The jury selection process took three days. Attempting to empanel an impartial group of twelve people who had not seen or read any of the news reports proved more difficult than originally thought. Fortunately, however, much of the pretrial publicity centered around Phillip Madison as a suspect-so, if anything, the bias against Madison was the sticky point for Denton, since the doctor was his prime witness.
Denton’s questions during voir dire, the preliminary examination used by the court and attorneys to select a suitable panel of jurors, were therefore directed toward identifying bias against Madison. As Denton saw it, the worst scenario would be ending up with jurors who still harbored ill feelings toward him, because they would then be less inclined to believe him when he was called as a witness.
The jury that both attorneys ultimately agreed on consisted of seven women and five men. Along ethnic lines, there was one Asian, five African-Americans, one Hispanic, and five Caucasians. Denton liked the mix, while Warwick accepted it with trepidation; he was concerned about the prominence of both the female and African-American representation on the jury, being that the victims were both black, with one being a single mother. Trying to avoid an environment of excessive pity for the victims, he also wanted to buffer his client from misdirected disgust leveled by the jury against the suspect who was accused of the crime. The jury should not convict simply because his client was the one chosen and charged by the prosecutor-and because someone had to pay for the heinous crime that was going to be presented to them.
The jury empaneled and pretrial motions disposed of, Judge Calvino gestured toward Denton; Denton stood and buttoned his suit coat. He had delivered hundreds of opening statements over the years, and was adept at driving home his point by commanding the jury’s undivided attention as he told them with undaunted confidence he was going to prove beyond a reasonable doubt the suspect before them was guilty. Although Madison’s removal as the accused dulled the high-profile nature of the case, it was still rife with controversy; as a result, members of the press filled the courtroom. Denton knew this, and if butterflies could truly be present in one’s stomach, he would have a flock inside his own at the moment.
“That woman-Brittany Harding,” Denton shouted, pointing his finger at her, “is accused of murdering two people. Two innocent people who were unfortunate enough to become unwitting pawns in a plan of cold, calculated revenge. A plan of revenge that was carried out by Brittany Harding against a prominent surgeon, a pillar of the community.
“Ladies and gentlemen of the jury, I’m Timothy Denton, the prosecutor, and I represent the People of the State of California.” Denton strode toward the jury box, his hair freshly trimmed and his face glowing from a recent session at the local tanning salon. His neatly primped appearance, which included a new pinstriped navy blue suit, signaled the importance of this trial to both him and the state. He had begun with intensity chiseled into his brow, but now, as he approached the jurors, his features were softer, his demeanor inviting. They seemed to receive him well, watching him closely as he kept his hands clasped in front of him and focused all of their attention on the content of his opening argument.
He threw a glance at the defendant, then looked back at the jurors. “Brittany Harding,” Denton said, again pointing a short and stubby finger at Harding, who looked away, “is accused of murdering two people. But the story does not begin there. Let’s go back to late August of last year. Miss Harding was a recently hired assistant for a nonprofit organization whose president was Dr. Phillip Madison, a prominent surgeon in the community.
“When the organization’s administrative officer became ill, Miss Harding temporarily took over those duties. Witnesses tell us-as they’ll tell you during this trial-that Miss Harding had difficulty handling these activities. She accused one parent of being responsible for her child’s mental retardation, when in fact it was a genetic defect that was the causative agent. Others reported she was ‘condescending,’ and ‘unwilling to help’ them,” Denton said, reading the witness statements from a legal pad. “But there’s no crime in being ignorant or rude, is there?”
He took a few steps toward the prosecution table, then turned and faced them again. “When Dr. Madison suggested to Miss Harding that she submit an employment application for the administrative officer’s position, a job that she’d taken for granted would automatically become hers, she felt threatened. She thought she was going to be fired, so she manufactured a story in which she claimed that Dr. Madison raped her in his home. And she took this story to the police. She told them he’d raped her. But she didn’t go to the police on the same day that ‘the rape’ allegedly occurred. In fact, she didn’t go a week later.
“Not two weeks later. Not three weeks later. So when did she make this accusation? Five weeks later, ladies and gentlemen. I’m going to show you how she manufactured the entire scenario, and attempted to frame the doctor with rape.
“The police did their work diligently. They repeatedly interviewed Dr. Madison, but they couldn’t gather any evidence to support Miss Harding’s claim. Because no proof of rape existed. But Brittany Harding would not be deterred: she leaked her story to the newspaper, and an article was written without specifically naming Phillip Madison as the accused doctor. The tactic worked. It scared him-if his name had been mentioned, it could’ve destroyed his fine and hard-earned reputation as a top surgeon.
