“Where were you at the time?”
“At the club.”
“Which club might that be?”
“Preakness Country Club. We have been members for many years.”
“How did he know you were there?”
“It was a Friday night. I am always at the club on Friday nights.”
“So when Edward called you, what did he say?”
“He told me where he was, and that his girlfriend had been murdered. He asked me to come there immediately.”
“And you did?”
He nods. “I did.”
I take out the picture that I found in my father's house. “Can you please point to yourself in this photograph?”
Bradley has obviously been primed for this. He jumps in instantly and advises Victor not to answer on the grounds that it is not relevant to the Miller case. No amount of badgering on my part, not even the threat of Hatchet, can get him to change his mind.
My last question for Victor concerns the current whereabouts of Edward, since Laurie has been unable to locate him.
Victor smiles. “He's in Africa, on one of those safaris. I'm afraid he's simply not reachable.”
I return the smile. “Then we'll just have to talk to him on the stand.”
TEN DAYSFLY BY AS IF THEY ARE TEN MINUTES, AND THE next thing I know the bailiff is intoning, “In the matter of the people versus William Miller, the Honorable Justice Walter Henderson presiding …”
“William” sits at the defense table in a new suit I had Edna purchase for the occasion, and he looks terrific. He also looks calm and collected; he's been a lot lower, and faced a lot tougher, than this and he thinks the momentum has turned upward. He's not thinking very clearly.
There is a special feeling, an excitement combined with queasiness, that hits me every time a trial is about to begin. The only thing I can liken it to is former Boston Celtics great Bill Russell saying that no matter how long he played, he still threw up in the locker room before every game. I don't think throwing up on the defense table is the right way to get on Hatchet's good side, so I control the impulse.
For me trials are about strategy and confrontations. Strategy is one of my strong suits, but in real life I don't do well with confrontations, so I have to deal with that in another way.
My father used to lecture me that a trial is serious business, not a game, but I have come to disagree. For me a trial and the investigation surrounding it is in fact a game. I turn it into one, so that I can handle and thrive in the midst of all these confrontations. In sports, every play between the participants is a confrontation, but I can deal with that because that is the purpose of the game. Once I can put trials into the same category, it becomes depersonalized and I'm home free.
Jury selection is especially difficult and dangerous for the defense in a capital trial. That is because each juror must be death-qualified, which is to say that he or she must be willing to vote for the death penalty if it seems warranted. Such juries are by definition more conservative and more favorable to the prosecution.
The first prospective juror is brought in for Wallace and me to question. Marjorie is at my side as we go through the tedious process, made more so by Hatchet's insistence on throwing questions in of his own.
Number one is a doorman who claims to know nothing about the case. He also claims to have an entirely open mind, to have no predispositions about the police or the justice system, and to be willing to consider capital punishment if called upon to do so. This is clearly a guy who'd rather sit in the jury box for a few weeks than open doors. Marjorie's okay with him, but Wallace challenges, and he's excused.
It takes us two days to empanel a jury of twelve and two alternates. There are seven whites, four blacks, and one Hispanic, five men and seven women. All twelve of them claim to have a completely open mind. I don't think I've met twelve people in my entire life with completely open minds, but I'm reasonably satisfied with this group. Marjorie is positively euphoric, but if she thought we had a bunch of turkeys, it would mean she did a poor job.
The real action in a trial begins with the opening statements. The prosecutor stands up and gives the jury a road map of the trial. He tells them what they are going to hear, what he is going to prove, and what it will all mean. His goal is to sound confident and to convince the jury that he has the goods on this guy, then his task will be to deliver a case that makes good on the promises he's made in the opening statement.
Richard thanks the jury for their willingness to serve, then talks for a while about their obligations under the law. It's all straightforward, boilerplate stuff, until he finally turns to Willie Miller.
“So he got drunk,” Wallace says, pointing to Willie. “Happens to a lot of us, right? But what do you and I do when we have too much to drink?”
He laughs to himself as if remembering past nights at the frat house.
“Well, I have to admit, I fall asleep. Knocks me right out. But I'm a little unusual in that regard. Other people, maybe even some of you, get a little wild, have some fun, maybe even say a few things they shouldn't.”
