Dying Declaration (39 page)

“In that case,” Silverman said to Buster Jackson, “you are free to go.”

65

“CLOSING ARGUMENTS,”
Charles would tell his students, “are like preaching to the choir. Every good sermon and every good closing needs to have a memorable theme. You also need passion. But don’t kid yourself into believing that you will ‘convert’ many jury members during the closing. Most jurors have already made up their mind. Your job,” Charles would explain, “is to give ammunition to the converts that they can then use during deliberations to convince the others. Your job is to give the converts a reason to fight hard for you once they get behind closed doors. Your job is to establish eye contact with those who believe in your case, to send them the message that they are
your
champions.

“Your job is to preach to the choir.”

Rebecca Crawford began her sermon immediately after the lunch break. She stood behind a wooden podium that she had moved just in front of the jury box during the lunch hour. She had notes in front of her but didn’t need them. She had placed the small and worn picture of Joshua Hammond on the podium.
This one’s for you.

“The critical facts of the case are undisputed,” she began. “Young Joshua Hammond had acute appendicitis, not a life-threatening condition if treated promptly, but fatal if left untreated. For several days—some say three, some say five or six—his parents refused to seek medical help. For days both parents watched Joshua suffer in excruciating pain, knowing that his very life hung in the balance.

“By the time they finally took him to the hospital, after days of fever and pain, his appendix had burst and had poured poison into little Joshie’s system to such an extent that he was in septic shock. He was barely alive. His cardiovascular and circulatory systems were in such poor shape that he couldn’t be transferred or operated on immediately. And despite the best efforts—the heroic efforts—of Dr. Armistead and others, little Joshua passed away later that night.

“Those, ladies and gentlemen, are the facts of this case. And they are undisputed.”

The Barracuda played this first part of her closing softly, captivating the jurors with her smooth presentation and mesmerizing lips. She now moved out from behind the podium to begin strutting back and forth in front of them, alternating between looking down at the floor and then into their eyes. The stillness of the jurors indicated she had their rapt attention.

“Now, the defense has put on quite a magic show these past few days in an effort to obscure and confuse these facts. Smoke and mirrors, misdirection, hocus-pocus, now you see it, now you don’t. If it weren’t such a serious matter, it would have been fun to watch. But, ladies and gentlemen,
facts are stubborn things
, and all the magic tricks in the world cannot change them.

“The defense tried to saw Dr. Armistead’s testimony in half. Here was a good and decent man, unbiased in this case, relentlessly attacked because he has had two medical malpractice judgments against him in his career. The defense even provided a little cloak-and-dagger with Dr. Armistead. ‘Oh my gosh,’ they said, ‘we saw the commonwealth’s attorney at his house during the plain light of day—’as if that is some type of crime. Did it ever occur to them that he may have simply left some medical records in court the prior day or that he might also be a witness in another case—”

“Objection,” Charles called out. “She’s arguing facts not in the record.”

Silverman’s head jerked up as if Charles had awoken him. He gave a memorized spiel to the jury that the Barracuda had heard before. “What the lawyers say in closing arguments is not evidence. You are the sole judges of the evidence and should rely on your own memory as to what was or was not said about that incident.” Then he looked at Crawford. “Let’s stick to the facts introduced from the witness stand, Counsel.”

“Yes, Your Honor,” the Barracuda said sweetly.

She then turned back to the jury. “When Buster Jackson took the stand, the defendant’s magic act continued. They tried to make Mr. Jackson’s testimony simply disappear based on the fact that he’s had prior felony convictions, based on the fact that he cut a deal. Well, I’ve got news for defense counsel: the prosecution doesn’t get to choose its witnesses in a case like this, and Boy Scouts aren’t generally the ones serving time in prison. It should not be surprising to you, ladies and gentlemen, that Thomas Hammond chose to talk about the most important thing in his life last night, chose to unburden his guilty conscience to the man he’s been living with for the last several weeks. Nor should it surprise you one iota that when he did that, his cellmate happened to be a man who has had two priors and one pending felony conviction.

“Did I cut a deal with Jackson? Yes. Did I like doing it? No. Then why did I do it? Because as Buster Jackson mentioned on the stand, his conviction was no sure thing. The same type of hocus-pocus you’re seeing in this case was used by Mr. Arnold in Jackson’s case. In that case, he claimed racial profiling, and the court has been considering for the past few weeks whether to throw the whole case out. I decided it was better to get a guilty plea from Jackson, and at the same time get at the truth in this case, than to watch both men walk free when we all know they committed the crimes they are accused of.

