Counterplay

determine, or this court. It’s the state’s burden to prove that the body ‘found’ in the backyard is that of Teresa Stavros. And I’ve seen nothing that conclusively says it is. How does the state plan to prove beyond a reasonable doubt that my client killed his wife if they can’t even prove that the remains they plan to parade in front of the jury belonged to her? Or that she’s even dead? From what I understand, essentially what they found was a skeleton-no fingerprints or fluids to test DNA.”

“If I might continue, Your Honor,” Guma said testily. “Even if this body turned out to belong to Amelia Earhart, we’d still go forward with our case. The evidence presented to the grand jury that handed down the indictment in this case was more than sufficient to permit a trial jury to convict the defendant as charged.”

“Grand juries don’t hear the other side of the story-”

Guma ignored Anderson’s remark. “The means that led to the discovery of the remains at the Stavros residence, as well as the scientifically valid measures we’ve taken to positively identify the remains, will be presented at trial for the jury to weigh.”

Anderson rapped his knuckles on the defense table. “The state is well aware of the emotional impact that presenting a body, any body, would have on jurors,” he said. “By the time Your Honor grows tired of the testimony by their so-called experts, it will be too late. The jury will have heard that the bones belonged to Teresa Stavros, and no matter what I say, or what instructions you may give them regarding the burden being on the prosecution to prove it beyond a reasonable doubt, they will believe what Mr. Guma here has told them. It’s just human nature to want to solve a mystery and bring some closure for Zachary Stavros. But my client has a right-”

“-and so did Teresa Stavros,” Guma shot back.

“Your Honor, Mr. Guma is being disingenuous,” Anderson said. “Without the body, they know and I know that what they have left is a foray into carnival sideshow hypnotism and a bunch of circumstantial evidence that doesn’t prove a damn thing. The truth of the matter, one that the NYPD reached years ago, is that this woman walked out on her family, drained her accounts to get even with a cheating hubby, and is probably dancing the salsa with some hot young Latin lover as we speak.”

“Your Honor, what this hearing proves is that my counterpart is either an idiot or assumes that we’re idiots to believe that these remains belonged to anyone other than Teresa Stavros,” Guma said hotly, his face flushing. “However, we recognize that the burden of proof in this matter rests with the prosecution. But we contend that the weighing is rightfully something for the jury to undertake.”

“The jury cannot be expected to weigh fairly,” Anderson retorted just as angrily, “when faced with this quasi-scientific jargon and guesswork meant to confuse any layperson-at least that’s my motion from the papers I’ve been given so far, which I might add are very limited. I can’t even prepare my own expert witnesses because God only knows what the prosecution’s witnesses will claim.”

The judge held up his hand. “Okay, gentlemen, you’ve both had your say. I am going to wait to render my decision until after I’ve heard from two of the prosecution’s experts today. In the meantime, I have a small matter to take up in my chambers, and we’ll recess for thirty minutes.”

Karp remained standing after the judge left, but Guma plopped down in his seat where he doodled manically on a yellow legal pad. “You okay?” Karp asked.

“Yeah, I just thought that the ‘young lover’ remark was below the belt,” Guma said. “She should have left that bastard Emil; he was the one fucking around on her. But she couldn’t because she would have lost custody of Zachary. It just pisses me off that some slime-ball attorney can disparage a victim’s character without any proof whatsoever, but say one unkind remark about their client and they want a mistrial.”

Karp patted his friend on the shoulder. “Hey, if I didn’t know you better, I’d say you’re getting personally involved with this case.” He meant the remark in jest to lighten the mood, but immediately regretted it when he saw Guma’s eyes smolder and jaw tighten.

“I know what it takes to do my job,” Guma replied, balling up the sheet from his legal pad and tossing it toward the waste can near the witness stand and missing. “Damn. I’m just trying to see a little justice done here.”

“I know you are,” Karp apologized, walking over to pick up the paper and toss it in the can. “I was just trying to take the edge off before you cross the aisle and beat that smarmy bastard to a pulp…. How you feeling these days?”

“What is this?” Guma asked but only half as irritably. “I look like I’m going to keel over? Is the Grim Reaper standing behind me?” His eyes grew big with mock fear as he quickly looked over both of his shoulders.

Karp laughed, but they both knew that the only reason he was sitting next to Guma at the prosecution table was as an insurance policy. They hadn’t announced that Karp would be second chair and let the media find out on their own at a run-of-the-mill motions hearing.

As expected, Rachman had blown a fuse. What is this? she’d demanded to the press. A Joseph McCarthy witch hunt? Oppose me and we’ll pull out all the stops to see that your name is besmirched, your reputation destroyed, and your freedom imperiled.

Meanwhile, Stavros’s lawyers went to court demanding that the judge impose a gag order to keep Karp and his team from using this bit of grandstanding for political gain. Of course, they’d immediately ignored the gag order themselves. In fact, Stavros soon had a dream team of celebrity lawyers, all of them well-known TV talking heads, each of whom held his own press conference where they announced, among other things, that they’d sliced their fees in order to work on a case that was so obviously a miscarriage of justice.

“I’m okay,” Guma reassured Karp as Judge Lussman returned to the courtroom and asked him to call his witness in opposition to defense’s motion.

Addressing the judge, Karp said, “Your Honor, for purposes of a complete record, the people suggest that the court consider the testimony of our experts as part of a Daubert hearing. As the court is well aware, a Daubert hearing tests the scientific reliability and acceptability of the evidence in question. Also, Your Honor, we will ask for a similar Daubert hearing with respect to the repressed memory testimony that we intend to present to the jury.”

The way they’d laid out the workload of the trial, Guma was to give the opening statement, while Karp would sum up the people’s case for the jury. The reason was that the rigors of the trial might be too draining on Guma, and he might not have the energy for a lengthy closing argument on the final day. As far as the rest of it, Guma was going to handle the testimony of Zachary Stavros, and they would both take turns with the expert witnesses.

Guma then called Swanburg to the stand. After establishing Swanburg’s credentials qualifying him as an expert, Guma proceeded. “Dr. Swanburg, were you able to identify the remains through standard scientific means, such as those named by defense counsel?”

Swanburg shook his head. “No, the remains had skeletonized; there was no flesh on the hands for fingerprints. Nor was it possible to identify the deceased through dental records.”

“And why is that?” Guma asked.

“Well, it seems that some ten years ago, the office of Teresa Stavros’s dentist was burglarized and many files, including hers, disappeared,” Swanburg replied.

“Objection,” Anderson said. “ If Your Honor allows any of this testimony about the remains, I insist that the witness be prohibited from testifying about why Mrs. Stavros’s files are missing. They’re obviously trying to imply that those records were removed as part of a coverup. There’s no evidence that this burglary had anything to do with her files in particular, or anybody else for that matter.”

“It’s a simple fact, Your Honor,” Guma said.

“Overruled,” the judge said. “Mr. Anderson, you may make all the appropriate motions in limine prior to trial. As far as we are concerned at this hearing, the witness simply stated that a burglary occurred and files were missing, among which were Mrs. Stavros’s. For the record, Mr. Guma, you can satisfy this point concerning the burglary by producing a police report.”

Guma nodded and scribbled a note on his yellow legal pad.

“Very well, please proceed,” the judge directed.

“Yes, Your Honor,” Guma replied and turned back to Swanburg. “What about DNA comparison?”

Swanburg shook his head. “We weren’t able to come up with anything there either,” he said. “Again we were hampered by the deterioration of the remains due to weather, insect activity, and the normal processes. We did attempt to compare hair found in the site with that of Mrs. Stavros’s only known blood relative, her son,