“Spirit,” Monsignor Davis says to our District Attorney. “Since the Second Vatican Council, we call the third member of the Trinity the Holy Spirit.”
Harry turns and gives Geraldine yet another smile, this one accompanied by a wink. “Been a while, heh, Counselor?”
“Mr. Madigan!” Judge Gould bangs his gavel again, kneading his temple with his free hand. Harry had better curb his editorial comments; the judge’s patience is wearing thin. His little ditty was well worth it, though. The jurors are still laughing. And Geraldine Schilling is livid.
Harry nods up at the judge, then turns back to the witness. “The man in charge wants me to wrap it up here,” he says to Monsignor Davis. “So let’s talk turkey.”
The Monsignor laughs a little. “Okay,” he says. “Let’s.”
“Father McMahon was already dead when you entered the church last Christmas Eve, wasn’t he?”
“Yes,” the priest says, “he was.”
“And you didn’t see what happened to him, did you?”
Monsignor Davis hesitates.
“You saw the aftermath of what happened,” Harry adds quickly, “but you didn’t see the altercation itself—or any portion of it—or anything that led up to it.”
This clarification seems to assuage the witness’s concerns. “That’s correct,” he says. “I didn’t.”
“And it’s equally true to say you didn’t hear any portion of it, isn’t it, Monsignor?”
“Yes, that’s equally true.”
“So what you’ve offered us here today, Monsignor Davis, is your opinion, isn’t it? You’ve testified to your opinion about what Father McMahon may or may not have done that night.”
Again the priest hesitates and again Harry jumps in quickly to clarify. “In other words, Monsignor, your testimony isn’t based on anything you perceived through your physical senses, is that correct?”
Still, the witness seems reluctant. “That is correct,” he says after a moment. “But bear in mind that my vocation—my life’s work—isn’t based on anything I perceive through my earthly senses, either.”
Harry should have seen that answer coming, but he didn’t. It’s written on his face. And there’s no way in hell he wants to end the cross-examination on that note. “In any case,” he says, pretending the prior response is of no significance, “you’re not here today under subpoena, are you?”
“No, I’m not.”
“You’re here voluntarily, having told the District Attorney there was no need for a subpoena, is that correct?”
“Yes. That’s correct.”
“And Monsignor, your voluntary appearance here today is explainable—at least in part—by the fact that Francis Patrick McMahon was your good friend, isn’t that true?”
“In part,” the witness says. “Yes, I agree with that.”
“Is it fair to say you felt you owed Father McMahon that much? Is it fair to say that by showing up here today voluntarily you hoped to honor your good friend’s memory, to seek some semblance of justice for his untimely death?”
Monsignor Davis is quiet. He seems to have aged on the witness stand; his demeanor is subdued, his complexion pale. “I suppose that is true,” he says at last. “Certainly the part about honoring Frank’s memory.” He pauses and tilts his head to one side. “But perhaps a man can’t do that answering lawyer questions.”
Now it’s Harry’s turn to be quiet. “Perhaps not,” he says after a moment. He turns away from the witness, walks toward our table, but then stops. “About the weapon,” he says, turning back to face the witness. “Where did it come from?”
Harry’s only asking this question because he already knows the answer. He wouldn’t dare otherwise.
“It was in the sacristy,” the priest says. “The chapel is an old building; we’re constantly making minor repairs, it seems. We keep a wooden box—a crate, I guess you’d call it—on one side of the counter. It’s full of hammers, pliers, screwdrivers—all sorts of tools. The ice pick was among them.”
“Thank you. And one last thing, Monsignor.” Harry’s still standing in the middle of the room, still facing the witness. “I want to offer you my sincere condolences on the loss of your good friend.”
Some defense lawyers routinely offer condolences at the beginnings of cross-examinations, hoping at least some prosecution witnesses will let down their guards, perceive the defender as an ally of sorts. Harry doesn’t. He’s offered his sympathy to this witness—at the end of cross—because he means it.
Monsignor Davis seems to sense as much. He swallows a lump in his throat, then takes another sip of water. “I go out there—to the small cemetery—to pray for Frank every morning,” he says to Harry. “And when I finish, I pray for Mr. Holliston.”
Harry’s surprise is genuine. We don’t often meet a prosecution witness who prays for the accused. He looks from Monsignor Davis to Holliston, and then back to the priest again. “Thanks,” he says as he sits.
The Monsignor nods.
Holliston leans forward, not looking the least bit pleased anymore. His face is scrunched into a maze of hatred and disbelief. “Thanks?” he says too loudly. “Thanks?” He points at the witness box. “That guy calls me a liar and you say thanks? For Chrissake, whose side are you on?”
Harry stares back at our client, but says nothing. And there’s a reason for that, of course. He doesn’t know whose side he’s on.
Chapter 22
Criminal defense lawyers lose. It’s what we do. We lose when we know we should. We lose when we think we shouldn’t. And we lose when we’re damned certain we should carry the day. It’s the nature of the beast.
It’s odd, then, to watch Harry worry about winning. He’s been tense in his chair beside me throughout our fifteen-minute break, his hands clutching the armrests, his eyes closed. He doesn’t open them when the guards usher Derrick Holliston back to our table, but he does when Big Red comes through the side door with the jurors. Harry’s quick to change his posture now, too, sitting up straighter, making eye contact with each member of the panel who’ll allow it, adopting a serious, confident demeanor.
“Mr. Madigan,” Judge Gould says when the last juror is seated, “you may proceed now, sir.”
“Reasonable doubt,” Harry says as he stands. “When all is said and done, this case boils down to one issue: reasonable doubt.”
He unbuttons his suit coat and shoves his hands into his pockets as he leaves our table. “Judge Gould will instruct you that the Commonwealth bears the burden of proving every element of the crime charged beyond a reasonable doubt.”
He stops in front of Geraldine’s table and glances at her, then resumes his trip toward the jury box. “The judge will also tell you that proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”
Those are the exact words the judge will use in his instructions to the jury. Judges and lawyers routinely invoke the concept of reasonable doubt, but the truth is we’ve never been very good at defining it. Until fairly recently, the judge would have told the jurors that reasonable doubt exists if they “cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” But a couple of years ago, the United States Supreme Court expressly disapproved of that language, noting that the term moral certainty has an entirely different meaning today than it did when the words were first penned by the Massachusetts Supreme Court in 1850.
“Firmly convinced,” Harry repeats. “You should convict Mr. Holliston of murder only if you are firmly convinced that he did not act in self-defense.”