False Testimony (20 page)

Holliston staggers when the guards yank him to his feet, the shackles preventing him from finding a natural stance. His wrists are cuffed behind his back, so he points at Harry the only way he can, with his chin. “Defective assistance of counsel,” he shouts at Judge Gould. “That’s what we got here. Defective assistance of counsel.”

“Ineffective,” Harry tells him.

Holliston looks perplexed; he actually shuts up for a few seconds.

“The word’s
ineffective,
” Harry explains. “It’s
ineffective
assistance of counsel.”

“There, you see?” Holliston says to the judge. “He admits it.”

“Call for the colloquy, Your Honor,” Harry says.

The colloquy is a ritual employed for the recording of verdicts in criminal cases in the Commonwealth. It occurs after the foreperson announces the verdict in open court and the clerk marks it on the indictment form. Though not required by any published rule or statute, well-established case law mandates the use of the colloquy in all criminal cases. In a vehicular-homicide case that Harry and I tried together last year, a juror suffered a heart attack and died after the verdict was returned, but before the colloquy was conducted. On appeal, Harry argued that the affirmation of the other eleven jurors was insufficient to sustain the guilty verdict. He won, the appellate court agreeing with his claim that a valid verdict can be rendered only by the final concurrence of twelve jurors.

We’re in no shape to begin the colloquy at the moment, of course. Our table is still on its side, files and papers strewn across the carpeted floor, soggy from the contents of the now empty water pitcher. But Harry wants to call for the process quickly, at least, before Holliston gets himself ejected from the courtroom.

Judge Gould doesn’t respond to Harry’s request; he turns to our client instead. “Mr. Holliston,” he says, “I am loathe to prevent any criminal defendant from witnessing every moment of his trial.”

One of the guards moves Holliston out of the way as if he’s a dog on a lead, while the other helps Big Red right the table. Harry joins them in picking up the mess.

“But mark my words, sir,” the judge continues, “I will have you removed from this courtroom forthwith if you cause any further disruption.”

The guard points Holliston to his now upright chair and he shuffles toward it, his face red, his eyes furious, the judge’s admonition apparently of no concern.

Judge Gould takes a deep breath and looks out into the gallery. It’s quiet now; the spectators seem to have been shocked back into silence when the furniture flew. “Ms. Bearse,” he says, “you may begin.”

Dottie stands, looking even more unnerved than she did after the first melee. “Mr. Foreman,” she says, “and members of the jury, harken to your verdicts. On your oath, you do say that on the indictment for voluntary manslaughter, Derrick John Holliston is guilty, so say you, Mr. Foreman?”

Gregory Harmon has been on his feet this entire time. “Yes,” he says. “I do.”

Dottie looks to the other members of the panel. “So say you all?”

Eleven heads nod. “Yes,” they say in unison.

Harry’s up. “Call for a poll,” he says.

Harry calls for a jury poll after every guilty verdict, regardless of how clear the jurors’ answers are during the colloquy. In essence, the poll asks the same questions the colloquy does, but it puts the matter to each juror individually. Though it’s unlikely any of them will change the answer, even a slight hesitation can fuel a flurry of post-trial motions and appellate arguments. Harry says it’s malpractice for a defender to fail to call for a poll, and I think he’s right.

“Mr. Harmon,” Dottie begins, “is this your verdict?”

“It is,” he answers.

“And is it the unanimous verdict of this jury?”

“Yes,” he says as he sits.

“Mrs. Rowlands,” Dottie continues, “is this your verdict?”

“Yes,” she says. “That’s my verdict.”

“And is it the unanimous verdict of this jury?”

“It most certainly is,” Cora replies.

Dottie continues through the front row of the jury box, putting the same pair of questions to each juror, getting the same pair of responses in return. Holliston doesn’t react until Maria Marzetti delivers her double affirmative. “I
told
you she was a cat-lick,” he mutters.

“Your powers of perception are staggering,” I tell him.

He nods. At last we agree on something.

