Cassandra Loescher was clear, precise, every word so freighted with moral outrage that you might have thought the defendant had been charged with the murder of his mother rather than the killing of someone he never knew. I had heard the same thing a hundred times before and seen it in a dozen different dreams.
Somewhere there had to be a dog-eared manual that described paragraph by paragraph what every prosecutor should say at the beginning of every homicide brought to trial. Everything followed a formula; every fact the prosecution was required to prove was fitted into place.
Dressed in a simple black dress, dark stockings, and black shoes, Loescher stood a few steps away from the jury box and, changing her tone, recited in a quiet, dignified voice the list of witnesses she intended to call and the testimony she expected each one of them to give.
“And when you’ve heard all the evidence,” she said at the end, her brown eyes glowing with confidence, “I know you’ll agree that the state has met its burden and that the guilt of John Smith has been proven beyond any reasonable doubt.”
Sitting next to me, the defendant known to the world as John Smith played with his tie. He had never worn one before and every morning when the deputy sheriff brought him into the courtroom, I tied it around his neck. Clean-shaven, with a decent haircut, he looked like a perfectly normal young man, except for the way he sometimes let his mouth hang open or rolled his head from side to side. Shy, and even terrified around strangers, he was also, I think, curious about the proceedings that were going on around him. At first he would not look up from the table, but gradually, as he became used to his surroundings, and especially the twelve faces in the jury box, he began to lift his eyes. He watched Cassandra Loescher tell the jury why he should be convicted of murder and when she finished smiled at her as if she had just said something nice.
Loescher had held the courtroom for nearly an hour, and when she sat down there was a dim, dull shuffling sound as the spectators, crowded together on the hard wood benches, shifted position. Slouched in the chair, both index fingers pressed together on my mouth, I was still trying to decide exactly what I should say when I heard the voice of the judge call my name.
“Do you wish to make an opening statement?” Judge Bingham asked.
I looked over at the jury and searched their eyes. “Yes, your honor,” I said as I got to my feet.
It had taken four days to pick a jury, and I had spent most of that time trying to convince them that they were there not to decide what had really happened the night Quincy Griswald was murdered, but whether the state had proven the guilt of the defendant beyond a reasonable doubt. I had done the same thing thousands of times before, persuading jurors to ignore their com-monsense notions about what had probably happened and to insist on facts about which there could be no dispute before they considered convicting someone of a crime. But this time was different. It was going to take more than an insistence on reasonable doubt if I was going to have any chance to win.
Standing at the end of the jury box, I put one hand on the railing and pushed the other into my suit coat pocket. This jury was like all the others. Three of its members had graduated from college, and one or two had some training beyond the twelfth grade, but most of them had ended their formal education with high school. There were no doctors, no lawyers, no business ex-ecutives, and no one who held any important public position.
Four of the twelve were retired, and of the seven women, three were grandmothers. Though it was not the fair cross section of the community it was supposed to be, it was in another way the perfect mirror of who we are. These were people who wanted to do the right thing and were willing to follow the lead of whoever seemed to know what that might be. I began with a confession.
“During voir dire, when I had the chance to ask each of you questions, we spent a lot of time talking about reasonable doubt and what it meant. Ms. Loescher kept trying to suggest that it didn’t mean you couldn’t be left with at least some doubt, and I kept trying to convince you that you better not doubt it at all before you decide to convict someone of a crime. I’ve been doing this for much of my life now, and it never changes. We keep asking these same questions, keep trying to convince you what the words ‘reasonable doubt’ mean. Do you know why I do that?”
My eyes moved along the front row, from one juror to the next, until they came to rest on a young woman, Mary Ellen Conklin, sitting with her hands folded in her lap.
“Because I learned a long time ago that the best way to win was to convince jurors that their obligation was to decide-not if the defendant was guilty-but if the state had been able to prove it… beyond that famous reasonable doubt.”
I looked away from the young mother of two and found a middle-aged Latino, Hector Picardo, in the back row.
“You’re not here to decide the truth; you’re here to decide whether what the state tells you is the truth, and not to take their word for it, either, but again, to prove it against the most stringent possible standard. I want juries that insist on that-the defendant has a right to have a jury that insists on that-and that’s why I keep asking those questions about whether you think it’s fair that the state has this incredibly difficult burden, fair that the prosecution has to prove its case and the defense doesn’t have to prove anything.”
I moved away from the railing, folded my arms across my chest, and stared down at the carpeted floor. Smiling to myself, I shook my head and then, a moment later, lifted my eyes and cast a sideways glance at the jury.
“The truth is: In most cases we couldn’t prove anything if we had to, because, you see, in most cases the defendant is guilty.”
Out of the corner of my eye I saw the judge suddenly look up.
“That’s the reason defense lawyers always insist so strenuously that the whole burden of proof is on the prosecution; that’s the reason why in more cases than I can remember I made certain the defendant never took the stand to testify in his own behalf.”
Cassandra Loescher was sitting on the edge of her chair, ready to make an objection as soon as she figured out what there was to which she could object.
“We have this very famous jury instruction-Judge Bingham referred to it when you were first sworn in, I spent most of my time on voir dire talking about it-you can’t convict anyone unless their guilt has been proven beyond a reasonable doubt. There is another jury instruction, one we did not talk about, but one that has to be given if the defense requests it.”
I went back to the counsel table, opened the file folder that lay next to my yellow legal pad, and pulled out a single sheet of paper.
“Here,” I said, waving it in my hand. “This is the jury instruction entitled ‘Defendant Not Testifying.’ It tells you that you may not comment on the failure of the defendant to testify, and that you may not in any way consider that fact in your deliber-ations. The judge is required to instruct you that it doesn’t mean a thing. But the truth is, it means everything. It means that the defendant has something he doesn’t want you to know. It doesn’t necessarily mean he’s guilty, it may only mean that he has done some bad things before: serious crimes, crimes reflecting dishon-esty or a penchant for violence, things that would make a jury believe that because he had done it before, it was likely he had done it again.
“There are cases like this, where the defendant doesn’t testify because, though he is innocent of this crime, he has the kind of criminal record that will make it almost impossible for anyone to believe he’s telling the truth. But more often than not, when the defendant doesn’t testify, it’s because the defendant is guilty. The defendant did it, and because a lawyer cannot put someone on the stand he knows will commit perjury, and because the only truthful testimony the defendant can give is to confess to the crime, he doesn’t testify at all. And then the jury is given this instruction,” I said, lifting the single sheet of paper shoulder high before I let my hand fall down to my side. “No one can make the guilty testify against themselves,” I went on, darting a glance at Cassandra Loescher. “And no one can stop the innocent from testifying about what they know.”