She holds up her hand and asks impatiently, “How many trial days, Mr.Gates?”
“No more than ten, Your Honor,” he says.
“And perhaps substantially fewer,” he adds quickly.
“We think jury selection may take longer than our case.”
“You may be right about that, Mr. Gates.” She turns to me.
“What do you estimate for the defense, Mr. Daley?”
This is tricky. With a little luck, we won’t have to present a lengthydefense.
On the other hand, we may be here for weeks if they trot out a slew ofexperts.
“No more than a week, Your Honor,” I say. Then I add, gratuitously,“Maybe less.”
She seems pleased.
“Very well, then. We’ll begin jury selection one week from today.”
“Your Honor,” I say, “we did present several motions on evidentiaryissues.”
“I was just getting to that, Mr. Daley.” She glances at Mort’spapers. She says she’ll give us some leeway in the jury-selectionprocess, called voir dire. She asks us for draft questionnaires to begiven to the potential jurors. McNulty and Rosie have agreed on mostof the major points. She reiterates Judge Brown’s gag order withrespect to the media.
“Your Honor,” I say, “there are some matters regarding theprosecution’s witness list.”
She cuts me off and wags her right index finger at me.
“Let’s keep this very simple,” she says slowly.
“Nobody in this room is going to be a witness at this trial. Period.”
Skipper and I glance at each other. Skipper smiles.
“Your Honor,” I say, “we have a very significant issue here.”
She looks at me skeptically.
“Come on, Mr. Daley. You know I’m not going to let any of you testifyat the trial. Let’s not waste our time.”
Skipper’s grin gets wider.
“Your Honor,” I say, “have you seen the security videos?”
“Your Honor,” Skipper interjects.
She stops him.
“I’ll tell you when it’s your turn to talk, Mr. Gates.”
“But, Your Honor…”
She cuts him off again.
“Mr. Gates, the rules here are simple. I get to tell you when it’syour turn to talk. I get to interrupt you. You don’t get to interruptme. Are we clear on that?”
I like it. An early show of control.
Skipper nods submissively.
“Yes, Your Honor.”
“Good.” She turns back to me.
“I haven’t seen the security videos, Mr. Daley.”
“Your Honor,” I implore, “Mr. Gates was there that night. He was inthe building. We can put the tapes on right now, if you’d like.”
She shakes her head.
“I know he was there. The police reports said there was a receptionfor him at the office.”
“No,” I say.
“He came back later that night. Much later. He was in the building atone o’clock when Diana came back. He was there when Bob and Dianadied.”
Skipper shakes his head contemptuously.
“Mr. Daley was there too, Your Honor. I’ll withdraw his name fromour list in the interests of justice.”
“For God’s sake, Skipper,” I say, “I left at eight-thirty that night.You know it. I didn’t come back at one in the morning at exactly thetime you claim Bob and Diana died.”
He turns to Judge Chen.
“Your Honor,” he says, “I resent Mr. Daley’s implication.”
“Your Honor,” I reply, “he’s brought charges against my client for themurder of two people. I can prove he entered the building around thesame time Diana Kennedy did. He has to be a witness, Your Honor. Ineed him. Frankly, I don’t understand why he wasn’t considered asuspect at the time.”
A little over the top, but so be it. At least she’s interested now.
“Mr. Daley,” she begins.
I decide to break the cardinal rule and interrupt her.
“Judge Chen,” I implore, “he came back at twelve-thirty in the morning.He was there at the time he claims Bob and Diana were killed. It’sright there in the security tapes.” I’m pushing myself up on the armsof my chair.
She looks troubled. She turns to Skipper.
“Is this true, Mr. Gates?”
“Yes, Your Honor,” he replies.
“I was in the office for a few minutes around one o’clock to pick up mybriefcase. I didn’t see or hear anything. My office wasn’t even onthe same floor as Bob’s.”
“He was there for almost an hour,” I say.
“It was a lot longer than just a few minutes.”
She stares silently at her diploma.
“This isn’t good,” she says slowly, her jaws clenched.
“This is a mess. The district attorney could be a witness.” She looksat Skipper.
“And you actually plan to try this case yourself, right?”
“Absolutely, Your Honor.”
“If this doesn’t beat everything,” she mutters. She looks at me.
“Do you really think you’re going to need his testimony?”
I don’t hesitate.
“Absolutely, Your Honor.”
She turns back to Skipper.
“And I don’t suppose you’d agree to let Mr. McNulty handle thiscase?”
“No, Your Honor,” he says quietly.
“It’s too close to the trial.”
“And I don’t suppose you’d be willing to testify about what you sawthat night?”