Geraldine leaves her chair and walks toward our table while Dottie Bearse continues the poll. It’s not any of us the District Attorney is interested in, though. She walks behind Harry’s chair, keeping her distance from Holliston, and leans over the bar. “I’m sorry,” she says to Monsignor Davis.

“Don’t be,” he tells her. “It’s enough. Mr. Holliston will have plenty of time to reflect upon his wrongdoing. Maybe he’ll even ask the good Lord for forgiveness. Father McMahon wouldn’t have wanted anything more.”

Holliston snorts beside me and I elbow him. Geraldine glares at both of us. “Maybe not,” she says to the Monsignor, “but I sure as hell did.”

I’m sure she did. But overall, I believe Geraldine Schilling is relieved. Holliston isn’t going to walk, after all. With a different jury, a panel more offended by prosecutorial misconduct, he may have. I’m pretty sure Harry is relieved for the same reason.

Dottie wraps up the poll, eliciting twenty-four affirmatives in all, none the least bit hesitant, none uncertain in any way. Judge Gould thanks her when she finishes and then turns to the panel. “Ladies and gentlemen,” he says, “I extend the county’s sincere thanks to each and every one of you. Jury service is vital to our system, essential to the preservation of a free society. You have served well.”

“My ass,” Holliston says. I should stomp on his foot again, but I don’t bother.

“Now before you go,” the judge continues, “I warn you that the attorneys in this case—at least some of them—will try to speak with you before you leave the courthouse. And although they were prohibited from having any direct contact with you while the case was ongoing, it’s perfectly appropriate for them to do so now. They’ll undoubtedly want to know what evidence you found persuasive, what issues were key to your decision. You’re free to converse with them if you so choose, but you’re under no obligation to do so. As of this moment, your service is complete. You’re free to go. And you take with you the sincere thanks of this court.”

With that, Big Red leads his charges back to the jury room to retrieve coats, hats, and other personal belongings. Harry gives me the eye and I head for the back doors, Clarence Wexler just a few steps behind me. Harry will stay here, in the courtroom, to make post-trial motions, and Geraldine will stay to oppose them. Harry will move for judgment notwithstanding the verdict and, when he loses that one, he’ll move for a new trial. These motions are argued routinely after guilty verdicts are returned. And just as routinely, they’re denied. While that’s going on, I’ll try to corner as many jurors as I can. So will Clarence.

Gregory Harmon and Cora Rowlands are the first to appear in the hallway, Robert Eastman and Alex Doane right behind them. I approach them and they stop as a group, seemingly willing to chat for a few minutes, at least. “Excessive force?” I ask. “Is that what you hung your hat on?”

Gregory Harmon nods as the other three turn to him, giving him the floor. Once the foreman, always the foreman. “Pretty much,” he says. He seems uncomfortable, though.

Clarence snags the next group that emerges from the jury room and he ushers the three of them away from us, to the other side of the corridor. If they’re going to tell him his screw-up with the monstrance was significant, he doesn’t want me—or any other member of the bar—within earshot.

“Does that mean you believe Mr. Holliston’s version of events?” I ask my foursome. “Do you believe Father McMahon attacked him first?”

They exchange knowing glances but no one answers. I wait, surprised that the question is so difficult. “Not exactly,” Harmon says at last.

“What then?”

“Excessive force is what we hung our hat on,” he says. “It’s not really what we believe.”

I’m confused. Their expressions tell me it shows.

“We don’t believe Father McMahon attacked that young man,” Cora Rowlands says. “We don’t even think the priest made advances. We just couldn’t say, beyond a reasonable doubt, that he
didn’t.
”

Four more jurors come through the doorway and hurry past us, their downcast eyes saying they aren’t interested in participating in our discussion; they can’t get out of the courthouse fast enough.

“But if you couldn’t say
that
beyond a reasonable doubt,” I ask my group, “didn’t you feel you should acquit?” That’s sure as hell what the judge told them to do. He specifically instructed them that they should acquit Mr. Holliston unless the Commonwealth proved, beyond a reasonable doubt, that he did not act in self-defense.

