access to the media in his cell, he has not heard about Robinson’s death, and he is stunned.
When my meeting with Steven is over, an FBI agent, as promised, is waiting for me with a typed copy of my statement from last night for me to sign. I do so, and then make him wait while I have the court clerk make a Xerox of it for me.
Before the morning session begins, Richard informs me that he will be finishing his case today. That case is basically done, and the witnesses he calls will simply dot his I’s and cross his T’s.
His first witness is a prime example. A representative of the Metropolitan Transportation Authority named Helene Markowitz, she is merely there to testify that Steven’s car went through the Lincoln Tunnel at seven forty- five that evening, thirty minutes after he received the phone call from his father.
“How can you be so precise about the time?” Richard asks.
“He has an E-ZPass chip on his car, so that tolls are automatically paid by his credit card without his having to stop. It records the time he goes through the tollbooth.”
For some reason, her answer causes me to think of something I hadn’t registered before. I quickly write a note and slide the paper over to Kevin. It says, “How did Walter Timmerman get to the murder scene?”
Kevin looks confused by the question and writes back, “The killer drove him there.”
That is most likely true, especially since Walter Timmerman’s Lexus was destroyed at the house. But something bothers me about Kevin’s answer, something I can’t quite place and don’t have time to wonder about now.
Richard calls two more uneventful witnesses and then announces that the prosecution rests. I immediately request a meeting in chambers with Hatchet and Richard, so that I can present our request to have Corvallis come in and testify.
I lay out the entire situation for Hatchet, making my point that I need to be able to do the same for the jury. If I can demonstrate that Walter Timmerman was involved with very dangerous people, and in fact those people killed his friend and partner, Robinson, the jury would very likely find reasonable doubt as to Steven’s guilt.
“Mr. Wallace,” Hatchet says, “I assume you don’t agree?”
“We certainly do not, Your Honor. It is a classic fishing expedition.” Richard then goes on to give a response that is predictable and mostly correct. He points out that I have made no tangible offer of proof; instead I have presented a series of suppositions and theories. Even the one fact I can cite, Robinson’s murder and my tangential role in it, is not relevant to this case, since I can make no real connection between that murder and Timmerman’s.
“Your Honor,” I say, “Mr. Wallace would be correct if I were arguing to take the information I currently have before the jury. I agree that I am not ready to do that, and I am not asking you to allow it. What I am simply asking is that you direct the FBI to testify to these facts, and to detail how their own, separate investigation relates to this trial. Then, if the relevance is proven, I would call him before the jury.”
I take out the copy of my signed statement. “Here is a statement I gave to the FBI about last night’s events. I signed it, and as you certainly know, if I was untruthful in this statement then I have committed a felony. It includes the negotiations I had with the FBI leading up to my visit to the Robinson house last night. The operation was conducted under their supervision, and certainly should be enough to compel their testimony.”
Hatchet and Richard read the statement, which in typewritten form is six pages. When they are finished, Hatchet says, “Mr. Wallace?”
“Your Honor, this is an interesting story that changes nothing.”
“With respect,” I say, “it changes everything. And I would submit that your calling Agent Corvallis to court for a closed hearing presents absolutely no risk. If he testifies under oath that I’m delusional, then all you’ve done is waste a few minutes of the court’s time. But if I’m correct, then my client has a right for the jury to hear what he has to say.”
I expect Hatchet to take the matter under advisement, but instead he says, “I will order that Agent Corvallis appear before this court at the earliest possible time, hopefully tomorrow morning. At that point I will decide whether or not to compel his testimony.”
THE MOST IMPORTANT DECISION of any trial is getting close. That, of course, is whether to have the defendant testify on his own behalf. While it is a crucial decision, it is usually an easy one for a lawyer to make. I can’t remember the last time I wanted a client to testify in his own defense. Too many things can go wrong, even when the defendant is innocent.
But it is also the one decision that the client must absolutely make on his own, albeit with advice from his attorney. If he decides not to testify, the judge will go so far as to question him in open court as to whether he was presented with the option, and declined voluntarily.
Kevin and I arrange to meet with Steven in an anteroom. Before we can even talk about his possible testimony, I tell him of our success in getting Corvallis into court.
“Will he tell the truth?” Steven asks.
“He won’t lie. Whether we can get him to tell the truth is another matter. He will try not to say anything at all.”
I bring up the matter of Steven testifying, and like most clients, he wants to do so. This is that rare time that I am leaning in the same direction. He is really the only person who can testify about his actions the night of his father’s death. He can also talk about their relationship, and he comes off as likable and credible.
The other reason I am inclined to support his decision to testify is that the way this trial has gone, we need a Hail Mary pass. We have to do something to shake things up, or we are going to lose. Juries generally want to hear a defendant testify, and this might be the time to give them what they want.
Kevin tells Steven that he agrees as well, which is a surprise to me, since we haven’t talked about it. I can’t ever remember Kevin being in favor of a client testifying in his own behalf, and it’s a sign that he thinks the situation is as dire as I do.
“But we don’t have to decide this now,” I say. “If you take the stand, you’ll be the last one to do so, and a lot is going to happen before then.”
“Are we losing?” Steven asks.
“We haven’t had our turn at bat yet.”
“I had this fantasy that the prosecution was going to present their case, and it would be so weak the judge would just end the trial right there.”
“It’s called a motion to dismiss,” I say. “I’m going to make one tomorrow morning, but the judge will turn us down. We need to make our case.”
“And can we effectively do that?”
“I don’t know.”
He smiles, but it’s not exactly a happy smile. “I was hoping you’d tell me what I wanted to hear. You should learn to bullshit more, you know?”
“I know,” I say, “it’s one of my weaknesses.”
Kevin and I head home to finish preparations for our defense case. We need to go over every detail, even though we’ve been over the same ground many times before, so that we are completely prepared for any eventuality.
It’s basically an issue of confidence for me. If I feel completely sure of the subject, then I can more comfortably freewheel, and thus be more effective. If I am in any way unsure of the details, I have a tendency to get more conservative.
Conservative is not what we need now.
The focus of the evening is altered when the court clerk calls to say that Agent Corvallis will be in court tomorrow morning at nine. We now have to turn our full attention to that argument, since if we fail we have no real hope of getting anything about Walter’s work or Robinson’s murder before the jury. And without that, we are in deep trouble.
So we work until midnight, pausing only to have dinner with Laurie. She’s made my favorite, pasta amatriciana, and in the face of that, preparation will have to wait. I have my priorities.
I arrive at court at eight thirty in the morning, and I learn that Hatchet has summoned Richard and me into
