Glitsky 02 - Guilt (29 page)

Jenkins stood up at her table. 'Yes, your honor.'

The Judge was reading again. 'You've got two motions here and both of them have to do with character evidence, which you know can only be used in rebuttal by the prosecution.'

Thomasino was clarifying this technical point, but that was what 402 motions were about. As a matter of law, evidence of bad character could not serve as proof that a defendant had committed any particular crime. One couldn't say, for example, that because Joe Smith beat his dog, it followed he'd killed his wife.

The law further recognized the perhaps natural, human inclination for the prosecution to want to tarnish a defendant's reputation by bringing up every bad thing that person had ever done, so that it would seem more likely that that person had done the particular thing they were accused of. So it created a check to keep this from happening.

Unless the defense brought up evidence of a defendant's good character
first,
the Evidence Code forbade the prosecution from introducing evidence of bad character.

Farrell had filed his motion because Amanda Jenkins's witness list had included some of Dooher's past co-workers, not all of whom had the fondest memories of him. But most of all, the accusations of both Chas Brown and Diane Price had become joined at the hip to the actual murder charges against Dooher.

Jenkins clearly thought that these were critical to an understanding of who Mark Dooher
was.
The thrust of her prosecution strategy, obviously, was that Dooher was not the man he appeared to be, and without character evidence, that was going to be a tough nut. She may have thought she had enough physical evidence and a proveable
theory
that stood a chance of convicting him, but she wanted more if she could get it.

On the other hand, if Farrell stuck only to refuting the physical evidence that Jenkins presented, the issue of Dooher's character would never come up. The defense had to be first to bring up character or it would remain inadmissible. So it was tempting to simply forget it. Farrell wasn't sure he was going to need it, anyway.

On the other hand, Farrell knew that sometimes you could refute all the evidence and still the jury would not see it your way. Innocent until proven guilty was a wonderful concept, the prosecution had the burden of proof, all right, but the day-to-day reality of human beings was to assume that people didn't get arrested and brought to trial unless they were
probably
guilty. So Farrell – like Jenkins in this regard – knew it never hurt to have
more.

And he had the best possible character witness he could have dreamed of – James Flaherty, the Archbishop of San Francisco. Whether or not any of the jury members turned out to be Catholic, Farrell believed that the moral authority Flaherty would bring to the witness stand would be unassailable.

He was torn.

To be safe, he'd put the Archbishop on his witness list. His 402 motion asked for a ruling – once he'd called the Archbishop and thus put character at issue, would Jenkins be allowed to call Price and Brown? Farrell obviously did not want the jury to hear from either of them.

Jenkins was responding to this. 'Your honor,' she was saying, 'Archbishop Flaherty will not be testifying that he was with the defendant on the night of the murder. He doesn't corroborate Mr Dooher's alibi for the time of the murder. Therefore, his only possible connection to this case is to serve as a character witness. And once he does that…'

Thomasino's eyebrows lifted slightly and he spoke right up. 'I know the law, counsellor. But I still question the relevance of the proposed testimony of either of
your two
witnesses.'

'Your honor, if the court please.' Farrell was on his feet. 'Mark Dooher has lived most of the last year under the shadow of these ridiculous accusations, unsubstantiated slander without any shred of evidence to support them. Even if the prosecution had dug up some witnesses to bolster these baseless charges, they will be talking about alleged crimes from thirty years ago. This is very remote in time.'

These remarks brought the first unanimity from the disparate factions in the gallery, and it was negative. Everyone except the reporters was here with some kind of agenda, and Farrell was trying to nip in the bud any discussion of the social issues represented by the testimonies of Diane Price and Chas Brown.

'Remote in time, my ass!' One of the gallery women yelled. 'He still raped her.' She was ejected from the courtroom for her pains.

When Thomasino had restored order, Farrell stood again and found himself making a speech. 'Your honor, any examination of these charges will involve a substantial waste of court time, litigating ancient history. This whole trial – and we see proof of this already in this courtroom – will end up being about an alleged rape and alleged homicide that happened years ago and thousand of miles from here. It's going to confuse and prejudice the jury and it's just plain not fair to introduce this flimsy stuff. How are we supposed to defend against allegations from a couple of substance abusers who say nothing for thirty years, then come out of the woodwork at the first sign of a TV camera?'

