Open and Shut (12 page)

T
EN DAYS
FLY BY AS IF THEY ARE TEN MINUTES, AND THE
next thing I know the bailiff is intoning, “In the matter of the people versus William Miller, the Honorable Justice Walter Henderson presiding …”

“William” sits at the defense table in a new suit I had Edna purchase for the occasion, and he looks terrific. He also looks calm and collected; he's been a lot lower, and faced a lot tougher, than this and he thinks the momentum has turned upward. He's not thinking very clearly.

There is a special feeling, an excitement combined with queasiness, that hits me every time a trial is about to begin. The only thing I can liken it to is former Boston Celtics great Bill Russell saying that no matter how long he played, he still threw up in the locker room before every game. I don't think throwing up on the defense table is the right way to get on Hatchet's good side, so I control the impulse.

For me trials are about strategy and confrontations. Strategy is one of my strong suits, but in real life I don't do well with confrontations, so I have to deal with that in another way.

My father used to lecture me that a trial is serious business, not a game, but I have come to disagree. For me a trial and the investigation surrounding it is in fact a game. I turn it into one, so that I can handle and thrive in the midst of all these confrontations. In sports, every play between the participants is a confrontation, but I can deal with that because that is the purpose of the game. Once I can put trials into the same category, it becomes depersonalized and I'm home free.

Jury selection is especially difficult and dangerous for the defense in a capital trial. That is because each juror must be death-qualified, which is to say that he or she must be willing to vote for the death penalty if it seems warranted. Such juries are by definition more conservative and more favorable to the prosecution.

The first prospective juror is brought in for Wallace and me to question. Marjorie is at my side as we go through the tedious process, made more so by Hatchet's insistence on throwing questions in of his own.

Number one is a doorman who claims to know nothing about the case. He also claims to have an entirely open mind, to have no predispositions about the police or the justice system, and to be willing to consider capital punishment if called upon to do so. This is clearly a guy who'd rather sit in the jury box for a few weeks than open doors. Marjorie's okay with him, but Wallace challenges, and he's excused.

It takes us two days to empanel a jury of twelve and two alternates. There are seven whites, four blacks, and one Hispanic, five men and seven women. All twelve of them claim to have a completely open mind. I don't think I've met twelve people in my entire life with completely open minds, but I'm reasonably satisfied with this group. Marjorie is positively euphoric, but if she thought we had a bunch of turkeys, it would mean she did a poor job.

The real action in a trial begins with the opening statements. The prosecutor stands up and gives the jury a road map of the trial. He tells them what they are going to hear, what he is going to prove, and what it will all mean. His goal is to sound confident and to convince the jury that he has the goods on this guy, then his task will be to deliver a case that makes good on the promises he's made in the opening statement.

Richard thanks the jury for their willingness to serve, then talks for a while about their obligations under the law. It's all straightforward, boilerplate stuff, until he finally turns to Willie Miller.

“So he got drunk,” Wallace says, pointing to Willie. “Happens to a lot of us, right? But what do you and I do when we have too much to drink?”

He laughs to himself as if remembering past nights at the frat house.

“Well, I have to admit, I fall asleep. Knocks me right out. But I'm a little unusual in that regard. Other people, maybe even some of you, get a little wild, have some fun, maybe even say a few things they shouldn't.”

Most of the jurors are nodding along with him. This is starting to feel like an AA meeting.

Wallace turns serious. “But not Willie Miller. No, Willie handles his liquor a little differently. Willie kills people. And on June 14, 1994, Willie Miller killed Denise McGregor. She was a hardworking, intelligent young woman, a loving daughter, full of life, who is not here today because Willie Miller spent a night drinking and killing.

“Your job is a very serious one, have no doubt about that. But in this case it is not a particularly difficult one. That is because we will prove everything I am telling you about that night. Every single, ugly moment of it. We will show you who Willie Miller is, and what he did. We will present overwhelming physical evidence to you, and you will hear from an eyewitness to the crime. That's right, an eyewitness. Someone saw Willie Miller standing over the body, moments after committing the crime. She will come in here and tell you what she saw. And you will have no doubt that she is telling the truth.

“On behalf of the state, we will prove that Willie Miller is a cold-blooded murderer. We will prove it not just beyond a reasonable doubt; we will prove it beyond any doubt. Thank you.”

Wallace finishes just before lunch, and Laurie, Kevin, and I have two hours to decide whether I should give my opening statement now or wait until after the prosecution's case is finished and it's time to present ours.

