False Testimony (16 page)

“Yes. That’s correct.”

“And Monsignor, your voluntary appearance here today is explainable—at least in part—by the fact that Francis Patrick McMahon was your good friend, isn’t that true?”

“In part,” the witness says. “Yes, I agree with that.”

“Is it fair to say you felt you owed Father McMahon that much? Is it fair to say that by showing up here today voluntarily you hoped to honor your good friend’s memory, to seek some semblance of justice for his untimely death?”

Monsignor Davis is quiet. He seems to have aged on the witness stand; his demeanor is subdued, his complexion pale. “I suppose that is true,” he says at last. “Certainly the part about honoring Frank’s memory.” He pauses and tilts his head to one side. “But perhaps a man can’t do that answering lawyer questions.”

Now it’s Harry’s turn to be quiet. “Perhaps not,” he says after a moment. He turns away from the witness, walks toward our table, but then stops. “About the weapon,” he says, turning back to face the witness. “Where did it come from?”

Harry’s only asking this question because he already knows the answer. He wouldn’t dare otherwise.

“It was in the sacristy,” the priest says. “The chapel is an old building; we’re constantly making minor repairs, it seems. We keep a wooden box—a crate, I guess you’d call it—on one side of the counter. It’s full of hammers, pliers, screwdrivers—all sorts of tools. The ice pick was among them.”

“Thank you. And one last thing, Monsignor.” Harry’s still standing in the middle of the room, still facing the witness. “I want to offer you my sincere condolences on the loss of your good friend.”

Some defense lawyers routinely offer condolences at the beginnings of cross-examinations, hoping at least some prosecution witnesses will let down their guards, perceive the defender as an ally of sorts. Harry doesn’t. He’s offered his sympathy to this witness—at the end of cross—because he means it.

Monsignor Davis seems to sense as much. He swallows a lump in his throat, then takes another sip of water. “I go out there—to the small cemetery—to pray for Frank every morning,” he says to Harry. “And when I finish, I pray for Mr. Holliston.”

Harry’s surprise is genuine. We don’t often meet a prosecution witness who prays for the accused. He looks from Monsignor Davis to Holliston, and then back to the priest again. “Thanks,” he says as he sits.

The Monsignor nods.

Holliston leans forward, not looking the least bit pleased anymore. His face is scrunched into a maze of hatred and disbelief. “Thanks?” he says too loudly. “
Thanks?”
He points at the witness box. “That guy calls me a liar and you say
thanks?
For Chrissake, whose side are you on?”

Harry stares back at our client, but says nothing. And there’s a reason for that, of course. He doesn’t know whose side he’s on.

Criminal defense lawyers lose. It’s what we do. We lose when we know we should. We lose when we think we shouldn’t. And we lose when we’re damned certain we should carry the day. It’s the nature of the beast.

It’s odd, then, to watch Harry worry about winning. He’s been tense in his chair beside me throughout our fifteen-minute break, his hands clutching the armrests, his eyes closed. He doesn’t open them when the guards usher Derrick Holliston back to our table, but he does when Big Red comes through the side door with the jurors. Harry’s quick to change his posture now, too, sitting up straighter, making eye contact with each member of the panel who’ll allow it, adopting a serious, confident demeanor.

“Mr. Madigan,” Judge Gould says when the last juror is seated, “you may proceed now, sir.”

“Reasonable doubt,” Harry says as he stands. “When all is said and done, this case boils down to one issue: reasonable doubt.”

He unbuttons his suit coat and shoves his hands into his pockets as he leaves our table. “Judge Gould will instruct you that the Commonwealth bears the burden of proving every element of the crime charged beyond a reasonable doubt.”

He stops in front of Geraldine’s table and glances at her, then resumes his trip toward the jury box. “The judge will also tell you that proof beyond a reasonable doubt is proof that leaves you
firmly convinced
of the defendant’s guilt.”

Those are the exact words the judge will use in his instructions to the jury. Judges and lawyers routinely invoke the concept of reasonable doubt, but the truth is we’ve never been very good at defining it. Until fairly recently, the judge would have told the jurors that reasonable doubt exists if they “cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” But a couple of years ago, the United States Supreme Court expressly disapproved of that language, noting that the term
moral certainty
has an entirely different meaning today than it did when the words were first penned by the Massachusetts Supreme Court in 1850.

“Firmly convinced,” Harry repeats. “You should convict Mr. Holliston of murder only if you are
firmly convinced
that he did
not
act in self-defense.”

Harry turns and looks at Geraldine again. “And you can’t be,” he adds. “Not on the evidence produced in this courtroom.”

