False Testimony (5 page)

Judge Richard Gould was elevated from the District Court bench to Superior Court just over a year ago. It was a well-deserved promotion. A highly intelligent, serious man, he runs an efficient, on-schedule courtroom. Even so, any lawyer who’s ever practiced before him knows that the procedural and substantive rights of litigants—particularly those of criminal defendants—are his foremost concern. Derrick Holliston is lucky to have ended up on Judge Gould’s docket. I told Holliston so before I left the House of Correction yesterday. He promised to send the Governor a thank you card.

The judge isn’t here yet. Neither is Harry. Geraldine Schilling is, though, already set up at the prosecutors’ table with her young assistant, Clarence Wexler. They’re reviewing exhibits, leaning toward each other from time to time to whisper. They both look relaxed, confident that Holliston’s conviction is already in the bag.

Two court officers bustle about behind us, seating sixty potential jurors in the old courtroom’s small but stately gallery. The men and women are silent as they file in, winter coats folded over their arms. Their eyes are alert, their faces somber. From them, Geraldine and Harry will select fourteen, twelve of whom will decide Derrick Holliston’s fate.

The side door opens and a prison guard enters, heavy holster low on his hips. Our client follows and a second guard—a near-clone of the first—brings up the rear, completing the Holliston sandwich. The accused is free of hardware, wearing black slacks, a dark gray suit coat, and a white dress shirt, neatly pressed. I’m taken aback.

All criminal defendants are permitted to “clean up” for trial—get a haircut, a shave, a set of decent street clothes—but this particular defendant cleans up exceptionally well. His once greasy brown hair has been recently introduced to shampoo. It’s trimmed short and parted precisely. The sketchy mustache is gone, as is every other trace of facial hair. His near-constant sneer has been erased. He looks like the guy next door—if the guy next door happens to be an Eagle Scout.

A low murmur emanates from the crowded gallery as Holliston approaches the defense table, his expression blank. He settles into the seat next to mine—the one farthest from the bench—without looking at me. “Get rid of the cat-licks,” he says matter-of-factly.

It takes a moment for me to get it. “We don’t know their religions,” I tell him. “The jury questionnaire doesn’t ask that.”

He snorts and the familiar sneer resurfaces. “What?” he says, his voice low. “You don’t know one when you see one?”

“I guess not.”

He shakes his head at my incompetence. “That lady there”—he twists in his chair toward the benches behind us and the sneer evaporates again—“on the end, front row. She look like a cat-lick to you?”

“She looks Italian,” I answer.

He faces front and plants both hands on the table, resting his case. “You ever knowed a guinea what
ain’t
a cat-lick?”

I lean back against the worn leather of the high-backed chair and close my eyes. Some conversations aren’t worth finishing.

Harry arrives, pulls out the chair on the other side of mine, and hoists his bulging schoolbag onto the defense table. He doesn’t sit, though. “What’s up?” he asks, snapping open the bag’s metal clasp.

“We were discussing the finer points of jury selection,” I tell him.

He glances sideways at me as he unpacks, then blinks twice when he takes in our client’s new persona.

“So what’s the plan here?” Holliston says from my other side. “You people got a plan or you just wingin’ it?”

Harry laughs and tosses the pleadings file, a blank legal pad, and a few pens on the table. He says nothing.

“Judge Gould likes to complete jury selection the first morning,” I tell our client. “And he usually does. It’ll be a late lunch break, though.”

Holliston purses his lips; he seems not to approve of late lunches.

“After that,” I continue, “the prosecuting attorney will deliver her opening statement. If there’s time, Harry will deliver his before we wrap up for the day.”

“And if there ain’t time?”

I shrug. “Then he’ll do it tomorrow morning. Either way, he’ll open. Don’t worry.”

“Oh, I’m worried,” Holliston says, staring up at Harry. “I got good reason to worry.”

Harry doesn’t let on he hears. He walks away from us, delivers a short stack of documents to Geraldine, another to the courtroom clerk. Judge Gould emerges from chambers as Harry returns to our table. Billy “Big Red” O’Reilly tells us to rise.

