letter of the law. So for now you're not in lawyer jail. Consider
yourself lucky.'
When a slight smile registered at the edges of Lisa's mouth, Lesh
leaned forward. 'Not so fast, Ms. Lopez. Your strategy will have its
consequences. You can't have it both ways. You're going to have to
make your case with the State's witnesses and the ones disclosed on
this sorry witness list. I won't let you parade a couple of convicted
murderers in front of this jury, and I won't let you bring in anything
you can't get through those witnesses. With that in mind, I suspect
that much of what you said in your opening statement is hearsay. At
the end of the trial, I will instruct the jurors that they should
disregard anything you said in opening that wasn't actually proven
through evidence during the case. With that said, it's time we brought
these jurors back in, so we can get on with this trial.'
I rose to address him. 'Your honor, the State requests a continuance.
I need time to research this defense. I'd like two weeks to
investigate any possible connection between this case and the Zimmerman
murder. I assure the Court and Ms. Lopez that if we determine a
connection, we'll proceed as necessary from there.'
I could tell from the way that he tilted his head and smiled that he
sympathized, but he wasn't going to give me any time. 'I understand
that you've been put in a jam, but you don't really think you're going
to find a connection between these cases. What you want is time to
disprove a connection so you can nip this defense in the bud. Trust
me, I understand that desire.
'But Ms. Lopez is right. The defense is not obligated to disclose its
theory ahead of time, only its witnesses and any alibi defense.
Basically, she's allowed to drop these little bombshells. I suspect
it's one of the things that make being a defense attorney entertaining.
If she really wanted to screw you over, she could've waived opening
altogether and hid her cards until testimony.'
He told me he'd give me some leeway during rebuttal to recall
witnesses, but it was little consolation.
As an alternative, I moved to exclude any evidence relating to
Zimmerman's murder, at least until I had a chance to file a written
motion to exclude Lopez's defense. In my urgency to point out that
Lisa had been a complete bitch in failing to disclose the defense's
theory, I had almost forgotten to question whether the evidence
supporting Lopez's theory was even admissible. Any connection between
this case and the Zimmerman murder was tenuous at best, so I had a good
argument that, even if the Zimmerman case was minimally relevant, any
relevance was substantially outweighed by its potential to distract and
confuse the jury.
I think Lesh skipped that part of the analysis as well and now saw the
opportunity to get this mess out of his courtroom. The problem was, we
were venturing into a risky area of the law. Trial courts routinely
get reversed on appeal if they completely prohibit a defendant from
presenting his theory. On the other hand, as long as the trial judge
lets the defendant present his theory, the court has tremendous
latitude in excluding evidence that might support it. The fact that I
understood the nebulous distinction between the defendant's theory and
the evidence used to support it made me think I'd become a complete
asshole.
Luckily, Lesh understood the relevant distinction too, so I wouldn't
have to try to explain it.
'I can tell you right now, Ms. Kincaid, that I'm not about to keep the
defense from arguing that someone else might have committed this crime.
But, I'm no Judge Ito either, and you're correct to point out that the
defense doesn't necessarily get to put on whatever evidence it wants.
So, here's what we're doing. Ms. Lopez, either you agree to a
continuance or you call the witnesses you named on your discovery list
before you start calling cops to the stand to talk about the Zimmerman
case.'
Lisa objected. Big surprise. 'Your honor, it's highly unusual for the
Court to dictate the order in which evidence is presented.'
'Well, it's also highly unusual for an attorney to pull the kind of
stunt you've pulled this morning. Think of this as another
repercussion of your strategy.' He had noted Lisa's objection but then
forced her to make her choice.
'I have no interest in a continuance, your honor. Mr. Derringer is
eager to go home.'
'Very well then, Ms. Lopez. No mention of Jamie Zimmerman, Margaret
Landry, or Jesse Taylor again until I've ruled on these issues. Now
we're taking a twenty-minute recess so we can collect our thoughts.'
Forcing Lopez to work her way through the boring stuff first helped me
in a couple of different ways. Obviously, the detectives and I could
use some time poring over the police reports for the Zimmerman murder
to get up to speed, and I could prepare a motion to exclude evidence
about the case. But even if the evidence wound up coming in, Lesh had
provided a more subtle kind of assistance. In the time it would take
Lisa to get through these other witnesses, the jury might forget the
drama of her opening statement, and the defense might lose its
momentum. Along the same lines, it would be hard for Dan Manning to
write a great story when he had no trial testimony to back up the
opening statement yet.
