delivered all samples to the laboratory, where she conducted the tests. Her initials appear on all test sample packaging.
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Next is Defense Exhibit B, a videotape of the exhumation of the defendant’s wife. The videographer of said event is present in court, and on our witness list, and is prepared to testify as to the authenticity of the videotape, which when played on the set we have had brought into the courtroom will document the complete exhumation of the defendant’s wife, and also the taking of a DNA sample from the remains by our expert witness, who as previously mentioned is also present in court.” Just as rehearsed, she gracefully moves down the table pointing at each exhibit as it is being described to the judge.
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Defense Exhibit C is an affidavit of our expert DNA witness explaining the results of lab tests run on the aforementioned DNA samples, and Defense Exhibit D is a set of photographs showing comparisons of the samples that conclusively support every statement made in the witness’ Affidavit.”
Although it’s not usually done during your opponent’s opening statement, Miller stands up and objects. “Your honor, the mere fact that the defense has pieces of paper marked as exhibits doesn’t really prove anything. Everyone’s got exhibits. Having Affidavits does not an opening statement make.” It looks like the judge wants to give Myra the benefit of the doubt, but he’s getting a little impatient.
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Counsel, I’m inclined to agree with the prosecution. You’ve obviously got a nice display laid out there on the table, but sooner or later in your opening statement you’ve got to tell us what they will be showing. That’s what an opening statement is you know, an opportunity to lay out your entire case by showing what you intend to prove, not just the fact that you’ve got exhibits.”
This is what we wanted. Not only will she now stick her sword in with a ‘thrust ho,’ it will be done at the specific request of the stickee.
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Very well, your honor, we were just about to do exactly that, before being so rudely interrupted by Mister Miller. By using the previously mentioned Defense Exhibits A, B, C and D, we will finish our documentary evidence with Defense Exhibit E, and these exhibits, and the testimony of our witnesses, will prove the following three irrefutable facts: One, that the person buried in what we contend is the Defendant’s wife’s grave on Catalina Island is in fact the defendant’s wife. Two, that the person who the district attorney mistakenly believes to be the defendant’s wife and in this courtroom today is in fact his sister-in-law, the fraternal sister of the defendant’s deceased wife, as shown by Defense Exhibit F, which is a copy of their birth certificates. And Thirdly, that the prosecution has absolutely no case at all against the defendant, all due to its failure to properly analyze the results which were provided in advance of trial. They were so intent on convicting this innocent doctor because their ineptitude prevented them from wrongly convicting him twice before, and we hope that by the court’s dismissal of this case, the district attorney’s personal vendetta against this doctor, the victim of Mister Miller’s misdirected vengeance, will forever be brought to an end. Thank you, your honor.”