“What? You would deny the common decency of an introduction?” In fact I have baited him, knowing that he would object to this.
“I object to the use of the title ‘judge,’” he says. He starts to speak, and Radovich cuts him off in midsyllable.
“Sidebar,” he says.
By the time I get there Kline is already bubbling over with venom.
“The defendant was suspended from the bench,” he tells Radovich. “Order of the supreme court,” he says. “Pending disposition in this trial. He should not be referred to as ‘judge.’”
“Petty point,” I tell him. “There is nothing legal in the title. You show me where it says in the law that someone cannot call themselves a judge.”
“It’s misleading,” he says. “Confusing to the jury.”
“Then we can explain it to them. Tell them that there’s a temporary order that will be expunged when my client is acquitted.”
“Fat chance.” Kline gives me a “screw you” expression.
Radovich coaxes Kline to accept the title, with an explanation to the jury. “I think that would solve any confusion,” he says.
It is more than I had expected.
“Absolutely,” I say. “We can cooperate to work out the language.” We have just started and I am already six yards up Kline’s ass with a hot poker.
“No, Your Honor, that’s not right. The fact is that he’s been removed from the bench,” says Kline. “There is only one judge in this courtroom,” he tells Radovich. Always pander to power.
It is a point that will have an effect on the jury, and Kline wants to settle it early.
Radovich wrinkles the skin at the bridge of his nose.
Kline senses the ground shifting under his feet.
“Perhaps we could refer to the defendant as ‘former judge,’” says Kline. “We can live with former judge.” The master of the fall-back position.
“We would prefer judge, with a fair explanation to the jury,” I say.
“I’ll bet you would,” says Kline.
“I would prefer to get on with the trial,” says Radovich. “Former judge it is,” he says. “Now get to work.”
It is an unsettling label, one that begs more than it answers, like the term ex-husband, with all the negative connotations. From the state’s perspective it is moot. Kline will no doubt refer to him as “the defendant” whenever he cannot call him “killer.”
As I head back toward the jury railing Acosta flags me to the table.
“What happened?” he says.
“For the time being you are mister,” I tell him.
He has a hold on my sleeve, telling me that this is mean-spirited, unfair.
“We’ll talk about it later,” I tell him.
From his expression, I can tell he is not satisfied with this, but accepts it for the moment. With the Coconut, appearance is everything. He may wear jail togs outside of this courtroom, but in his mind he is still “His Honor” in robes.
I make my way back to the jury railing, where I make apologies for Kline’s interruption.
This draws another objection. Radovich tells him to sit down, and me to move on.
“Ladies and gentlemen, I would like to introduce my client, Armando Acosta.”
He rises only slightly from his chair as the guards eye him nervously. Acosta gives the panel something that the affected might construe as a courtly gesture. There is a move he does with one arm across his waist as he bends, that looks like his hand should be holding a velvet cap with a plume of feathers. This Acosta has practiced for days in his cell. It is more than I had wanted, and comes off as just a little eccentric. It would be fine if insanity were our defense.
Before he can curtsy or perform the minuet, I cough to get the jury’s attention off of him.
“Ladies and gentlemen,” I say, “the prosecutor in this case has skillfully told you what evidence he has. But there is something missing, seriously missing in his presentation. What he has not told you, is what he does not have.”
I quickly cover the areas of weakness in our case, the fact that Acosta has no alibi for the night of the murder, and that some of the physical evidence found on the victim, carpet fibers and hair, may, on first blush, appear to be similar to hair and fibers found at Acosta’s residence. But I tell them to keep their minds open. They will hear evidence that similar does not mean identical.
It would be foolish to pass over these points without acknowledging their existence, as if we are hiding from the truth.
I do not touch on Oscar Nichols and the damning threats against Hall Acosta made to him that day over lunch. So far Nichols has not turned up on the prosecution’s list of witnesses, so I gamble that they will not find him.
“The prosecutor has told you what he has,” I say. “But he has not been completely forthcoming.”
With this there are stern expressions from beyond the railing.
“He has not told you about the evidence that is missing from his case.”
One old lady looks at me, pencil poised over paper, as if I am about to indict Kline for tampering with the proof.
“There is so much that he has not told you,” I say, “that it is difficult to know where to begin.”
Radovich, elbow on the bench, one hand propping up his chin, gives me a look like I’d better figure it out soon.
“The prosecutor, Mr. Kline,” I tell them, “does not have an eyewitness to the crime. In fact he has not a single eyewitness who can put my client anywhere near Brittany Hall’s apartment that night. He does not have a witness, but he has not told you this,” I say.
I turn from the jury box, take a step, and turn back.
“The prosecutor does not have a murder weapon. To this day,” I tell them, “he has only a theory of how the victim came to suffer the so-called blunt-force trauma that killed her. He has no weapon, no instrument of death that would implicate my client. But he has not told you this.”
My rhythm takes on the cadence of a child’s rhyme.
“The prosecutor has no fingerprints linking my client to the scene of the murder, or to the location where they found the victim’s body in the alley that night. But he has not told you this. Nor does he have any blood belonging to my client at the scene of the murder, or in the alley where they found the victim. But he has not told you this.
“He has no documents, no receipts for any purchases by my client on the night of the murder that would place him anywhere near the location of this crime. But he has not told you this.
“He has no confession, no statement incriminating my client. But he has not told you this.
“He found no bruises on my client’s body, no scratches on his face that would indicate a physical altercation or violent struggle in the period immediately preceding the victim’s death. But he has not told you this.”
Heads are beginning to bob and sway with the refrain. Follow the bouncing ball. At one point I actually use my pencil as if I were directing a choir, and two of the women smile. They would finish the line aloud for me if I stopped:
But he has not told you this.
I would light a bonfire and have them all singing along, if Radovich would allow it.
My litany goes on at length as I highlight all the classic points of incrimination, all of which are absent in this case. Kline has given me an opening, an early slip that we cannot expect again. He sits fixed, bolt-upright in his chair, playing with a pencil, pretending that this is all nothing, while I rape him atop the jury railing to a chorus of “But he has not told you this.”
Welcome to the practice of felony trials.
Acosta is nearly giddy in his chair as he watches my performance, itching to join in. Finally I bring it to an end, breaking the rhythm.
“There is a great deal that the prosecutor has not told you about that night,” I say. “About this case. Much of this will not come before you in this trial until the defense has a chance to present its own case. You must agree to keep an open mind. Can I ask you, ladies and gentlemen, for your solemn promise? Will you wait to form a judgment until we have a chance to present our case?”