And he had the best possible character witness he could have dreamed of – James Flaherty, the Archbishop of San Francisco. Whether or not any of the jury members turned out to be Catholic, Farrell believed that the moral authority Flaherty would bring to the witness stand would be unassailable.
He was torn.
To be safe, he'd put the Archbishop on his witness list. His 402 motion asked for a ruling – once he'd called the Archbishop and thus put character at issue, would Jenkins be allowed to call Price and Brown? Farrell obviously did not want the jury to hear from either of them.
Jenkins was responding to this. 'Your honor,' she was saying, 'Archbishop Flaherty will not be testifying that he was with the defendant on the night of the murder. He doesn't corroborate Mr Dooher's alibi for the time of the murder. Therefore, his only possible connection to this case is to serve as a character witness. And once he does that…'
Thomasino's eyebrows lifted slightly and he spoke right up. 'I know the law, counsellor. But I still question the relevance of the proposed testimony of either of your two witnesses.'
'Your honor, if the court please.' Farrell was on his feet. 'Mark Dooher has lived most of the last year under the shadow of these ridiculous accusations, unsubstantiated slander without any shred of evidence to support them. Even if the prosecution had dug up some witnesses to bolster these baseless charges, they will be talking about alleged crimes from thirty years ago. This is very remote in time.'
These remarks brought the first unanimity from the disparate factions in the gallery, and it was negative. Everyone except the reporters was here with some kind of agenda, and Farrell was trying to nip in the bud any discussion of the social issues represented by the testimonies of Diane Price and Chas Brown.
'Remote in time, my ass!' One of the gallery women yelled. 'He still raped her.' She was ejected from the courtroom for her pains.
When Thomasino had restored order, Farrell stood again and found himself making a speech. 'Your honor, any examination of these charges will involve a substantial waste of court time, litigating ancient history. This whole trial – and we see proof of this already in this courtroom – will end up being about an alleged rape and alleged homicide that happened years ago and thousand of miles from here. It's going to confuse and prejudice the jury and it's just plain not fair to introduce this flimsy stuff. How are we supposed to defend against allegations from a couple of substance abusers who say nothing for thirty years, then come out of the woodwork at the first sign of a TV camera?'
At the explosion following this question, which Farrell expected, Thomasino slammed his gavel five times, glared, did it again. He ordered three more people out. After the bailiffs had gotten them removed, a deathly silence ensued. 'I want everyone to understand this.' Thomasino's voice was barely audible, forcing everyone to listen. He pointed a finger at the back of the courtroom, waving it back and forth to include everybody. 'You people watching these proceedings are not a part of it, and any attempt to make yourselves part of it will force my hand. Any more outbursts, I will clear this courtroom.' He pointed his gavel at Farrell. 'You may proceed, Mr Farrell. Carefully.'
Farrell got the message. The Judge understood that he had purposely provoked the gallery. This wasn't going to be tolerated. He deemed it prudent to wrap it up. 'Ms Jenkins hasn't got any real evidence in this case, so she's thrown in these baseless charges in the hope of convicting my client through attrition. She would have us believe these witnesses will testify about Mr Dooher's character, but that's precisely not what they're going to be doing. They're going to be accusing him of other crimes for which the prosecution has no evidence. They have no place in this courtroom.'
Jenkins had heard enough. 'We do have evidence…'
'Then formally charge him,' Farrell shot back.
The gallery didn't exactly rumble behind them, but Thomasino held up his gavel and whatever noise was starting came to an abrupt end. 'I would ask counsel to address their remarks to the court, not to one another.' He was silent a moment, then continued. 'The defendant is on trial here for killing his wife. That is all he has been charged with, and that is what this trial is going to be about.'
Farrell nodded with satisfaction. If this were the Judge's decision – that the jury wasn't going to hear from either Chas Brown or Diane Price – it was a good sign for them.
'Therefore,' Thomasino was going on, 'it is the court's ruling under Section 352 of the Evidence Code that the proposed testimony of Chas Brown regarding the alleged murder of an unnamed person committed by the defendant is Vietnam some twenty-eight years ago is inadmissible. It is much more prejudicial than probative. Not only is the alleged event remote in time, any discussion of it would be unduly consumptive of court time. Especially, Ms Jenkins, in light of the fact that Mr Brown did not see this alleged murder, and therefore cannot testify that this murder happened at all.'
There was a muffled chorus of 'right-ons' and 'Yeahs' from the gallery, but Thomasino's glare put a quick stop to it. 'However,' the Judge continued, 'although equally remote in time, the character testimony of Diane Price regarding her alleged rape is that of a first-hand witness…'
'Your honor!' Farrell could see the way this might go, and he had to object. 'This alleged rape never took place, and even if it did, it has nothing to do with the crime Mr Dooher is charged with. You can't allow-'
'Mr Farrell! The issue is only going to arise if you bring up character in the first place. If you do, then as you know, the prosecution can bring rebuttal witnesses. If you, in turn, wish to attack the credibility of those witnesses, you may.'
'Yes, your honor, but-'
Thomasino cut him off by addressing Jenkins. 'Ms Jenkins, it is the court's ruling that you may call Diane Price as a character witness once that issue has been tendered by the defense.'
'Thank you, your honor.'
'But I must tell you that I will instruct the jury as to how to consider this proposed testimony. This is not going to turn into a rape trial.'
There was another buzz in the gallery, and this time the Judge did bring his gavel down. He looked at his watch. 'Mr Farrell, Ms Jenkins, any other last-minute motions you'd like the court to consider before we begin jury selection? No? All right, then, we'll take a twenty-minute recess while the first panel gets settled in.'
The tedium of jury selection consumed the rest of the morning, and judging from Thomasino's thoroughness as he directed the voir dire, it was going to continue to be a slow process. Sixteen prospective jurors out of the first panel of sixty had already been dismissed because of their familiarity with the case. This was an enormous percentage, indicative of the intense media coverage to date, and the trial was only beginning. It was going to get much worse.
The defense team had rented a small room next to a bail bondsman's office across the street from the Hall of Justice, and Wes split off from them on the way over to get sandwiches, which inadvertently left Christina and Mark alone. They entered the room together and closed the solid wooden door.
Christina put her briefcase on the desk and turned around. Mark had been a couple of steps behind her, and the room was cramped in any event. They stood, a foot apart.
Christina had been – figuratively – backing away for months. Suddenly now, the physical being that had been Sheila Dooher no longer stood as a barrier between them. The opening volleys in the trial signalled a new phase.
Mark had to recognize it now, too. He had to know that Christina would be there for him. She met his eyes. 'I don't know about you,' she said, 'but I could use a hug.'