I include Willie in our discussions, as I always do with my clients. It makes them feel better, even though I never listen to anything they have to say. Willie thinks I should speak now, since he's just been made to look like a monster by Wallace, and he thinks I'll provide him some vindication. Laurie feels I should hold off, that Wallace didn't go as far as he might have, and that we'll need our best ammunition after his case in chief, which she expects to be devastating. Kevin feels I should go now, since otherwise the jury will think I have nothing to refute what was just said.

My decision is to speak now, since it feels like there could be a steamroller effect if I don't. I want the jury to understand that there is a serious, other side to this argument, and if I don't tell them so right now, I'm afraid they won't get it.

When court reconvenes, I tell Hatchet that I want to make my opening statement now. I stand and face the jury.

“I'm going to start by answering a question that must be on your minds. You must be wondering why, if this murder was committed so long ago, and if Willie Miller was captured so soon after the murder, he is just being brought to trial now. Well, the truth is, he was tried once before, and found guilty. That verdict was overturned, and we're back here.”

I can see Wallace almost getting up, trying to decide if he should object. This is information he should want included, and he doesn't know why I'm bringing it up.

I continue. “Actually, I shouldn't say that
we're
back here. I didn't represent Mr. Miller last time. In fact, his lawyer was not really a lawyer. He was a fake, brought in to ensure that Mr. Miller would lose. It is convincing evidence of a conspiracy that resulted in—”

“Objection!” Wallace leaps to his feet.

“—my client losing seven years of his life—”

“Objection!” Wallace is going nuts, and Hatchet slams down his gavel.

“Bailiff, remove the jury. I'll see both counsel in chambers.”

I've accomplished my task, the jury has been shaken up and hopefully will now expect to see a fight between two competitive positions. It's put our side on a more equal footing, which is all we can hope for at this point.

Back in chambers, Hatchet doesn't come down on me as hard as I expected. Wallace complains that I cannot go making wild charges about alleged conspiracies, but Hatchet still wants to rule on it step by step as we go along. He knows I'm trying to develop evidence on the fly, and he may well be feeling guilty about rushing me to trial. He says that I can talk about a conspiracy and frame-up in my opening statement, but before I can give further specifics I have to clear it with the court. It's a reasonable decision and elevates my opinion of Hatchet.

Wallace is displeased with the result of this conference, but he and I both know he will be upset often during the trial. My style as a defense attorney is often to ridicule the prosecution's case, to make it look not worthy of serious consideration by the jury.

Lawyers, even those who know it is crazy to personally identify with their respective positions, have a tendency to become their case during the course of a trial. If their side loses, then they lose, and the key for the attorney is to allow objectivity and passion to coexist in his or her mind.

As I try to make Wallace's case look bad, he will have a knee-jerk reaction that I am making him look bad. He's a professional, and it won't destroy the level of his work, but it will be tough to deal with, and occasionally he will erupt in anger. It's unfortunate that I have to bring this out in him, but for me it's just part of the game.

When we return to the courtroom, I continue with my statement to the jury. “The interesting question that you will face is not whether or not Willie Miller committed this terrible crime. He simply did not, and the evidence will bear that out. The proof to which Mr. Wallace refers does not exist, no matter what he claims. He will present a manufactured proof, no doubt one in which he sincerely believes, but an illusion nonetheless.

“But the really fascinating part is why Willie Miller stands before you at all. Because there has been no accident here, no case of mistaken identity. Nothing in this case has happened by chance. Willie Miller has been framed … cleverly, diabolically, and ruthlessly. It is a frame-up that began the night of the murder, in fact well before that night, and which has continued to this very moment.

“Denise McGregor died tragically that night, but Willie Miller is a second victim, and the extent to which he has been victimized will astonish you.”

I take a drink of water from my glass at the defense table, and nod very slightly to Kevin's cousin, sitting in the first row behind the defense table, right where we planted him. The word “astonish” was the trigger, so he gets up and walks the few feet to me, leaning in and pretending to whisper something in my ear. I nod, and he leaves the courtroom through the rear doors.

I turn again and face the jury. “When I finish, the prosecution is going to be presenting their case. I already know what it consists of, and take my word for it, the most significant part of that case is an eyewitness.”

I stop, as if seriously considering the import of such a witness.

“An eyewitness. Sounds pretty momentous, doesn't it? The word almost sounds as if a drumroll should precede it. The average person thinks, well, he might as well plead guilty, because they've got an …”

I beat a drumroll with my hands on the railing of the jury box.

“… eyewitness.”

The jury laughs, which is what I'm looking for.

“Every moment of every day, we are eyewitnesses to what happens before us. Moments ago, a man got up from that chair, spoke to me, and left the court. Since there's not much else to do around here, I assume most of you watched him. You were eyewitnesses to it.”

