The Lawyer's Lawyer (24 page)

F
or the next ten days Tom and Jack pored over the State’s disclosures and its case, taking everything apart piece by piece,
making sure they weren’t missing anything before finally agreeing to the early trial date.

They met every morning in Jack’s condo. Tom would bring the bagels and Jack would make the coffee. Henry was there for breakfast
and he’d usually hang around for a while to see if they needed him to do anything. If not, he’d leave them alone.

“Let’s go over the obvious first,” Jack said after the seventh day when they had been through just about everything. “They’re
going to use the two cops to establish that I said I was going to kill Felton. We can deal with them. Then they put Jeffries
on and he goes through how he found the body, that there was no gun, and that Danni and I both told him that I shot Felton.
Jeffries then talks about motive—he brings in the claims bill and the contingency fee agreement and makes the argument that
I killed Felton because he screwed up my payday. Merton has got to ask him then why I didn’t plant the gun if I planned this
all along, and that’s when he comes up with his theory that I was going to plant the gun but he, Jeffries, thwarted that plan
by arriving on the scene so quickly. We don’t know they’re going to do that for sure but there’s no other way they can handle
that problem that I can think of.”

“That’s the basic case. Now let’s get into the nitty-gritty,” Tom said.

The two men had developed a style between them of talking things out and taking them apart in brainstorming sessions. Jack
found his older counsel to be sharp as a tack and totally flexible in going where the evidence took them. He was also brutally
honest at times and Jack knew and appreciated that that was an absolute necessity.

“Let’s talk about those documents for a minute,” Tom said. “How are they going to authenticate them? They can’t use you.”

“They’ve listed a handwriting specialist. The contingency fee agreement is an original. If they can establish my signature
on the agreement, I think it’s in. Once they get the agreement in evidence, I think the judge will have to let the claims
bill in even though it’s a copy.”

“Do they have enough original examples of your signature for the specialist to work with? They haven’t yet asked for any samples,”
Tom asked.

“I sent a few letters to the police department a few years back,” Jack said. “They can use those. And I filed some pleadings
with Judge Holbrook, so they can look at the court file for those.”

“Okay, so they have enough examples to establish your signature. They’re going to get the documents in. Why don’t we agree
to their admissibility,” Tom suggested.

“Why don’t we wait,” Jack countered.

“I’m not sure I understand.”

“Wait until trial. When Merton calls his handwriting expert, you stand up in front of the jury and tell the judge in open
court that you think Mr. Merton is calling this witness to establish the authenticity of certain documents. Then tell the
judge there’s no need for that—”

Tom cut him off excitedly. “We stipulate them into evidence right in front of the jury so the jurors know we’re not hiding
anything. It’s brilliant.”

“Thank you,” Jack said. “I told you I was brilliant, you just weren’t listening.”

Tom smiled. “I’m an old man, I don’t hear everything.”

“You hear plenty. What were you going to tell me about the coroner’s report?”

“She lists the cause of death as a gunshot wound but the back of his head was smashed in.”

“I know. He fell backward, and it looks like he hit his head when he landed. Let’s look at the pictures again.”

Tom pulled out the pictures Merton had provided in the package he produced in open court. Tom turned to the pictures of Felton’s
head.

“Look at that. He’d have to hit the ground awfully hard to do that kind of damage,” Tom said. “Maybe somebody smashed his
head in because he wasn’t dead when he arrived.”

“Don’t go there, Tom. Look at the rock under Felton’s head. It’s certainly big enough to cause that kind of damage, and there’s
blood all over it. Besides, the coroner didn’t say anything about somebody smashing his head multiple times.”

“The coroner probably didn’t look that closely because of the gunshot wound. Maybe you’re right, Jack. Maybe we should leave
it alone, but this is your life we’re talking about. Why don’t we delay the trial and hire our own pathologist to look at
this.”

“Look, Tom, you’ve read enough of these reports in your day. The bullet nicked the aorta. Now it wasn’t a big nick but that
just means that it might have taken him twenty minutes to die rather than ten. There’s no doubt that my bullet killed the
man.”

“You can get an expert to say anything.”

“I’ve seen it a thousand times. You pay them, they’ll say anything. We’re not going that route.”

“I didn’t think so. I’m just raising possibilities.”

