“Now I still remember the voir dire we did several weeks ago,” Drabble continued, “and I know many of you have mixed feelings on the subject of homosexuality. Some of you have deep-seated reasons, religious reasons, and we are not here to challenge those. But what I am here to say is-” At this point, Drabble whirled around and pointed at Johnny. “-what this man did was not an acceptable protest to another man’s lifestyle choice!”
He fell silent, letting his words reverberate in the jurors’ ears. “And it is important that we, as a society, make it clear that we will not accept this kind of conduct. As jurors, you swore to uphold the law, and that duty was never more important than it is today. Why? Because there are some people who hate women. Who hate children. Who hate people of other races, other religions. Who hate fat people. Bald people. There will always be those who hate. But this-this!” He grew quiet, finishing with barely a whisper. “This must never happen again. Never!”
After a measured moment of silence, Drabble took his seat. Judge Lacayo nodded in Ben’s direction.
“Here’s your outline,” Vicki whispered.
Ben smiled. Christina was right-he liked the new kid on the block. She was quiet, a bit timid, so unaggressive he wondered if she could ever possibly survive as a trial attorney-which was exactly what people used to say about him. Small wonder he liked her.
“Thanks, but Drabble didn’t use notes, so I won’t either.”
“You know what you have to do?” Christina whispered to him.
He nodded. “I’m going to be brief.”
“I think that’s best.”
Ben took his position before the jury. He knew he didn’t have the slickness, the imposing presence or, for that matter, the good looks of his opponent. But he had managed to learn a thing or two about talking to juries. He’d learned, for instance, not to lie to them, because contrary to popular belief, most jurors were not stupid, and they would pick up on a lie immediately-and never trust him again. And he’d learned that, for the most part, jurors weren’t really impressed by hyperbole or dramatic surprises or courtroom theatrics. The stuff that made good television did not necessarily make a good trial. In his experience, what juries really liked was someone who would just tell them what happened, tell it straight, and let them draw their own conclusion. Of course, as he also knew, if the story was told properly, the conclusion could be artfully predestined-without giving the impression of doing so.
“First of all,” Ben said, echoing the words he had heard Kevin Mahoney speak all those weeks ago, “let’s establish what this trial is not about. It is not a referendum on gay rights. It is not a campaign for more hate crimes legislation. It is not a forum for sending messages to the populace at large. Nothing you do here will alter the history of World War II or alleviate the tragedies born of terrorist acts. You have been brought here to do one thing, and one thing alone-to determine whether this man’s guilt has been proven beyond a reasonable doubt. As the judge will later instruct you, any other consideration is grossly improper.”
Ben took a moment to size up the jurors. He hadn’t had his usual opportunity to get to know them during the voir dire, but he’d read the transcript and reviewed Kevin’s notes. Now he needed time to read the lines of their faces. He sensed that a few of them were wary of him, perhaps even suspicious. That wasn’t a great surprise. Some people were naturally suspicious of defense attorneys, usually those on the right side of the political fence or with a strong law-and-order bent. Many assumed anyone accused of a crime was probably guilty, that trials were a waste of time, that attorneys only existed to put the guilty back on the streets. The best way he could win them over would be to come clean about his client’s flaws.
“Second, I am not here to convince you that my client, Johnny Christensen, is a great human being. He isn’t.” Ben could almost feel Ellen’s eyes boring into him, not to mention Johnny’s. Never mind. He knew what he was doing. “He was neither good, nor kind, nor nice the day Tony Barovick was killed. He was mean and brutal and ignorant, and in many respects he represents the very worst part of this country, the faction that finds it acceptable to commit acts of cruelty and violence in the name of some higher cause. My partner has been trying to convince me Johnny’s not that bad, just misguided and poorly educated, but I’m not buying it. Frankly, I don’t even like sitting at the same table with him.”
Ben watched the eyebrows of more than one juror rise. Well, at least now he had their attention. “And you know what? I don’t mind telling you that, either. Know why?” He leaned over the rail. “Because it doesn’t matter. None of it matters. Whether you like him or you don’t doesn’t matter.” He paused. “I know you’re not stupid people. I know you won’t be led by your emotions. If you convict-and that is an if-it will be because of the facts presented to you at this trial, and not because you do or don’t like someone.”
Ben walked slowly to the opposite end of the rail. “Now let me clearly state that we do not disagree with much of what the district attorney has said. We will not try to dispute the undisputed facts. Johnny Christensen did participate in the beating of Tony Barovick. We acknowledge that. But he was not the principal actor in that crime and, most significantly, he did not kill Tony Barovick. His cohort, Brett Mathers, did not kill him. Nor did Tony Barovick die from the beating. They left him in a vacant lot seriously injured, to be sure, but very much alive.”
Ben didn’t detect much reaction from the jury. Many probably thought he was splitting hairs. Okay, Johnny beat him to the edge of death but didn’t deliver the finishing stroke-big deal. But that kind of thinking was exactly what Ben wanted. Because the charge brought by the district attorney was not aggravated assault, not even manslaughter. It was murder-murder in the first degree. If he could convince the jury that Johnny did not deliver or participate in the delivery of the death stroke, there was just the tiniest chance he might come out of this trial alive.
“You may have noticed that the DA didn’t say anything about how Tony got to the fraternity house-because the investigators don’t know. They’ve scrutinized the vehicles belonging to Johnny and his partner-and found nothing. The DA didn’t say anything about what actually caused Tony’s death-because they’re a little fuzzy on that point, too. They can’t tell you to what extent the illegal drug trade at Tony’s club-which Johnny Christensen had nothing to do with and played no part in-may have created a motive for murder.
“The DA would suggest that this is an open-and-shut case, but there are, in fact, many unanswered questions. And that’s a problem. Because you can’t convict a man just because you don’t like him, or because he did something else that was bad. You can’t convict when you don’t really know what happened, or where, or who did what. In order to convict my client of the crime with which he has been charged, you must find him guilty beyond a reasonable doubt. Think about that. Beyond a reasonable doubt. That’s a very high standard. And it’s one that the district attorney, for all his good intentions, simply can’t make.”
Ben buttoned his jacket, turned and took his seat, careful not to let his eyes wander toward his client-or his client’s mother.
It had started. Let the games begin.