“For obvious reasons, Your Honor, you know I would prefer not to.
You know it confuses the jury if a lawyer is both an advocate and awitness.”
“And what, if anything, did you see that night, Mr. Gates?”
He looks right at her.
“Your Honor, I went to my office on the forty-sixth floor, picked upmy briefcase and left. That’s it.” He pauses.
“And if you want me to testify to that effect, I guess I’m prepared todo so. Everybody is going to look very silly if we proceed in thatmanner, however.”
He’s right about that.
She gets a faraway look.
“I’m going to take this under advisement,” she says.
“I’ll give you my decision by the end of the week.” She looks atSkipper.
“Mr.
Gates,” she says, “I’d suggest that you think very carefully about yourtestimony, in case I rule in favor of Mr. Daley.” Then she turns tome.
“Mr.
Daley, I’d suggest you think long and hard about whether you want tocall the district attorney of the city and county of San Francisco as awitness.”
We nod in unison.
“Finally,” she says, “we need to address the motion to quash thepresentation of two videotape recordings of certain activities at theSimpson and Gates firm retreat in October of last year.”
“Yes, Your Honor,” I say.
“We believe those videotapes are highly inflammatory and should not beshown to the jury.”
Skipper begins to interrupt me and she holds up her hand.
“Not yet, Mr. Gates,” she says.
“It’ll be your turn in a minute.” She turns back to me.
“Actually, Your Honor,” I say, “I’d like to let my colleague, ProfessorGoldberg, make our presentation on this matter.” We’ve rehearsed this.I want Mort to play the part of the gray-haired sage on legal andevidentiary issues.
Although I’d never say it out loud, the truth is that I trust him tospeak for only a few minutes a day. I pause for effect, and add, “Youknow Mr. Goldberg was an adjunct professor of criminal procedure andevidence at Hastings.”
She gives me a knowing look.
“I’m familiar with his credentials. I was a student of his. It’s myturn to see if he’s prepared for class.” She turns to Mort.
“What do you have to say, Professor?”
He smiles at her.
“Your Honor,” he says, “may it please the court.” His diction is alittle slurred. The words “Your Honor” come out as a single word,which sounds like “yawner.”
“We have a potentially serious evidentiary matter concerning twovideotapes from the Simpson and Gates firm retreat last fall.”
She stops him.
“Mr. Goldberg,” she says, “I’ve read your motion and looked at thetapes. You don’t need to describe the tapes to me and you don’t needto summarize your motion. Let’s cut straight to the chase. If youdon’t have anything new to tell me, I’ll rule based on your papers.”
“Very well. Your Honor.” He acts as if he was expecting this. Givehim credit.
He doesn’t fluster.
“The prosecution would like to introduce into evidence a highly editedvideotape of activities at the Simpson and Gates retreat last fall. Inaddition, all of the original sound in the tapes was edited out andreplaced by the theme music from a popular television show. In alllikelihood, the events in the tapes will be taken out of context. Andit’s all but certain that the events in the tapes will have aninflammatory and highly prejudicial effect on the jury.”
Nice work, Mort. Concise. Direct. And you didn’t use the words“kissing,”
“hot tub,”
“sex” or “affair.”
She gives him a skeptical look.
“Mr. Goldberg,” she says, “isn’t it true that the tapes really do, infact, speak for themselves?”
Like all good lawyers, Mort pretends he’s agreeing with her, while he’sactually disagreeing. It’s patronizing, but it works.
“In general, Your Honor,” he says, “that’s true. What better evidencecould there be than a videotape? On the other hand, when the videotapehas been tampered with, as this one has, or there is a substantiallikelihood that it could be taken out of context, it could be unfairlydamaging evidence.”
She isn’t convinced.
“Mr. Coldberg, these videotapes show a man and a woman kissing.Coincidentally, the man is the defendant and the woman is the victim.
Doesn’t that speak for itself? They were kissing. Nothing more.Nothing less. A jury can figure out what was happening.”
Mort takes off his glasses to gesture.
“Let’s face it. The people who serve on juries are only human. Theysee news stories about politicians having affairs and doing indiscreetthings. They think it’s the truth if they see it on TV. If they’relike most of us, they’ll jump to the conclusion that something wasgoing on. It isn’t a great news flash that Mr. Gates is going toclaim our client was having an affair with Ms. Kennedy. He has noevidence except for these tapes. And if he shows these heavily editedtapes out of context, it will have an enormously prejudicial effect onthe jury.”
She looks at Skipper.
“What do you have to say about this, Mr. Gates?”
“Your Honor,” he says, “Mr. Goldberg is blowing this issue entirelyout of proportion. We believe the videotapes do, in fact, speak forthemselves.