“Miss Harding’s attorney immediately contacted Dr. Madison’s attorney and made a proposal: she would drop the rape complaint against him in exchange for a modest sum of fifty thousand dollars.” Denton strode back toward the jury. “This is called extortion, ladies and gentlemen, and it’s against the law. I’m going to show you how she played this same game of extortion with a former employer of hers two years ago. And you’ll see a video of Brittany Harding admitting to this gentleman that she was extorting him. We’ll hear him testify as well.
“But Brittany Harding,” he said, looking over at her again, pausing, allowing the jurors to follow his gaze to the defendant, “did not succeed with her plan of extortion against Dr. Madison. Yes, he paid the money, because in the long run, sadly, it was cheaper to pay her than go to trial to defend himself, and it was safer than risking damage to his reputation that the public exposure of her false accusations would certainly have caused.
“So why did her plan fail? Because Brittany Harding was not content to take the money and run. She decided she wanted more. Money was not enough. She needed revenge. She wanted to destroy Dr. Madison’s marriage. So she mailed a copy of the payoff check along with a copy of the agreement the two lawyers had drafted, as well as a staged picture that I’ll show you during the trial.
“As a result, Brittany Harding had violated the agreement, and Dr. Madison’s attorney forced Miss Harding to return the money-all of it-to avoid a lawsuit alleging extortion.” Denton chuckled. “She was furious, to say the least. Look at all the trouble she’d gone through. Ladies and gentlemen, I’ll bet she felt that she’d earned this money! After all, she worked hard for it. But then, overnight, it was taken from her. Stolen from her. She was angry, enraged. So angry, in fact, that she confronted Dr. Madison in a supermarket and began screaming at him.” Denton held up his tightened fist toward the ceiling. “‘You’ll pay for this. I’ll get even!’ she yelled, in front of witnesses.”
He leaned both hands on the railing in front of the jury box, and looked deeply into their eyes as he spoke. “You’ll hear from one of these witnesses, the grocery clerk who checked her food out right after the argument occurred. He’ll tell you exactly what she said. You’ll hear for yourselves just how angry she was. He’ll also testify that she purchased a six-pack of Millstone Premium Draft beer-remember this because in a moment I’ll mention these beer cans again, and you’ll see their relevance.
“So what was it that she did in order to get even with Dr. Madison?” Denton folded his hands in front of him again, and stood facing the jurors. “I’m going to show you how Brittany Harding stole the motor vehicle which belongs to Dr. Madison, and then used it to kill two pedestrians, leaving one of them, a single parent, to die slowly in the street on a cold, rainy, winter evening.
“And I’m going to show you that following the hit-and-run, Brittany Harding then planted evidence in the vehicle-those Millstone Premium Draft beer cans that she’d purchased in the market a few days earlier-with the intention of fooling the police into thinking that Dr. Madison had, in a drunken state, run those two people over.”
Denton began strolling slowly in front of the jurors. “For a while the police were fooled. They did think Dr. Madison was the guilty party. After all, it was his car. In fact, I’ll freely admit to you that I was ready to go to trial against the good doctor until we discovered two additional pieces of evidence. Two things that convinced me that Brittany Harding had committed these murders…two things that will convince you that she committed these murders: her motive, and the physical evidence that proves the beer cans belonged to her.
“Now, before I tell you how I’m going to prove that Brittany Harding had a motive, let’s first discuss what motive means. In a legal sense, motive is that idea, belief, or emotion that leads the mind to indulge in a criminal act.” He stopped, allowing the definition to sink in. “It’s the cause or reason that moves the will and induces criminal action on the part of the accused.
“Through the testimony of several witnesses, you’ll hear what kind of person Brittany Harding is, what type of relationship she had with Dr. Madison, and, just as importantly, how she threatened revenge against him in public. When she screamed ‘I’ll get you for this! You’ll pay,’ she telegraphed her actions loud and clear. She announced what she was going to do, and then she acted upon her promise. We don’t have to guess what was in her mind because she told everyone who was in earshot what she intended to do.
“And that makes it really quite simple. If you agree that Brittany Harding’s emotions led her to commit a criminal act, then the rest is easy. Everything else will then fall into place for you. It’ll look black and white, and a verdict of ‘guilty’ will merely be a logical conclusion.
