The Wrong Man (29 page)

The judge began to bark out rulings. Without oral argument, only the papers we submitted, he was rattling off rulings on evidentiary objections and testimony limitations. The prosecution couldn’t use their fancy computers during jury selection to look up the criminal histories of potential jurors unless they provided those same resources to the defense. (Score one for me.) The defense couldn’t raise Kathy Rubinkowski’s criminal record—which I had no intention of doing, given that her crime was criminal trespass, a PETA protest of an animal testing lab when she was a
freshman in college. The prosecution tried to limit what I could say to the potential jurors during voir dire, because Wendy Kotowski knew me well, but the judge shot her down and said he could decide objections as they came.

It went like that in bullet fashion. Twenty-five of our thirty-one motions were decided in the space of five minutes, as the judge read through his rulings.

I scribbled down his rulings as best I could. My head was foggy. The hotel bed I was sleeping on these days wasn’t to my liking, and I woke up this morning with a stiff neck and a headache, which was nice because it gave my bum left knee some company.

The judge allowed oral argument on some of the big issues. He gave me a full hearing on our motion to exclude Tom Stoller’s so-called confession. My principal argument was that Tom didn’t knowingly waive his right to counsel. In the videotape, the coppers asked him whether he understood his rights, and he nodded vaguely. He never spoke aloud. I argued that the consent should have been verbal or at least unequivocal. Tom Stoller had nervous twitches, as one could clearly see from the videotape and as my expert would testify, and a nod of the head was about as rare for Tom as taking a breath.

The judge glanced over at Tom, sitting in the detainee holding area to his left, during this argument. Tom incessantly licked his lips and wiggled his fingers to no end. His head would move a decent amount, but as he sat here today, more or less unconcerned with what was taking place, his head was relatively still. It was when he was nervous that he bobbed his head more.

We went back and forth for a long time on that. I knew my opponent well, and I could see that Wendy Kotowski was nervous. She thought she was vulnerable on this one. I hadn’t expected to win this argument, but as I listened to the give-and-take between the judge and Wendy, I suddenly gained hope.

But then the judge shattered my illusion in the space of ten seconds. “I will allow the videotape but give the defense full leeway on this one. The defense is free to revisit this issue at a later time.”

“Judge, we had requested an evidentiary hearing,” I reminded him. I wanted the court, before trial, to hear from the police and maybe even
Tom on this topic. I’d spent much of yesterday—Sunday—preparing for a hearing.

“We’ll proceed as I indicated,” said the judge.

I hated it when judges deferred rulings. He was going to let the evidence in and then decide afterward, after hearing all of the evidence, whether Tom had consented to questioning. By then, the jury would have heard Tom’s statements. The judge would then have the choice of granting our motion, which would require him either to instruct the jury to disregard the evidence—yeah, sure—or to erase the trial and start over at square one with a new jury. Or he could deny my motion and move the case to verdict and get this case off his docket. It didn’t take Nostradamus to predict which option he would prefer.

Most judges would have granted me an evidentiary hearing. But the old saying around the courthouse—
Judge Nash ain’t most judges
—rang truer than ever now. If I’d had this case from the start, I would have requested a substitution. Every litigant gets the right to switch judges at least once, as long as it happens before a substantive ruling takes place. But I was long past that by the time I jumped into this case.

My phone buzzed. We were supposed to turn off phones, but I kept mine on vibrate. Wendy was in the middle of something, so I covertly removed the phone from my pocket and read a text message. It was from Tori:

McCabe was dead? I wondered what it meant, other than further confirmation that I was onto something here. But he was going to be one of the surprise witnesses I might call, if the judge would ever allow it, and now he was unavailable to me. Still, this could be an opportunity for me as well. Dead witnesses can’t contradict you. I could point the finger at him without any denial in reply. A suicide, in fact—if it really was a suicide—could suggest that he was doing a thing or two he shouldn’t be doing and felt remorse. It got my juices flowing, but I had to temper it with a reminder that Judge Nash had not, to date, heard a single thing about Randall
Manning or Global Harvest or Bruce McCabe or any of this other stuff. And he typically welcomed surprise witnesses about as much as he welcomed hemorrhoids.

