“You asked him if he had ever been in trouble with the law. If he doesn't answer the question, the jury will be convinced that he has.”
“All right!”exclaimed Haliburton, throwing up his hand. “I'll rephrase the question. I'll ask if he's been in trouble with the law as an adult. He can answer that.”
Astonished at his temerity, I explained what he knew already. “Everyone will know that means he had trouble before he was an adult.”
Haliburton was not interested in listening to anything more I might have to say. He turned to Thompson.
“Why don't I just withdraw the question?”
“Antonelli is right,”insisted the judge grimly. “Without an answer, that question, whether you formally withdraw it or not, leaves an inference—an impermissible inference—about his prior criminal record.”
Thompson sat back in the cushioned metal chair. With a shrewd glance at the district attorney, he tapped his fingers together.
“You have a choice: We treat the question as limited to whether he's had any convictions as an adult or we walk back into court and I declare a mistrial. And just so you understand,”he added, the sound of his voice the echo of a threat, “I'm going to allow Antonelli to advise the defendant privately that the question does not include his juvenile record. That way he can truthfully answer the question in the negative. It's your choice, counselor.”
Haliburton shrugged his shoulders. “I have no objection. He can take the question that way.”
Haliburton was already on his feet when Thompson said, “There is one other thing, Mr. Haliburton. I'm finding you in contempt for your failure to follow a ruling of the court. We'll put that on the record, along with the sanctions I'm going to impose, after the case goes to the jury.”
As soon as we were back in court, Thompson directed the clerk to take the jury out of the room. The clerk, a portly woman, smiled vacantly at each juror as they filed past her into the jury room. When the last one entered, she leaned in just before she closed the door and, in the same meaningless way she had doubtless said it thousands of times before, promised, “It won't be long.”
Whether or not Thompson had seriously entertained the possibility of a mistrial, he was already beginning to regret the compromise solution he had imposed. Visibly agitated, he flapped his hand in my direction.
“Take a moment to confer with your client, Mr. Antonelli.”
Thompson had told Haliburton he was finding him in contempt and that he would put it on the record after the case went to the jury, but there were too many years of built-up resentment to wait that long for revenge. It was not enough that he knew, or that Haliburton knew, what was going to happen. Driven to distraction by this thing that was always eating him away inside, Thompson suddenly lurched forward.
“Now, as for you,”he said, glowering at Haliburton. “The court ruled on your motion to allow the introduction of the defendant's juvenile record: The court denied that motion. Yet, despite that ruling, you proceeded to ask a question clearly designed to elicit the information you were strictly prohibited from bringing to the attention of the jury. The court has no alternative but to find you in contempt. At the end of this trial, after the verdict, the court will hold a hearing to determine the appropriate sanction for your flagrant misconduct!”
Finally content, Thompson dragged his arms back over the bench until he was sitting comfortably in his chair. He glanced down at the witness stand, where I was exchanging a few final words with Jamaal, and asked me if I was ready to begin. Then he ordered the clerk to bring in the jury. While we waited, Thompson looked around the courtroom, a blank, vitiated expression on his face. He began to scratch, over and over again, the back of his wrist.
The district attorney began where he had left off.
“Let me ask you again, Mr. Washington: Have you ever been in trouble with the law?”
Jamaal understood the limitation that had been placed on the question. “No, I haven't.”
Haliburton lifted his chin slightly and opened his eyes wide. A smug, knowing smile drifted across his mouth. He did not say a word until, drawn by the silence, the eyes of the jury had turned from Jamaal to him. When they were all watching, he raised his head a little higher still and opened his mouth as if he were about to bury the witness in a lie so blatant that no one would ever forget it. Then, as if he had to force himself not to do it, he clenched his teeth and, with a taunting smirk, muttered aloud, “Really?”
I was halfway out of my chair when I heard him ask, “Then is there any reason you can think of that the police would want to blame you for a crime you didn't commit?”
