There was a general, unenthusiastic nodding of heads.
“What about you, Mrs. McKenzie? Will you make that promise?”
It was a mistake, Ben realized almost immediately. He just didn’t have Moltke’s finesse. She looked stricken, embarrassed to be singled out. “I—why, yes, I suppose,” she said, flustered. She covered the side of her face with her hand.
“Thank you.” He decided not to compound the error by trying anyone else.
“And thank you, counsel,” Derek said. “Both sides will take ten minutes to deliberate, then I want to see counsel in chambers to make their initial challenges.”
All in all, it could have been worse. Ben took off three older women, including Mrs. McKenzie, the one he had mortified. Moltke took off three men, all for reasons that eluded Ben. Perhaps they weren’t responding properly to his charismatic feints.
Derek called for opening statements. Moltke strode up to the jury box and smiled. Derek cleared his throat and pointed at the podium.
“Oh, of course, your honor. I forgot where I was.” He retreated to the podium.
Just another tactic from Moltke He went up front and close to the jury to remind them he was one of them, one of the gang. Ben knew he would never have an opportunity to get that close. They would always perceive him as being more distant.
“It was a dark, moonless night,” Moltke began, setting the mood. “Most law-abiding Tulsans were still asleep in bed. All was calm, silent, still. Until suddenly, the night was shattered”—he pounded on the podium, startling the jurors—“by a sudden act of grisly violence.”
Ben tried to refrain from rolling his eyes. He hated attorneys who thought they were Edgar frigging Allan Poe. He hated seeing what should be a cold, unemotional recitation of the facts turned into “The Fall of the House of Usher.”
“Ladies and gentlemen, the overwhelming evidence will show that on that moonless morning, the defendant, Christina McCall, took her lover’s gun and shot him, at point-blank range, four times in the head. As you might imagine, one such shot would easily have killed him. What kind of woman would stand there and shoot, not once, but four times? The same woman, as the evidence will show, who was found by FBI agents hovering over the body, her fingerprints still fresh on the gun. The same woman whose only statement to the arresting officer was, ‘I killed him.’ ”
There was no point in objecting. It was argumentative, but Moltke was carefully couching his statements in terms of what “the evidence will show,” which theoretically kept him within the scope of opening statement. Derek would simply rule that the jury could listen to the testimony for itself and decide whether the opening remarks were accurate. Then Derek would sneer and make it clear to the jury that he held Ben in complete contempt. No, Ben was going to save his objections for when he needed them.
Moltke continued for about twenty minutes, painting Christina as a spiteful tramp, linking the murder to drug smuggling and organized crime, and evoking sympathy for the bereaved widow, the betrayed woman. He gestured to Margot, now without her sunglasses, poised in the front of the gallery with a stricken expression on her face. Had he arranged for her to get a front-row seat? Probably.
Moltke seemed to go back and forth on motive, sometimes suggesting the killing was the product of a lover’s spat, sometimes suggesting Christina was after Lombardi’s drug stash. It didn’t really matter. The motives weren’t entirely contradictory. Besides, this was a jury trial, not Logic 101. Ben watched the jurors follow Moltke’s. words, gestures, and facial expressions. He held them spellbound throughout his presentation.
When Moltke was finished, Ben took the podium. He would be the voice of reason, he thought, presenting the hard facts in a calm, even-handed manner, without Moltke’s manipulative gimmicks. “Ladies and gentlemen of the jury,” Ben began. “Everything counsel for the prosecution has just told you is disputed. You will hear evidence refuting every fact of importance in their case. And the judge will instruct you to make your ultimate decision based upon the evidence, not the things attorneys tell you. I merely ask that you listen carefully to the evidence presented, and that you remember the promise you made to me earlier.”
He saw a puzzled expression on Mr. Svenson’s face. Promise? Oh yes, you had one, too, didn’t you? What was it about? Ben could tell he didn’t remember. He wondered if any of them did.
Ben carefully sorted through the facts previewed in Moltke’s opening, presenting Christina’s denial, or refutation, or explanation. He covered the forensic evidence, the medical evidence, the ballistics evidence, and the inconclusive drug analysis. All the hard-core facts. All the nitty-gritty detail that Moltke left out of his opening.
For good reason. Again, Ben could feel the jury’s attention drifting. He was boring them. It was hard to believe a drug-related homicide could be boring, but he was making it so. Of course they loved Moltke. He fulfilled their expectations; he made the lugubrious trial process almost as compelling as it was on television. Ben turned it into algebra in a courtroom.
Ben saw them stretch, twist, and glance at the clock on the wall, but there was nothing he could do. He stuck to the script he had prepared in advance; he couldn’t improvise a Stephen King subplot just to grab the jury’s attention. He finished his preview of the evidence and began identifying the anticipated defense witnesses.
“Excuse me, counsel.”
Ben glanced back at Derek. He was yawning. Thanks, Judge, very subtle.
“I believe your time has expired.”
“Time?” Ben said. “I wasn’t aware the court was imposing time restraints on opening statement.”
“Well, normally I wouldn’t, but…” His voice trailed off. Several of the jurors smiled. “Try to wrap it up, okay?”
Ben could argue, but it would be pointless. The jury clearly sympathized with Derek. He listed his witnesses quickly and returned to defendant’s table.
Christina was still focusing straight ahead, looking alert, but not otherwise displaying emotion, just as he had told her to do. But Ben could see past that. He could see the tiny crinkles encircling her eyes, the near invisible trembling of her hands. She’d been in the courtroom many times before—more times than Ben for that matter. She knew who was winning. And who wasn’t.
“Splendid,” Derek said, popping another tablet. “Let’s move right along. Mr. Prosecutor, call your first witness.”
34
“THE UNITED STATES CALLS James Abshire to the stand.” Ben was surprised. They were foregoing the usual slow buildup and leading with a heavy hitter first out of the box. Abshire was wearing a blue sports jacket, khaki pants, and a dark tie—standard government witness costuming. In solemn sonorous tones, he repeated his oath to tell the whole truth. Moltke ran through Abshire’s résumé, eliciting a laundry list of qualifications and experience that made Abshire sound like the J. Edgar Hoover of the 1990s. Summa cum laude from Georgetown, top of his trainee class at Quantico, junior agent on several important investigations. Then Moltke traced the history of the Lombardi investigation, beginning with an account of how the FBI first obtained evidence of the so-called Tulsa connection, the purported narcotics pipeline flowing from South America to Oklahoma via small planes and smuggled goods.
“Do you know a man named Tony Lombardi?” Moltke asked.
“Yes,” Abshire replied. He was restraining himself, maintaining a flat, even tone. He gave no indication that he might have a personal stake in the success of the investigation. “Mr. Lombardi was engaged in the importation of parrots and other rare birds from South and Central America.”