Most of the jurors are nodding along with him. This is starting to feel like an AA meeting.
Wallace turns serious. “But not Willie Miller. No, Willie handles his liquor a little differently. Willie kills people. And on June 14, 1994, Willie Miller killed Denise McGregor. She was a hardworking, intelligent young woman, a loving daughter, full of life, who is not here today because Willie Miller spent a night drinking and killing.
“Your job is a very serious one, have no doubt about that. But in this case it is not a particularly difficult one. That is because we will prove everything I am telling you about that night. Every single, ugly moment of it. We will show you who Willie Miller is, and what he did. We will present overwhelming physical evidence to you, and you will hear from an eyewitness to the crime. That's right, an eyewitness. Someone saw Willie Miller standing over the body, moments after committing the crime. She will come in here and tell you what she saw. And you will have no doubt that she is telling the truth.
“On behalf of the state, we will prove that Willie Miller is a cold-blooded murderer. We will prove it not just beyond a reasonable doubt; we will prove it beyond any doubt. Thank you.”
Wallace finishes just before lunch, and Laurie, Kevin, and I have two hours to decide whether I should give my opening statement now or wait until after the prosecution's case is finished and it's time to present ours.
I include Willie in our discussions, as I always do with my clients. It makes them feel better, even though I never listen to anything they have to say. Willie thinks I should speak now, since he's just been made to look like a monster by Wallace, and he thinks I'll provide him some vindication. Laurie feels I should hold off, that Wallace didn't go as far as he might have, and that we'll need our best ammunition after his case in chief, which she expects to be devastating. Kevin feels I should go now, since otherwise the jury will think I have nothing to refute what was just said.
My decision is to speak now, since it feels like there could be a steamroller effect if I don't. I want the jury to understand that there is a serious, other side to this argument, and if I don't tell them so right now, I'm afraid they won't get it.
When court reconvenes, I tell Hatchet that I want to make my opening statement now. I stand and face the jury.
“I'm going to start by answering a question that must be on your minds. You must be wondering why, if this murder was committed so long ago, and if Willie Miller was captured so soon after the murder, he is just being brought to trial now. Well, the truth is, he was tried once before, and found guilty. That verdict was overturned, and we're back here.”
I can see Wallace almost getting up, trying to decide if he should object. This is information he should want included, and he doesn't know why I'm bringing it up.
I continue. “Actually, I shouldn't say that we're back here. I didn't represent Mr. Miller last time. In fact, his lawyer was not really a lawyer. He was a fake, brought in to ensure that Mr. Miller would lose. It is convincing evidence of a conspiracy that resulted in-”
“Objection!” Wallace leaps to his feet.
“-my client losing seven years of his life-”
“Objection!” Wallace is going nuts, and Hatchet slams down his gavel.
“Bailiff, remove the jury. I'll see both counsel in chambers.”
I've accomplished my task, the jury has been shaken up and hopefully will now expect to see a fight between two competitive positions. It's put our side on a more equal footing, which is all we can hope for at this point.
Back in chambers, Hatchet doesn't come down on me as hard as I expected. Wallace complains that I cannot go making wild charges about alleged conspiracies, but Hatchet still wants to rule on it step by step as we go along. He knows I'm trying to develop evidence on the fly, and he may well be feeling guilty about rushing me to trial. He says that I can talk about a conspiracy and frame-up in my opening statement, but before I can give further specifics I have to clear it with the court. It's a reasonable decision and elevates my opinion of Hatchet.
Wallace is displeased with the result of this conference, but he and I both know he will be upset often during the trial. My style as a defense attorney is often to ridicule the prosecution's case, to make it look not worthy of serious consideration by the jury.
Lawyers, even those who know it is crazy to personally identify with their respective positions, have a tendency to become their case during the course of a trial. If their side loses, then they lose, and the key for the attorney is to allow objectivity and passion to coexist in his or her mind.
As I try to make Wallace's case look bad, he will have a knee-jerk reaction that I am making him look bad. He's a professional, and it won't destroy the level of his work, but it will be tough to deal with, and occasionally he will erupt in anger. It's unfortunate that I have to bring this out in him, but for me it's just part of the game.