“I will do everything I can to make this case as clear-cut and black-and-white as possible. But in general, a juror’s job is always difficult, because the defendant’s attorney will try and cloud the issues, throw up roadblocks and smoke screens, and try to confuse you. Don’t be fooled. Don’t let him deceive you.
“Once you hear all the evidence, you’ll then have to decide which of it is significant. Which facts are important, and which are not. Who is telling the truth, and who is not. Ultimately, you’ll have to ask yourself if a person like Brittany Harding, who was capable of extortion on two occasions, who was capable of lying to the police about a rape that never occurred, is someone you can believe when she says she is innocent of murder.
“It’s important that each and every one of you work hard until you’ve accomplished your task. Because there was a real crime committed, ladies and gentlemen. Two real victims, and a whole lot of pain. It’s your job to determine if the defendant is going to pay for the crime that was committed. The prosecution is confident it will make its case against Brittany Harding; otherwise, I wouldn’t be standing here before you, taking up your valuable time, the judge’s time, my time, and the state’s resources-to present this case.
“No. If you look at the facts as presented and listen to the witnesses I will bring, you’ll see that there is only one truth. That Brittany Harding committed murder in order to carry out an act of revenge. And for that she must be held accountable. Thank you.”
Denton sat down, a bit lightheaded, the perspiration under his armpits disguised by the cover of his suit coat.
Judge Calvino nodded to the defense table.
Wendell Warwick, the public defender, removed his reading glasses. Tall and thin, with a sharp nose and small, beady eyes that appeared to be constantly squinting, he smiled at the jury as he arose and buttoned his suit coat. “‘Don’t be fooled. Don’t let the defendant’s attorney deceive you,’” he said mockingly. He stopped and smiled again, extended both of his lanky arms out in front of him, palms up, his back arched slightly backward. “Do I look like I’m here to deceive you, ladies and gentlemen?
“I’m not. I’m here for the same reason as the prosecutor: for justice to be served. But that’s where the similarity ends. Mr. Denton wants you to find my client guilty. To him, that is justice. To me, justice means that you will not find an innocent woman guilty and send her to prison for a crime she did not commit. But there is one other very important difference between Mr. Denton and myself. The prosecutor has to prove his case against my client. If he fails to make a believable case-that is, if he fails to prove beyond a reasonable doubt that my client is guilty-then you must find her not guilty.
“The prosecution has the burden of proof. They have to prove Miss Harding committed these crimes. As the judge will instruct you at the end of the trial, Miss Harding is innocent until proven guilty. Although the state has to prove guilt beyond a reasonable doubt, I do not have to prove innocence. In fact, I don’t have to prove anything.
“But what does reasonable doubt mean? It means that if you have even a small degree of doubt that my client is guilty, then these charges get thrown in the garbage can, where they came from.”
He began to walk a little bit as he spoke, starting from one end of the jury box and moving to the other. “Now, there are two types of evidence,” he was saying, as if teaching a class. “Direct and circumstantial. Direct evidence is something tangible: what a witness sees-his or her own perceptions. Circumstantial evidence is that type of evidence which requires you to make an inference…it means that you have to take the facts that are presented, and then make a leap of logic, to try to connect other circumstances to those facts you accept to be true.”
He paused, looking at the bewildered looks of the people on the jury. Denton knew that Warwick had accomplished exactly what he’d set out to do. Try to make the prosecution’s case so contrived and puzzling that they will take the easier route: acquittal.
“Confusing,” Warwick said with a slight chuckle, “I know. It confuses me at times too, and I deal with this stuff each and every day.” Relate to me, he was telling them. I’m just like one of you. Trying to get them onto his side.
“The state’s case is based solely on circumstantial evidence. In fact, they’re so desperate for something, anything they can hang their hats on, some form of proof that will show that my client is guilty-that they are trying to tell you that my client had motive. But motive is nothing more than circumstantial evidence!
Warwick shook his head at Denton, as if to say, shame on you.
“Did my client like Phillip Madison? No, she did not. He was rude to her, tried to rape her, and then tried to pay her off to stop her from taking the case public. He had a reputation to protect. A well-known surgeon publicly accused of rape? That would be… detrimental to his practice,” Warwick said, smiling, as if he were sharing a joke with the jury-an incredible understatement. Two jurors smiled back.
