Judge Long raises his hands to silence Stanley and me, then turns to the jurors. Instantly, he has their undivided attention. “Ladies and gentlemen,” he says, “it seems I should explain to you what an opening statement is. But first”-he flashes his smile at them-“I’m going to tell you what it isn’t.”
I slip into my seat beside Buck and pour a glass of water. When Judge Leon Long has the stage, there are no costars. Stanley, though, seems to expect a supporting role. He remains on his feet.
“Opening statement is not an argument,” the judge says, glancing first at Stanley, then at me. “Though you wouldn’t know that from what you’ve heard so far.”
The jurors laugh and Judge Long leans back in his leather chair, relaxed and smiling. “Opening statement isn’t evidence, either. It’s nothing more than each lawyer’s opportunity to talk to you.” The judge leans toward them in a conspiratorial pose and lowers his voice, as if he doesn’t want Stanley and me to hear. “And we all know how lawyers love to talk.”
The panel laughs again, a good-natured chuckle, and so does the judge. Stanley, though, shifts on his feet and runs a nervous hand across his sizable scalp. A long wisp of lifeless hair from his comb-over separates and falls to the right side of his head, forming a single pageboy loop. The end of it just touches the collar of his starched white shirt.
I’m pretty sure it’s not the lawyer joke that bothers Stanley; it’s the laughter. This is a murder trial. There shouldn’t be any laughter.
“Opening statement is not the same as closing argument,” Judge Long continues. “Closing argument is a fight.” He glances over his shoulder at me, then at Stanley, before turning back to the jurors. “And believe me, in this case it’s going to be a real one.”
The jurors chuckle again. They look from me to Stanley and back to the judge. He continues his monologue.
Harry leans forward on the defense table, in front of Buck, to whisper. “Defer.”
“Defer?” I stare at him.
His return gaze is steady. He’s serious.
No defendant-civil or criminal-has to give his opening statement at the beginning of the trial. He can defer until the close of the plaintiff’s-or prosecutor’s-case. In criminal cases especially, there are distinct advantages to waiting. It leaves the prosecutor in the dark, unsure of the defense strategy until after the Commonwealth rests its case. More important, it allows the defendant to hammer twice on the weaknesses in the evidence against him-after the prosecutor rests and again at the end, in closing argument.
But rarely does a criminal defendant opt to defer. The stakes are too high. If he waits that long to give the jurors a glimpse of his side of the story, it may be too late. The prosecutor may have been too persuasive. Too many jurors may have already made up their minds. Harry knows that at least as well as I do.
“Why defer?”
“You can’t do any more.”
Harry leans closer and Buck lowers his head between us to listen.
“You told them enough about Monteros to whet their appetites. The judge told them that Buck’s mental state is the key issue in this trial. What else can you accomplish at this point?”
The answer, of course, is nothing. Harry’s right.
“But we can’t defer now, even if we want to. We’ve already started. It’s too late.”
Harry shakes his head. “I don’t think so. Stanley hasn’t let you finish a thought without objecting. Tell the judge you’ve been interrupted enough for one day. Tell him at this point, you’d just as soon defer.”
Buck shrugs when I look at him for an opinion.
Judge Long isn’t talking to the jurors anymore. He’s facing our table, waiting semipatiently for our whispering session to end. “Attorney Nickerson,” he says when I look up, “we’re ready when you are.”
I steal a final glance at Harry. “It’s worth a shot,” he says.
Stanley drops into his seat as I get out of mine. I pause to set my glasses on the defense table. “With all due respect to the Court, Your Honor, the defense opts to defer its opening statement.”
The judge wasn’t expecting this. He drops his chin to his chest and stares at me over the flat rims of his half glasses.
Stanley jumps up so fast his chair topples backward. “Defer? She can’t defer. She’s already started her opening statement.”
The judge’s eyes move to Stanley, then back to me, his brows arched high.
“Barely,” I tell him. “I tried twice, and twice I was silenced.” I gesture toward Buck to suggest that this is his idea. “We’re not up for strike three. We’ll defer.”
I turn toward Stanley but my attention is on the jury box behind him. They’re listening intently to this exchange, some eyes on the judge, others on me. Their expressions are impossible to read.
I face the judge’s bench again. “Maybe Mr. Edgarton will calm down a bit-and allow me to open properly-after he rests his case.”
“Don’t believe her,” Stanley sputters. “Don’t believe her for a minute.” He points his pen at me, then at the judge, and finally at the jurors. His forehead vein turns blue. “I didn’t silence her. The National Guard couldn’t silence her.”
I’m flattered.
Judge Long continues to peer at me over his glasses. “Attorney Nickerson,” he says, “this is unusual.”
“It is, Judge. I can’t remember another case when I was shut down twice without getting a single fact in front of the jury.”
That wasn’t what he meant, of course. But he folds his arms on the bench and nods, conceding the point.
“We haven’t been able to start, Judge. Not in any meaningful way. And now we opt to defer.”
The judge nods again. “All right,” he says.
Stanley runs up to the bench. He’s so close to it the judge has to lean forward to see him.
“You can’t be serious.” Stanley points at me again. “You’re not going to let her get away with this.”
“Nobody’s getting away with anything, Mr. Ed-gar-ton the Third. The defendant has the right to defer. It’s in the Rules of Criminal Procedure.”
“Not now he doesn’t. Not after his lawyer has already addressed the jury.”
“I’ve ruled, Mr. Ed-gar-ton.”
“But Your Honor, don’t you see?” Stanley is on tiptoes, his eyes barely clearing the judge’s bench. “She wants an extra bite of the apple.”
Judge Long leans forward even farther and stares down at him. “Apple?”
Stanley grabs the edge of the bench with both hands and his knuckles turn white. “She wants to have her cake and eat it too.”
Judge Long’s eyes meet mine, then move quickly back to Stanley. The judge looks as if he’s about to laugh. “Cake?”
I shrug and take my seat. “I’m no match for this legal argument, Judge.”
A few of the jurors snicker and Harry laughs out loud. Judge Long fires a cautionary stare in our direction.
“I don’t even cook.”
“Enough, Ms. Nickerson.”
Judge Leon Long doesn’t fool me. He’s on the verge of laughing too.
“Mr. Ed-gar-ton,” he says, so softly it’s almost a whisper. “Sit down, sir.”
Stanley returns to his table and rights his chair. He shakes his head and mutters a barely audible “you people” before he sits.
Silence. For a moment, it seems no one knows what to do next. Even the cameras are still. Finally Judge Long breaks the quiet. “Mr. Ed-gar-ton the Third,” he says, “call your first witness.”
Chapter 16
“Our first witness is Chief Fitzpatrick, Your Honor, of the Chatham Police Department.” Stanley looks uneasy. He glances quickly around the room, then stares at the floor as if he just dropped something precious.
“Bring him in, then.”
“I can’t, Your Honor.”