At the explosion following this question, which Farrell expected, Thomasino slammed his gavel five times, glared, did it again. He ordered three more people out. After the bailiffs had gotten them removed, a deathly silence ensued. 'I want everyone to understand this.' Thomasino's voice was barely audible, forcing everyone to listen. He pointed a finger at the back of the courtroom, waving it back and forth to include everybody. 'You people watching these proceedings are not a part of it, and any attempt to make yourselves part of it will force my hand.
Any
more outbursts, I will clear this courtroom.' He pointed his gavel at Farrell. 'You may proceed, Mr Farrell. Carefully.'

Farrell got the message. The Judge understood that he had purposely provoked the gallery. This wasn't going to be tolerated. He deemed it prudent to wrap it up. 'Ms Jenkins hasn't got any real evidence in this case, so she's thrown in these baseless charges in the hope of convicting my client through attrition. She would have us believe these witnesses will testify about Mr Dooher's character, but that's precisely not what they're going to be doing. They're going to be accusing him of other crimes for which the prosecution has no evidence. They have no place in this courtroom.'

Jenkins had heard enough. 'We
do
have evidence…'

'Then formally charge him,' Farrell shot back.

The gallery didn't exactly rumble behind them, but Thomasino held up his gavel and whatever noise was starting came to an abrupt end. 'I would ask counsel to address their remarks to the court, not to one another.' He was silent a moment, then continued. 'The defendant is on trial here for killing his wife. That is all he has been charged with, and that is what this trial is going to be about.'

Farrell nodded with satisfaction. If this were the Judge's decision – that the jury wasn't going to hear from either Chas Brown or Diane Price – it was a good sign for them.

'Therefore,' Thomasino was going on, 'it is the court's ruling under Section 352 of the Evidence Code that the proposed testimony of Chas Brown regarding the alleged murder of an unnamed person committed by the defendant is Vietnam some twenty-eight years ago is inadmissible. It is much more prejudicial than probative. Not only is the alleged event remote in time, any discussion of it would be unduly consumptive of court time. Especially, Ms Jenkins, in light of the fact that Mr Brown did not see this alleged murder, and therefore cannot testify that this murder happened at all.'

There was a muffled chorus of 'right-ons' and 'Yeahs' from the gallery, but Thomasino's glare put a quick stop to it. 'However,' the Judge continued, 'although equally remote in time, the character testimony of Diane Price regarding her alleged rape is that of a first-hand witness…'

'Your honor!' Farrell could see the way this might go, and he had to object. 'This alleged rape never took place, and even if it did, it has nothing to do with the crime Mr Dooher is charged with. You can't allow-'

'Mr Farrell! The issue is only going to arise if you bring up character in the first place. If you do, then as you know, the prosecution can bring rebuttal witnesses. If you, in turn, wish to attack the credibility of those witnesses, you may.'

'Yes, your honor, but-'

Thomasino cut him off by addressing Jenkins. 'Ms Jenkins, it is the court's ruling that you may call Diane Price as a character witness once that issue has been tendered by the defense.'

'Thank you, your honor.'

'But I must tell you that I will instruct the jury as to how to consider this proposed testimony. This is not going to turn into a rape trial.'

There was another buzz in the gallery, and this time the Judge did bring his gavel down. He looked at his watch. 'Mr Farrell, Ms Jenkins, any other last-minute motions you'd like the court to consider before we begin jury selection? No? All right, then, we'll take a twenty-minute recess while the first panel gets settled in.'

The tedium of jury selection consumed the rest of the morning, and judging from Thomasino's thoroughness as he directed the
voir dire,
it was going to continue to be a slow process. Sixteen prospective jurors out of the first panel of sixty had already been dismissed because of their familiarity with the case. This was an enormous percentage, indicative of the intense media coverage to date, and the trial was only beginning. It was going to get much worse.

The defense team had rented a small room next to a bail bondsman's office across the street from the Hall of Justice, and Wes split off from them on the way over to get sandwiches, which inadvertently left Christina and Mark alone. They entered the room together and closed the solid wooden door.