“I know, Tom, and I appreciate that.”

“You should at least let me explore the possibility that the head wound may have expedited Felton’s demise.”

“For what reason?” Jack asked. “To suggest to the jury the possibility that Jeffries bashed Felton’s head in? I assure you
that’s not going to help our case. Besides, I’m not going to do it.”

“Well, I think that’s what happened,” Tom said. “I think Jeffries took the gun and I think he bashed Felton’s head in.”

“You may be right, but those theories are not going to leave this room unless we have concrete evidence to support them.”

“I understand. That was our deal. Let’s move on. Do you think they’re going to call that girlfriend of yours?”

“Danni? She’s not my girlfriend.”

“I know, she’s just a friend. Do you think they’ll call her?”

“Of course. She can buttress Jeffries’s testimony that I said I shot Felton.”

“Any other reason?”

“None that I can think of.”

“Well, think hard because she’s an unknown for me.”

“I can’t think of any other reason they’d call her.”

“You’re sure, Jack?”

“Sure as I can be.”

“Okay, so far we have the cops, Jeffries, the coroner, your friend Danni—anybody else we can think of?”

“I was thinking about this—how are they going to establish it was me that called Felton?”

“I don’t know. I expected them to call somebody from the telephone company but nobody is listed on their witness list.”

“Dammit! I forgot,” Jack said. “They can get that from Danni. I called her a few times.”

“Let me ask you this one more time—is there anything else they can get from Danni?”

“No. I know I forgot about the telephone number but why do you keep pressing that issue, Tom?”

“Because she’s your blind spot, Jack. You think only a certain way about her and you know as well as I do that in a trial
for your life you can’t have any blind spots.”

“Well, I’m pretty sure that’s everything.”

“Keep thinking. We can’t afford any surprises.”

“I will, Tom, but as of now I’ve got nothing.”

“So what do you think? Are we ready to go to trial?”

“I’m ready,” Jack said. “If you agree, I don’t want to wait.”

“I agree,” Tom said. “Let’s get it done.”

M
onday, June sixteenth, was a cloudy gray morning. Magnificent storm clouds were looming in the distance. Flashes of lightning
could be seen and vague rumbles of thunder could be heard—omens of trouble to come.

“I love days like this,” Jack told Henry. They were standing outside the condo looking toward the horizon. “Cloudy skies are
so complicated, as if secrets are hidden within them.”

Henry slid into the driver’s side of his vehicle. Jack settled next to him.

“Let’s hope there’s no secrets hidden in that courtroom today,” Henry said as they pulled out of the driveway.

“It’s just jury selection.”

“Jurors don’t have secret agendas?” Henry asked.

“You’ve got a point, Henry. Let’s hope there are no hidden secrets today.”

They picked up Ron in front of The Swamp. He had his hands full. He handed a bag to Jack, got in the back, and started handing
out cups of coffee.

“Henry, you’re black, no sugar. Right?”

“Are you insulting me? Of course I’m black,” Henry said. “But I’m sweet.”

It wasn’t all that funny but it was good enough. This was a serious day and they all needed a little levity.

“Could have fooled me,” Ron said as he handed Jack his coffee. “I thought you were Jamaican. Jack, there’s bagels in your
bag—one for each of us. I already toasted them and loaded them with cream cheese. Who knows if they’re going to give you breakfast.”

“Thanks, Ronnie. I appreciate that.”

Ten minutes later, Henry pulled the car up in front of the jail.

“It’s six thirty, Jack. You’re early. Wanna just hang out in the parking lot for a while?”

“No, let’s get it over with.”

The three men exited the car. Thunder could still be heard in the distance.

“It’s moving this way,” Jack said.

“It’s going to kill my business,” Ron added, which made both Henry and Jack laugh out loud.

“What?” Ron asked. “That’s funny?”

“You’re funny,” Jack said as he gave his friend a hug. “I’ll see you in a few days.”

“I’m counting on it,” Ron said.

Then Jack turned to Henry.

“I was thinking we haven’t been fishing much lately.”

“Yeah,” Henry said. “I miss our days out on the lake waiting for the fish to jump in the boat.”

Jack smiled. The two men hugged.

“We’ll do it soon,” he said.

“Soon,” Henry replied.