“Now the defense takes John Paul Hammond’s testimony, puts it under a handkerchief and—
voilà!
—it changes right before our eyes. In his unprompted videotaped statement, the boy says his mom and dad watched Joshua suffer for five days—five full days—before ever taking him to the doctor. Then he spends some unchaperoned time with his mom—contrary to a court order, I might add—and comes back saying it was only three days. Was he lying before, or is he lying now? And does it really matter?

“And then there’s the prayer journal. I guess the defense figures if they ignore it, it’ll just go away. But, ladies and gentlemen of the jury, it’s not going away. In those pages, with her own words, Theresa Hammond writes about her dying son and how she has made a conscious decision not to get him medical help even though she knows his very life is in danger.”

The Barracuda stopped pacing and returned to her spot behind the podium. She rearranged some papers, glanced at the photo,
then looked directly at the jurors.

“At the end of the show, after the oohs and aahs are over, we are left with these facts. And they are stubborn things. A young child died. His death could have been prevented. His parents, knowing he was dying, chose not to get him proper medical help. In our society, we call that criminally negligent homicide. It is a conclusion that Houdini himself could not escape. The facts are in. And they compel a verdict of guilty as charged.”

The Barracuda paused for a moment, her lips pursed solemnly together as she eyeballed her jury champions one last time.

“Thank you,” she said and returned to her seat.

66

IT WAS, CHARLES KNEW,
a strong closing. He could feel it in the air as he rose to address the jury, the future of the Hammond family in his hands.

His mouth was dry, and his heart pounded in his throat. He hadn’t thought he would even be nervous, but the pressure snuck up on him, engulfed him through the stares of jury, judge, and television camera. This was his moment. He had trained his whole life for this. The street preaching, the lecturing, the constant analysis and dissecting of other trials—it all came down to this. Twelve strangers daring Charles to persuade them.

As he walked toward the jury box, he glanced quickly around the courtroom and froze in his tracks. There, in the second to last row, looking somber and professional—chin held high, her hair in beautiful ebony braids—sat Denita. She gave him a thin smile, very subtle, hardly noticeable to anyone else who might have been looking. But you didn’t live with someone for years and mistake their body language. It was a look of pride, a subtle encouragement:
I’m here for you.
Charles nodded almost imperceptibly, his spirit buoyed as he approached the jury box.

He spent some of his built-up adrenaline moving the podium away from the box so he could have the freedom to roam in front of the jurors without any barriers. He approached the rail of the jury box without notes. He would speak from the heart. Nikki had insisted it was the only way to go.

He smiled and tugged his suit coat sleeves partway up his forearm. “Nothing up my sleeves,” he said. They did not smile back. He straightened his sleeves back out.

How many times have I told my class that the closing argument is no time for humor?

“Contrary to what the prosecution seems to think, I am no magician,” he confided. “But I have been to a few magic shows in my childhood as a spectator, and I always came away with a ‘how did they do that?’ feeling. It’s the same feeling I have right now.

“How did she—” Charles turned to point at the expressionless Barracuda—“just now make a case that totally fell apart at every turn sound so good? How did she do that?”

He started walking back and forth, hitting his rhythm. “How did she make it seem like an act of patriotic duty to turn a drug dealer back on the street in order to entice him to testify against a loving mother and father? How did she do that?

“And how, I am wondering to myself, did she turn a doctor who came into this courtroom and lied through his teeth, who put his own pride and reputation above the well-being of his patient, into someone who sounds like Marcus Welby, MD? How
did
she do that?

“And finally, ladies and gentlemen, how is it that she can stand there with a straight face and argue that Thomas and Theresa Hammond didn’t take Joshua to the hospital for five full days when innocent young Tiger and even her own corrupted drug dealer of a witness, Buster Jackson, both testified that it was only three days? How in the world does she do
that
?”

Charles shook his head and smiled. This time one or two jurors seemed to let their eyes reflect the hint of a grin. “I’ve seen rabbits get pulled out of hats before, and I’ve seen elephants disappear. But I’ve never seen anything quite as befuddling as the prosecution’s case the last few days.

“And now, listening to her closing argument, I’m left to wonder just one thing: were we even at the same trial?

“Where was the commonwealth’s attorney when Dr. Armistead admitted that he had lied about how many malpractice cases he had settled? Didn’t we hear him, with our own ears, admit that he settled a very similar case where he should have transferred a child in acute distress to Norfolk Children’s? But he chose not to transfer in that case, and he chose not to transfer Joshua. Was it because he had to operate on Joshua right away? Not according to the medical records. It took Dr. Armistead twenty-six minutes just to see young Joshua, then another ninety minutes of resuscitation before the patient was rolled into surgery. By then, Joshua could have been transferred to Norfolk Children’s and back at least three times.

