Flesh and bones

22

First thing in the morning, Judge Stanger gave his preliminary instructions, and the jurors leaned forward, listening intently. They're like that at the beginning. On edge, wanting to do their duty. As the surroundings become more familiar, as the lawyers wear out their welcome with repetitious questions and obstreperous objections, jurors kick back and daydream or doze. Sometimes I imagine them as cartoon characters, scenes of bass fishing or sexual liaisons filling little bubbles over their heads. Why not? That's what occupies my mind when Abe Socolow is strutting in front of the jury box or the judge is endlessly repeating his admonitions.

"The indictment is not evidence," Judge Stanger said, "and should not be relied on by you as evidence of guilt."

He told the jurors that they were not permitted to infer guilt if the defendant didn't testify. It's a standard instruction, and many times I won't put a client on the stand, since most defendants will only muck it up. In one of my first trials as an assistant public defender, the prosecutor asked my client, "You say you're innocent, yet five people swore they saw you steal a watch."

"So what?" my saintly client said. "I can produce a hundred people who didn't see me steal it."

When your client remains silent, the prosecution isn't permitted to comment on the failure to testily, and the judge repeats his Fifth Amendment instruction after closing argument. Still, I wonder what the jurors think. Even if they don't discuss it, aren't they saying to themselves. If I was innocent, I'd sure as hell put my hand on the Good Book and tell the whole dang world?

The judge ordered the jurors not to speculate about why the lawyers make their objections and what the answers would have been if the objections had been overruled. So silly. Try not thinking of a pink elephant. Whoops, can't do it. He told them that opening statement was not evidence, but rather each lawyer's version of what the evidence would show. He advised them not to discuss the case with anyone, including their families, friends, and presumably their pets. And then Honest Abe got up to talk.

"This is a simple case," Abe Socolow said. "A man sits at the bar at the opening of a Miami Beach nightclub. His name is Harry Bernhardt, and he is minding his own business, enjoying the fruits of his labors. Harry is a hardworking man who has accomplished much with his life but has so much more to do. As he sips his drink, Harry has no idea it will be the last beverage he ever consumes."

A little B-movie dialogue, I thought, and not strictly accurate if you count the Ringer's lactate IV at the hospital.

"Now, picture this, if you will," Abe continued. "A young woman enters the club, and in front of dozens of witnesses pulls a gun from her Versace handbag."

Versace. Abe's way of saying "spoiled rich bitch."

"And as Harry sits there, here comes this woman with the gun, walking toward him."

Harry. Humanizing the victim. Making the jurors hold their breath, waiting as Abe cuts back and forth cinematically between villain and victim.

"The woman aims the gun at Harry, a Beretta 950, which was hidden in her handbag. Hidden from the security guard outside, hidden from Harry, hidden from the world, so that she could carry out this premeditated assassination. Harry has had no time to put his affairs in order, to say good-bye to friends and loved ones. He has not lived his three score and ten, and no voice has asked him, as Job was asked, 'Hast thou seen the doors of the shadow of death?' "

Job? A reminder that the prosecution has God on its side.

"The woman, this woman sitting here…"

Abe approached the defense table and pointed, his index finger a foot from Chrissy Bernhardt's nose. She didn't blink. She just sat there in her three-piece Calvin Klein suit, a big-buttoned V-neck jacket in steel-blue crepe and matching skirt, and a gray washed-silk blouse.

"This woman, Christina Bernhardt, aimed the gun at Harry Bernhardt, her father, and with malice and premeditation, she pulled the trigger. Not once, not twice…"

Thrice?

"… but three times. Bang! Bang! Bang!"

Two jurors winced at the sound effects. The others didn't, perhaps because Abe's perpetual sinusitis muffled the shots like a silencer on a barrel.

"Harry was rushed to Mount Sinai Hospital, where heroic measures were undertaken to save his life. But two hours after surgery, he suffered cardiac arrest and died, his death the proximate result of the shooting. Unlike most trials, in this one there is no doubt as to any of this. You will hear testimony of eyewitnesses who will state under oath that Christina Bernhardt did, in fact, shoot her father. You will hear the testimony of the paramedic, the surgeon, a treating nurse, and the assistant medical examiner. You will hear that the cardiac arrest suffered by Harry Bernhardt was inextricably linked to and caused by the shooting, and therefore you will be compelled to find that Christina Bernhardt killed her father, and that she is guilty of murder in the first degree."

