In theory we are trying to defeat the prosecution in this hearing, to sway the judge into the belief that there is not enough evidence to hold Jeremy over for trial. In real life this never happens; the prosecution meets their burden of probable cause every single time.
This is not to say that the exercise doesn’t hold its rewards for our side. Lester will not call all of his witnesses, nor will he present all of his evidence, but it will still be helpful to assess the witnesses that do come in. We will also get to question them under oath, which gives us the ability to use this testimony to impeach them at trial.
A major negative in the process, and the reason Lester is going this route rather than a grand jury indictment, is that the unchallenged prosecution case will get into the media, and their victory will assume an importance in the eyes of the public that it does not deserve. If we were involved in an obscure, run-of-the-mill case in an inner city somewhere, this would not be a problem, since the media coverage would not be there. And the reason the media would not be there is that it seems they’ve all decided to come to Findlay.
Waiting for Calvin and me on the courthouse steps when we arrive is a ridiculously large group of media types, including a number from the national cable networks. I should have expected this, since the original arrest caused them to cover Laurie’s press conference.
I am at a loss to explain why the national media cover certain crime stories and not others. Thousands of murders are committed every year, and thousands of people disappear, so why did the media choose to saturate America with Elizabeth Smart, Jon Benét Ramsey, and Laci Peterson?
Maybe they’re latching onto this one because pretty young coeds have been murdered, or maybe it’s because there’s apparently a religious aspect to it. All I know is that I’ve had enough media attention on my recent cases, and I don’t relish it on this one.
The problem is really one of timing and focus. Preparing a murder trial requires a full-time commitment, mentally and even physically, and any energy devoted to spinning the media is inevitably a distraction. However, the media will be fed, and will fill their airtime with information, accurate or not, and I can’t cede that territory to the prosecution. In other words, if the media are going to broadcast bullshit to potential jurors, I want it to be our bullshit.
I stop to answer some questions, mostly to get the point across about how the preliminary hearing process disproportionately favors the prosecution and that viewers should not attach any importance to it. The media people, of course, do not want a lecture on our legal system, they want juicy details about the case. This exchange, therefore, is not at all satisfying to either side.
As it’s wrapping up, a reporter from MSNBC who I know from my panelist days, which seem like a hundred years ago, throws me a softball. “So, Andy, how do you see the case shaping up?”
“Well, the prosecution has more resources and obviously has the home field advantage, so it won’t be easy. The only thing we have going for us is an innocent client.”
“Any chance of a plea bargain?”
“Zero.” I say this even though I have no idea if it’s true. New facts can come out, trials can go south in a hurry, and our determination to fight to the end can change to a desperate attempt to avert the death penalty.
When we’re out of earshot of the media, Calvin whispers to me, “I never thought I’d say this to anyone, but it’s possible you’re even more full of shit than I am.”
“Calvin, no one is more full of shit than you are.”
“You’re just saying that to make me feel good,” he says.
Once we’re inside, I see that Lester has already arrived with his mini-entourage. I nod to him, but he doesn’t return the nod. This is hardball, Findlay-style.
We sit down at the defense table, after which Jeremy is brought out. He takes his seat next to Calvin and within about two seconds asks if there is anything new with his case. If he is like my previous defendants, this is the first of five thousand times he will ask that question. What he’s really asking is if there has been a stunning development that will immediately cause his release, and he’s disappointed when he finds out there isn’t.
Laurie is sitting near the front of the room, though she will not be testifying. She was not on duty the night of the murders, and Cliff Parsons handled the investigation. I assume he will testify, since he’s on Lester’s list, and I plan to rough him up some.
Judge Morrison starts the hearing at precisely nine o’clock and begins by informing the packed gallery that if they are the cause of any disruptions, they will rue the day. I have a feeling there’s not going to be any ruing this particular day; I think the judge’s warnings will have the desired effect. To the nonmedia people in this room, this is the World Series, the biggest public event that Findlay is likely to experience. At least until the trial.
Lester calls as his first witness Dr. Clement Peters, the county medical examiner, who Laurie and everybody else refers to as Clem. He is here to discuss the results of his autopsy to determine the cause of death, as well as to report on the results of tests taken to identify the bloodstains on the front seat of Jeremy’s truck.
If left to his own devices, Dr. Peters could say in about thirty seconds that the deaths were due to multiple stab wounds and that the blood on the front passenger seat belonged to both victims. In Lester’s publicity-hungry hands it takes just under an hour; he’s never played to a media-packed house before, and he does not want to step back out of the spotlight.
Finally, reluctantly, he turns the witness over to me. “Dr. Peters, about how much blood was there in the front of the car?” I ask.
“In layman’s terms, maybe ten or twelve specks.”
“But it could be seen with the naked eye?” I ask.
“Yes.”
“How did it get there?”
He seems surprised by the question and takes a moment before saying, “I really don’t know.”
“Do you think it’s likely that the victims were both in that front seat bleeding?”
He considers this. “Well, it’s a small area… I doubt if both of them were there, but it’s possible.”
“If they were cramped into the seat like that, bleeding from the stab wounds, would you expect to see more blood?”
“Absolutely.”
As prosecution witnesses go, this is an outstanding one for the defense, mainly because he seems to be open and not partial to either side. He doesn’t bring an agenda to this hearing, as Lester and I both do.
“But if they hadn’t been stabbed yet, and were cramped into that same seat, they wouldn’t each have left blood specks, would they?”
“Not unless they both had other wounds of some sort.”
I accept that and move on to a discussion of the bodies, which Dr. Peters had said had at least ten stab wounds each and had bled profusely. “In your considered opinion is it possible that the person who committed these murders was able to avoid getting blood on himself or herself?”
“I’m not an expert in blood spatter, but I would say no. In the case of Elizabeth Barlow the carotid artery was cut, and that would have created a spurt of blood. And other wounds on both women would have done the same.”
I let him off the stand; he’s not the guy whose credibility I need to damage. Lester, seemingly pleased with how well this has started, quickly calls Dwayne O’Neal, a patron at the Crows Nest bar on the night of the murder.
O’Neal, in his mid-twenties himself, seems relaxed and delighted to be here as the center of attention. He testifies that he saw Jeremy and Elizabeth arguing in the parking lot that night and that Jeremy was yelling at her. He was a good fifty feet away but had no trouble hearing them.
“What could you hear them saying?” Lester asks.