The Law of Second Chances

58

Jack knew that Wednesday morning outside the courthouse would be different from the previous two days. He hadn’t anticipated how different.

George, the bodyguard, drove him downtown in an old Mercedes with heavily tinted windows. George was not a talkative person, and no words passed between them during the trip. He let Jack off on a side street a couple of blocks from Centre Street so that nobody would see how he’d arrived and be able to recognize the car and follow it.

“I’ll call you tonight when I’m on my way home,” Jack told him before shutting the car door.

“Uh-huh,” George muttered.

The crowds were thick, and there was some pushing and shoving when he reached Centre Street. He was carrying his trial briefcase and had trouble working his way through the mayhem. He saw the kiosks all lit up across the street. Several people in the crowd were carrying signs. In the immediate group around him all the signs had slogans against the death penalty. On the other side of the entrance to the criminal courts building the signs were all pro death penalty. The two groups were shouting at each other and chanting in unison like opposing fans at a football game.

The police had erected barriers to either side of the courthouse entrance to separate the crowds and prevent them from entering the building. Somebody in the crowd around him recognized Jack and shouted, “Way to go Jack! Keep fighting for justice.” Others picked up the chorus. He shook hands and smiled as he tried to shoulder his way through to the wooden barriers. When he finally got there he yelled to a cop to tell him who he was. Finally a sergeant noticed him, came over, and motioned him to climb under the barrier. He was in the open space now where everybody could see him. The crowd he’d been in was cheering; those on the other side booed loudly. Jack walked up the steps and into the building.

The last week before the trial, when the media was showering its attention on Benny’s plight, Jack did not read the newspapers or watch the news. He didn’t want or need that kind of distraction, so he had no idea what the media was writing and talking about. Since he’d undertaken Benny’s representation, Jack had focused solely on the strategy he was going to use to try to get him off. He’d assumed the high profile of the case came from Carl’s status as a wealthy captain of industry. Yes, the governor had been very vocal touting the death penalty, but New York hadn’t executed a person in fifty years. The signs and the attitude of the crowd had surprised him. In the eyes of the public, the New York State death penalty was on trial.

As he rode the elevator to the eleventh floor, Jack realized that the public’s focus on the death penalty was a good thing. If Benny was convicted, so long as there were grounds for appeal, his case would remain in the spotlight. The public would follow it through the entire appellate process and at every juncture apply pressure on the judiciary. His job was to make sure there would be an issue for appeal in the event Benny was convicted.

Even though Jack was thirty minutes early the courtroom was already full of spectators. Luis was there. Benny had not yet been brought in. Jack took his place at the defendant’s table and turned to Luis.

“Remember what I said, Luis. This is my courtroom.” Luis smiled nervously to let Jack know he understood.

A court officer approached and whispered in Jack’s ear. “Your client is in there,” he said, pointing to a door on the right side of the courtroom. “He’s changing.” Jack walked over to the door and into the room. Luis had brought Benny a new blue suit, a white shirt, a red tie, and black shoes, and Benny was getting into the pants when Jack walked in. Three guards were in the room with him.

“How are you feeling?” Jack asked him.

“A little nervous but fine,” Benny answered. He seemed a lot better off than his father. When he had finished getting his pants and shirt on, Jack helped him with the tie.

“You’re going to look like one of the lawyers,” he remarked. Benny smiled sheepishly. “Seriously, Benny, you look really good. When we go into the courtroom, I want you to stand when everybody stands and I want you to stand up straight. When you sit, sit straight. No slouching. No matter what anybody says on the stand, I don’t want you to make any facial expressions, understand?”

Benny nodded.

“As I’ve told you before, the jurors will be watching you constantly. Even though you won’t be testifying, they’ll be watching you and sizing you up. An important part of all this is you and your demeanor in that courtroom. Got it?”

“Yeah,” Benny answered. “I’m ready.”

“Okay, let’s go.”

