Here was another objection, but this time Hardy merely made a note of it. Counsel wasn’t supposed to argue evidence in their opening statements.
Pullios didn’t use notes but she returned again to her desk, playing down any appearance as a superwoman. After checking her props, she turned and continued.
‘Rather than predict what the defense will contend relating to evidence in this case’ – here a nod to Chomorro, a smile to the jury – ‘I will tell you right now that the prosecution has found no one who can point to Mr Fowler and say, “That was the man I saw on the Eloise on June twentieth with Owen Nash.” No one saw Mr Fowler on the Eloise besides Owen Nash, and he’s dead.
‘ “Well,” you’re asking, “then why are we here?” We are here,’ she answered herself, ‘first, because Mr Fowler’s pattern of behavior over the course of several months cannot be explained other than by acknowledging his consciousness of his own guilt. Duplicity, deception, abandonment of the high ethical standards -’
‘Objection, Your Honor.’
Chomorro nodded. Two for two, Hardy thought, not too bad.
‘Sustained. Let’s stick to the evidence, Ms Pullios.’
She apologized again to the judge and jury. But it clearly didn’t rattle her. ‘The prosecution will demonstrate that Mr Fowler knew the precise location of the murder weapon on board the Eloise and that he had a compelling reason to kill Mr Nash – the oldest and most lethal motive in the world – jealousy. Mr Nash had superseded him in the affections of the woman he loved, for whom he subsequently risked – and this is a fact, not a conjecture – risked his entire career and reputation as a judge and a man of honor.
‘We will show that the defendant first identified and then tracked down his rival with the help of a private investigator, that he concocted a plan for the two of them to meet, that he painstakingly arranged an alibi for the weekend of this meeting. All these facts speak to Mr Fowler’s consciousness of guilt.
‘But all this is not to say there is no direct evidence. There is a murder weapon, for example. And on the murder weapon – not on the outside, but on the clip which holds the bullets for the gun – are the fingerprints of the defendant, Andrew Fowler.’
A stir in the courtroom. Hardy had known this would be a bad point but there wasn’t anything he could do about it. Andy’s story was all he had to tell.
Pullios pushed on; they were captivated. ‘Now, this, of course, is not direct evidence that Mr Fowler was on the Eloise with Mr Nash. Nor, obviously, is the fact that he wasn’t seen anywhere else. Nor, by itself, is the discussion with his colleague about meeting Mr Nash for political reasons. Neither, finally, is his jealousy, his hiring of a private investigator, his attempts to hide or cover up all of his activities relating to his lover, May Shinn, or his rival, Owen Nash. But the people of the State of California contend that, taken together, the evidence in this case can lead to no other conclusion – beyond a reasonable doubt, Andrew Fowler did with malice aforethought, sometime in the morning of June twentieth, 1992, shoot and kill Owen Nash.’
Hardy thought she was finished and took a drink of water, preparing to stand and begin his opening statement, but she turned back at her desk.
‘I would like to make two final but important points. One, circumstantial evidence can be sufficient to satisfy the burden of proof. Judge Chomorro mentioned this to you yesterday, and it is a crucial point here. Circumstantial evidence is still evidence, and the evidence in this case inescapably convicts the defendant.’
Hardy knew he could object but figured he’d run out his string with the jury. Any further objections would look like he was trying to keep something hidden from them. He let her go on uninterrupted.
‘Secondly, why is there little direct evidence? Does it make any sense that a man could commit a murder and leave nothing behind by which he can be identified? Well, let’s consider that Mr Fowler has spent the better part of the last thirty years as a judge in this very Superior Court of San Francisco. During that time, he has heard hundreds if not thousands of criminal cases. Is it any wonder that a man with this experience would leave little or no physical trace of his presence?
‘Ask yourselves this – if your job is evaluating evidence, if you are intimately familiar with how the legal system works in all its detail, if you know every test and every procedure someone will use to catch you, don’t you think you could avoid leaving anything incriminating behind? ’I think I could. I think Andrew Fowler could. And did. The evidence will speak for itself.‘
‘You’ll have to bear with me,’ Hardy began. ‘I’m in a bit of a bind.’ His legs were so weak with nerves he didn’t trust himself to stand, either at attention or at ease, in front of the jury, so he leaned back against his table, hoping his legs would improve as he got going. ‘The charge against my client is murder, the most serious of crimes, yet the prosecution theory here is so bizarre that I hardly know how to discuss it without losing my temper or insulting your intelligence, or both.’
A sea of blank faces. Were these the same folks who had smiled, frowned, chuckled and gasped on cue as Elizabeth Pullios stood before them? But there was nothing to do for it. Here he was, and he had better get it together and press on.
‘Stripped of all the rhetoric and polite verbiage, listen to the nonsense the prosecution presents. Here is their truly astounding theory – because there is no evidence, the defendant must be guilty.’ Hardy paused to let that sink in. ‘We’ve just heard that there’s no evidence in this case because Mr Fowler was too smart to leave any. Well, I’m going to tell you something. By that standard, everyone in this courtroom – all of you jury members, me, the judge, the gallery out there – unless we’re all ready to admit we weren’t smart enough to think of a way not to get caught, if Ms Pullios’s version of justice were the law of the land, all of us could be found equally guilty of the murder of Owen Nash.’
The jury woke up. The gallery came to life and Pullios was on her feet objecting. Good. Let them see both sides could interrupt. She was sustained. Hardy had unfairly characterized her statement and was arguing to the jurors. He told the judge he was very sorry. The jury was instructed to disregard what he’d said, and he was sure they would try and, he hoped, fail. His sea legs came in.
‘All right,’ he said, ‘let me tell you, as the judge instructs me, what the defense has to prove, and then what the defense will prove. The first is simple – the defense doesn’t have to prove anything. The burden of proof rests on the prosecution and during the course of this trial, with all the direct and circumstantial evidence you will be asked to evaluate, it will be up to the prosecution to prove that Andy Fowler is guilty.’ Pullios objected again, Hardy was arguing the law, not stating the facts. She was sustained. Hardy didn’t care. ‘When you’ve heard and seen everything the prosecution has, the inescapable conclusion will be that the state has not met its burden of proof. It cannot provide evidence to prove that Andy Fowler killed Owen Nash. And, ladies and gentleman, fancy theories of guilty consciences notwithstanding, evidence is what a jury trial is all about. Until you twelve people deliberate, knowing all the evidence, and basing your judgment on it, return with a guilty verdict, it is presumed that Andy Fowler just plain didn’t do it. That’s the law and I’m sure you all understand it.’
Again – she was alienating jurors and didn’t seem aware of it – Pullios objected. This time Chomorro overruled her with a pointed comment about the latitude she had been allowed in her opening. Hardy kept his face impassive and went back to his work.