As Jamaal began to shake his head, Haliburton wheeled away from him and faced the jury. A glimmer of triumph flashed in his eyes.
“I'm sorry. You'll have to answer out loud.”
“No,”admitted Jamaal. “I can't think of any reason why they would do that to me.”
A corrosive smile spread across Haliburton's broad face as he turned again to confront the witness. “Neither can anyone else.”
Haliburton looked one last time at the jury. Then he stared down at the floor, a kind of grim finality on his face. It had the effect, which I have no doubt he intended, of reminding everyone who was watching—and no one was watching more intently than the members of that jury—of the somber reality of the reason we were there. A man had been murdered, and even the defendant could not explain why he had been caught with the murder weapon right next to his hand as he lay unconscious, shot in the back as he fled from the scene of the crime. Three times Haliburton stroked his chin. Then, without raising his eyes, he waved his hand in the air.
“No more questions,”he said as he walked slowly toward the empty chair at the table.
I could not let it end there. On redirect, I asked the same question Haliburton had asked and one more besides.
“You can't think of any reason why the police would want to blame you for a crime you did not commit?”
“No,”replied Jamaal with a helpless look.
“Do you believe it's possible that the police, certain you must be the killer because they saw you run from the car, wanted to make certain there wasn't any question about your guilt—and about their innocence—and so they put the gun next to your hand after they shot you?”
For the first time, he remembered. He turned and faced the jury directly.
“It must have happened like that. I never touched the gun.”
T
he next morning, a few minutes before ten o'clock, in a courtroom packed with reporters, I rose from my chair, ready to call the last witness for the defense. The district attorney, his black dress shoes polished to a hard shine, rose at the same time. I glanced across at him, wondering what he was up to, but though the only reason to stand was to address the court, he made no attempt to speak.
“Your honor,”I said, watching Haliburton out of the corner of my eye, “the defense calls Augustus Marshall.”
The moment the name of the governor was out of my mouth, Haliburton raised his eyes to the bench. “Your honor, I am obligated to inform the court that the witness Mr. Antonelli intends to call is not available at this time.”
“And just how is it you happen to know so much more about my witness than I do?”I asked.
Refusing to look at me, Haliburton continued to address himself to the judge. “I was advised by the governor's office earlier this morning that because of a legislative emergency, it will be impossible for the governor to leave Sacramento.”
“He's my witness and he's under subpoena!”I shouted at Haliburton.
It did no good. He treated me as if I were some heckler in the crowd, a minor annoyance best to ignore.
“It appears,”he went on, “that the governor won't be able to be here until next Monday at the earliest. He's asked me to extend his apologies to the court for any inconvenience this may cause.”
There was only one thing Thompson wanted to know, and it had nothing to do with the effect the governor's absence might have on the conduct of the trial.
“Perhaps you could explain, Mr. Haliburton, why you, and not the court, were advised of this?”
“ To say nothing of the defense attorney,”I grumbled under my breath, loud enough for Haliburton to hear.
As often happens with those who find themselves entrusted with the confidence of someone powerful and well known, the demeanor, and even to a certain extent the physical appearance, of the district attorney had undergone a significant change. He was relaxed, confident, his movements more fluid, his voice deeper and far less hurried. He was entirely self-possessed. He was important.
“It was the opinion of the governor's general counsel that it would be inappropriate for a witness—no matter who that witness was—to attempt direct contact with the court, your honor. That was the reason they communicated with my office instead. I can assure the court that was the only reason,”he said with the generosity the recipient of a gift can afford to lavish on someone from whom that gift has been withheld.
Haliburton condescended to turn his head for a quick glimpse at me before he looked back at Thompson.
“The governor's office has tried in the past to work out a mutually acceptable way for the governor to testify in this matter, but the defense has refused to do anything except insist on a personal appearance.”
I was beside myself and did nothing to conceal it. I threw up my hands in protest.