Benny followed Jack into the courtroom and Jack showed him where to sit. He took a yellow pad and a pen out of his briefcase and put them on the table in front of Benny.

“You can write things down, even doodle-anything that makes you look attentive. If you want to alert me to something, write it down. Don’t talk to me while somebody is testifying because I can’t divide my attention. And remember, don’t tell me anything about what you did or didn’t do on the night of the murder.”

“I understand,” Benny told him.

They both sat down and Jack started unloading the contents of his briefcase onto the table and readying himself for his opening statement.

Spencer Taylor was already in the courtroom at the table farthest away from the jury. Like most prosecutors, he wanted the scum-sucking, lowlife defendant as close to the jurors as possible. As the trial progressed and Benny’s guilt became apparent, he wanted them to have a bird’s-eye view of him. Spencer trained his perfect pearly whites on Jack before the jury came in, flashing his best smile.

“Good morning, Counselor.”

“Good morning,” Jack said blankly.

Spencer’s table was all set up. He had a yellow pad directly in front of him and his exhibits stacked neatly on the table. Norma Grier, the deputy district attorney who had assisted Spencer earlier, wasn’t there. Spencer wanted the battle to be mano a mano, solely between him and Jack Tobin. He was still bristling from the stunt Jack had pulled at the hearing, not to mention the files he’d stolen from the warehouse. Spencer wanted to gut Jack in the middle of that courtroom, and he didn’t want any help when he did it.

Promptly at nine o’clock Judge Langford Middleton walked into the courtroom, and the bailiff announced the beginning of the proceedings. “All rise!” he bellowed.

Everybody stood up. Jack stole a glance at his client. Benny was standing at attention looking straight ahead. If only he can stay that way for the rest of the trial, Jack thought.

“You may be seated,” the judge announced. He waited for everyone to settle before delivering his opening remarks.

This was Langford Middleton’s moment. The years were starting to show on him. His once-thick brown wavy hair was now gray in spots and almost completely white at the temples, and age lines creased the corners of his eyes. He was still an imposing figure, though, and in his black robes, on this stage, he certainly looked like a judge. Nobody could see that underneath those robes his knees were shaking.

“Ladies and gentlemen,” he said in a great booming voice addressing the spectators, “your presence here is a privilege-a privilege that may be revoked at any time. This is a courtroom. It is not a movie theater. It is not a television studio. A man is on trial for his life. You will not root for one side or the other. You will not comment in any way on the testimony. You will sit and observe in silence and, if you cannot do that, you will be removed by court personnel, forcibly if necessary. Do you understand?”

Everybody seemed to nod as one. It was an auspicious start for the judge.

“Counselors, is there anything we need to take up before we bring the jury in?”

“No, your honor,” Spencer and Jack answered almost in unison.

“Bring in the jury,” he instructed the bailiff.

When the jury was seated, the judge turned to the prosecutor. “Mr. Taylor, you may proceed.”

“Thank you, your honor,” Spencer replied as he walked to the podium, which was now situated directly in front of the jurors. He was wearing a tailor-made charcoal gray suit, a crisp white shirt, and a lavender tie. His hair was once again coiffed to perfection and his clear, smooth skin was lightly bronzed, probably from a tanning booth. In short, he looked beautiful.

Spencer stood at the podium and made eye contact with each juror. When he started to speak, his words were warm and generous, his smile captivating.

“Good morning, ladies and gentlemen. As you know from jury selection, my name is Spencer Taylor, and I represent the people of the State of New York.” He didn’t say “you the people,” but they got the message. “And I am proud to stand before you today in that capacity.” The words were a little overdone, but he seemed to pull it off. His blue eyes spoke of nothing but sincerity and conviction.

Jack watched the jurors, especially the women, fall for Spencer and his schmaltz.

