In all murder cases, the judge is obligated to instruct the jury on every lesser-included offense that might be supported by the evidence. Case law is clear that an instruction is required where any view of the evidence would support the lesser-included result. As a practical matter, this means most murder juries are asked to choose from among first-degree, second-degree, and manslaughter charges. The fourth option, of course—available only if the jurors believe Holliston acted to preserve his own life—is an outright acquittal.
Geraldine argued yesterday that a manslaughter instruction shouldn’t be given in this case. No view of the evidence would support such a result, she said. Giving an instruction on it would do nothing more than invite a compromise verdict. And not giving the instruction would actually benefit the defendant, she claimed. If the jurors fail to find the required elements of second-degree murder, they’ll have no choice but to acquit.
Our District Attorney’s argument was a loser. Voluntary manslaughter is defined as an unlawful killing with intent to kill, but without malice. The statute specifically provides that a killing is done “without malice” if it results from an excessive use of force during self-defense or if it occurs in the heat of passion caused by reasonable provocation. Technically, at least, the jury could be justified in finding either of those scenarios in Holliston’s case.
Judge Gould didn’t buy Geraldine’s pitch from the outset, but he actually laughed when she purported to have the defendant’s best interests at heart. “We’re not in Las Vegas, Ms. Schilling,” he said, “and this court is not a casino. We’re not here to force the defendant to roll the dice and then live with his losses.” That was the end of the argument. And Harry never said a word.
Big Red calls us to our feet as the chambers door opens and Judge Gould strides quickly to the bench. He’s in his robe, business as usual, but today his shirt collar is unbuttoned beneath it, the absence of a tie his only nod to Saturday. “Bring them in,” he says as he sits, and Big Red heads for the side door. Holliston watches him leave, then looks down at the table and shakes his head. “I still don’t like that guy,” he mutters.
“Rumor has it he doesn’t think a hell of a lot of you, either,” I tell him.
That notion seems to strike our hotheaded client as preposterous; he bolts upright and glares at me. I feel a sudden relief about reaching the end of the road in this case, no matter what the verdict might be. I’m tired of Derrick John Holliston. And I’ve had more than enough of his angry eyes.
Big Red returns in seconds, the jurors filing into the courtroom behind him in complete silence. Most of them avert their eyes—they look at their hands, the clock, the floor—as they take their seats in the box. Not all, though. Robert Eastman and Alex Doane stare directly at us—at Holliston, in fact—as soon as they enter the room. Maria Marzetti does too. I scan the panel quickly, searching for the telltale white paper, and it takes only a few seconds for me to spot it. Gregory Harmon clutches the form in his right hand. It’s the verdict slip; the one guy Harry would have kept off the panel had Holliston not called the shots is our foreman. He stares straight ahead as he sits; his expression reveals nothing.
Judge Gould bids the jurors good morning as they take their seats and they all return the sentiment. He nods to our table and Harry and I get to our feet. Holliston takes his time joining us, as if this is our moment of truth, not his. The guards who ushered him into the courtroom have been standing near his chair since they got here, but they inch closer to it now, their readiness palpable.
The judge pauses to allow Dottie Bearse to recite the docket number and then he turns back to the panel. “Ladies and gentlemen,” he says, “have you reached a verdict?”
Gregory Harmon stands. “We have, Your Honor.” His eleven compatriots remain seated, nodding in agreement. There’s not a sound in the room. If the spectators are breathing, they’re doing it on the sly.
Big Red hustles to the jury box, retrieves the verdict slip from Gregory Harmon, and ferries it across the courtroom to the bench. Judge Gould reads in silence, his expression a well-rehearsed neutral.
The judge passes the form back to Big Red, then turns to Dottie again. This time she stands at her desk. “Mr. Foreman,” she says, “in the matter of The Commonwealth of Massachusetts versus Derrick John Holliston, on the charge of murder in the first degree, murder committed with extreme atrocity or cruelty, what say you?”
Holliston drums his fingers on the table. He’s impatient; it seems he’s got other matters to attend to. I step on his foot, hard. He glares at me yet again, but at least he stops drumming.
Big Red returns the verdict slip to Gregory Harmon and the foreman opens it to read. He doesn’t need to do that, of course; he knows what it says. “On the charge of murder in the first degree,” he intones, “we find the defendant, Derrick John Holliston, not guilty.”
The courtroom erupts. More than a few of the spectators shout angry criticisms at the jurors. An even greater number actually boo. The Barnstable County Superior Courthouse sounds like Fenway Park during a Derek Jeter at-bat.
Judge Gould bangs his gavel repeatedly, but it has little effect. Holliston turns around and half sits on our table, a small smile spreading across his lips. I turn too, to take in the scene. Most of the spectators are on their feet, and more than a few of the shouters have their fists in the air. Big Red hurries down the center aisle, pulling the worst offenders from the benches, steering them toward the back doors. He’s having a hard time ejecting them, though. The overflow crowd has the exit blocked.
The judge is on his feet now too, his gavel working like a jack-hammer. He calls for quiet repeatedly, and the free-for-all settles down a bit after a half dozen of his pleas. “We’ll sit here all day,” he shouts, “and we’ll eject every last one of you, if that’s what it takes to restore order.”
Holliston lets out a little laugh beside me; he’s enjoying this.
Monsignor Davis isn’t. He and the Butcher may be the only two people in the room who are still in their seats. The Monsignor’s eyes are closed, his head bowed and his lips moving rapidly. Silent prayers, I presume, for everyone in this courtroom. The Butcher’s eyes are closed too—they’re squeezed shut, in fact—and his fists are clenched. I’m glad he’s not standing in either of the side aisles. If there were a wall anywhere close to him, I’m pretty sure he’d punch a hole in it. Whatever modicum of confidence he may have had left in our judicial system after his own ordeal with Derrick Holliston has just gone up in smoke.
Big Red has managed to part the lobby crowd, creating a path by which his dozen or so worst offenders can exit. The noise level drops a notch once they’re gone, but the judge keeps hammering. “Quiet,” he shouts, “this instant.” And this time, for some reason, he gets it.
“Another outburst like that,” he says, still catching his breath as he sits, “and we will empty the gallery.” He waits, letting his words sink in, like an angry parent threatening to ground a wayward teenager. “Ms. Bearse,” he says at last, “you may proceed.”
Generally speaking, the courtroom is not a place for the weak-kneed. Even Dottie Bearse, who’s spent her entire adult life working in this arena, looks shaken. She pours a glass of water at her desk and takes a long drink. Her face has gone pale and her hands are trembling. “Mr. Foreman,” she says, her voice noticeably quieter than it was a few minutes ago, “in the matter of The Commonwealth of Massachusetts versus Derrick John Holliston, on the charge of murder in the second degree, murder committed with malice, but without deliberate premeditation or extreme atrocity and cruelty, what say you?”
Gregory Harmon swallows hard as he opens the verdict slip to read again. The document is merely a crutch, of course. If he keeps his gaze fixed on the written word, he avoids the possibility of eye contact with the man whose fate he’s pronouncing. At least two of his fellow jurors don’t seem to need any such device. Robert Eastman and Alex Doane haven’t stopped staring at Holliston since they got here.