There is a slight murmuring among the jury, as Kevin reaches under the defense table and picks up a large piece of paperboard. He hands it to me, and I bring it over to the jury, after first registering it as a defense exhibit.

The board has six photos on it of six different men. They all look vaguely similar and are all dressed alike. Any one of them could be Kevin's cousin, as long as no one was watching closely.

“One of these pictures is of the man that just spoke to me. I wonder if any of you could identify him. And if you were to try, would you also be willing to say, ‘I am so sure that was him, that I would send someone to be put to death, based on my certainty.’ ”

The look on their faces clearly reflects the fact that they have no idea which photo is the correct one, and they are afraid that they will actually be called upon to try and pick it out.

“I think not. And remember, there was no shock or excitement connected with this. You were paying attention, but nobody had a knife, no one was bleeding to death in front of you, and you weren't afraid for your lives. Do you think that would have made your job easier, or harder?”

A pause for effect. “I'd guess a lot harder.”

Many of the jurors are nodding along with me.

“Tough, huh? And just think, you were all …”

Again I beat a drumroll on the jury railing.

“… eyewitnesses.”

I don't go on much longer, mainly because I don't want to screw up a good thing. Also, Wallace hasn't gotten deeply into the specifics of the evidence to be presented, so I don't have to go into how I will refute it. If I will refute it.

When I walk back to the defense table and sit down, Willie looks positively giddy. I'm afraid he's going to give me a high five and a chest bump, but he manages to stifle the impulse. I'm going to have to talk to him about looking impassive. My guess, however, is that Lee Strasberg couldn't teach Willie to look impassive.

Hatchet decides that it's too late in the day to start calling witnesses, so he adjourns. As we are filling our briefcases, with the jury already dismissed for the day, Wallace comes up to me, a slight smile on his face.

“Upper right,” he says.

“Excuse me?”

He points to the board with the six pictures on it. “The guy who was in the courtroom is the photo in the upper right hand corner.”

The truth is, I have no idea which is the correct picture. I look to Kevin, who has heard Wallace and who obviously knows which one his cousin is. Kevin nods. Wallace is correct.

I smile. “Lucky for me you're not on the jury.”

He returns the smile. “You got that right.”

M
Y WAY OF WORKING
WHILE A TRIAL IS
in progress is to have nightly meetings with the rest of the defense team, so that we can prepare for the next day's court session. I sometimes have these sessions at my house, but in deference to the Nicole/Laurie situation, we're meeting at the office.

I have to assume that I am still in danger; the people that broke into our house and who attacked me in the office may well strike again, perhaps with more deadly results. I probably should get a bodyguard, but the stubborn side of me is resisting it.

The ironic thing about the threats is that I'm not sure what they are warning me against. It might well be the Miller case, except for the fact that it is illogical to think a lawyer would just give up a case in mid-trial, especially since he would just be replaced by another lawyer.

Besides, if I were someone looking to get Willie reconvicted, I would want this to move along as fast as possible. The more delay, the more attention that is brought to the trial, the more chance to find exculpatory evidence.

The other possibility, of course, is the photograph. I haven't exactly been relentless in hunting this down; all we have done is ask Markham and Brownfield if they are in the picture. If that is enough to trigger this violent reaction, the secret behind the picture must truly be incendiary. Then why is the picture so bland?

I'm still not positive that there's a connection between the picture and the Miller case; but I feel in my gut that there is. If I'm right, it means I have to step up my investigation into the picture before it's too late and Willie is back on death row. And if I do that, I'll likely be in more danger and more in need of a bodyguard. And round and round, “Like the circles that you find, in the windmills of your mind.”

The meeting is short and to the point. Kevin and Laurie give me their impressions of the opening arguments (mostly positive). Kevin correctly believes that we have an uphill struggle ahead of us, and that we should be shooting for a hung jury. Therefore, with Marjorie's help he has isolated two jurors who are most likely to be on our side. One, a twenty-four-year-old African-American woman, is a college teaching assistant. The other, a thirty-four-year-old Hispanic, is an account executive at a direct mail advertising agency. Kevin feels that whenever possible I should speak directly to them, and I agree that, within limits, I'll do it.

Laurie tells me that she has located Betty Anthony, the widow of Mike Anthony, the newspaperman who we believe is the fourth person in the photograph. I had requested that she not make contact with Betty, since I want to do that myself. All I have to do is find the time.

The next morning, Wallace calls his first witness, Detective Steven Prentice. The prosecution always builds their case from the bottom up, establishing all the facts in a way that is incontrovertible. Prentice was a young patrolman at the time of the murder, and he was the first one to respond to the 911 call that Edward made.

