Why hadn't he seen him? Because Dooher hadn't been there, ladies and gentlemen. He'd been home stabbing his wife, faking a burglary. The prosecution had shown the linear connection between the blood taken from Dr Harris's office on the same day that Dooher had been there – indeed, within minutes of when the defendant had been in the same examining room. And then later this same blood, not even close to the most common type of blood, and tainted with EDTA, had been splashed on Sheila Dooher's bed and body. No one else but Mark Dooher could have done this. The jury must return, Jenkins concluded, with a verdict of murder in the first degree.
Farrell stood as though lost in thought, scanning the yellow pages of his legal pad, on the table in front of him, for a last second before pushing back his chair and finally positioning himself in front of the jury box.
'Ladies and gentlemen,' he began, then took another step forward and lowered his voice. This was now simply a talk with these jurors, whom he'd come to know. Intimate and familiar. 'I remember that back in school, when I was first being taught how to write an essay, I had a teacher – Mrs Wilkins – and she said if we only remembered three things about essays, we'd get an A in her class.
'First,' he held up a finger, 'first you write what you are going to say. Next you say it. Then, number three, you summarize what you just said.' He broke a smile, homespun and sincere. 'I'm a bit of a slow learner, but I got an A in that course. And ever since, I've been comfortable with that essay formula. Which is why it's lucky I'm a lawyer, I suppose, because that's a little bit what a trial is supposed to be like.
'We've been here over the last couple of weeks listening to the evidence in this case, trying to see if we can resolve one question, and resolve it beyond a reasonable doubt: Does the evidence show that Mark Dooher, the defendant over there' – he turned and pointed – 'that Mark Dooher killed his wife?'
Back to the jury, his voice now harsher in tone, though still at only the volume of whisper. 'I'm going to let you in on something, ladies and gentlemen. It does not. Not even close. Let's look for a last time at what the prosecution has given you to consider, what they say they have proven.' He stopped and looked back over his shoulder at Glitsky and Jenkins.
'A motive? Certainly, a man who apparently has been happily married for over twenty-five years to the same woman would need some overwhelming and immediate reason to decide to kill his wife in cold blood. The prosecution's theory is that Mark Dooher did it for the insurance money. Now, forget for the moment the fact that Mr Dooher is a well-paid attorney, that he owns a house worth a million dollars, and that his retirement is secure. Forget all that and focus on this question: Where's the proof of this motive theory? Did the prosecution present any witnesses supporting any part of it? They did not. No proof. No witnesses. A bald assertion with no basis in fact.'
Farrell glanced at the clock – 3:15. He had a lot to say, but suddenly he knew with relief that he was going to finish today. It was nearly over. He went to the table and drank some water, then returned to the panel.
'Now let's talk for a minute about the evidence of the crime itself, evidence found at the scene which they contend proves beyond a reasonable doubt an inextricable link between Mark Dooher and this murder.'
He stood mute before the jury box, making eye contact with each juror, one by one. The process took nearly fifteen seconds – an eternity in the courtroom. The silence hung heavily.
Farrell nodded, including them all. That's right. There is none. None. The kitchen knife with fingerprints on it? Those fingerprints were left by normal use around the house.
The surgical glove? Where's the proof that it was Mark Dooher's glove, that he brought it to the scene? There is none because that didn't happen. No, this glove was brought to the scene by the burglar – by the murderer -and left there. That's all we know about it, and it says nothing whatever about Mr Dooher.
' So we have no proof that Mark Dooher was at the scene of the crime, no direct or circumstantial evidence tying him to it. Next we must turn our attention to whether Mark' – Farrell began purposefully using Dooher's first name – 'was even in the neighborhood. Mr Balian says he saw his car parked a couple of blocks away when it should have been in the San Francisco Golf Club parking lot. But Mr Balian also says he recognized a brown Lexus from diagonally across a wide street, in the dark.' Farrell shook his head. 'I don't think so.
'And Mr Ross didn't see what he said he didn't see at the driving range that night, either.' He put his hand on the bar rail in front of the jury. 'You know, it's funny about people. You and me, all of us. You ever notice how sometimes we say something, and we're not too sure of it, but we say it anyway? Maybe something we've seen, or a story from a long time ago where we don't remember all the details so we kind of fill in what's missing with something plausible? I think we've all had the experience – after we've done this, especially if we've told the story more than once – of not being able to remember what parts exactly we filled in.
That's what happened to Mr Ross. I don't think he purposely perjured himself under oath here. No, he was at the driving range that night, or perhaps on some other night he was three mats from the end, and he remembered not seeing anyone at the last mat. But he told Lieutenant Glitsky it was this night, and he was stuck with that story.
'For those of you who might be familiar with Sherlock Holmes, Mr Ross was the dog who did not bark in the night. He saw no one. This testimony, even if it were true in all its details, does not possess the same authority as if he said he saw Mark picking his way through the hole in the fence. Perhaps Mark wasn't there one time when Mr Ross looked up. Mark has admitted going to the bathroom and getting a Coke. That testimony was corroborated by the golf pro, Richie Browne. He says Mark Dooher was there the whole time. So let's leave Mr Balian and Mr Ross. The purported proof they offer is fatally flawed.'
Farrell let out a long sigh and gave another weary smile to the jurors. 'You've heard that Mr Dooher carefully sedated his wife. Then, after killing her, he made the scene appear as though a burglar had done it.'
'Now, I ask you, if you were going to plan this kind of elaborate charade, if it were your intention to make it look like a burglar had been in your home, don't you think you'd leave some sign of a forced entry? A broken window? A kicked-in door? Anything? Ladies and gentlemen, this theory defies belief.'
'I don't know about you, but I kept waiting for some witnesses to appear and say they'd seen Mark drive up, enter the house, drive away, anything. But I never heard that. Not one witness came forward to say that. All I heard was Ms Jenkins tell us she was going to prove it, and I kept waiting, and the proof never came. And you know why? Because it didn't happen.'
'Now Judge Thomasino will be giving you jury instructions, but I want to say a word about the defense's burden of proof. We don't have to prove anything.'
'And yet Mark Dooher chose to testify – to go through three or four hours of Ms Jenkins's questions – so that he could tell you what he did do on the night of June seventh.'
'So what do we have? We have no proof of motive, we have no proof that Mark was at the scene of the crime when it occurred, we have no proof that he was even in the neighborhood at the time. In short, there is no proof at all, much less proof beyond a reasonable doubt, that Mark Dooher is guilty of this crime. There are no facts that convict him.'