CHAPTER TWENTY-EIGHT
“JUST WHAT HAPPENED out there, Mr. Denney?”
Adele Wegland’s office was a study in contrasts. Even with the lights on, it seemed darker than it should have been, and the dull browns and blacks of the interior only added to the brooding feeling. Yet on her desk, in a small vase, was a single, hopeful flower—a red rose. It reminded me of blood.
“I apologize, Your Honor,” I said. “I don’t know what hit me. Maybe it’s all the excitement.”
Benton Tolletson huffed.
“Do you feel ill?” the judge asked.
“I think I’ll be all right.”
“I don’t want to call a halt if I can help it.”
“You won’t have to.” I was feeling my forehead, which had a thin layer of sweat across it.
“I wish I could be sure, Mr. Denney. Do you need a doctor?”
“I don’t think so.”
“Do you need something else?” Benton Tolletson said.
I looked at him sideways, wondering what he meant. The judge said, “What do you mean, Mr. Tolletson?”
“I’m not one to speculate,” the prosecutor answered. “But we all know Mr. Denney has had his troubles in the past. Drinking, you know.”
I wanted to shout some choice epithet to express my outrage, but two things stopped me—my stomach and the judge. Adele Wegland was looking at me like she was in complete agreement with Tolletson. If I’d been a conspiracy buff, I might have said they had gotten together before the trial to plan this very thing—a tag team match, two against one.
Shaking my head, I said, “That’s . . . ridiculous.”
“Is it?” Tolletson said like a cross-examiner. “When was the last time you had a drink?”
I looked at the judge. “I don’t have to answer that.”
I might as well have been looking at a poster of Uncle Sam, the one where he is scowling and pointing at you. “I think you do,” said the judge.
Tolletson was sitting there with a half smirk on his face. I could read his thoughts as if they were words appearing on a computer screen.
You’re out of it, Denney. You have no business being here. You’re a loused-up lawyer with a loused-up life. You thought you could come up here and take me on, but you can’t even say a few simple words to a jury. I don’t even want you around my town, stinking up the place . . .
“I asked you for a response, Mr. Denney.” The judge had her firm-lipped look, like a mother superior with tight shoes.
“My personal habits aren’t your business,” I said.
“If you can’t handle this case,” she said, “then it is my business. I have to make sure your client gets competent counsel. And if your alcoholism is going to make that an impossibility, I’m going to have to remove you.”
“Alcoholism? That’s ridiculous.”
“Are you an alcoholic, Mr. Denney?”
“No!” I snapped, sounding to myself like one of those classic dipsos who say
I can quit anytime I want to . . .
“Maybe we need a medical opinion,” said the judge.
Tolletson shrugged his shoulders. That’s when I decided to fight back. “You try that, and I’ll have you up before the Commission on Judicial Performance. I’ll make the biggest stink of your professional life.”
“That,” Tolletson interjected, “I can believe.”
“Now, now,” said the judge, “you don’t need to fly off the handle. My only concerns are your client and the twelve people sitting in the jury box. I just want to know if this sort of thing is going to happen again.”
“I’m not planning on it,” I said. “And I’m not going to be replaced.”
“Then you go give us an opening statement.”
“All right,” I said, standing up. My legs felt like spaghetti.
“But, Mr. Denney,” said the judge, “I’ll be watching you very carefully.”
Yeah, I thought. You and everybody else.
“You look like the walking dead,” Triple C said when I got back to the courtroom.
“Thanks. You’re a real pal.”
“I mean, you don’t look healthy.”
“I’m okay.”
“You don’t want to scare the poor people on the jury. Why don’t we put this off until tomorrow?”
“Judge wants to get on with it.”
“Oh, man.”
I put a hand on Trip’s shoulder. “Don’t worry. Maybe the jury’ll have such sympathy for me they won’t possibly convict.”
Trip laughed, but it was muted laughter. I suddenly felt very alone. As the jury marched in, I wished that my little girl was in the courtroom giving me a big hug. If there was one person in the world who wasn’t ready to condemn me, it was Mandy. I wanted Mandy.
Instead I got the jurors, and I could tell they had questions in their minds when I finally started speaking.
“I must apologize, ladies and gentlemen,” I said. “Opening night jitters, I guess.”
At that point I had absolutely no idea what I was going to say next. I had an outline written down, which went over the evidence, but I felt I had to tell the jury something else. Just what, I didn’t know.
“I guess I’m a little nervous here. It’s a big responsibility defending a man accused of murder. A big one. And I want to make sure I do the best I can, not only for him, but for you. You are the ones who will ultimately decide this case, not me, not the judge, and not the prosecutor. It’s my job to get you the evidence you need to make that decision, and that’s just what I’m going to do. I only ask that if I seem a little shaky on my feet you don’t hold it against my client.”
“Your Honor,” I heard Benton Tolletson say. “This is not a proper opening statement.”
I spun around, and if I’d had anything in my hands, I probably would have thrown it at his square-jawed face.
“Sustained,” said the judge.
No lawyer likes to have an objection sustained against him, but especially not during opening statement. It makes the jury think you’re trying to pull something and got caught. Not a great way to start a trial.
I walked over to counsel table and looked down at my outline. The words were there, but they didn’t seem to make any sense. They were a jumble, like the scribblings my daughter made with crayons when she was three years old.
I looked back at the jury. “Ladies and gentlemen, there are two sides to every story. What the prosecutor told you a little while ago was only one side, his side. But what he said is not evidence. The evidence is going to come to you from that witness box and through exhibits. All I ask you to do is keep an open mind, as you have sworn to do, before making your decision. Thank you.”
As I sat down, Judge Wegland said to Tolletson, “Call your first witness.”
