The defense had five seats on reserve in the first row behind me. Sitting there were Lorna, Cisco, Patrick and Julie Favreau – the last on hand because I had hired her to ride through the trial and observe the jury for me. I couldn’t watch the jurors at all times, and sometimes they revealed themselves when they thought none of the lawyers were watching.
The empty fifth seat had been reserved for my daughter. My hope had been that over the weekend I would convince my ex-wife to allow me to take Hayley out of school for the day so she could go with me to court. She had never seen me at work before and I thought opening statements would be the perfect time. I felt very confident in my case. I felt bulletproof and I wanted my daughter to see her father this way. The plan was for her to sit with Lorna, whom she knew and liked, and watch me operate in front of the jury. In my argument I had even employed the Margaret Mead line about taking her out of school so that she could get an education. But it was a case I ultimately couldn’t win. My ex-wife refused to allow it. My daughter went to school and the reserved seat went unused.
Walter Elliot had no one in the gallery. He had no children and no relatives he was close to. Nina Albrecht had asked me if she would be allowed to sit in the gallery to show her support, but because she was listed on both the prosecution and defense witness lists, she was excluded from watching the trial until her testimony was completed. Otherwise, my client had no one. And this was by design. He had plenty of associates, well-wishers and hangers-on who wanted to be there for him. He even had A-list movie actors willing to sit behind him and show their support. But I told him that if he had a Hollywood entourage or his corporate lawyers in the seats behind him, he would be broadcasting the wrong message and image to the jury. It is all about the jury, I told him. Every move that is made – from the choice of tie you wear to the witnesses you put on the stand – is made in deference to the jury. Our anonymous jury.
After the jurors were seated and comfortable, Judge Stanton went on the record and began the proceedings by asking if any jurors had seen the story in the morning’s Times. None raised their hands and Stanton responded with another reminder about not reading or watching reports on the trial in the media.
He then told jurors that the trial would begin with opening statements from the opposing attorneys.
“Ladies and gentlemen, remember,” he said, “these are statements. They are not evidence. It’s up to each side to present the evidence that backs the statements up. And you will be the ones at the end of the trial who decide if they have done that.”
With that, he gestured to Golantz and said the prosecution would go first. As outlined in a pretrial conference, each side would have an hour for its opening statement. I didn’t know about Golantz but I wouldn’t take close to that.
Handsome and impressive-looking in a black suit, white shirt and maroon tie, Golantz stood up and addressed the jury from the prosecution table. For the trial he had a second chair, an attractive young lawyer named Denise Dabney. She sat next to him and kept her eyes on the jury the whole time he spoke. It was a way of double-teaming, two pairs of eyes constantly sweeping across the faces of the jurors, doubly conveying the seriousness and gravity of the task at hand.
After introducing himself and his second, Golantz got down to it.
“Ladies and gentleman of the jury, we are here today because of unchecked greed and anger. Plain and simple. The defendant, Walter Elliot, is a man of great power, money and standing in our community. But that was not enough for him. He did not want to divide his money and power. He did not want to turn the cheek on betrayal. Instead, he lashed out in the most extreme way possible. He took not just one life, but two. In a moment of high anger and humiliation, he raised a gun and killed both his wife, Mitzi Elliot, and Johan Rilz. He believed his money and power would place him above the law and save him from punishment for these heinous crimes. But that will not be the case. The state will prove to you beyond any reasonable doubt that Walter Elliot pulled the trigger and is responsible for the deaths of two innocent human beings.”
I was turned in my seat, half to obscure the jury’s view of my client and half to keep a view of Golantz and the gallery rows behind him. Before his first paragraph was completed, the tears were flowing from Mitzi Elliot’s mother, and that was something I would need to bring up with the judge out of earshot of the jury. The theatrics were prejudicial and I would ask the judge to move the victim’s mother to a seat that was less of a focal point for the jury.
I looked past the crying woman and saw hard grimaces on the faces of the men from Germany. I was very interested in them and how they would appear to the jury. I wanted to see how they handled emotion and the surroundings of an American courtroom. I wanted to see how threatening they could be made to look. The grimmer and more menacing they looked, the better the defense strategy would work when I focused on Johan Rilz. Looking at them now, I knew I was off to a good start. They looked angry and mean.
Golantz laid his case out to the jurors, telling them what he would be presenting in testimony and evidence and what he believed it meant. There were no surprises. At one point I got a one-line text from Favreau, which I read below the table.
Favreau: They are eating this up. You better be good.
Right, I thought. Tell me something I don’t know.
There was an unfair advantage to the prosecution built into every trial. The state has the power and the might on its side. It comes with an assumption of honesty and integrity and fairness. An assumption in every juror’s and onlooker’s mind that we wouldn’t be here if smoke didn’t lead to a fire.
It is that assumption that every defense has to overcome. The person on trial is supposed to be presumed innocent. But anybody who has ever stepped foot into a courtroom as a lawyer or defendant knows that presumed innocence is just one of the idealistic notions they teach in law school. There was no doubt in my mind or anybody else’s that I started this trial with a defendant who was presumed guilty. I had to find a way to either prove him innocent or prove the state guilty of malfeasance, ineptitude or corruption in its preparation of the case.
Golantz lasted his entire allotted hour, seemingly leaving no secrets about his case hidden. He showed typical prosecutorial arrogance; put it all out there and dare the defense to try to contradict it. The prosecution was always the six-hundred-pound gorilla, so big and strong it didn’t have to worry about finesse. When it painted its picture, it used a six-inch brush and hung it on the wall with a sledgehammer and spike.
The judge had told us in the pretrial session that we would be required to remain at our tables or to use the lectern placed between them while addressing witnesses during testimony. But opening statements and closing arguments were an exception to this rule. During these bookend moments of the trial, we would be free to use the space in front of the jury box – a spot the veterans of the defense bar called the “proving grounds” because it was the only time during a trial when the lawyers spoke directly to the jury and either made their case or didn’t.
Golantz finally moved from the prosecution table to the proving grounds when it was time for his big finish. He stood directly in front of the midpoint of the box and held his hands wide, like a preacher in front of his flock.
“I’m out of time here, folks,” he said. “So in closing, I urge you to take great care as you listen to the evidence and the testimony. Common sense will lead you. I urge you not to get confused or sidetracked by the roadblocks to justice the defense will put before you. Keep your eyes on the prize. Remember, two people had their lives stolen from them. Their future was ripped away. That is why we are here today. For them. Thank you very much.”