defendant’s military honors or background, other than what might be required during Mr. Stoller’s testimony, should he choose to testify. And absolutely no mention of post-traumatic stress or insanity. The specific events in Mosul may come in but only through the defendant. So you’ll have a decision to make, Mr. Kolarich.”
It was like a hard slap to the head. The judge had given me a Pyrrhic victory at best. I wanted to put on Sergeant Hilton first, then Dr. Baraniq to say that Tom was reliving a PTSD-induced episode during the interrogation, and then probably rest.
Now, Hilton was out, and Baraniq would be able to testify only if Tom did first, laying the factual foundation. I had to put in this evidence through a witness who could barely articulate his daily life, much less recount to the jury something he’d never recounted to me. And I couldn’t put him on the stand without asking him the most obvious question-did he shoot Kathy Rubinkowski? To which Tom would reply, I don’t remember.
Tom was mumbling to himself over in the cage. He had no idea what was happening.
What was happening was that we were getting our nuts chopped off.
I had virtually no defense case on the current record. And I had no way, at this moment, to explain how Tom had the murder weapon, and the victim’s purse and other items, in his possession following the murder. I had a videotape which included an apparent confession by my client, but practically speaking no way to explain that, in fact, it wasn’t a confession.
This was all coming down to Randall Manning and Stanley Keane and Bruce McCabe and the Capparelli family. I had a handful of days to figure out what was going on with them, or Tom Stoller would be convicted.
And all of this assumed I could stay alive long enough to solve this puzzle.
Other than that, things were going really well.
BOOK 2
65
Game time. Thirty people in a box. Some of them would be deciding Tom Stoller’s fate. Some of them would be bounced by the judge for cause, and some of them would be excluded by either the prosecution or me for whatever reason.
“Juror number seven,” I said to the woman in the first row. “That civil case on which you served as a juror, I take it the bottom line there was about money?”
“That’s right,” she said. “They wanted money. But it didn’t matter in the end, because we found for the defendant.”
“I like you already,” I said, getting a cheap laugh. “And so I assume the burden of proof in that case was preponderance of the evidence? That it was more likely than not that somebody did something wrong?”
“I think that’s right.”
“And do you understand, ma’am, that because this is a criminal case, the burden is proof beyond a reasonable doubt?”
“I understand.” Everybody knows that.
“So a preponderance standard is ‘more likely than not’-like a fifty-one percent probability.” I set a bar with my hand at my waist. “And a reasonable doubt standard means more than ‘I think he probably did it’-it’s more like, ‘I’m so sure he did it that there is no reasonable basis for thinking otherwise.’” I raised my hand over my head, as far as I could reach. A peak compared to a valley. A skyscraper compared to a doghouse. I figured it would take Wendy Kotowski a nanosecond to object.
It took about one whole second. The judge sustained.
My cell phone buzzed in my pocket. Four short buzzes, meaning a call, not a text message. I touched it just to be sure, but I couldn’t answer it right now.
“I mean, usually in our everyday lives, we don’t judge things by a reasonable doubt standard,” I said. “We see someone handcuffed by the side of the road by a police officer, we think to ourselves, they did something wrong. Right? I know I do. I figure, they found drugs in his car, or he was driving drunk or something. But does anyone disagree that your job is different here today, if you’re asked to serve? That you will hold the government to a far higher standard?”
No hands raised. No objection from Wendy, who probably didn’t want to seem too sensitive about this topic. So I kept going down that road. Tom is presumed innocent, just because the government charged him doesn’t make him guilty, et cetera-things that everyone knows but are worth reinforcing right now. Wendy couldn’t possibly object. These were some of our nation’s founding principles.
“Anyone disagree that one of the things that makes this the greatest country in the world is that we don’t take the government’s word for it-that before they imprison one of our citizens, we make them prove it, and we make the government meet the highest possible standard of proof? Anyone disagree?”
Nobody disagreed. I didn’t expect them to. I was making part of my closing argument, but I was couching it in perfectly permissible voir dire questioning.
My cell phone buzzed four more times-another phone call.
I was almost done. I’d asked a series of personal questions of each juror, based on the questionnaires they’d filled out. I’d spent a good ten minutes on self-incrimination-how wonderful our country was that we didn’t force defendants to testify, and raise your hand if you’d convict because the defendant did not take the stand in his own defense? I actually got a couple of the venire to admit that they would have some doubt about a defendant who didn’t stand up and declare his innocence. The judge would have no choice but to excuse them on his own.
And I’d given them the rah-rah-Constitution pitch. The only thing I had left was what I called my holdout questions. I only needed one juror, after all.
“Does everyone understand that as a juror in this case, you have the complete freedom to vote the way you think? That you are under no obligation to go along with the others, just because you’ve been outvoted? Raise your hand, please, if you don’t understand that.”
Nobody raised a hand.
“Is there anyone who would feel pressured to vote a certain way-guilty or not guilty-if everyone else is voting that way, even if you personally disagreed with it?”
Nobody, apparently, would feel pressured.
“Does anyone disagree that in a system that requires a unanimous verdict, that it’s your sworn constitutional duty to vote your conscience, even if you’re outvoted eleven to one?”
Nobody disagreed. But my cell phone buzzed again.
Somebody wanted my attention. If it was about this case, I assumed the news had to be good, because it couldn’t get any worse.
I huddled with Shauna, and we decided to use six of our ten peremptories, the automatic challenges we are allowed to bounce potential jurors. We didn’t want to use them all, because it was unlikely that we’d draw our jury completely from this pool. There would be another thirty-person pool next, and we wanted to reserve some peremptory challenges for them.
We gave our list to Wendy, who gave us hers, and we submitted them to the judge. We’d go back to his chambers now and see how many of these thirty people made the cut. Then we’d grab another thirty and do the same winnowing process until we had fifteen-twelve plus three alternates.
But I had a moment to check my phone. Bradley John had called me four times.
“Those initials,” he told me when I called him.
“Yeah? You figured out who AN and NM are?”
“No,” he said. “I figured out what they are.”