“Governor—president—the janitor down the hallway: a witness is a witness, and a subpoena is a subpoena. This is a murder trial, your honor. My client is on trial for his life, and the district attorney, who has taken an oath to do justice, wants to talk about convenience, and whether a witness I subpoenaed likes the fact that I want him here in court where the jury can see him in flesh and blood instead of on a piece of videotape taken in his office a hundred miles away!”
I turned on Haliburton with a vengeance. “And if you want to play to the jury and the press—if you want to come in here, in open public court, and not in chambers where this matter should have been discussed …”
I thought of something that made me madder still.
“You knew this before court convened this morning. Why don't you explain to the jury and to the media why you didn't tell me—more important, why you didn't tell the court?”
Haliburton was staring at me with a cynical dismissive grin.
“You want the jury to think I've been unreasonable? Why don't you tell them the truth: that I had no choice but to subpoena the governor because he would never so much as agree to have a conversation with me? Why don't you tell them that, Haliburton?”
For a moment I thought he was going to come after me. He wanted to—I could see it in his eyes—but he stopped himself before it was too late. I felt a pressure on my wrist. Jamaal was looking up at me, and I realized that without knowing it I had formed my right hand into a fist.
“Your honor,”said Haliburton, his voice the voice of reason, “perhaps we should discuss this in chambers after all.”
Thompson turned up his palms and glanced around the courtroom, a wry sparkle in his vindictive eyes. “And miss all this? Besides,”he added, lowering his gaze until his eyes met Haliburton's, “what else is there to talk about?”
His head snapped to the side. He looked directly at me.
“How do you want to proceed, Mr. Antonelli? My own view,”he went on without a pause, “is that unless you have other witnesses you wish to call, we simply reconvene Monday morning. At which point, relying on the representations of the district attorney—and I can assure you, Mr. Haliburton,”he said with a glance full of menace, “the court is relying on your representations—the witness will appear as scheduled. I don't see that there is anything else we can do, do you?”
Hidden between the lines, where it would not be noticed except by someone who understood all the intricacies of legal procedure, was both a question and, if I had the wit to grasp it, an answer. The question was whether I wanted him to order sanctions, which could include even the arrest of the governor, for the failure to obey a lawful subpoena; the answer, implicit both in what he said and the way he said it, was not to ask because he would not do it if I did.
“I agree, your honor,”I replied, trying to hide the bitterness I felt at what had happened.
Jamaal had made an impression. I was sure of it. The jury liked him and wanted to believe him. The strategy, if it is permissible to call something so obvious and straightforward by that name, was simple. The defendant denies he did it. The next witness, following immediately, helps to show that there were other people—a lot of other people—who had more to gain from Jeremy Fullerton's death than the theft of his wallet. But now, with the trial suspended for the rest of the week, the momentum built up by Jamaal's testimony would begin to dissipate. It was Wednesday, and by next Monday, when the governor finally testified, he would do so free of the shadow of Jamaal's insistent denials.
The governor might not have thought of this, but the district attorney would have. I had by now become so suspicious of everything connected with the case, I was not prepared to accept anything at face value. It would not have surprised me at all if the governor's decision to thumb his nose at the court had been made for him, if not by the district attorney, then by someone else, someone with an even more direct stake in the outcome.
There was also, I have to admit, a certain sense of relief that I did not have to be back in court until the beginning of the following week. It was like an unexpected holiday. The moment I was out of the courtroom I could feel the tension begin to ease away. For the first time since the trial began I started to feel free.
I left the city that afternoon and did not come back until Monday morning when the trial resumed. I did not go far, just across the bridge to Sausalito, where I stayed at Marissa's brown shingle house on the hill, coaxing her into long conversations in which she talked about things in ways I had not heard before. It did not matter what she talked about: She could have talked about nothing at all and I would have been quite content to listen. Just the sound of it—that rich exotic humid hothouse voice of hers—had an effect. Sometimes, in the quiet of the early evening, when we sat alone on the back deck overlooking the bay, her voice seemed like a wind whispering somewhere just around the corner, something you feel and may not even hear.