When Spencer finally got to Benny’s case, he began by describing the victim, Carl Robertson, and his stellar and lucrative career in the oil business. Then almost reluctantly he told them about Carl’s “imperfections,” that he’d had a mistress whose name was Angie and that he’d brought her money every month and paid for her apartment.

He briefly described what Angie’s testimony would be and told them he would also be calling two eyewitnesses, Paul Frazier and David Cook, who lived in Angie’s building. They had heard the shot and immediately gone to the window and seen a man leaning over the body of Carl Robertson. They’d later identified that man as Benny Avrile, the defendant.

It was a simple story of motive and opportunity: Benny was there, the motive was robbery, and he’d shot Carl Robertson in cold blood.

“The only question you have to answer, ladies and gentlemen, is this: Does the evidence prove beyond a reasonable doubt that the accused, Benny Avrile, killed Carl Robertson in cold blood? The answer is a resounding yes.”

Spencer was driving an express train. His opening had taken only twenty minutes. He hadn’t talked about any of the forensic evidence. He didn’t need to. It would come up during the testimony itself, clearly supporting the simple, straightforward story he had told the jury.

It was now Jack’s turn. Jack had considered waiving his opening and giving it at the start of his defense. But this was a fight, like a boxing match or a gladiator’s duel. The jury had seen and heard from Spencer; now they wanted to hear from him. He had a problem, though, and it was a big problem. He still didn’t know what his defense was. All he could do was give them what he had at the moment.

In his preparations, two major issues had concerned Jack, the first obviously being the charge of first-degree murder. The second problem was almost of equal importance: the felony murder count. The felony murder rule basically provided that if someone was killed during the commission of a felony, everyone involved in the felony was guilty of murder. Thus, if Benny was attempting to rob Carl Robertson, that was enough for a conviction under the felony murder rule. Felony murder was second-degree murder and not punishable by death.

The governor wanted death. Spencer Taylor wanted death so badly Jack was sure that the man could taste it; anything less than a first-degree murder conviction would be considered a blot on his resume. Jack hoped to take advantage of that relentless focus to at least dispose of the felony murder count. Then the jury would only have one issue to decide.

He had a plan, but like everything else at this point, it was pretty much a crapshoot.

He stood up and walked to the podium. Jack was wearing an olive green suit, a blue shirt, and a maroon tie. At six two, he was taller than Spencer and appeared stronger and fitter than the younger man. His hair was short and gray and sparse in places, and his face was weathered by age and experience-a good-looking man, but even on his best day nobody would ever have described Jack Tobin as beautiful.

“Good morning, ladies and gentlemen,” he began. His tone was pleasant but businesslike enough to let them know he wasn’t going to ingratiate himself to them. That wasn’t his style.

“You know what I’m going to say to you first off because we discussed it during jury selection. The state has the burden of proof: it has to prove its case beyond a reasonable doubt. That is our system of justice. You all assured me that you would hold the state to its burden. The defendant has a constitutional right not to testify, and he will not in this case. You all assured me that you would honor that right. The defense does not have an obligation to put on any witnesses. You all assured me that you understood that concept. I’m going to hold you to those promises.”

Jack paused and looked each juror in the eye.

“Now, what have you heard from the state this morning? I know it’s not evidence, but let’s assume for the moment that Mr. Taylor is accurately stating his case. A man is shot on a city street at ten o’clock at night and two people look out their window sometime soon after the event and see another man kneeling over the victim and they later identify the accused as that man. Is he just a person who happened to be on that street at that precise moment responding to an emergency situation without thinking, or is he the perpetrator? That is the ultimate question you have to answer. In order to do that, you must ask the following questions: Did anyone see this man stealing money? Did they see him with a gun?

If the answer to those two questions is no and there is no evidence of any other connection between the defendant and the deceased, then the state has simply not met its burden and you must find the defendant not guilty.”

That was it. Jack’s opening was only a few minutes long-much shorter and simpler than Spencer Taylor’s. Both men knew the trial was going to be a lot more complicated.