“Why does it matter? you ask. It matters because the commonwealth cannot prove this case unless it shows, beyond a reasonable doubt, that the actions of the
parents
caused the death of Joshua. If it was Dr. Armistead’s malpractice that caused Joshua’s death, you must find Thomas and Theresa Hammond not guilty.

“And why does it matter whether it was three days or five before Thomas and Theresa sought medical help? Because the commonwealth’s attorney knows that reasonable parents often wait a few days before taking their child to the hospital. Oh, I know that when that first precious baby has a slight fever and a cough, we rush him to the hospital right away. But by the time we have our third one, and especially if our pastor is beating us over the head saying we should
never
take him to the hospital, well, folks, the truth is, most of us wait a few days. But that does not make us murderers.”

Charles abruptly stopped pacing. He needed to wrap it up, he could tell by the looks in their eyes. He had so much more to say. He needed to pound on Buster, he wanted to talk about the bravery of Tiger, and he wanted to show minute by minute where Armistead had failed. But the jury had heard enough, they were anxious to start deliberating, and they were fading fast.

It was not time for details; it was time for motivation.

Charles reached back into his memory, filled with words and stories from the master trial lawyers, searching for just the right anecdote to summarize his entire case. As he did so, he glanced around the courtroom, and his eyes locked once more on the supportive eyes of Denita. A thought flashed through his mind:
“My whole future’s in your hands,”
she had said.
“You can crush me if you want. It’s totally up to you.”
The memory triggered another thought, a story he had heard on Court TV used by the masterful Gerry Spence in a closing statement. It seemed to fit.

“Ladies and gentlemen, this case reminds me of a story I heard several years ago about a wise old man who lived in the forest. And this wise old man loved all living things: the animals, the birds, the insects and snakes. But most of all he loved families. He loved the way dads wrestled with their kids. He loved the way moms hugged them.”

Charles turned and looked at his own counsel table, where Thomas and Theresa sat. Behind them, in the first row, sitting up straight and paying unblinking attention, were Tiger and Stinky. The jury turned with Charles and looked into the faces of those they would soon judge.

“One day, my friends,” Charles continued, looking back at the jury, “a young know-it-all came to the forest and said to himself,
‘I’ll show this old man. We’ll see if he is so wise.’ So the young man caught a tiny bird and cupped it in his hands. And the little bird was there in his hands, trembling and frightened.”

Charles now stood before the jury, his own hands clasped, looking from face to face, searching for champions.

“And the know-it-all young man with the bird cupped in his hands went to the wise old man and said, Old man, old man, if you are so wise, you tell me. I have a bird in my hands. Is it dead or alive?’ And the know-it-all young man thought he would win in any case. If the old man said, ‘It is dead,’ then the young man would open his hands, and the bird would fly away.”

Charles opened his hands and smiled. Then he cupped them again. “And if the old man said, ‘It is alive,’ then the young know-it-all would squeeze his hands together—” again Charles demonstrated, grinding his palms together—“and drop the bird dead at his feet. The young man thought he was brilliant; he thought he couldn’t lose.”

Then Charles walked over to his clients, filling the courtroom with a tense silence. He stood behind Thomas and Theresa, placing his hands on their shoulders, the same posture he had adopted in the opening, and turned back to the jury.

“But the old man shook his head sadly and said, ‘Oh, my son, oh, my son . . . the bird is neither alive nor dead. For the life of the bird is in your hands.’”

Charles paused, then: “Ladies and gentlemen of the jury, the life of this family, the future of these kids, the freedom of these parents, are all in your hands. They have suffered enough. Give them back their future. Let them fly. Choose life.”

He looked straight at two jurors seated side by side in the second row. They had given him good vibes throughout the case,
and he had pegged them as champions for his cause. One was nodding his head ever so slowly; the other was blinking a tear from her eye.

Charles waited long enough for the silence to add an exclamation point, then took his seat next to his clients. He waited another beat, then turned discreetly toward the back of the courtroom to nod his thanks toward Denita. He wanted her to know how much her presence meant to him—driving two hours or more just to hear his closing. He wanted to see the look on her face as she digested the significance of his closing parable: the story of the young know-it-all and the little bird. He wanted to see her face one more time and draw on the reservoir of strength he seemed to find there.

But when he turned and searched for her, scanning back and forth on the row of seats where she had been a few minutes earlier,
she was gone! Disappeared. He wondered if she had been there at all. Was he just imagining things? the pressure of the case constructing ghosts before his very eyes?

No! She had been there. He had seen her with his own eyes, felt the magic of her presence the way he had felt it years ago. He quickly surveyed the entire courtroom, but there was no sign of her. He shook his head, turned back to the judge, and tried to put her out of his mind.