They all shake their heads. “No way,” Alex Doane says. “After what he did to Father McMahon, to another human being? No way were we putting him back on the street.”

The jury room door opens again, and Maria Marzetti joins us. Alex Doane and Robert Eastman part to make room for her and then Eastman points toward the courtroom. “There’s a lot of anger in that young man,” he says.

He’s right about that, of course. But the last time I checked, harboring anger wasn’t a punishable offense on the Commonwealth’s penal code. I can’t help feeling that Harry and I short-changed Derrick Holliston somehow. Gregory Harmon seems to read my mind. “You and your partner did a good job,” he says, “but you had one lousy client to work with.”

Cora Rowlands nods in agreement. “He’s trouble,” she adds, “that much is clear.”

“Let me make sure I have this straight,” I tell them. “You couldn’t find beyond a reasonable doubt that Holliston
didn’t
act in self-defense, but you convicted him of manslaughter anyway?”

They all look at one another before nodding at me. “That’s what we did,” Gregory Harmon says, “and we justified it with the excessive-force provision. But the bottom line is—that guy needs to go to jail. No way he should be walking the streets.”

With that, four of them leave. Maria Marzetti hangs back, though. She says nothing, keeps her eyes on the hallway floor, until her cohorts are out of sight. “Listen,” she says when she finally looks up at me, “I’m not particularly proud of the route we took, but in my heart, I believe justice was served here.”

I shake my head at her. “Were the judge’s instructions unclear?”

“Not at all,” she says. “As far as they went, they were perfectly clear. But we didn’t feel they went far enough. We didn’t feel they really covered this situation.”

I lean against the wall, wondering why we bother to give jury instructions in the first place.

“Sometimes you have to trust your gut,” Maria adds. “And in the end, that’s what the twelve of us did.” She gives me a small smile, an almost apologetic one, and then heads down the hallway.

“Maria!” It’s her back-row admirer, emerging from the courtroom with the rest of the spectators. Harry’s post-trial motions were denied even faster than usual, it seems. She stops and turns around at the sound of her name and her newfound friend pulls ahead of the crowd, hurrying in her direction. She seems happy to see him. Maybe something positive will result from this fiasco of a trial after all.

I take my time heading back to the courtroom, Maria’s words hot on my brain.
Sometimes you have to trust your gut.
I agree with her; I’m a great proponent of trusting one’s gut. It’s on that basis alone that I’m going to deliver a stern lecture to Senator Kendrick when we’re through here. Maybe his overnight in the House of Correction has instilled some sense in him; maybe now I’ll be able to persuade him to enter a not guilty plea on Monday morning.

Harry and I discussed Senator Kendrick’s case at length during dinner last night. Harry pointed out that the Senator seemed to know something terrible had happened to Michelle Forrester on Wednesday—when he showed up in my office to confess to having been with her the night before she disappeared—even though her body wasn’t discovered until the next day. I’d thought of that too, of course, but I had no explanation to offer. “Charles Kendrick almost certainly knows more than he’s saying,” I told Harry. “That’s been a given with him from the get-go. But he didn’t kill Michelle. I’m certain of that.”

My unsubstantiated certainty seemed to be enough for Harry. “Then talk him out of his kamikaze plea,” he said, “before it’s too late.”

The courtroom is all but empty when I return. The benches are cleared and Derrick Holliston has been carted away. Judge Gould is still on the bench, though, with Geraldine and Harry engaged in some last-minute haggling before him. I head toward our table, intending to sit, but a sudden realization stops me. Senator Kendrick
did
know something terrible had happened to Michelle on Wednesday. He knows a hell of a lot more than he’s saying. And now I know too.

“Excuse me, Your Honor.” I change direction and head for the bench instead.

Judge Gould and Harry both look surprised. Geraldine looks annoyed. She was midsentence when I interrupted.