“What the hell is that?” Holliston mutters, his eyes on Big Red.

“He’s the bailiff,” I whisper back. Holliston knows a fair number of the courthouse players, no doubt, but he’s probably never laid eyes on O’Reilly. Big Red is the seniormost bailiff in the county complex and, as he’s fond of reminding those with less seniority, he doesn’t work kiddie court. It’s dress rehearsal.

“We need a new one,” Holliston informs me as the judge sits and tells everyone in the room to do likewise.

“A new what?” The words escape before I can stop them. I’m a little slow on the uptake this morning, but I don’t really need an answer to that question.

I get one anyhow. “A new bailiff,” Holliston says. “I don’t want no mick hangin’ around my jury.”

I turn in my chair so I can look him in the eyes. “Funny thing. You don’t get to choose your bailiff. The Bill of Rights doesn’t stretch that far.” He opens his mouth to argue, but I beat him to the punch. “Shut up,” I tell him. “A trial’s about to start here.”

Oddly enough, he obeys.

Judge Gould has already welcomed the sixty citizens seated in the gallery. He thanks them for their willingness to serve, then gestures to those of us seated at the tables. All four lawyers stand and face the back of the courtroom. After a signal from me, Holliston does too. Sans sneer.

“Ladies and gentlemen,” the judge says, “before we get started, I’d like all of you to look at the lawyers and the defendant involved in this case. If you even think you might know any of them—no matter how remotely—please raise your hand.”

Four go up.

“You, sir.” The judge points to an elderly gentleman in the front row. He’s wearing his Sunday best, right down to the perfectly pressed triangle of white handkerchief protruding from his jacket pocket. “Which of them do you know?” Judge Gould asks.

The older man stands, points his hat at Geraldine. “The District Attorney,” he says. “She’s a neighbor.”

“Thank you for telling us. You’re dismissed with the sincere gratitude of the court.” The judge nods to the two officers standing against the back wall and one hustles down the center aisle to usher the disqualified juror out of the courtroom.

The elderly gentleman looks surprised at first, then nods and dutifully follows the uniform toward the back doors. This won’t necessarily end his jury service. He may find himself downstairs in one of the smaller courtrooms before the day is out, on a civil panel. If our DA is his neighbor, defense lawyers will bounce him from all criminal proceedings, even if Geraldine isn’t in the room.

“And you, ma’am?” Judge Gould directs his question to a middle-aged woman six rows back. She points to Geraldine too. “I don’t
really
know her,” she says, looking a little embarrassed. “I’ve just seen her on the news.”

Most of them have seen all of us on the news, of course. But it’s Geraldine they remember. Always.

“You may be seated,” Judge Gould says. He looks out at the whole panel. “We’re not concerned at the moment about anything you might have seen or heard through the media. We want to know about personal contact, if any.”

A young man who looks not much older than Luke stands in the row behind the woman who just sat down. “Same here,” he says, gesturing toward her. “I just know the lawyers from TV. All of them, I think.”

“That’s fine,” the judge answers.

The final hand-raiser gets to his feet in the back row and the four attorneys laugh. Judge Gould does too. “Mr. Saunders,” he says, leaning back in his tall leather chair, “I guess it’s safe to say you know everyone up here.”

Bert Saunders has been practicing law in Barnstable County since I was in high school. “Four out of five,” he says to the judge. “Haven’t met the defendant.”

“Well, you may as well head back to your office,” Judge Gould tells him. “I’m sure you’ve got plenty of work waiting. And we all know you’re not going to serve on this panel—or any other, for that matter.”

He’s right. Lawyers don’t let lawyers serve on juries. It’s too risky. A lawyer-juror would almost certainly have an undue influence on the others—even if unintentional. And given that Bert has spent his entire career with the criminal defense bar, no prosecutor in the country would allow him to serve on a capital case. Geraldine would sooner seat the defendant’s mother in the jury box.

Bert bends to retrieve his briefcase, then smooths his suit coat and gives us a small salute before heading for the doors.

“Who’s the fat guy?” Holliston asks as we reclaim our chairs.