Wow. Okay. I shook my head. I had to refocus on what was happening in this courtroom.

The judge reserved Wendy’s biggest argument for last. She went into a long recitation of how Tom Stoller’s admittedly distinguished military career had no relevance to this action. It would serve only to pander to the jury’s sympathy.

“The defense asserts that Tom Stoller didn’t confess to this crime,” I said, when given the chance. “He was talking about the incident in Mosul, not the shooting of Kathy Rubinkowski. His statements to the police line up almost verbatim with Sergeant Hilton’s description of what happened in that underground tunnel. If the defense isn’t allowed to present this information, they’ll simply believe that Tom confessed. That’s about as unfair as it gets, Judge.”

The judge invited Wendy to add anything further she’d like. Usually, a judge gives a party that right before he rules against her. He wants the record to reflect that she was given every opportunity to state her case, then he knocks her down. I felt a small measure of relief as the judge prepared to rule, while Wendy was finishing up her argument.

My relief was short-lived.

“Sergeant Hilton didn’t see the shooting in Mosul,” said the judge. “He saw the aftermath, as the state has pointed out. So testimony concerning that shooting, and its similarities to Mr. Stoller’s statements to the police, can only come in through Mr. Stoller himself. Sergeant Hilton’s testimony is excluded, as is any reference to the defendant’s military honors or background, other than what might be required during Mr. Stoller’s testimony, should he choose to testify. And absolutely no mention of post-traumatic stress or insanity. The specific events in Mosul may come in but only through the defendant. So you’ll have a decision to make, Mr. Kolarich.”

It was like a hard slap to the head. The judge had given me a Pyrrhic victory at best. I wanted to put on Sergeant Hilton first, then Dr. Baraniq to say that Tom was reliving a PTSD-induced episode during the interrogation, and then probably rest.

Now, Hilton was out, and Baraniq would be able to testify only if Tom did first, laying the factual foundation. I had to put in this evidence through a witness who could barely articulate his daily life, much less recount to the jury something he’d never recounted to me. And I couldn’t put him on the stand without asking him the most obvious question—did he shoot Kathy Rubinkowski? To which Tom would reply,
I don’t remember.

Tom was mumbling to himself over in the cage. He had no idea what was happening.

What was happening was that we were getting our nuts chopped off.

I had virtually no defense case on the current record. And I had no way, at this moment, to explain how Tom had the murder weapon, and the victim’s purse and other items, in his possession following the murder. I had a videotape which included an apparent confession by my client, but practically speaking no way to explain that, in fact, it wasn’t a confession.

This was all coming down to Randall Manning and Stanley Keane and Bruce McCabe and the Capparelli family. I had a handful of days to figure out what was going on with them, or Tom Stoller would be convicted.

And all of this assumed I could stay alive long enough to solve this puzzle.

Other than that, things were going really well.

Game time. Thirty people in a box. Some of them would be deciding Tom Stoller’s fate. Some of them would be bounced by the judge for cause, and some of them would be excluded by either the prosecution or me for whatever reason.

“Juror number seven,” I said to the woman in the first row. “That civil case on which you served as a juror, I take it the bottom line there was about money?”

“That’s right,” she said. “They wanted money. But it didn’t matter in the end, because we found for the defendant.”

“I like you already,” I said, getting a cheap laugh. “And so I assume the burden of proof in that case was preponderance of the evidence? That it was more likely than not that somebody did something wrong?”

“I think that’s right.”

“And do you understand, ma’am, that because this is a criminal case, the burden is proof beyond a reasonable doubt?”

“I understand.” Everybody knows that.

“So a preponderance standard is ‘more likely than not’—like a fifty-one percent probability.” I set a bar with my hand at my waist. “And a reasonable doubt standard means more than ‘I think he probably did it’—it’s more like, ‘I’m so sure he did it that there is no reasonable basis for thinking otherwise.’” I raised my hand over my head, as far as I could reach. A peak compared to a valley. A skyscraper compared to a doghouse. I figured it would take Wendy Kotowski a nanosecond to object.

