“You can’t worry about that now,” I whispered to Andre — and myself. “You have to look strong. Be strong.”
Andre nodded and tried to smile.
When David had taken the gold and run, La Cosse wasn’t the only one he had left high and dry. By then I had already taken receipt of a second bar of gold as continuing payment. A third bar was due at the start of trial, but the gold was gone by then. So a case that I had earlier viewed as a potential financial bonanza had turned pro bono as the trial began. Team Haller was no longer getting paid.
At exactly ten o’clock the judge emerged from chambers and took the bench. As was her custom, Judge Leggoe eyed Forsythe and me and asked if there was any business to consider before she brought in the jury. This time there was. I stood, holding a set of documents, and said I had an amended witness list for the court to consider and approve. She waved me up to the bench and I handed her a copy of the new list and then dropped another one off with Forsythe on my way back. I was barely seated again when Forsythe stood to object.
“Your Honor, Counsel is engaged in an age-old practice of deception by trying to hide his real witnesses in a sea of names. His pretrial list was enormous and now he’s added what I estimate to be twenty to twenty-five more names and it is evident most of these will not be actually called.”
He gestured with the pages behind him to where Lee Lankford sat in a row of chairs against the rail.
“I see he has my own DA investigator on here now,” Forsythe continued. “And let’s see, he’s got not one but now two federal prisoners on here. He’s got one… two… three prison guards. He’s got what looks like every resident in the victim’s building—”
He abruptly cut off the litany and dropped the pages on his table as though depositing them in the trash.
“The people object, Your Honor. It would be impossible to respond beyond that without being allowed the time to look at these names and determine their relationship, if there is any at all, to the case.”
Forsythe’s objection wasn’t a surprise. We had counted on it in the defense plan and strategy we had dubbed “Marco Polo” at the top of the whiteboard Lorna had gotten installed on the brick wall of the boardroom back at the loft. The witness list was the opening move in that gambit, and so far Forsythe was playing his part, though he had not yet — at least vocally — paid attention to the one name on the list that was most important. The name we called our depth charge, sitting there beneath the surface and waiting to be detonated by the first false move by the prosecution.
I stood to respond to the objection, taking another quick glance behind me as I rose. Still no daughter but a small smile from Kendall. As my eyes swept forward they caught and locked for a moment on Lankford. He looked at me with an expression that was sixty percent What the fuck is this? and forty percent the usual Fuck you. That sixty percent was what I was hoping for.
“Your Honor,” I said, looking finally at the judge. “It seems obvious from his objection that Mr. Forsythe already does in fact have knowledge of who these people are and how they would relate to the case. Nevertheless, the defense is happy to allow him time to review the new names and respond. There is no need to interrupt the trial, however. I am planning to regale the jury with my long-delayed opening statement and then begin with witnesses who were on the original witness list and already approved by the court.”
Leggoe seemed pleased to have been handed an easy solution.
“Very well,” she said. “We will take this up first thing tomorrow morning. Mr. Forsythe, you have until then to study the list and have your response ready.”
“Thank you, Your Honor.”
Leggoe called for the jury. I stayed standing and read over my notes while the jurors were seated and the judge explained that I had reserved my opening statement at the start of the trial and would deliver it now. She reminded them that the words I would speak were not to be construed as evidence and then turned the floor over to me. I stepped away from the defense table, leaving my notes behind. I never used notes when I was directly addressing a jury. I maintained maximum eye contact the whole time.
The judge had earlier ruled that during openers each attorney would be allowed to stand in the space directly in front of the jury box. This is known by lawyers as the well of the courtroom but to me it has always been the proving ground. I don’t mean proving in a legal way. I am talking about proving yourself to the jury, showing them who you are and what you stand for. You have to first gain their respect if you want any hope of proving your case to them. You have to be fervent and unapologetic about standing for the accused.
The first juror I locked eyes with was number four. She was Mallory Gladwell, age twenty-eight, and a script reader for a movie studio. Her job was to analyze scripts submitted to the studio for purchase and development. As soon as she was seated and questioned during voir dire, I knew I wanted her on the jury. I wanted her analytical skills when it came to storytelling and logic. I wanted the jury to ultimately choose my story over Forsythe’s, and my gut feeling was that Mallory Gladwell could be the one who led them there.
Throughout Forsythe’s presentation of the state’s case I kept my eyes on Mallory. It was true that I watched all of the jurors, trying to read faces and pick up tells and cues as to what testimony or evidence had the strongest impact on them, what they were skeptical about, what got them angry and so on. But I had Mallory down as the alpha. My guess was that her skills at breaking down a story would lead her to be a voice, if not the voice, during deliberations. She could be my Pied Piper, and therefore she was the one I made the first eye contact with and she would be the last. I wanted her invested in the defense’s case.
The fact that she returned the eye contact and did not look away was a strong signal to me that my instincts were on target.
“Ladies and gentlemen,” I began. “I don’t think any introduction is needed here. We are well into this trial and I am pretty sure we know who everybody is. So I am going to be pretty brief here because I just want to get to the case. To the truth about what happened to Gloria Dayton.”
As I spoke, I unconsciously moved two steps forward, spread my hands, and put them down on the front rail of the jury box. I leaned forward, trying to make the communication between one man and twelve strangers as intimate as a one-on-one with a priest or a rabbi. I wanted each one of them to think I was talking only to them.
“You know, lawyers have all sorts of nicknames for things, including juries. We call you people the ‘gods of guilt.’ Not in any sort of disrespect for religion or faith. But because that’s what you are. Gods of guilt. You sit here and you decide who is guilty and who is not. Who goes free and who does not. It is a lofty and yet weighty burden. To make such a difficult decision you must have all the facts. You must have the whole and true story. You must have the proper interpretation of the story.”
I glanced again directly at Mallory Gladwell. I lifted my hands off the rail and moved back into the well so I could cover the entire twelve and the two alternates in a tight back and forth sweep. As I spoke I casually moved to my right so that most of the jurors were looking at me on their left.