Almost seven months ago.
He was going to be there every day for the duration of the Dooher trial. California Evidence Code Section 777(c) provided that the DA could appoint an 'officer or employee' to be present at the trial, and prosecutors liked the investigating officer to be there for any number of reasons – to prepare other witnesses for what they might expect, to bounce theories and strategies off another professional, to have someone to talk to during recesses, to watch the Judge and the jury. If a juror fell asleep during testimony, for example, he'd tell Jenkins that perhaps she should go over it a second time.
But mostly he was there as a second set of ears, to hear what a witness actually said, as opposed to what everyone – except the jury – expected and therefore heard. There was a huge difference, and that's what Abe was listening for.
'All rise. Department 26 of the Superior Court of the City and County of San Francisco, is now in session, Judge Oscar Thomasino presiding.'
Farrell stood, pulled at his tie and cleared his throat – his nerves were frayed nearly to breaking. He had been in courtrooms hundreds of times, but nothing came close to the electricity surrounding this case. And now, finally, after all the preparation, it was beginning.
Thomasino, in his black robe, ascended to the Bench. Sitting, he adjusted his robe, arranged some papers, took a sip of water, whispered something to his court reporter, who smiled. Knowing that it was undoubtedly a ritual pleasantry, Farrell still wondered what the Judge had said – if it was about any of them. Thomasino raised his bushy eyebrows to include the courtroom. Everyone was getting seated again, shuffling around, and the 'Good morning' Thomasino perfunctorily uttered went largely unheeded.
It didn't seem to bother the Judge. He turned to the court clerk, tapped his gavel once as though checking to see that it still worked, and nodded to the clerk. 'Call the case.'
The clerk stood. 'Superior Court number 159317, The People of the State of California versus Mark Francis Dooher. Counsel state their appearances for the record.'
Farrell looked at his client to his left, then further down the table to Christina, his second chair. A thumbs up, a practiced smile for her confidence, for his client's. He felt little of that confidence himself, concerned his weakness in accepting Christina as second chair would fatally harm the defense.
Christina looked good – hell, she always looked good – and she certainly was game to fight this battle for as long as it took. Farrell even had to admit she was a substantial and resourceful person with a damn good legal mind.
But so what? In spite of that, in spite of her gung-ho attitude and good humor, he wished she could simply disappear.
Because she was in love with their client, goddamn it.
Wes believed that there was nothing yet between them, but he never doubted that there would be, and privately that shook him.
This was the unspoken motive. Farrell had no indication that Amanda Jenkins was planning to bring it up during the trial – but it was the only argument for Dooher's guilt that Farrell couldn't refute.
This one question lay buried under the rational arguments in the very pit of his being. There had been nights when it rose ghoulish and woke him in a sweat.
But the time for reflection had passed.
Thomasino, all business, ostentatiously opened his folder, read for a nanosecond, and was now skewering both attorneys' tables. 'Ms Jenkins,' he began, 'Mr Farrell. Before we call the first jury panel, we've got a four-oh-two to rule on.'
Jenkins stood up at her table. 'Yes, your honor.'
The Judge was reading again. 'You've got two motions here and both of them have to do with character evidence, which you know can only be used in rebuttal by the prosecution.'
Thomasino was clarifying this technical point, but that was what 402 motions were about. As a matter of law, evidence of bad character could not serve as proof that a defendant had committed any particular crime. One couldn't say, for example, that because Joe Smith beat his dog, it followed he'd killed his wife.
The law further recognized the perhaps natural, human inclination for the prosecution to want to tarnish a defendant's reputation by bringing up every bad thing that person had ever done, so that it would seem more likely that that person had done the particular thing they were accused of. So it created a check to keep this from happening.
Unless the defense brought up evidence of a defendant's good character first, the Evidence Code forbade the prosecution from introducing evidence of bad character.
Farrell had filed his motion because Amanda Jenkins's witness list had included some of Dooher's past co-workers, not all of whom had the fondest memories of him. But most of all, the accusations of both Chas Brown and Diane Price had become joined at the hip to the actual murder charges against Dooher.
Jenkins clearly thought that these were critical to an understanding of who Mark Dooher was. The thrust of her prosecution strategy, obviously, was that Dooher was not the man he appeared to be, and without character evidence, that was going to be a tough nut. She may have thought she had enough physical evidence and a proveable theory that stood a chance of convicting him, but she wanted more if she could get it.
On the other hand, if Farrell stuck only to refuting the physical evidence that Jenkins presented, the issue of Dooher's character would never come up. The defense had to be first to bring up character or it would remain inadmissible. So it was tempting to simply forget it. Farrell wasn't sure he was going to need it, anyway.
On the other hand, Farrell knew that sometimes you could refute all the evidence and still the jury would not see it your way. Innocent until proven guilty was a wonderful concept, the prosecution had the burden of proof, all right, but the day-to-day reality of human beings was to assume that people didn't get arrested and brought to trial unless they were probably guilty. So Farrell – like Jenkins in this regard – knew it never hurt to have more.
And he had the best possible character witness he could have dreamed of – James Flaherty, the Archbishop of San Francisco. Whether or not any of the jury members turned out to be Catholic, Farrell believed that the moral authority Flaherty would bring to the witness stand would be unassailable.
He was torn.
To be safe, he'd put the Archbishop on his witness list. His 402 motion asked for a ruling – once he'd called the Archbishop and thus put character at issue, would Jenkins be allowed to call Price and Brown? Farrell obviously did not want the jury to hear from either of them.
Jenkins was responding to this. 'Your honor,' she was saying, 'Archbishop Flaherty will not be testifying that he was with the defendant on the night of the murder. He doesn't corroborate Mr Dooher's alibi for the time of the murder. Therefore, his only possible connection to this case is to serve as a character witness. And once he does that…'
Thomasino's eyebrows lifted slightly and he spoke right up. 'I know the law, counsellor. But I still question the relevance of the proposed testimony of either of your two witnesses.'
'Your honor, if the court please.' Farrell was on his feet. 'Mark Dooher has lived most of the last year under the shadow of these ridiculous accusations, unsubstantiated slander without any shred of evidence to support them. Even if the prosecution had dug up some witnesses to bolster these baseless charges, they will be talking about alleged crimes from thirty years ago. This is very remote in time.'
These remarks brought the first unanimity from the disparate factions in the gallery, and it was negative. Everyone except the reporters was here with some kind of agenda, and Farrell was trying to nip in the bud any discussion of the social issues represented by the testimonies of Diane Price and Chas Brown.