Stier had just overstrategized himself into a truly dumb move and Judge Braun, never subtle, was letting him know it by her body language and withering expression. “Very well, Counselor,” she clipped out through lips tight enough that it didn’t appear she was moving her mouth at all. “By all means, let’s memorialize that conversation. Court reporter and attorneys in chambers. Ten-minute recess.”
Finally Hardy stood to deliver his opening statement. He had the option of either delivering it now or waiting until the prosecution closed its case in chief. But like most experienced defense attorneys, he didn’t want to give the jury too much time to live with the version of the crime they’d just heard described in the prosecution’s opening statement.
Even with many murder trials under his belt Hardy expected that he would be struck by opening-day jitters-the familiar hollowness in his stomach, the deadness in his legs-when he first stood to address the jury. Especially with the large and captivated crowd in the courtroom, the sudden sense that something of major import was transpiring here. When he rose to come around his table and face the panel, though, he found himself possessed of an almost unnatural calm, even a confidence.
The easy camaraderie between Braun and Stier had just suffered a serious blow and while the prosecutor was probably still reeling from it, Hardy could use this small but real advantage to push the envelope a bit-maybe throw in a little argument, which was forbidden in opening statements-and, while Stier’s attention was focused elsewhere, perhaps escape without too much interruption in the form of objections from the prosecution table.
He began in an amiable fashion, wearing an easy smile and making eye contact with every juror he could before he started. “Good afternoon. This morning Mr. Stier related to you an extravagant scenario of motivation and coincidence that he hopes will convince you that Maya Townshend is guilty of two counts of first-degree murder.” Much in the same way that Stier always referred to Maya as “Defendant” to dehumanize her to the jury, Hardy would strive at every opportunity to refer to her by her given name, underscoring her humanity and personhood. “Unfortunately for the People’s case, but fortunately for Maya and for justice, what he left out of his story were the gaps and holes and inconsistencies in the so-called chain of evidence upon which the prosecution relies. The prosecution cannot and will not prove that Maya killed Dylan Vogler or that she killed Levon Preslee, because she didn’t.
“Did Maya know Dylan and Levon when she was in college? Absolutely she did. Did she do some things she’s ashamed of now, as Mr. Stier alleges? Yes. Will there be evidence, such as direct eyewitness testimony, to prove these things? Again, the answer is yes.”
Hardy, always conscious that he had a tendency to go too fast and gloss over elements of syllogisms that might be crucial to jury members, had trained himself to slow down, timing his restrained pacing from one end of the jury box to the other, getting back to his table ostensibly to consult notes or take a drink of water, sometimes just to touch it to keep him in his rhythm, center him for another lap.
Now he touched the wood of his table, gave a quick confident nod to his client, and turned back to the jury. “So the prosecution can prove that Maya Townshend”-he walked over to her, putting his hands on her shoulders-“small-business owner, wife, and mother of two young children, made mistakes when she was in college.
“We know that she was a student at the University of San Francisco because there are records supporting her attendance there. She appears four times in four years in the school’s yearbook, and several times in the university’s newspaper, the Foghorn. Similarly, we will learn from her classmates at the time that she associated regularly with both Dylan Vogler and with Levon Preslee, and we will hear from other eyewitnesses that these young students were not exactly members of the choir. These are facts supported by both documentary and eyewitness testimony.”
Hardy didn’t dare glance back at Stier. He was well into argument here and so far he was getting away with it. The prosecutor, still licking his wounds, hadn’t engaged yet. He was no doubt listening, but he wasn’t hearing.
“But that’s not what she’s accused of. She’s accused of murder. And for that accusation the prosecution has no evidence. The district attorney tells you that it has evidence to support the charges it has brought against her, evidence that directly ties her-and this is important-that ties her, and no one else, to these crimes. That is simply not so.
“The actual truth is that unlike the story about Maya’s earlier life, which the prosecution can back up with witnesses and documents, there is nothing to tie her to evidence of these murders except innuendo and speculation. And why is that?”
Hardy paused, taking a moment up by the witness chair, again meeting the gaze of juror after juror. “The answer, ladies and gentlemen, is quite simple. The prosecution won’t provide you with this evidence because none of it exists. There are no eyewitnesses who will claim they saw her in the presence of either of the two victims on the day of their respective deaths. There is no documentary evidence-say a time stamp or video recording-analogous to the USF yearbook or the issues of the Foghorn that places Maya in the company of either of these two victims at the time of their deaths. Nearby? Yes, by her own admission. But nearby, ladies and gentlemen, is not good enough to meet the legal standard that will take you beyond reasonable doubt.”
This time Hardy stopped at his table for a quick sip of water. He glanced out at the gallery, at Kathy West and Harlen and Joel in the front row right in front of him. Nodding to them soberly, he came back to the jury.
“Now, I can see some of you asking yourselves: Wait a minute. This is a young woman without a criminal record. If she didn’t do it, if there were no proof that she did it, why would she be on trial? Why would the state of California expend all this enormous time, energy, and expense if there is no physical evidence tying her to these crimes? These are excellent questions, and unfortunately they go begging for answers. Because the real truth of this prosecution is that there is no physical evidence proving that Maya ever fired the weapon that killed Mr. Vogler, or held the knife that killed Mr. Preslee. No eyewitnesses. No fingerprints. No physical evidence. No incriminating bloodstains on Maya or on her shoes or on her clothing. No nothing.
“She was in the vicinity of both deaths on the times they occurred, yes. But both times she was summoned to those places-as her phone records will attest-by the victims themselves, or by someone calling her on their telephones. That someone is, I submit, the person who should be sitting where Maya is now, charged with these murders. He or she is every bit as real-in fact, more real-than the so-called evidence you will hear connecting Maya to these murders. The police simply haven’t found or identified this person as a suspect.”
This-the theory of the case that Hardy would be arguing whether he believed it or not-brought a significant buzz to the packed courtroom, as he’d known it would. The pundits, the reporters, the Court TV and other television crews-and with Kathy West’s presence he knew there’d be vanloads of them now in the next few days-would dissect this strategy from every imaginable angle. Was Hardy wise to show his hand so early? Was this pure cynicism? Did he have any proof of his own to support what he was saying? Wasn’t the SODDIT-“some other dude did it”-defense one of the most hackneyed and noncredible strategies in criminal law?