Fatal Convictions

78

Alex felt slightly disoriented. It wasn’t like this was his first trial, but it was certainly the first time he had been so terribly wrong about the other side’s theory of the case. Taj Deegan had turned the trial on its head. The opening statement that Alex had carefully scripted, almost memorized, no longer made sense.

He had expected Deegan to hammer Khalid’s alleged ties with Hezbollah. He had thought Deegan would try to paint Khalid as a closet radical. Alex’s opening would emphasize that Khalid was a true reformer. But now, Taj had preempted Alex’s theme. He felt like he had been sharpening his sword for days just so he could hand it to Taj Deegan to use against him-to carve him up.

“Does defense counsel wish to give an opening statement?” Rosenthal asked for the second time.

“Could we take a brief recess, Your Honor?”

Deegan’s opening had been surprisingly short for a murder case, and any other judge would have scoffed at Alex’s request. But this was Judge Rosenthal, and Alex could tell by the look on his face that he was craving his sixth cigarette of the day.

“Ten minutes,” Rosenthal said, cracking his gavel.

As soon as he left, Alex turned to Shannon. “What do I do now?”

“Stick with the plan,” Shannon said. “We can’t throw our entire opening out the window just because the prosecutor changed her theory of the case.”

“Then help me revise it.”

For the next ten minutes, they worked furiously on the revisions. Alex scratched through text and made handwritten notes in the margins. He tore a page from a legal pad and inserted a whole section. But as the recess ended, he was more confused than he had been before. Now they were talking out of both sides of their mouths-Khalid Mobassar was a committed reformer but not so passionate that he would set up something like this. Yes, he had spent years writing his book, but no, he certainly wouldn’t order honor killings just to gain nationwide attention.

As the jury shuffled in and Rosenthal called the court to order, Alex still felt unsettled. He thought back to his days as a pastor. Whenever he gave sermons with this level of ambivalence, they always bombed. How could a jury believe what Alex was saying when he couldn’t figure it out himself?

“Mr. Madison…,” Judge Rosenthal prompted.

Alex stood. “We would like to reserve our opening until the beginning of the defendant’s case.”

“What?” Shannon whispered.

Although defendants technically had the right to reserve their opening until they put on their own evidence, it was unheard of for a lawyer to actually do so. No decent defense attorney wanted the jury to hear from the prosecution for several days before the defense lawyer even put his theme out there. Yet Alex felt in his gut that it was the right thing to do.

“If that’s what defense counsel wishes.” Judge Rosenthal turned to a stunned Taj Deegan. “You may call your first witness, Ms. Deegan.”

Alex sat down, and Shannon leaned over the back of Khalid, who was seated between them. “I hope you’re ready to explain this to Nara when we break for lunch,” she whispered.

Nara, like all potential witnesses, was not allowed in the courtroom until she testified. Alex hadn’t thought about how she might react, but it was too late to consider that now. She would understand. She would have to.

“The commonwealth calls Dr. Marnya Davidson.”

Dr. Davidson walked into the courtroom, took the oath, and settled into the witness stand with the authority of someone who had done this hundreds of times before. She glanced quickly at Alex and gave him a nod, as if she looked forward to his cross-examination. Alex pulled his legal pad closer and started taking notes.

Davidson’s testimony mirrored what she had said during the preliminary hearing except that she added a few bells and whistles. When Taj Deegan trotted out the autopsy photos, Alex offered to stipulate to the cause of death. Deegan whirled and looked at him, wise to his ploys. “Unless you’re also willing to stipulate that the defendant ordered the killings, I think I’m entitled to show the jury the photographs,” she said.

She turned to Judge Rosenthal. “Your Honor, these are not theoretical killings; these are real victims murdered in the most cowardly and cold-blooded way imaginable. While it gives me no pleasure to present these photographs, the jury needs to know all of the facts in this case, including the gruesome nature of the crimes. Plus, I intend to show that these murders are related to other honor killings, thereby proving a pattern of conduct that makes it clear the murders were religiously motivated.”

Alex had just sat down when Taj Deegan mentioned other honor killings. He jumped back up as if his seat were electrically charged. “I object, Judge! That has no place in this trial!”

To Alex’s great dismay, the jurors were leaning forward. Dr. Davidson had an eccentric personality that had already intrigued them. And now the lawyers were adding yet another twist. “Other honor killings.” This case was getting juicier by the minute.

“Approach the bench,” Rosenthal ordered.

On the way up, Alex glared at Deegan. She knew exactly what she was doing. Even if the judge sustained Alex’s objection, she had planted the specter of the other honor killings in the minds of the jury.

“I can’t believe you stooped to that,” Alex whispered to her, just out of earshot of the judge.

“Spare me,” Deegan shot back. “We both know he did it.”

The lawyers huddled around Rosenthal’s bench and engaged in a furious argument. Deegan wanted to ask Dr. Davidson about two additional honor killings that had been committed using the same sword. “The exact same sword, Judge. Under the rules of evidence, other crimes are admissible if they show a pattern of conduct.”

“That’s ridiculous,” Alex countered. “Our client hasn’t even been charged with those killings. Plus, even if the commonwealth could prove that the murders were all committed by the same person, how does that prove a pattern of conduct by our client? Nobody’s saying that our client actually carried out the beheadings.”

As the lawyers argued back and forth, their voices rising with each volley, Rosenthal decided it was time for another break. He announced a fifteen-minute recess so that he could study the issue in more detail. Alex watched the jury shuffle back into the jury room, knowing that the main thing on their mind was exactly how many honor killings the defendant had ordered. And whether they would get to hear about them.

“Now would be a good time to go out in the hallway and tell Nara that you waived your opening statement,” Shannon said to Alex.

“Later,” Alex said.***

After a two-cigarette recess, Rosenthal came back to the bench recharged. Before he called the jury back into the courtroom, he announced his ruling. “Mr. Madison is right. The law requires more than a pattern of conduct. It requires a pattern of conduct that is unique to the defendant, and the commonwealth hasn’t shown that here. For example, it could be that the defendant and another party just use the same ‘triggerman,’ so to speak. The fact that the sword is the same reflects on the triggerman’s pattern of conduct, not the defendant’s.”

Alex requested a curative instruction, and Rosenthal promised that he would tell the jury to disregard the question they heard before the break. As if that would make everything better.

When the jury returned, Rosenthal mumbled something about disregarding the last question asked by the commonwealth’s attorney. “As for defense counsel’s objection about the admissibility of the photographs, I’m overruling that,” Rosenthal said.

To Alex’s surprise, everyone managed to keep his or her breakfast down while Taj Deegan displayed blowups from the crime scene and autopsy. Juror 5 looked pretty pale, and Alex thought she might pass out. Juror 10 had to put her hand over her mouth at least twice. But nobody hurled on the spot, a minor victory for the defense.

Just before lunch, Taj Deegan finished her direct examination of Dr. Davidson, and Judge Rosenthal again turned to Alex.

“Does defense counsel have any questions?”

“Not at this time, Your Honor.”

When the judge and jury had left the courtroom, Shannon let her frustrations show. “A great morning for the defense team,” she said sarcastically.

The deputies were coming over to take Khalid to lockup, and Alex felt the need to reassure his client. He put a hand on Khalid’s shoulder. “Don’t worry. We’re saving our ammo for when it counts.”

“I trust you,” Khalid said.

At least somebody does, Alex thought.