“Can you describe the scene when you first arrived?” asks Wallace.

Prentice nods. “Ms. McGregor's body was lying facedown in the alley behind the bar. There was a significant amount of blood surrounding her.”

Wallace introduces some horrific pictures of Denise and the murder scene to buttress what Prentice had said. “And what was the first thing that you did?”

“I cordoned off the area. There were people around, curiosity seekers, and I wanted to make sure that they did not tamper with anything before the detectives arrived.”

“Did you see a murder weapon anywhere?”

Prentice shakes his head. “No.”

“Was there anyone present that you considered a suspect?”

“No, but there was an eyewitness there. She was pretty shaken up. I put her in a room upstairs from the bar to wait for the detectives, so that she could give them a statement.”

“How long did it take for the first detective to arrive?” Wallace asks.

“About ten minutes.”

“And who was that?”

“Detective Pete Stanton.”

Wallace has him explain that once Pete showed up, his main function was over. Prentice obviously did his job professionally and by the book, and there is a limited amount I'll be able to get from him on cross-examination. I start by showing him police photographs taken of the rest of the alley on the night of the murder.

“Detective Prentice, are you married?”

“Yes, I am.”

“Would you be nervous if your wife told you she was going to hang out in this particular alley tonight at around one A.M.?”

“I would advise her not to,” he says.

“Why is that? Do you consider it dangerous?”

He tries to evade the question. “There are a lot of places that are not very safe at night.”

“Thank you for that. Is this one of those places?”

“Yes, I would say so.”

“Was there a homeless problem in the area at the time?”

“I believe there was, yes.”

“In your experience, is one of the reasons for the proliferation of the homeless mental illness?”

“Objection. Mental illness is not an area of the officer's expertise.”

I reply, “I am simply asking the witness to speak to his beliefs based on his experience.”

“Overruled. You may answer.”

“I believe mental illness is one of the causes of homeless-ness, yes,” says Prentice. “There are others as well.”

“Was the back door to the bar locked?”

“No. The bartender said it was always left open when the bar was open.”

“So anyone walking through the alley could have entered the bar through that back door?”

“Yes, I suppose so.”

“And if they did, would the first inside door they come to be the ladies’ room where Denise McGregor was?”

“There is a storage closet first and then the ladies’ room.”

“So there was nothing about Willie Miller's job which gave him a unique access to that room?”

Wallace objects. “It is beyond the witness's direct knowledge to make conclusions about the defendant's unique access.” Hatchet sustains the objection.

“But anyone could have entered?”

“Yes.”

“Would you say the alley at the time you arrived was clean?”

“Well, there was a great deal of blood.”

“I understand, but I mean in addition to the evidence of the murder. Did the alley look as if it had been scrubbed recently?”

“No, I wouldn't say so.”

“So the scene was already dirty. Trash, food from the restaurants, animal waste?”

“Yes.”

“Detective Prentice, you said the first thing you did was cordon off the scene. Why did you do that?”

“To prevent people from tromping around on the evidence and contaminating it. To preserve the evidence.”

“Were you successful at that?”

“Yes, I believe that I was.”

“Did any people enter that specific area?”

“Not after I was there. I made sure everyone stayed clear of the scene, so that the forensics people could do their work.”

“I'm not an expert on this kind of thing, so perhaps you can tell me … is there a law of contamination that says it can only take place after the police arrive?”

“Of course not,” he says. “Contamination can take place at any time.”

“Well, was anybody on the scene before you arrived?”

“Yes.”

I feign surprise. “Who?”

“Well, Edward Markham, his father—”

I interrupt. “Edward Markham's father was there? Was this some kind of a family outing?”

“No, he had called his father as well as the police.”

Under prodding, Prentice is forced to admit that there were also a group of people from the bar that had been on the scene.

“So there were at least a half-dozen people walking around that alley before you got there?” I ask.

“Yes,” he concedes.

“Just hanging out, contaminating away?”

He won't concede that, but he doesn't have to. I've gotten the idea in the jurors’ minds, and that's all I was going to manage.

Wallace next calls the on-scene technician who supervised the gathering of the blood and other evidence. She comes off as thoroughly professional and confident that she had done her job well. The most I can get her to admit is that techniques have improved since then, and that DNA was not on her mind when she was doing the collecting. She leaves the stand unscathed.

The next to escape any damage from my cross-examination is Donnie, the bartender. Wallace leads him through his story, and his recollections remain crystal clear. I make little effort to attack him, since his information is factual, but notterribly harmful to Willie. But I need to make some points, so that the jury will remember that we are a force to be reckoned with.