Abe went on for a while, advising the jury to pay keen attention to the witnesses, to follow all of Judge Stanger's instructions, and to listen carefully to Mr. Lassiter when he stood up for his opening statement. By raising his eyebrows and his voice just a bit, Abe made "carefully" sound like "skeptically." He thanked the good folks for their time, told them he'd move the case along quickly-implying that any delays were my fault-then sat down with a warm and gracious smile.

I stood and bowed slightly toward the judge. Behind me, I heard a press camera click, the sound not quite deadened despite the elaborate apparatus designed to silence it. The courtroom door creaked open, then banged shut. Shoes squealed on the tile floor, and someone in the first row coughed. I heard it all, just as I'd always heard the few cheers and many boos that greeted me in the stadium.

"May it please the court," I began, paying homage to five hundred years of English common law. Then I turned toward the jury. "Yesterday, I asked each of you if you would wait until all the evidence is in before making up your minds as to whether the state has proved its case beyond a reasonable doubt. You all said yes."

Jurors are an honest bunch. Remind them of their promises.

"That is important in every case, but crucial here, for this is not a simple case, though certain facts are undisputed. Chrissy Bernhardt did shoot her father, who did die later that night. But there will be issues as to Chrissy's intent and her mental state, issues that Mr. Socolow did not discuss with you."

And I won't either. Not in any detail anyway, because I still don't know what the hell to say.

"These issues are important because you cannot find Chrissy guilty of first-degree murder without finding that she had the specific intent to kill, and that she formed that intent before acting and had that intent when she did act."

"Objection, Your Honor." Socolow got to his feet. "Opening statement is no place to argue the law."

"I'm not arguing, Your Honor," I replied. "I'm just previewing a jury instruction."

"Overruled as long as the law is not misstated. But, Mr. Lassiter, the function of opening is to discuss the evidence, so move it along. I'm quite capable of telling the jurors the law at the appropriate time."

I decided to walk the fine line the judge drew for me. "When all the evidence is in, Judge Stanger will instruct you on the law. He will read you the legal definition of first-degree murder, and you will apply that legal standard to the evidence. The judge will tell you that to find Chrissy Bernhardt guilty, you must find that she killed her father with premeditation. And then the judge will define that term. 'Killing with premeditation is killing after consciously deciding to do so.' I suggest to you now that the evidence will show that my client did not consciously form such an intent."

The jurors looked puzzled. Who could blame them? I sounded like a hairsplitting pettifogger. Better to play to my strength, my beautiful and presumably innocent client.

"You will learn much about Chrissy Bernhardt in the course of this trial. You will learn about her upbringing and about her invalid mother, about why Chrissy left home as a teenager, refusing to ask her father for support, even refusing to tell him where she was."

Chrissy, Chrissy, Chrissy. Making her sound like a child, even now.

"You will learn that there are two victims of this tragic incident."

Making it sound like an accident.

I moved close to the jury box and gave its occupants my sincere look. "This is a hallowed proceeding, the ultimate in our democracy." I turned and rested a hand on the back of the witness chair. "Here, truth and nothing but the truth is acceptable. Nothing less than complete, unvarnished, untainted truth should be acceptable to you. If lies, fabrications, and falsehoods come from this chair, this throne of truth, if any doubts are raised as to the guilt of Chrissy Bernhardt, you must acquit."

If the glove doesn't fit…

"Objection," Socolow said. "This isn't closing argument."

The judge waved him off without a word. I seldom object during opening statement or closing argument. In my old game, when you throw the ball, three things can happen, two of them bad. Same thing here. Object during opening, the judge is likely to overrule you or ignore you.

I rambled on for a while, telling the jurors I was their taxi driver, and we were going to take a trip of discovery, learning the facts as we went. But it was a bumpy road filled with potholes and dangerous curves. I spoke in vague terms, hinting at the sexual abuse without saying it. I never mentioned Dr. Lawrence Schein by name, but as I stood there, skimming my notes, watching for jurors' eye contact, occasionally scanning the gallery where crime reporter Britt Montero was taking notes, it occurred to me that I didn't have a choice. I had to put Schein on the stand. He had become the enemy. He could cast doubt on the memories he had uncovered, hurt us with the tape that showed premeditation, and toss out any number of lies I wouldn't be prepared for. But I didn't have anything else. If I could prove he'd had a motive to kill Harry Bernhardt, I could put the gun in his hands. To have a chance, I had to destroy him. Anything less, and he would destroy us.