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
“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?”