It took about one whole second. The judge sustained.

My cell phone buzzed in my pocket. Four short buzzes, meaning a call, not a text message. I touched it just to be sure, but I couldn’t answer it right now.

“I mean, usually in our everyday lives, we don’t judge things by a reasonable doubt standard,” I said. “We see someone handcuffed by the side of the road by a police officer, we think to ourselves, they did something wrong. Right? I know
I
do. I figure, they found drugs in his car, or he was driving drunk or something. But does anyone disagree that your job is different here today, if you’re asked to serve? That you will hold the government to a far higher standard?”

No hands raised. No objection from Wendy, who probably didn’t want to seem too sensitive about this topic. So I kept going down that road. Tom is presumed innocent, just because the government charged him doesn’t make him guilty, et cetera—things that everyone knows but are worth reinforcing right now. Wendy couldn’t possibly object. These were some of our nation’s founding principles.

“Anyone disagree that one of the things that makes this the greatest country in the world is that we
don’t
take the government’s word for it—that before they imprison one of our citizens, we make them prove it, and we make the government meet the highest possible standard of proof? Anyone disagree?”

Nobody disagreed. I didn’t expect them to. I was making part of my closing argument, but I was couching it in perfectly permissible voir dire questioning.

My cell phone buzzed four more times—another phone call.

I was almost done. I’d asked a series of personal questions of each juror, based on the questionnaires they’d filled out. I’d spent a good ten minutes on self-incrimination—how wonderful our country was that we didn’t force defendants to testify, and raise your hand if you’d convict because the defendant did not take the stand in his own defense? I actually got a couple of the venire to admit that they would have some doubt about a defendant who didn’t stand up and declare his innocence. The judge would have no choice but to excuse them on his own.

And I’d given them the rah-rah-Constitution pitch. The only thing I
had left was what I called my holdout questions. I only needed one juror, after all.

“Does everyone understand that as a juror in this case, you have the complete freedom to vote the way you think? That you are under no obligation to go along with the others, just because you’ve been outvoted? Raise your hand, please, if you don’t understand that.”

Nobody raised a hand.

“Is there anyone who would feel pressured to vote a certain way—guilty or not guilty—if everyone else is voting that way, even if you personally disagreed with it?”

Nobody, apparently, would feel pressured.

“Does anyone disagree that in a system that requires a unanimous verdict, that it’s your sworn constitutional
duty
to vote your conscience, even if you’re outvoted eleven to one?”

Nobody disagreed. But my cell phone buzzed again.

Somebody wanted my attention. If it was about this case, I assumed the news had to be good, because it couldn’t get any worse.

I huddled with Shauna, and we decided to use six of our ten peremptories, the automatic challenges we are allowed to bounce potential jurors. We didn’t want to use them all, because it was unlikely that we’d draw our jury completely from this pool. There would be another thirty-person pool next, and we wanted to reserve some peremptory challenges for them.

We gave our list to Wendy, who gave us hers, and we submitted them to the judge. We’d go back to his chambers now and see how many of these thirty people made the cut. Then we’d grab another thirty and do the same winnowing process until we had fifteen—twelve plus three alternates.

But I had a moment to check my phone. Bradley John had called me four times.

“Those initials,” he told me when I called him.

“Yeah? You figured out who AN and NM are?”

“No,” he said. “I figured out
what
they are.”

Judge Nash kept us in court until after five o’clock, and with the third thirty-person venire panel, we completed our set of fifteen jurors, three of whom would be alternates. Of the twelve regular jurors, eight were women. Five were African-American. One was Pakistani and another half Chinese. They ranged in age from nineteen to sixty-one. One was a podiatrist, one a caterer. There was a waitress and an industrial painter, two stay-at-home moms, a daycare operator, a human resources manager, an accountant, a pharmaceutical salesman, a product manager for medical supplies, and then my favorite, Jack Strauss. He was retired.