Step back now. Take a moment to compose yourself, a little dramatic pause to let the bite of righteous anger settle upon the courtroom. As you calm yourself, you rest your hand on the railing and lean on your straightened arm. This last bit is quite important, as you want to look completely at ease when you begin to mention, however obliquely, the prosecution’s evidence. The prosecutor has stood before this same jury and listed the great gouts of evidence she has against your client. You’d like to ignore it, let it disappear, but you can’t.
“Ms. Dalton spoke about the evidence collected by Detective Torricelli.” You step over to the prosecution table and stand right in front of him as you continue. “She told of all the things he so conveniently found after he determined that my client was the primary suspect. And you shake your head at such convenience, because it never happens like that in your own lives, only in books or movies, pieces of fiction created by quite imaginative folk.” As you make your point, you give the detective a smile, which is in stark contrast to the ugly sneer he gives you back. “But let me tell you, ladies and gentlemen, what you won’t be seeing during this trial. No one will testify that he saw this crime happen. There will be no video or photographs submitted showing the murder. No one will testify that he saw my client anywhere near the scene of the crime at the time of the crime. None of those fancy forensics tests you see on television will prove that François Dubé was in any way involved in this terrible murder that shattered his family and separated for all time his daughter from her mother.”
It’s time to pop a jab at the prosecution. “Ms. Dalton told you that the evidence in the case is wholly circumstantial. And we all know, ladies and gentlemen, what circumstantial means. It means that no one really knows what the heck happened, we’re all just guessing, and when anyone tells you otherwise, she is lying.”
This is when the prosecutor hops up and objects. It’s fun to see her jump, like a frog poked with a stick. Hop, hop. And her objection is a good thing, even when the judge sustains it, because it allows you to shrug, and smile a little half smile, and act as if you and the jury are all in on a little secret that the prosecution is trying to hide.
“Ms. Dalton told you that direct evidence is when you go outside and see for yourself that it’s raining, but unfortunately for her, she doesn’t have any of that type of evidence in this case. No one saw the murder of Leesa Dubé. And Ms. Dalton also told you that circumstantial evidence is when you see someone come in the front door and his hair and clothes are soaked, and from that you can infer that it’s raining. But the problem with circumstantial evidence is that the inferences drawn are only as sharp as the person drawing them. Now, we know that Ms. Dalton is a very sharp lawyer, otherwise why would she be pulling down the big bucks at the district attorney’s office and driving a Chevette?”
This time, as the jury chuckles, you glance back at the prosecutor, so the whole jury follows your gaze. The prosecutor will be doing a slow burn. You wait, patiently, until her obligation to the truth forces her to her feet and she says, through clenched teeth, “Objection, Judge. Mr. Carl knows full well I drive a Civic.”
Then you turn back to the jury, raise an eyebrow, watch as they all crack up at that. “A Civic,” you say, raising your hands high in the air. “I stand corrected. But even a lawyer as sharp as Ms. Dalton, tooling around town in her Civic, ladies and gentlemen, can see someone walk through her front door all sopping wet and assume that it is raining outside, when really she simply forgot to turn off her sprinkler.”
Bada-bing.
A fun little gag, sure, but all of this is routine, all of this any legal hack could pull off without breaking a sweat. But what to do now, there’s the puzzle.
Do you play it safe and do the old Reasonable Doubt Shuffle, a sort of jazzy dance in which you raise your arms and shake your legs and repeat those two words over and again, as if the jury had never heard them before? It is the safe opening, the no-opening opening, which leaves you free to create your theory of the case on the fly. But with no story of your own to tell at the outset, you’re playing defense the whole trial, and by the time you figure something out, the jury might have already made up its mind.
Or do you go right out and tell the jury your story from the get-go? If the story is convincing enough, and the evidence doesn’t contradict it, then the jury will do your work for you. On the downside, it’s like one of those cigars Curly Howard used to smoke – one contradictory piece of evidence and it can all blow up in your face.
What to do? What to do? Do you play it safe? Or do you take the gamble? Oh, what the hell. It’s only François’s neck on the line.
“Now, Ms. Dalton told you about François’s affairs, as if that was some big revelation. Yes, François had affairs. We admit it. He was a hound dog, even in his marriage. Nothing to be proud of, certainly. But now I need to tell you the other side of the equation. I’m not here to cast aspersions, the Dubés were separated, this is not a matter of blaming the victim, this is just the truth. Leesa Dubé, lonely after the separation from her husband, found solace of her own with another man. You will hear testimony about that, and about the nature of their relationship, and about the violence that was lurking within it.
“Why did Ms. Dalton not tell you this? I don’t know. Maybe she didn’t think it important enough to mention to you in her opening. Maybe she’s a little too eager to discount anything that doesn’t fit neatly within her theory. Or maybe so quick was the rush to judgment against François Dubé that she and Detective Torricelli never took the time to even learn of this man who had entered Leesa Dubé’s life. But he existed, and you will hear all about him, and it is far more likely that he, rather than the loving husband, committed this horrible crime.
“So this is what I beg of you, ladies and gentlemen. Listen carefully to all the evidence, and as you do, ask yourself who is the more likely culprit, Leesa’s husband, the father of her child, or the violent stranger who swept into her life shortly before her murder and swept out of it just as quickly. And when this is over, and you’ve heard everything, I’m going to come back to you and ask you to return the only verdict you possibly can, a verdict that finds François Dubé not guilty of the murder of his wife.”
Mia Dalton was livid at my argument.
You could tell by her easy grin as she came up to me after the jury had been dismissed for the day, by her insouciant pose, by the hand calmly resting in her skirt pocket. Dalton didn’t grin unless she was angry, she was one of those lawyers who snarled at good news and smiled at trouble. At least I hoped so, because if Mia Dalton wasn’t livid after my opening, then I had done something seriously wrong.
“You going to bring it into the courtroom?” said Dalton. “Give it a number, lay a foundation to introduce it into evidence?”
“Bring in what?” I said.
“My Civic.”
“Liked that, did you?”
“It’s always fun when opposing counsel claims I’m too stupid to figure out the truth of a case because of the car I drive.”
“I wasn’t blaming the car. It’s not the car’s fault.”
“Why don’t you tell us the name of the deceased’s lover who you claimed murdered her?”
“Not quite yet.”
“If he’s a murderer, shouldn’t we take him off the street as a matter of public safety?”
“You’ve waited this long to get the right guy, I suppose a few more days won’t matter.”
“I suppose not,” said Dalton. “It’s never good practice to make a promise to the jury you won’t be able to fulfill.”
“Watch me.”