Christina put her briefcase on the desk and turned around. Mark had been a couple of steps behind her, and the room was cramped in any event. They stood, a foot apart.

Christina had been – figuratively – backing away for months. Suddenly now, the physical being that had been Sheila Dooher no longer stood as a barrier between them. The opening volleys in the trial signalled a new phase.

Mark had to recognize it now, too. He had to know that Christina would be there for him. She met his eyes. 'I don't know about you,' she said, 'but I could use a hug.'

Farrell could feel it as soon as he came into the room with the sandwiches. Something had transpired in here. There was a palpable sense that he'd interrupted. 'Hey, cowboys,' he said.

Christina was leaning against the window sill, combing her hair with her fingers. Mark was sitting on the desk, swinging his feet like a schoolboy. Wes decided he'd unpack the bags and keep on talking, give whatever it was a chance to dissipate. 'So I was thinking we just wouldn't call Flaherty. That'll avoid the whole can of worms.'

Dooher jumped right on it. 'We've got to call him,' he said. 'We get one good Catholic on the jury – and I think we can guarantee that – and the Archbishop tells that person I couldn't have done anything they said I did – which we know is the truth – and at the very least, the jury's hung. And besides, we
want
Diane Price to testify against me.' Christina moved from the window. 'No, Mark, we-' But, emboldened, Dooher stood, grabbed his soft drink and popped the top on it. 'I know originally we said no, but did you hear Thomasino in there? Even the Judge thinks it's bullshit. It will make Jenkins look like she's grasping at straws. It's a question of credibility. So then you, Christina, cross-examine her.'

'I do? Why not Wes?'

But Wes knew the answer to that. 'Because you're a woman. It'll be much more effective if you start talking about the drugs Mrs Price has taken and how many men she slept with in college and whether or not she ever reported this alleged rape and why it kind of slipped her mind for the intervening decades. In short, you eat her for lunch.' Shaking her head, Christina was staring at the floor.

'What?' Wes asked.

'I don't want to do that. I don't want to eat anybody for lunch. I feel sorry for her. Don't you guys understand that?'

'I do,' Mark said.

'Excuse me, but fuck that! I'm glad you two are so sensitive. It gives me a warm feeling deep down inside.' Farrell spun himself, a little circle in the tiny room. 'Here's lesson one – a trial is a war. You don't take prisoners. You destroy everything in your path because if you don't, make no mistake, it will destroy you. Sympathy does not belong here.' Farrell reined himself in slightly. 'Listen, Christina, this Diane Price is trying to send your client to jail for most of the rest of his life, and that makes her my enemy. And she's
lying!
That makes her your enemy.'

'I'm not used to thinking that way.'

Dooher to the rescue. 'Wes, you could do it. It doesn't have to be Christina.'

Farrell got to escape velocity in record time.
'Of course
I could do it! Mister Goddamn Rogers could do it! We could phone it in and get it done. But Christina here, being a woman, could do it
best,
and that's what we've got to go with. Our best shot every time out. That's how you win. It's the
only
way you win.' Farrell glared at them both.

'All right, Wes, all right. You're cute when you're mad. Anybody ever tell you that?'

'No,' he said. 'Nobody ever has. Christina, how about you?' Farrell was gratified to see that she'd gone a little pale. Maybe she was finally beginning to understand what she'd gotten herself into. But she put up a brave front.

'No,' she said, 'I think you're cuter when you're
not mad.'

When Thomasino called the lunch recess, Glitsky made his way out through the tide of humanity in the gallery and then 'No comment-ed' his way past the reporters in the hallway. He took the stairs, rather than the crowded elevator, up to Homicide, to his 120 square feet partially enclosed by dry wall. He intended to eat his bagel and apple in peace and maybe get in some administrative work before court reconvened at 1:30.

But there was Paul Thieu, up out of his own desk before Glitsky was a step into the room. And another person – long hair, eyes burning, pumped-up, unhappy and unkempt. At a glance Glitsky recognized the symptoms; this guy was cranked up, high on methamphetamines.