Job? A reminder that the prosecution has God on its side.
"The woman, this woman sitting here…"
Abe approached the defense table and pointed, his index finger a foot from Chrissy Bernhardt's nose. She didn't blink. She just sat there in her three-piece Calvin Klein suit, a big-buttoned V-neck jacket in steel-blue crepe and matching skirt, and a gray washed-silk blouse.
"This woman, Christina Bernhardt, aimed the gun at Harry Bernhardt, her father, and with malice and premeditation, she pulled the trigger. Not once, not twice…"
Thrice?
"… but three times. Bang! Bang! Bang!"
Two jurors winced at the sound effects. The others didn't, perhaps because Abe's perpetual sinusitis muffled the shots like a silencer on a barrel.
"Harry was rushed to Mount Sinai Hospital, where heroic measures were undertaken to save his life. But two hours after surgery, he suffered cardiac arrest and died, his death the proximate result of the shooting. Unlike most trials, in this one there is no doubt as to any of this. You will hear testimony of eyewitnesses who will state under oath that Christina Bernhardt did, in fact, shoot her father. You will hear the testimony of the paramedic, the surgeon, a treating nurse, and the assistant medical examiner. You will hear that the cardiac arrest suffered by Harry Bernhardt was inextricably linked to and caused by the shooting, and therefore you will be compelled to find that Christina Bernhardt killed her father, and that she is guilty of murder in the first degree."
Abe went on for a while, advising the jury to pay keen attention to the witnesses, to follow all of Judge Stanger's instructions, and to listen carefully to Mr. Lassiter when he stood up for his opening statement. By raising his eyebrows and his voice just a bit, Abe made "carefully" sound like "skeptically." He thanked the good folks for their time, told them he'd move the case along quickly-implying that any delays were my fault-then sat down with a warm and gracious smile.
I stood and bowed slightly toward the judge. Behind me, I heard a press camera click, the sound not quite deadened despite the elaborate apparatus designed to silence it. The courtroom door creaked open, then banged shut. Shoes squealed on the tile floor, and someone in the first row coughed. I heard it all, just as I'd always heard the few cheers and many boos that greeted me in the stadium.
"May it please the court," I began, paying homage to five hundred years of English common law. Then I turned toward the jury. "Yesterday, I asked each of you if you would wait until all the evidence is in before making up your minds as to whether the state has proved its case beyond a reasonable doubt. You all said yes."
Jurors are an honest bunch. Remind them of their promises.
"That is important in every case, but crucial here, for this is not a simple case, though certain facts are undisputed. Chrissy Bernhardt did shoot her father, who did die later that night. But there will be issues as to Chrissy's intent and her mental state, issues that Mr. Socolow did not discuss with you."
And I won't either. Not in any detail anyway, because I still don't know what the hell to say.
"These issues are important because you cannot find Chrissy guilty of first-degree murder without finding that she had the specific intent to kill, and that she formed that intent before acting and had that intent when she did act."
"Objection, Your Honor." Socolow got to his feet. "Opening statement is no place to argue the law."
"I'm not arguing, Your Honor," I replied. "I'm just previewing a jury instruction."
"Overruled as long as the law is not misstated. But, Mr. Lassiter, the function of opening is to discuss the evidence, so move it along. I'm quite capable of telling the jurors the law at the appropriate time."
I decided to walk the fine line the judge drew for me. "When all the evidence is in, Judge Stanger will instruct you on the law. He will read you the legal definition of first-degree murder, and you will apply that legal standard to the evidence. The judge will tell you that to find Chrissy Bernhardt guilty, you must find that she killed her father with premeditation. And then the judge will define that term. 'Killing with premeditation is killing after consciously deciding to do so.' I suggest to you now that the evidence will show that my client did not consciously form such an intent."
The jurors looked puzzled. Who could blame them? I sounded like a hairsplitting pettifogger. Better to play to my strength, my beautiful and presumably innocent client.
"You will learn much about Chrissy Bernhardt in the course of this trial. You will learn about her upbringing and about her invalid mother, about why Chrissy left home as a teenager, refusing to ask her father for support, even refusing to tell him where she was."
Chrissy, Chrissy, Chrissy. Making her sound like a child, even now.
"You will learn that there are two victims of this tragic incident."
Making it sound like an accident.
I moved close to the jury box and gave its occupants my sincere look. "This is a hallowed proceeding, the ultimate in our democracy." I turned and rested a hand on the back of the witness chair. "Here, truth and nothing but the truth is acceptable. Nothing less than complete, unvarnished, untainted truth should be acceptable to you. If lies, fabrications, and falsehoods come from this chair, this throne of truth, if any doubts are raised as to the guilt of Chrissy Bernhardt, you must acquit."
If the glove doesn't fit…
"Objection," Socolow said. "This isn't closing argument."
The judge waved him off without a word. I seldom object during opening statement or closing argument. In my old game, when you throw the ball, three things can happen, two of them bad. Same thing here. Object during opening, the judge is likely to overrule you or ignore you.
I rambled on for a while, telling the jurors I was their taxi driver, and we were going to take a trip of discovery, learning the facts as we went. But it was a bumpy road filled with potholes and dangerous curves. I spoke in vague terms, hinting at the sexual abuse without saying it. I never mentioned Dr. Lawrence Schein by name, but as I stood there, skimming my notes, watching for jurors' eye contact, occasionally scanning the gallery where crime reporter Britt Montero was taking notes, it occurred to me that I didn't have a choice. I had to put Schein on the stand. He had become the enemy. He could cast doubt on the memories he had uncovered, hurt us with the tape that showed premeditation, and toss out any number of lies I wouldn't be prepared for. But I didn't have anything else. If I could prove he'd had a motive to kill Harry Bernhardt, I could put the gun in his hands. To have a chance, I had to destroy him. Anything less, and he would destroy us.
23
A good prosecutor is a careful carpenter building a bookshelf. He saws a sure cut, hammers the nails straight, and hangs the shelves in plumb. Nothing fancy. The goal is to build the case slowly, competently. No razzle, no dazzle. No missing pieces.
A good prosecutor does not ask questions without knowing the likely answers. He does not ask a defendant to try on a pair of gloves that may not fit. He is a solid fullback, not a dipsy-doo wide receiver. The path to the end zone is a straight line if you don't fumble.
Abe Socolow is a master of his craft. His strength is his burning desire to win. He is fueled by a righteous indignation toward those miscreants who dare violate the law, and he takes seriously his role as representative of the people.
As a career prosecutor, Abe is not looking for a cushy job in private practice or an appointment to the bench. He wants to do what he always has done: get in early, work like hell, eat a brown-bag lunch, work some more, and, by the end of the day, ship another criminal upstate.
Abe sees the world in stark contrasts. Good and evil are painted in white and black, to hell with shades of gray. A defendant had a shitty childhood. Tell it to the prison chaplain. Drugs made you a robber or a rapist. Fine, we've got the cure, and it's not hugs and therapy. When the law has been broken, justice demands a penalty. It's as simple as that, and most folks in this great land of ours would agree.