“How long did you work with Willie Miller?”

“About six months.”

“Was he a reliable employee?”

“He was okay. As long as he did his job, we didn't have too much to do with each other.”

“So to your knowledge he was never reprimanded? Never threatened with termination?”

“No.”

“Did you serve liquor at this establishment?”

Donnie laughs. “Of course. It was a bar.”

“Did Willie Miller have access to this liquor? Was it within easy reach for him?”

“Well, sure. I mean, it wasn't that big a place.”

“Did you ever see him drunk before that night?”

“No.” He quickly qualifies it. “Employees aren't allowed to drink on the job.”

“That's a rule?” I ask.

“Yes.”

“So Mr. Miller followed that rule? He did not drink on the job?”

“If he did, I don't remember it.”

“Would he have been reprimanded if he were caught drinking on the job?”

“Sure.”

I switch the focus. “When Edward Markham told you what happened, what did you do?”

“I went out to the back, and I saw the … young woman's body.” Donnie says “young woman” with a wary eye on Laurie. This is a man who has a strong testicle-preservation instinct. “He said he had called the cops, so I just waited with him.”

“When the police came, did you tell them you thought Willie might have done it? I'm talking about before the eyewitness said what she had seen.”

“No.”

“So you had no reason to suspect that he would have committed this murder?”

“No.”

I let him go and turn the momentum back to Wallace. He is doing what he is supposed to do: getting the witnesses necessary to build his case on and off quickly. Each represents a building block for the prosecution, and by the time they are finished they expect to have a house that cannot be blown over by the windbag defense attorney, me.

Next up is Edward Markham, who clearly did not spend his recent trip to Africa on a hunger strike to protest the granting of a new trial to his girlfriend's accused killer. He is at least forty pounds heavier than pictures show him to have been at the time of the murder, and though he is only in his thirties, he's already captured the look of an aging playboy.

“Had you and Denise McGregor been dating long?” asks Wallace.

“About three months. We were pretty intense.”

“Any plans for marriage?”

“I certainly had some,” says Edward. He grins. “But I hadn't gotten up the nerve to ask her.”

Wallace brings him to the night of the murder, and Denise McGregor's fateful trip to the rest room.

“How long was she gone before you started to worry?”

Edward appears to consider this, as if it is the first time he's been asked this question, and he's trying to comb through his memory. I would bet twenty-two million dollars he and Wallace rehearsed every word of this testimony at least twice.

“I'd say about ten minutes or so. And even then I wasn't that worried. I mean, you don't think about something like this. But I thought there might be something wrong.”

“So you got up to check on her?”

“Yes,” says Edward. “I went to the rest room door, and it was ajar, you know, not fully closed. I didn't know if I should go inside, or maybe find another woman to go in and check up on her. I thought she might be sick or something.”

“What did you do?”

“I called into the room a few times, just yelling ‘Denise,’ but there was no answer. So I pushed the door open a little more and looked in.”

“What did you find?”

“Well, at first nothing. I looked around, and she wasn't there, so I started to go back to the table. I really didn't know what to think. Then I saw the blood.”

“Blood?”

“It sure looked like it, and it was still wet. It was splattered on the floor near the phone. And the phone was hanging off the hook.” Edward is doing a good job, he's been rehearsed well.

“What did you do next?” asks Wallace.

“I got real worried … panicky … and I started looking around. I went out into the hall, and I saw that the exit to the alley was right there. So I went out there, and … and … I saw her.”

Edward acts as if he is trying to keep his emotions intact as he relives what happened. “It was the most horrible moment of my life.”

Wallace gives him a few seconds to compose himself; I can use the time to get over my nausea.

“What happened next?”

“Well, I went to her … I touched her to see if she was breathing, but she wasn't. So I went back into the bar and called 911, and then I called my father. And then I told the bartender, and we just waited for everyone to get there.”

Wallace turns Edward over to me. I don't want to do too much with him, because I'm going to call him during the defense case. I just want to put some doubts in the jury's mind, and maybe take away this image of Edward as the grieving near-widower.

I start off on his relationship with Denise.

“Mr. Markham, what is Denise McGregor's father's first name?”

He's surprised by the question. “I … I don't remember.”

“How about her mother's name?”

“I don't know … it's been a long time. I don't think her parents lived near here.”

“Have you seen them since the funeral?”

“No, I don't believe so.”

“Did you see them
at
the funeral?”

“No, I was very upset, sedated … I've felt guilty ever since about not going, but I was in no condition—”