Geraldine stares back at him, seemingly unfazed by his focus on her. She’s known Harry Madigan a long time, though; she knows he’s just warming up.

Harry shifts his attention from Geraldine to our table before facing the jury again. “There are a few things we know for sure,” he continues. He spreads his arms wide and leans on the railing of the jury box. “We know Mr. Holliston admitted his role in Father McMahon’s death from the outset. We know he told the Chief of Police about the unwelcome sexual advances, and about the ensuing struggle, on the morning of his arrest. And we know he stuck to his guns during every subsequent interview; he never wavered.”

A few of the jurors have pens in their hands, notepads on their laps. No one’s writing anything, though. They’re motionless. Harry has their undivided attention.

“And that’s not all we know,” he says, his voice growing louder. Geraldine stiffens even before he wheels around. “We know the District Attorney’s office concealed evidence.” His voice is booming now. “Critical evidence.”

Geraldine looks up and meets Harry’s accusing eyes. Clarence doesn’t.

“Why did they do that?” Harry turns back to the jurors, inviting the fourteen of them to speculate on the prosecutors’ motivations. “Why did they conceal a material fact from the defense?”

The spectators stir and Harry waits, as if he thinks someone else in the room might answer his question. He doesn’t. He’s waiting for quiet. “I’ll give you one reason,” he says when the silence is complete. “They did it because the missing monstrance blows yet another hole in this sorry excuse for a case, another hole in a case that already looks like Swiss cheese.”

He walks slowly across the room and points at Geraldine, no doubt a first for both of them. “Our District Attorney would have you believe Mr. Holliston entered St. Veronica’s Chapel last Christmas Eve intending to commit a felony. She’d have you believe he killed Father McMahon in the course of committing that felony.”

Harry stops pointing, but he stays planted smack in front of Geraldine. “But there’s a problem with our District Attorney’s theory,” he says quietly. “She has no evidence to support it.”

Geraldine exhales as Harry leaves her table and walks toward ours. “Not one shred of evidence ties this man to
anything
that was taken from the chapel that night. And who knows what else is missing?”

“Your
Honor
!” Geraldine’s on her feet, incensed by Harry’s not-so-veiled suggestion that she may be hiding even more.

Judge Gould doesn’t look sympathetic. “This is argument, Counsel,” is all he says. Geraldine looks indignant as she drops back into her chair.

“Now,” Harry continues as if neither Geraldine nor the judge said a word, “let’s talk about the evidence we
do
have.” He points at the empty witness box. “The Commonwealth called three men to this stand, credible individuals one and all. And every one of them gave you crucial information—critical facts—that support Mr. Holliston’s version of the events that transpired last Christmas Eve.”

Harry pauses in front of our table, picks up a pen and points it at the panel. “Think about that,” he says. “The prosecution’s witnesses—every one of them—buttressed Mr. Holliston’s case.”

It’s clear from the jurors’ expressions that they are thinking about it. They’re not necessarily on the same page with Harry, though. More than a few brows knit. They want him to elaborate.

“First we heard from Calvin Ramsey,” he says, “our Medical Examiner. And though our District Attorney questioned him for more than an hour and a half, she failed to elicit one fact during his direct examination that contradicted what Mr. Holliston has told law enforcement from the beginning. Not one.”

Harry begins a slow stroll back toward the panel. “Dr. Ramsey delivered a critical fact during cross, though. He told you the medical evidence supports only one conclusion: Mr. Holliston and the deceased were face-to-face throughout the altercation. Medical evidence doesn’t lie, ladies and gentlemen. And face-to-face combat isn’t consistent with a robbery—certainly not a planned robbery—no matter how you slice it.”

He pauses and fills a paper cup with water at the vacant witness stand. A few jurors jot notes as he drinks. “Next we heard from Chief Thomas Fitzpatrick,” he says, crumpling the cup and tossing it into the plastic trash can near Dottie Bearse’s desk, “a stand-up guy if ever there was one. Such a stand-up guy, in fact, that he outed our District Attorney.”

“Your
Honor
!” Geraldine Schilling has probably never heard herself described as outed before.

Judge Gould shakes his head at her, says nothing. Nondisclosure doesn’t go over well in his courtroom, intentional or not. On this issue, he’s giving Harry free rein.

Harry stands still, looking up at the bench, letting the jurors absorb the judge’s non-verbal response to our District Attorney’s protest. “And finally,” he says, turning back to the panel, “this morning we heard from Monsignor Davis. We heard about all sorts of things during his direct examination, didn’t we? None of it had a damned thing to do with this case, but it was interesting, nonetheless.”