The witness was none other than Officer McGary, and Tolletson walked him through the events for the benefit of the jury. Starting off with the dramatic action was a smart move by the prosecutor.
Jurors, like just about everyone else in society, are TV trained. They watch cop shows, and that’s just what Benton Tolletson was giving them. With rehearsed adroitness, McGary spun his tale, and Tolletson led him up to the point of greatest dramatic interest—the introduction of the murder weapon.
Juries love the introduction of the murder weapon. It’s just like show-and-tell.
When Tolletson held up the knife, Howie’s eyes widened with a look of abject terror. If you didn’t know him—and the jurors didn’t—the look would have signaled just one thing: conscious guilt. That’s why I leaned forward in my chair, trying to keep Howie’s face from being flashed to the entire jury like a neon
I DID IT
sign.
Fortunately, most of the jurors were watching Tolletson, which is just what he wanted.
After McGary finished identifying the weapon, Tolletson turned him over to me. “Go get him,” Trip whispered as I stood up.
“Just a few questions for you, Officer,” I said walking to the edge of the jury box. Some lawyers like to ask their questions from a lectern, giving them the appearance of professional authority. Others, like me, stand so as to make the witness look past the eyes of the jurors, the ones who sit in judgment on credibility. I wanted them looking into McGary’s baby blues.
“When you got to the house,” I said, “you didn’t hear any screams, did you?”
“No,” McGary answered brusquely.
“Well, how about voices? Did you hear any loud voices?”
“No, I did not.”
“Sounds of something breaking?”
“No.”
“A gunshot?”
“No.”
“A television set?”
“No.”
“A radio?”
“No.”
“In fact, Officer McGary, you did not hear anything from inside the house, did you?”
“Which is why I had some concerns.”
“Just answer the questions I give you, if you don’t mind.”
Tolletson shot to his feet. “The witness may answer as he sees fit, Your Honor.”
Nodding, Judge Wegland said, “As long as it’s responsive. Continue, Mr. Denney.”
I said, “How many times in your career has the absence of evidence been evidence of a crime?”
“Excuse me?”
“You say the lack of any sound raised concerns for you. Sir, if you were following a car that was driving straight at a normal rate of speed, you wouldn’t pull it over for drunk driving, would you?”
“Objection,” said Tolletson. “Argumentative.”
“Sustained,” said the judge
“Officer McGary, this was at night, correct?”
“Yes.”
“Around 10:45 or so, is that your testimony?”
“Yes.”
“At 10:45 at night, sir, is not the absence of noise consistent with people sleeping inside their homes?”
McGary scowled slightly, then said, “But that’s not what was going on.”
“You didn’t know at the time that anything was going on, did you?”
“Not when I knocked on the door, no. But later—”
“Just answer my questions, sir. At no time did you hear any noise from within that house. Isn’t that a fact?”
“Yes.”
I could see the backs of all the jurors’ heads, which was a good thing. At least they were watching the witness.
During the direct, Tolletson had placed a diagram of the Patino home on an easel so McGary could refer to it. I approached the diagram, which the jury could see as well.
“Now, Officer, let’s turn to your testimony about what you saw in the bedroom. I believe you testified you saw Mr. Patino lying on the floor here, at the spot where you earlier placed a red D, for defendant. Is that correct?”
“Yes.”
“And you described Mr. Patino as being ‘out of it.’ Were those your words?”
“Yes.”
“Meaning he was not rational.”
“I didn’t say that.”
“That’s what you meant, though, isn’t it?”
“No, I meant he was ‘out of it,’ that’s all.”
He had wandered into the thicket of meaningless distinction, a place jurors don’t like witnesses to go, so I hammered on. “Come now, Officer McGary, what does ‘out of it’ mean if it doesn’t mean irrational?”
“Well, what I mean . . . what I’m saying is he looked like he had just gone through some major deal and was upset.”
“Isn’t part of being upset that you don’t think straight?”
Tolletson stood up to protect his witness. “Your Honor, Officer McGary is not testifying as an expert on mental state.”
“He was expert enough to offer his opinion on direct,” I said. “I should be able to cross-examine.”
After a short pause, Wegland said, “You’ve made your point, Mr. Denney. Move on.”
Be a good little boy, and don’t try to show up this fine, upstanding officer, Mr. Denney. We can’t have that now, can we?
Trying to keep my composure, I said, “At the very least, Officer McGary, my client did not appear normal, did he?”
“Depends.”
“On what, sir?”
“On what you mean by normal. Somebody who has just killed his wife, maybe it’s normal for him to be out of it.”
“I object to that answer, Your Honor, and move to strike.”
“All right,” said the judge reluctantly. “The witness’s last answer will be stricken, and the jury is instructed to disregard it.”
“You say you saw the knife,” I continued. “On the diagram, that’s where you’ve placed a small K, is that correct?”
“Yes.”
“And it was how far from my client?”
“Just about arm’s length.”
“But he wasn’t holding it, was he?”
“No.”
“You never saw it in his hand at any time, did you?”
“No.”
That’s when I asked the question that Benton Tolletson had conveniently ignored during his direct. “Did the police lab find any fingerprints on this knife?”
McGary paused, looked slightly confused, then said, “I don’t know.”
“You don’t
know?”
“I haven’t seen the report.”
“Would it surprise you to know there were no fingerprints on that knife?”
“Objection,” said Tolletson.
“Sustained.”
It was good place to stop. The jury would be wondering about the fingerprint issue, and I wanted them to wonder. I said, “No more questions,” and sat down. Tolletson asked a few more questions on redirect, but I added nothing further. Things had gone about as well as could be expected.
My entire strategy was one of basic, reasonable doubt. I had to raise enough red flags in the minds of the jurors to convince them to reject the prosecutor’s case. It was a long, long road, but at least I’d taken a step in the right direction.