At the mild rumble of protest that arose in the gallery at this edict, she banged her gavel again. “I am this close,” she said, “to expelling people with cameras right now. But in the interests of keeping things moving I’ll hold off on that order, unless someone abuses it.” She glared through her glasses for another ten seconds or so, scanning the gallery right to left, left to right, for signs of disobedience.
Finding none, she returned to the prosecuting attorney, standing next to Hardy in front of her. “Mr. Stier?”
“Yes, Your Honor.”
“I believe before that interruption that the court was asking if the People are ready to begin?”
The Big Ugly for an instant took on an expression that somewhat explained the nickname. Nervous, and with a light sheen of perspiration on his high forehead, Stier cleared his throat and threw a quick glance at Hardy, then came back up to the judge.
He finally decided that while he couldn’t figure out what Hardy was doing, if Hardy wanted something, any smart prosecutor wanted the opposite. “Your Honor,” he began, “I call your attention to a meeting that took place just minutes ago at the door to your chambers, where you and I exchanged a few pleasantries relating to the mayor’s appearance in the courtroom today, but outside of the presence of Mr. Hardy.”
Hardy couldn’t believe his ears. But he wasn’t inclined to interrupt.
Braun looked for all the world as though she was going to have a stroke right there on the bench. “Go on,” she said. “What do you think is so important that it needs to be memorialized at this point in the proceeding?”
Oblivious, Stier kept digging his grave. “I believe that in the interests of precluding a defense appeal on grounds of this technically ex parte communication between you and myself, it is in the interest of justice that that discussion be memorialized and entered into the record. Then, if Mr. Hardy’s got any objections, he can raise them now.”
Hardy stood with the muscles in his jaw locked against breaking into a victory grin. This was the kind of moment that his old mentor, David Freeman, had lived for. You plan and you plan and then you strategize and plan some more and then something completely unexpected happens and you’re back in the ball game in a way you had never imagined possible. Sometimes you just had to love the majestic insanity of the law.
Stier had just overstrategized himself into a truly dumb move and Judge Braun, never subtle, was letting him know it by her body language and withering expression. “Very well, Counselor,” she clipped out through lips tight enough that it didn’t appear she was moving her mouth at all. “By all means, let’s memorialize that conversation. Court reporter and attorneys in chambers. Ten-minute recess.”
Finally Hardy stood to deliver his opening statement. He had the option of either delivering it now or waiting until the prosecution closed its case in chief. But like most experienced defense attorneys, he didn’t want to give the jury too much time to live with the version of the crime they’d just heard described in the prosecution’s opening statement.
Even with many murder trials under his belt Hardy expected that he would be struck by opening-day jitters-the familiar hollowness in his stomach, the deadness in his legs-when he first stood to address the jury. Especially with the large and captivated crowd in the courtroom, the sudden sense that something of major import was transpiring here. When he rose to come around his table and face the panel, though, he found himself possessed of an almost unnatural calm, even a confidence.
The easy camaraderie between Braun and Stier had just suffered a serious blow and while the prosecutor was probably still reeling from it, Hardy could use this small but real advantage to push the envelope a bit-maybe throw in a little argument, which was forbidden in opening statements-and, while Stier’s attention was focused elsewhere, perhaps escape without too much interruption in the form of objections from the prosecution table.
He began in an amiable fashion, wearing an easy smile and making eye contact with every juror he could before he started. “Good afternoon. This morning Mr. Stier related to you an extravagant scenario of motivation and coincidence that he hopes will convince you that Maya Townshend is guilty of two counts of first-degree murder.” Much in the same way that Stier always referred to Maya as “Defendant” to dehumanize her to the jury, Hardy would strive at every opportunity to refer to her by her given name, underscoring her humanity and personhood. “Unfortunately for the People’s case, but fortunately for Maya and for justice, what he left out of his story were the gaps and holes and inconsistencies in the so-called chain of evidence upon which the prosecution relies. The prosecution cannot and will not prove that Maya killed Dylan Vogler or that she killed Levon Preslee, because she didn’t.
“Did Maya know Dylan and Levon when she was in college? Absolutely she did. Did she do some things she’s ashamed of now, as Mr. Stier alleges? Yes. Will there be evidence, such as direct eyewitness testimony, to prove these things? Again, the answer is yes.”
Hardy, always conscious that he had a tendency to go too fast and gloss over elements of syllogisms that might be crucial to jury members, had trained himself to slow down, timing his restrained pacing from one end of the jury box to the other, getting back to his table ostensibly to consult notes or take a drink of water, sometimes just to touch it to keep him in his rhythm, center him for another lap.
Now he touched the wood of his table, gave a quick confident nod to his client, and turned back to the jury. “So the prosecution can prove that Maya Townshend”-he walked over to her, putting his hands on her shoulders-“small-business owner, wife, and mother of two young children, made mistakes when she was in college.
“We know that she was a student at the University of San Francisco because there are records supporting her attendance there. She appears four times in four years in the school’s yearbook, and several times in the university’s newspaper, the Foghorn. Similarly, we will learn from her classmates at the time that she associated regularly with both Dylan Vogler and with Levon Preslee, and we will hear from other eyewitnesses that these young students were not exactly members of the choir. These are facts supported by both documentary and eyewitness testimony.”
Hardy didn’t dare glance back at Stier. He was well into argument here and so far he was getting away with it. The prosecutor, still licking his wounds, hadn’t engaged yet. He was no doubt listening, but he wasn’t hearing.
“But that’s not what she’s accused of. She’s accused of murder. And for that accusation the prosecution has no evidence. The district attorney tells you that it has evidence to support the charges it has brought against her, evidence that directly ties her-and this is important-that ties her, and no one else, to these crimes. That is simply not so.
“The actual truth is that unlike the story about Maya’s earlier life, which the prosecution can back up with witnesses and documents, there is nothing to tie her to evidence of these murders except innuendo and speculation. And why is that?”
Hardy paused, taking a moment up by the witness chair, again meeting the gaze of juror after juror. “The answer, ladies and gentlemen, is quite simple. The prosecution won’t provide you with this evidence because none of it exists. There are no eyewitnesses who will claim they saw her in the presence of either of the two victims on the day of their respective deaths. There is no documentary evidence-say a time stamp or video recording-analogous to the USF yearbook or the issues of the Foghorn that places Maya in the company of either of these two victims at the time of their deaths. Nearby? Yes, by her own admission. But nearby, ladies and gentlemen, is not good enough to meet the legal standard that will take you beyond reasonable doubt.”