“No, he couldn’t let her go public. So he offered her money, and she took it-a mere forty thousand dollars to make the misery of a protracted and humiliating rape trial go away. But yes, she was still angry, and she did send the letter and photo to Phillip Madison’s wife. But what was wrong with that? It was nothing less than the truth. There wouldn’t have been a problem if Madison had told his wife about the settlement, but he kept it from her, lied to her. If Madison chose to lie to his wife and keep certain facts from her, well…” he said, smiling again at the jury, “you can’t blame my client for that.
“And you can’t find her guilty of murder because she merely wanted to avoid the publicity and embarrassment of a high-profile rape trial. Can you, now?”
He paused, for effect.
“No. My client, in fact, has nothing to do with these murders. Actually, Phillip Madison was the suspect they initially charged. But then, suddenly, a few days before his trial is to begin, the DA lets Madison go and charges Miss Harding. Why, we don’t know. Oh, he’s said it’s because of new evidence that they stumbled upon. I don’t buy it. But we’ll never know the true reason why he suddenly switched gears. Maybe it was pressure from someone-from the press, from some politician who owed Phillip Madison-”
“Objection!” Denton was on his feet. “Your Honor, this is completely inappropriate and Mr. Warwick knows it. He’s accusing my office of impropriety and, he has absolutely no proof of such an allegation.”
“Approach,” Judge Calvino said, his face as red as a strawberry, his left eyebrow twitching fiercely.
The two attorneys walked up to the bench; the judge looked down upon them from his perch and covered the microphone so the jury would not hear. “Mr. Warwick, explain.”
“Nothing to explain, Your Honor. I simply felt that there had to be some better reason for the DA to have dropped the charges against-”
“This is contemptible!” Denton said.
“Mr. Warwick,” Calvino said between clenched teeth, “let’s not get off on the wrong foot in this trial. You know the rules. That was a cheap shot against Mr. Denton. If you do anything of this nature again, I’ll hold you in contempt. No more warnings, understand?”
Warwick nodded. “Yes, Your Honor.”
Calvino motioned them away with his hands, as if he were shooing away flies.
“Ladies and gentlemen,” the judge said, addressing the jury, “Mr. Warwick made inappropriate remarks that have absolutely no basis in fact. I’m instructing you to disregard what you’ve just heard.” He shook his head and glared at Warwick. “Objection sustained.”
Warwick paced for a moment in front of the jury box, composing his thoughts, hand on his chin. Reprimand notwithstanding, Denton was well acquainted with the trick Warwick had deployed: a judge can tell a jury to disregard certain remarks, but the fact was, they heard them-and nothing anyone could say would miraculously erase those comments from their memory.
Warwick stopped pacing and faced the jury. “The DA will attempt to show you that there were cans of beer in the vehicle, and that these cans had traces of saliva on them. They extracted DNA from this saliva, and it showed a pattern of genetic material that supposedly matched that of my client. Whether or not DNA is a legitimate test is not important at this moment. What is important is that it doesn’t matter whether or not Miss Harding’s DNA is on the beer cans. All it proves, if it proves anything at all, is that at some point in time, those cans were in Miss Harding’s possession. It doesn’t mean that she was driving the vehicle when it struck the two pedestrians.
“So I’m going to ask you to remember three things throughout this trial. The first is reasonable doubt-if there’s an ounce of doubt in your minds that my client is guilty, you must find her not guilty. The second thing to keep in mind is the concept of circumstantial evidence. No one saw Miss Harding driving that car. No one saw her kill those people. No one even saw her near Phillip Madison’s house either before, or after, she supposedly stole his car. There is no direct evidence of my client’s guilt whatsoever.
“The last thing that I want you to remember is that Miss Harding is innocent until proven guilty. I’m telling you now that the DA will fail to make his case. He has the burden of proof, and he will not meet his burden. Remember what I’m telling you, because I’ll remind you of it when the trial is over. You must find my client not guilty, because she is…Not Guilty. Thank you.”
Warwick took his seat. Denton tried to look impassively at the judge, awaiting his next orders. He did not want to look at the jury. Warwick had made a good showing, better than Denton had thought he would, exposing many of the weakest points of the prosecution’s case against Harding. And while no DA likes it when the defense, or the judge, belabors the point of reasonable doubt, Warwick did not merely belabor it. He beat it into the ground like a flag, and then saluted it.
Calvino looked down at his watch and declared a recess until after lunch. As everyone prepared to file out of the courtroom, the reporters were still scribbling furiously to get down their final thoughts on the opening arguments. The first person to leave the courtroom was the man who was sitting in the last row, nearest the doors: Jeffrey Hellman.