For Ben, the worst part of seeing Granny sit down was not simply that she had done such a spectacularly effective job. The worst part was knowing that this meant it was time for him to stand. And talk.
He heard Zak whispering in his ear. “Wow. That was pretty damn good. You think the jury bought all that?”
“Hard to say,” Ben answered, expressing doubts he didn’t really possess. “What did she mean about you having a personal motive?”
“Beats me,” Zak said. “I think she’s pulling rabbits out of her hat. Probably making it up as she goes along.”
No, Ben mused, Granny was much too good a prosecutor for that. She knew that if she promised the jury something in opening, they’d be waiting for it during the trial. And if it didn’t appear, they’d take it as a sign that either she was lying or her case was falling apart.
She wouldn’t make that mistake. She wouldn’t promise anything unless she was sure she could deliver. But what was it?
“Mr. Kincaid,” Judge Pickens said, “would you like to make your opening statement now, or reserve it until the start of your case?”
Like he would be crazy enough to let Granny’s diatribe go unrefuted for ten seconds. “I’ll open now, your honor.”
Ben walked out from behind his table and faced the jury. He tried to move all the way to the rail, as Granny had done, but he just couldn’t bring himself to do it. He felt as if he were invading their personal space. Instead, he found a comfortable spot a few feet from the rail and lodged himself there.
“Here’s the straight skivvy,” Ben said, trying to make eye contact with each of the jurors in turn. “George Zakin is a member of Green Rage. In fact, he’s the team leader of the group that has been working in the forest just outside of town. It’s also true that Green Rage-and George Zakin-oppose the continued clear-cutting of your old- growth forest. And it’s true that Green Rage sometimes uses tactics commonly referred to as monkeywrenching- tactics that probably wouldn’t be approved of in your Sunday-school class. All of that is absolutely one hundred percent true.”
He paused, making sure their eyes were still on him. “But this is also true. Green Rage has never, in the entire history of the organization, harmed any living creature in pursuit of its goals. Whatever rumors or gossip you may have heard to the contrary. They might spike trees or blow up machinery, but they do not hurt people. And neither does George Zakin.” He made eye contact again, this time lingering a bit longer. “George Zakin-his friends call him Zak-did not kill Dwayne Gardiner. By the conclusion of the trial, I believe you will be convinced, as I am, that he is not the murderer. And what’s more, you may have a pretty good idea who was.”
Well, that got their attention, Ben was pleased to see. It was a strategy from Granny’s playbook-give them something to look forward to. Ben only hoped Loving would scrape up enough information about Alberto Vincenzo to allow him to deliver on the promise.
“The evidence, when put before you and scrutinized carefully, will prove to be not nearly so damning as Madame Prosecutor would suggest. True-Zak was in the forest the night of the murder. Zak was in the forest every night, as was every other member of Green Rage. That’s not a suspicious coincidence, that’s just a fact. A fact the prosecutor hopes to take advantage of. The evidence will show that Zak was in fact with a Green Rage colleague- miles from the scene of the murder at the critical time-who will testify that he had nothing to do with it. And the evidence will show that the so-called physical evidence is either easily explained or altogether ambiguous. Either way, it doesn’t prove Zak’s guilt.
“And that’s the most important detail,” Ben continued, “because, as the judge will later instruct you, the defendant doesn’t have to prove anything. In fact, we don’t have to say a word if we don’t want to, because we have no burden of proof. The burden of proof is entirely on the prosecution. Every element of their case has to be proved by them. And if they fail to prove any element, any at all-beyond a reasonable doubt-then the judge will instruct you that you have no choice in your verdict. You must find Zak not guilty.” He leaned against the guardrail. “Let me say it again, just to make sure we’re clear here. Regardless of what your personal feelings may be, regardless of your instincts, whether you like Zak, or what you think really happened, if his guilt is not thoroughly proved beyond a reasonable doubt, you must return a verdict of not guilty.”
Ben couldn’t lay it on any thicker than that. He’d made his point. Time to move on.
“Let me make one other point before I sit down. It may not be necessary; most of you probably already understand this. But I’m a lawyer, and I get paid by the hour, so let me go ahead and say it anyway.”
A mild titter from the gallery; most of the jury remained stone-faced.
“This trial is not about politics. Don’t let anyone try to suggest that it is. I’m aware that these environmental issues are complex, that there are two sides to every story. How many more forests can we afford to turn into pulp? How many jobs can we sacrifice to conservation? And I’m aware that many of you probably disagree with my client’s position on these issues. That doesn’t matter. Do you understand that?” He said it softly but insistently. “It doesn’t matter. It’s not what this trial is about. This trial is only about one thing: did George Zakin kill Dwayne Gardiner? Or more accurately, has the prosecution
He glanced up at the bench. “Thank you, your honor. That’s all I wanted to say.”
Chapter 39
After opening statements, judge Pickens gave the jury a fifteen-minute recess to stretch their legs and powder their noses. Ben was grateful to have time to gear up for the prosecution’s first witness.
“Nice job on opening,” Christina whispered in his ear as he reviewed his notes. “I think you made your points very effectively.”
“But do they like me?” Ben asked.
“It’s early yet. At any rate, you played it straight with them, and I think they’ll remember that.”
After the break, the bailiff reassembled the jury, and Judge Pickens gave them a few more instructions. We are now entering the evidentiary phase of the trial, he told them, so pay close attention to everything you see and hear. You can’t take notes. You can’t ask questions. Just listen up. And so forth.
“The State calls Deputy Kyle Wagner to the stand,” Granny announced.
From the back of the courtroom, an extremely young-looking peace officer made his way to the front. He did not appear particularly anxious to testify, not that anyone ever did. Wagner seemed especially pale and sickly, though. Ben wondered if the bailiff should distribute barf bags at the same time as he administered the oath.
Wagner was, predictably, wearing his uniform, sporting a fresh short haircut, and clean-shaven. Ben had the impression the man couldn’t lie if his mother’s life depended on it.
Granny introduced the young officer to the jury and led him through a few preliminary questions. “What do you do for a living?”
“I work for the sheriff.”
“Would that be Sheriff Allen, here in Magic Valley?”
“Right.” His voice was thin and wavering. If he was this distraught during the softball questions, Ben could only imagine what he might be like when they got to the crime scene. “I’m a deputy.”
“I see.” She asked a few more preliminary background questions, then moved to the night of the murder. “Would you tell the jury what you were doing on the night of July thirteenth?”
Like a well-trained dog, Wagner turned toward the jury box. “I was working the night shift.”
“Were you the only one in the office?”
“Yes. Sheriff Allen and the other deputies were off duty.”
“And could you tell us what night duty entails?”
“Usually, just sitting around staring at the phone. Sometimes I work the crossword.” His lips turned up, making a goofy, lopsided grin. “Not much happens around here most nights.”