The jury will be free to draw whatever inferences it chooses. That’swhat juries are supposed to do—figure out what happened. The tapesare the best evidence of what happened. It isn’t our fault thedefendant and Ms. Kennedy were caught on tape kissing. It would beirresponsible to ignore it. We acknowledge that a part of our casewill be to demonstrate that Mr. Friedman and Ms. Kennedy were havingan affair. We believe the breakup of the affair led Mr. Friedman tomurder two people. The tape speaks for itself. It is what it is.”
It is what it is. It’s actually a very effective legal argument.
She turns back to Mort.
“Your Honor,” he argues, “the problem, quite simply, is that you can’tcrossexamine a videotape. If Mr. Gates thinks he can demonstratethat Mr. Friedman and Ms. Kennedy were having an affair, let himbring forth witnesses at trial. Let us have an opportunity tocrossexamine them.”
She seems to be absorbing this thoughtfully. I watch Mort carefully.He’s staying true to his word and keeping the discourse on aprofessional, if not scholarly, level. He can still play law professorwhen he wants to.
Skipper and Mort volley back and forth for another ten minutes.Finally, Judge Chen says she’s heard enough.
“Gentlemen,” she says, “I’ve come to my decision.
I find Mr. Goldberg’s argument slightly more persuasive.” She turnsto Skipper.
“Mr. Gates,” she says, “if you want to introduce evidence of thesetawdry events at the trial, you’ll have to do so through witnesses whocan be crossexamined by the defense.” She’s ruling in our favor, butsending a message. He can’t use the tapes, but he can call witnesseswho will testify about their contents.
“For example,” she continues, “I see no reason why Mr.
Gates couldn’t call as a witness the individual who was operating thecamera.”
There’s nothing we can do to prevent Skipper from calling BrentHutchinson to testify that he saw Joel and Diana kissing—even if itwas through the lens of his video camera. Of course, there’s nothingto prevent us from going after him on cross.
Skipper attempts to plead his case one more time.
“But, Your Honor,” he begins.
She holds up her hand.
“I’ve ruled, Mr. Gates.” She starts to stand.
“Your Honor,” I say, “there’s one other thing. Mr. Gates hasrequested that this trial be televised. For obvious reasons, we’reagainst it. We saw what happened at the Simpson trial.”
Skipper is mortified. He’s expecting free TV time.
“Your Honor,” he says, “I realize there was some fallout from theSimpson trial. However, the public has a right to observe the criminalprocess at work. We should televise this trial to win back the faithof the American people in the justice system.”
And crown thy good with brotherhood, from sea to shining sea. I wantto throw up.
“Your Honor,” I say, “I’m only thinking of the interests of my clientand the interests of justice. I don’t want my client tried in themedia. Mr. Gates’s leaks have already contributed to a potentiallyirreversible tainting of the juror pool.”
If you don’t have a better argument, always try invoking the interestsof justice.
She looks troubled.
“I knew this was going to come up,” she says.
“I have mixed feelings. In my judgment, it is possible to televise atrial without turning it into a circus. Nevertheless, I’m inclined toagree with Mr. Daley.”
“But Your Honor,” Skipper says.
“I’ve ruled, Mr. Gates. I’ll see you next week to begin juryselection. We’re done.”
This round goes to the good guys, but not by much.
Skipper and McNulty stop us outside the courtroom.
“Nice work on your motions, Mort,” Skipper says.
Mort waves him away.
“It’s all part of the process,” he replies. Skipper stares at Mort.
“You know,” he says, “we’ll get all the stuff from the tapes intoevidence at the trial. There’s no doubt. We were planning to callBrent Hutchinson anyway.”
“At least we’ll be able to crossexamine him,” I say.
“Hutch can be a little jumpy. He hasn’t spent a lot of time in courtthe last few years.” He laughs.
“All the more reason for us to spend a little extra time inpreparation.”
Mort turns to McNulty.
“You guys have any more evidence you’d like to share with us? I’m sureyou aren’t planning any surprises at trial.”
“Nothing yet,” McNulty says.
“You’ve seen everything we’ve seen.”
“Did the results of the paternity test come in?” I ask.
“Not yet,” Skipper replies.
“You aren’t nervous, are you, Mike?”
“Nope.”
“Good. I’m sure your guy was telling you the truth when he said hewasn’t the father.”
“Me too.”
“It’s a good result,” Mort says to me as we’re pulling out of theparking lot.
“At least we got the goddamned videotapes out.”
“Nice work,” I say.
“Let’s go back to the office and call Joel with the good news.” Ipause.
“What do you think that was all about in the hallway? You think theyknow something?”