He glanced at Vick, an unmistakable bit of nonverbal communication. “And then the killer planted a burning cross over Tommy’s bleeding head.”
A discernible tremor passed through the courtroom. That was a detail that had been withheld from the press; most people didn’t know about it. Unfortunately it was also a detail that appeared to confirm Vick’s guilt.
“You might think,” Swain continued, “that two crossbow bolts would produce a quick death. You would be wrong. Tommy Vuong’s life drained away, slowly and painfully, as his blood poured from his veins. And as if that wasn’t enough, the cross caught Tommy’s clothing on fire. And he began to burn.”
Another shudder passed through the gallery. Ben felt a bit of a shudder himself.
Ben could object; this dramatic recitation was hardly likely to aid the jury in their fact-finding mission. But he knew it would be pointless. Every prosecutor had the inherent right to portray the facts as melodramatically as possible. Swain was trying to stir up sympathy for the victim—and hatred for the defendant. And he was doing a commendable job. The jury already disliked Vick; Ben could see them sneaking peeks at him, then quickly averting their eyes. And they had yet to encounter a single bit of evidence that indicated he was guilty.
“Not just anyone could commit a crime like that,” Swain continued. “Not just anyone could be so … cold. So utterly devoid of feeling. So heartless. No, it took a special kind of man to commit this crime. A man with hatred burning in his gut.” He turned and stood squarely before Vick. “Ladies and gentlemen, the evidence we will present will prove beyond a reasonable doubt that the man who committed this horrible deed was the defendant—Donald Vick.”
Swain and Vick made eye contact. It was like a contest of wills; neither wanted to be the first to flinch. Eventually Swain turned away and continued his opening.
Swain provided few clues about the testimony he would be presenting. Perhaps, Ben mused, the evidence wasn’t as strong as Swain had been suggesting. More likely he just didn’t want to give Ben any advance notice. Swain made passing references to trace evidence on the crossbow and Vick’s fight with Vuong, and a purported confession. What concerned Ben most was Swain’s elliptical reference to “Vick’s fatal mistake—the selection of the deadly and exotic crossbow as his instrument of death.”
Swain finished his performance and reclaimed his seat.
“Would you care to give your opening statement now, Mr. Kincaid,” Judge Tyler inquired, “or to reserve it until the start of the defendant’s case-in-chief?”
“I’ll go now,” Ben said, rising to his feet. It was crazy to reserve opening until later. The jury could sit for days without hearing any version of the facts other than the prosecutor’s.
Ben suspected he could never match Swain’s histrionic flair, and given his position in the case, it would be stupid to try. Instead he would maintain a calm, reasoned approach. He would remind the jury why they were here.
“Serving as a juror is one of the greatest honors that can be bestowed on a citizen in a free democracy,” Ben began. “But like all honors, it comes with responsibilities. And duties. Your duty as jurors is to ensure that your decision, whatever it may be, is not based on passion or prejudice, but is based solely and without exception on the facts presented to you during the trial. That is the promise you make when you sit in that box. That is your sacred obligation.”
It was worth a try. In Ben’s experience, most jurors took their position seriously and endeavored to do the job right.
“District Attorney Swain has told you, in great and grisly detail, how Tommy Vuong was killed. About those facts, there is no controversy. We do not dispute how he was killed, and we do not dispute that it was a horrible tragedy. We only dispute one issue: who did it. Because Donald Vick did not kill Tommy Vuong.”
Ben scanned the jurors’ faces. If their minds were already made up, he probably wasn’t changing them. But at least they were listening.
“The prosecution will present a variety of evidence to you in an effort to convict the wrong man of this crime. But as you sift through the evidence laid before you, ask yourself one question: does this evidence prove that Donald Vick did in fact kill Tommy Vuong, or that he might have killed Tommy Vuong. Because you see, ladies and gentlemen, any number of people might have killed Tommy Vuong. But you can only find Donald Vick guilty if the prosecution has proven beyond a reasonable doubt that Donald Vick did kill Tommy Vuong. That it was absolutely, positively Donald Vick—and no one else. The burden of proof is on the prosecution, and if they do not meet it, then Judge Tyler will instruct you that you must find Donald Vick not guilty.”
Ben talked a bit more about the prosecution evidence. His remarks were necessarily vague; he had only the barest glimmer of an idea what the prosecution was going to say, much less what his response would be. And as far as he knew, the defendant’s only witness was the defendant.
A man who refused to talk.
Ben finished his opening. He gave Vick a friendly, confident smile that everyone could see, then sat down beside him. Some lawyers clapped their defendants on the back, or offered them a Life Saver, just to show the jury that they liked them. That struck Ben as a bit extreme under the circumstances; Vick would have to make do with a smile.
“Very good,” Judge Tyler pronounced. “Looks like we still have time for some testimony before lunch. Mr. Swain, call your first witness.”
46.
SWAIN LED WITH HIS forensic testimony. It was a standard technique—get the boring stuff out of the way while the jury is still fresh and slightly less likely to nod off.
His first witness was the county coroner, David Douglas, who was called to testify that Tommy Vuong was in fact dead. Hardly startling information, but a necessary prerequisite to a prosecution for murder.
Douglas was somewhat uncertain about the cause of death. Was it the crossbow that killed Vuong or the fire? Or a combination of both? Under Ben’s cross-examination, he admitted that he suspected Vuong died from loss of blood due to the crossbow bolts, but it was impossible to be certain. Not that it mattered very much. Either way, Vuong was dead.
Next, Ben was disturbed to hear Swain call a lab technician from Little Bock, a man named Darryl Stephens. Stephens would undoubtedly testify about the trace evidence found on the crossbow. Mike was expecting the results of his own tests today and was waiting at the post office for them to arrive. He promised to come directly to the courthouse as soon as they did. So far, though, Mike hadn’t appeared.
After establishing Stephens’s credentials, Swain questioned him about the crossbow found near the murder site. “Have you had an opportunity to examine the bolts extracted from the dead man’s body?”
“Indeed I have.”
“And were you able to compare those bolts to the crossbow itself?”
Stephens folded his hands across his lap. “Yes, sir.”
“Did you obtain any information from this comparison?”
“Yes.” Stephens leaned forward. Ben knew the signs; he was about to go into his teaching mode. “Crossbows and their bolts can be analyzed in much the same way the science of ballistics studies guns and bullets. Just as every gun leaves unique markings on the bullets it fires, so a crossbow marks each shaft fired from its triggering mechanism. The markings are harder to spot, but it can be done.”