I wonder if he has an adjective in his vocabulary that isn’t derogatory. “Bert Saunders is one of the best criminal defense lawyers in the county,” I tell him.

Holliston frowns, looking past me to Harry. “Too bad. I could use one of them.”

“Ladies and gentlemen,” the judge says, “I’m going to read a brief description of the case we’re about to try. When I finish, I will ask each of you to consider whether anything you’ve heard will make it particularly difficult for you to be fair and impartial. I caution you that nothing I say constitutes evidence. What I am about to read is merely a summary of the positions taken by each side.”

It’s far more than that. Geraldine and Harry have been battling for weeks over the content of the short passage the jury is about to hear. Every word a judge utters during a murder trial is taken to heart by jurors. They have a difficult job, to say the least; they look for guidance wherever they can. And when the judge is as obviously fair-minded as Richard Gould, his summary of the case may well end up being theirs.

“Last Christmas Eve,” the judge reads, adjusting his dark-framed glasses, “Francis Patrick McMahon, a Roman Catholic priest assigned to St. Veronica’s Parish in Chatham, was found dead on the floor of the chapel’s sacristy. The collection money from the seven o’clock Christmas Vigil Mass was gone. The Medical Examiner determined that the deceased had suffered multiple puncture wounds, one of which proved fatal. The Commonwealth accuses the defendant of inflicting those wounds. It charges him with first-degree murder, committed with extreme atrocity or cruelty.”

Judge Gould pauses for a sip of water. The citizens seated in the gallery are silent, paralyzed. Even those of us at the tables are frozen.

“The accused, Derrick John Holliston, does not deny inflicting the fatal wound,” the judge continues. “But he does dispute the allegation that his actions constitute murder. He maintains that his conduct on the night in question was entirely lawful, that the deceased was the assailant. More specifically, the defendant maintains that the deceased became sexually aggressive and when he—the defendant—resisted, the deceased became violent. The defendant contends that he acted only as necessary to preserve his own life.”

Judge Gould pauses again. Still, not a sound. Not a breath, even. “The Commonwealth disputes the defendant’s self-defense claim. And the cash from the Christmas Vigil Mass collection has not been recovered.”

This final piece of information is more significant than the potential jurors know. Had the police been able to locate the missing money and tie it to Holliston, Geraldine would have charged him pursuant to the felony-murder rule. And she would much rather have done so. Under that rule, a person who causes the death of another while in the process of committing a felony is automatically guilty of first-degree murder, even if the death was unintended. If the rule could be successfully invoked, Geraldine’s burden would be substantially lightened: no need to prove premeditation; no need to prove intent, and no need to show extreme atrocity or cruelty.

As it stands, though, the Christmas Eve collection is nowhere to be found. Without it, the underlying felony can’t even be charged, let alone proved. As long as the money is missing, the felony-murder rule doesn’t come into play. And if the jurors buy Holliston’s self-defense claim—if they believe he had to stab the priest in order to save his own life—he’ll walk.

The judge removes his glasses, sets them on the bench, and leans on his forearms. “I ask each of you to take a moment now,” he says to the assembly, “and reflect. This will not be an easy case for anyone involved. The evidence from both sides will be graphic, detailed. It will be difficult to see and hear; that’s a given. But I ask each of you to alert us now if you believe you will have particular trouble being fair and impartial, looking at all of the exhibits and listening to all of the testimony with an open mind.”

We attorneys swivel our chairs so we can see the jurors seated behind us. Holliston doesn’t move. For a moment, the silence blanketing the courtroom remains undisturbed. But then a man in an end seat in the center of the room gets to his feet and steps into the aisle. He looks to be about fifty, wearing blue jeans, a flannel shirt, and work boots. “I might have a problem with that,” he says.

Two well-dressed women follow his lead. The first moves into the aisle across from him. She’s about my age, in a tailored, navy blue pants suit and heels. “I may also,” she says. The second woman is probably seventy. She stands in the middle of the back row, her silver hair styled and stiff above the collar of a charcoal gray coatdress. She nods at the judge but says nothing, a silent
ditto
.