More than a few jurors seem to agree with him; they nod and look from him to Geraldine, then back again. He leans on the jury box railing. “The Monsignor did have two things to tell us that matter, but our District Attorney didn’t raise either one. Only during cross-examination did the witness get to address two issues that actually bear on this case. They’re important. Keep them in mind.”

A couple of the note-takers shift in their seats, pens poised.

“First,” Harry says, “let’s talk about the weapon, the ice pick. Monsignor Davis told you it belongs to the parish. It was in a wooden crate, a toolbox of sorts, on the sacristy counter. It’s
not
something Derrick Holliston brought with him that night. So our District Attorney would have you believe Mr. Holliston went to St. Veronica’s Chapel intending to rob the collection money, prepared to kill anyone who tried to stop him, but he didn’t bother to bring a weapon along. He simply assumed there’d be one on hand.”

Harry stands up straight and turns to look at Geraldine again. “Or maybe she’d have you believe he did bring a weapon, but then decided to look around the room and shop for a different one once he got there.”

Harry faces the panel, his hands in his pants pockets again. “Common sense, ladies and gentlemen,” he says. “The District Attorney’s theories don’t hold water.”

He starts walking back toward the prosecutors’ table and I’m pretty sure everyone in the courtroom knows what’s coming. Geraldine does, anyway. She folds her arms across her chest and squares her shoulders. “Now,” Harry says quietly, staring at her, “let’s talk about the monstrance.”

He doesn’t, though. He doesn’t talk about anything for what seems like a full minute. He finishes his trip to the prosecutors’ table and stands facing them, his profile to the jury. Clarence fidgets, fussing with files, documents, and legal pads. Geraldine doesn’t. She sits perfectly still, staring back at Harry, seemingly more than prepared to deflect whatever hand grenade he’s about to lob at her.

“Monsignor Davis told us he met with Chatham police officers three or four times,” Harry says at last. “And he met with our District Attorney five or six times. And at every meeting—
every
meeting—he brought up the topic of the missing monstrance, stressed its significance to him and his parish.”

Harry leans toward Geraldine, his arms spread wide, palms down on her table. She stares at his tie. “Yet our District Attorney chose
not
to mention that significant topic to us,” he says, his voice barely more than a whisper.

No one else in the courtroom makes a sound. Harry waits patiently until the silence is physically uncomfortable; even Geraldine, stoic until now, succumbs to a hard swallow. “Our District Attorney charged Mr. Holliston with first-degree murder,” he says at last, pointing at Geraldine again, “a charge that carries a mandatory life sentence, a sentence to be served in the Walpole Penitentiary, a sentence that won’t end until after he draws his last breath. And for a solid year after she issued that charge, she hid a critical fact—an
exculpatory
critical fact—from the accused and his attorneys.”

Another hefty silence. Even Clarence is still, his fidgeting abandoned for the moment, his eyes lowered to the table.

“Bear in mind,” Harry says as he stands up straight and faces the jurors again, “our District Attorney didn’t rectify the situation voluntarily. She got
caught
.”

All fourteen jurors look at Geraldine now. She doesn’t look back at them, doesn’t react to Harry’s words at all.

“This is Derrick John Holliston’s trial,” Harry says as he walks toward our table, “no one else’s. But the system governing this trial belongs to all of us; don’t lose sight of that.
We
are responsible for our system.
We
are accountable for its integrity.” Harry turns and fires yet another pointed stare at Geraldine. “
We
are blameworthy for its lack thereof.”

She sighs and shakes her head at him, but she doesn’t speak. An objection would be pointless; Judge Gould has made that perfectly clear.

“And don’t forget,” Harry says, “we’re not only responsible for this system of ours; we’re subject to it as well. Its integrity should be of grave concern to every last one of us.”

He turns back to the panel. “You saw the crime-scene photographs, ladies and gentlemen. You don’t need me to tell you that
wasn’t
the scene of a robbery. It was the scene of a sexual assault. It was the scene of panic, of outrage.”

With that, Harry walks behind our table and drops into his chair. The courtroom is soundless. Not one juror moves a muscle.

Even Holliston seems almost pleased with Harry’s closing argument. “About time,” he says as soon as Harry reclaims his seat. “It’s about time you told it like it is.”

Harry doesn’t even look at him. He leans on his elbows, hands clasped, and stares straight ahead.

“You did a good job,” I whisper. “They listened. You were effective.”

He takes his glasses off and throws them on top of a legal pad before he looks at me. “That’s great,” he says, shielding his mouth from the jury with his hand. “Wrong. But effective.”