With that, he gestured to Golantz and said the prosecution would go first. As outlined in a pretrial conference, each side would have an hour for its opening statement. I didn’t know about Golantz but I wouldn’t take close to that.
Handsome and impressive-looking in a black suit, white shirt and maroon tie, Golantz stood up and addressed the jury from the prosecution table. For the trial he had a second chair, an attractive young lawyer named Denise Dabney. She sat next to him and kept her eyes on the jury the whole time he spoke. It was a way of double-teaming, two pairs of eyes constantly sweeping across the faces of the jurors, doubly conveying the seriousness and gravity of the task at hand.
After introducing himself and his second, Golantz got down to it.
“Ladies and gentleman of the jury, we are here today because of unchecked greed and anger. Plain and simple. The defendant, Walter Elliot, is a man of great power, money and standing in our community. But that was not enough for him. He did not want to divide his money and power. He did not want to turn the cheek on betrayal. Instead, he lashed out in the most extreme way possible. He took not just one life, but two. In a moment of high anger and humiliation, he raised a gun and killed both his wife, Mitzi Elliot, and Johan Rilz. He believed his money and power would place him above the law and save him from punishment for these heinous crimes. But that will not be the case. The state will prove to you beyond any reasonable doubt that Walter Elliot pulled the trigger and is responsible for the deaths of two innocent human beings.”
I was turned in my seat, half to obscure the jury’s view of my client and half to keep a view of Golantz and the gallery rows behind him. Before his first paragraph was completed, the tears were flowing from Mitzi Elliot’s mother, and that was something I would need to bring up with the judge out of earshot of the jury. The theatrics were prejudicial and I would ask the judge to move the victim’s mother to a seat that was less of a focal point for the jury.
I looked past the crying woman and saw hard grimaces on the faces of the men from Germany. I was very interested in them and how they would appear to the jury. I wanted to see how they handled emotion and the surroundings of an American courtroom. I wanted to see how threatening they could be made to look. The grimmer and more menacing they looked, the better the defense strategy would work when I focused on Johan Rilz. Looking at them now, I knew I was off to a good start. They looked angry and mean.
Golantz laid his case out to the jurors, telling them what he would be presenting in testimony and evidence and what he believed it meant. There were no surprises. At one point I got a one-line text from Favreau, which I read below the table.
Favreau: They are eating this up. You better be good.
Right, I thought. Tell me something I don’t know.
There was an unfair advantage to the prosecution built into every trial. The state has the power and the might on its side. It comes with an assumption of honesty and integrity and fairness. An assumption in every juror’s and onlooker’s mind that we wouldn’t be here if smoke didn’t lead to a fire.
It is that assumption that every defense has to overcome. The person on trial is supposed to be presumed innocent. But anybody who has ever stepped foot into a courtroom as a lawyer or defendant knows that presumed innocence is just one of the idealistic notions they teach in law school. There was no doubt in my mind or anybody else’s that I started this trial with a defendant who was presumed guilty. I had to find a way to either prove him innocent or prove the state guilty of malfeasance, ineptitude or corruption in its preparation of the case.
Golantz lasted his entire allotted hour, seemingly leaving no secrets about his case hidden. He showed typical prosecutorial arrogance; put it all out there and dare the defense to try to contradict it. The prosecution was always the six-hundred-pound gorilla, so big and strong it didn’t have to worry about finesse. When it painted its picture, it used a six-inch brush and hung it on the wall with a sledgehammer and spike.
The judge had told us in the pretrial session that we would be required to remain at our tables or to use the lectern placed between them while addressing witnesses during testimony. But opening statements and closing arguments were an exception to this rule. During these bookend moments of the trial, we would be free to use the space in front of the jury box – a spot the veterans of the defense bar called the “proving grounds” because it was the only time during a trial when the lawyers spoke directly to the jury and either made their case or didn’t.
Golantz finally moved from the prosecution table to the proving grounds when it was time for his big finish. He stood directly in front of the midpoint of the box and held his hands wide, like a preacher in front of his flock.
“I’m out of time here, folks,” he said. “So in closing, I urge you to take great care as you listen to the evidence and the testimony. Common sense will lead you. I urge you not to get confused or sidetracked by the roadblocks to justice the defense will put before you. Keep your eyes on the prize. Remember, two people had their lives stolen from them. Their future was ripped away. That is why we are here today. For them. Thank you very much.”
The old keep-your-eyes-on-the-prize opener. That one had been kicking around the courthouse since I was a public defender. Nevertheless, it was a solid beginning from Golantz. He wouldn’t win any orator-of-the-year trophies but he had made his points. He’d also addressed the jurors as “folks” at least four times by my count, and that was a word I would never use with a jury.
Favreau had texted me twice more during the last half hour of his delivery with reports of declining jury interest. They might have been eating it up at the start but now they were apparently full. Sometimes you can go on too long. Golantz had trudged through a full fifteen rounds like a heavyweight boxer. I was going to be a welterweight. I was interested in quick jabs. I was going to get in and get out, make a few points, plant a few seeds and raise a few questions. I was going to make them like me. That was the main thing. If they liked me, they would like my case.
Once the judge gave me the nod, I stood up and immediately moved into the proving grounds. I wanted nothing between me and the jury. I was also aware that this put me right in front and in focus of the Court TV camera mounted on the wall above the jury box.
I faced the jury without physical gesture except for a slight nod of my head.
“Ladies and gentlemen, I know the judge already introduced me but I would like to introduce myself and my client. I am Michael Haller, the attorney representing Walter Elliot, whom you see here sitting at the table by himself.”
I pointed to Elliot and by prior design he nodded somberly, not offering any form of a smile that would appear as falsely ingratiating as calling the jurors folks.
“Now, I am not going to take a lot of time here, because I want to get to the testimony and the evidence – what little there is of it – and get this show on the road. Enough talk. It’s time to put up or shut up. Mr. Golantz wove a big and complicated picture for you. It took him a whole hour just to get it out. But I am here to tell you that this case is not that complicated. What the prosecution’s case amounts to is a labyrinth of smoke and mirrors. And when we blow away the smoke and get through the labyrinth, you will understand that. You will find that there is no fire, that there is no case against Walter Elliot. That there is more than reasonable doubt here, that there is outrage that this case was ever brought against Walter Elliot in the first place.”
Again I turned and pointed to my client. He sat with his eyes cast downward on the pad of paper he was now writing notes on – again, by prior design, depicting my client as busy, actively involved in his own defense, chin up and not worried about the terrible things the prosecutor had just said about him. He had right on his side, and right was might.