Jack turned and walked toward the jail.

Two hours later, Tom faced the crowds and the reporters on his own. The crowds were much larger today although there were
still no signs or placards. And the media were there in full force—newspaper and television reporters. Microphones were set
up on the courthouse steps. As he walked toward the courthouse, Tom could see Merton standing in front of them pontificating
as if he were a college professor and the reporters were his eager students.

I wish the storm hadn’t passed by
, Tom thought to himself.

Merton was walking away when he reached the steps so he decided to say a few words.
What the hell. I’m not going to let him try his case out here.
He could see the surprise on some of the reporters’ faces as he stepped to the microphones.

He waited, as a good trial lawyer always does, until he had their undivided attention.

“I know it is often forgotten these days but one of the foundations of our democracy is that a man is presumed innocent until
he is found guilty by a jury of his peers in a court of law—not the court of public opinion. Cases are tried in there, not
out here.” Tom pointed to the courthouse behind him. “That’s the way it has always worked, folks. It’s the one thing that
hasn’t changed much. This trial won’t be long. The facts are pretty straightforward. I represent a good man who has dedicated
his life to the law. When this trial is over, if he so chooses, he may stop and say a word or two to you on his way home.”

Tom turned and walked into the courthouse with reporters shouting questions at his back.

The courtroom was empty. Reporters weren’t allowed in for jury selection. Merton was already there with his files spread out
on the table. Tom went to the opposing table and took a yellow pad out of his briefcase, laid it on the table, and sat down.
The fans were churning, the air conditioners rattling. The old courthouse sounded like a factory. At exactly nine o’clock,
Judge Holbrook walked in. The two lawyers started to stand but he motioned them to stay seated. There were no spectators and
no reason for the pomp and circumstance. That would come soon enough.

“This is the case of the
State of Florida versus Jack Tobin
, Case Number 03-CI-759. Counsel, are we ready to proceed?” the judge asked in a loud voice.

Both lawyers stood up.

“The State is ready, Your Honor.”

“The defendant is ready, Your Honor.”

“Okay. Mr. Wylie has expressed a preference for examining one juror at a time so that is what we are going to do. What I would
like to do is examine twelve jurors and then we’ll have a conference and see where we are. Then we’ll do another twelve and
touch base again until we have a panel. Is that agreeable?”

Tom stood up. “The procedure is agreeable, Your Honor. I just want to make sure back striking is allowed.”

Back striking was a procedure that allowed each lawyer to strike a potential juror at any time until the panel was finally
selected and ready to be sworn in, even though that juror had already been passed over.

“Back striking is allowable, Mr. Wylie. However, I hope that you lawyers do not abuse the process. Is that understood?”

Both lawyers nodded.

“While we’re on the subject of procedure, let me tell you how I want objections handled both during jury selection and throughout.
You will stand and make your legal objection. If I want argument, I will have you approach sidebar. There will be no speaking
objections. Is that understood?”

Speaking objections occurred when the lawyers stood and made arguments in front of the jury. Often it was a tactic to try
to influence the jurors.

“Yes, Your Honor.”

“Yes, Your Honor.”

“Are there any other questions?”

“No, Your Honor.”

“No, Your Honor.”

The judge turned to the bailiff who was standing to his right by a closed door.

“Bring in the defendant.”

The bailiff disappeared through the door and minutes later he came back in, followed by Jack and two uniformed police officers.
Jack wore a blue suit, white shirt, and maroon tie. He walked over to where Tom was standing and stood next to him. The two
officers stood by the wall directly across from him, maybe ten feet away. The bailiff went back to his position by the door.

The judge addressed Jack.

“Mr. Tobin, I’m pretty sure I don’t need to tell you what is going to transpire during jury selection or how I expect you
to conduct yourself. Am I correct in that assumption?”

“Yes, you are, Your Honor.”

“Okay then, let’s proceed.”

Jury selection was one of the topics that Jack and Tom had spent a considerable amount of time on during their three weeks
of preparation.

“We need to get into the nitty-gritty with each potential juror,” Jack had said at the time. “So we need to question them
individually outside of the presence of the other jurors.”

But what was the nitty-gritty? They both believed that each juror had to be asked whether he or she believed that Tom Felton
was a serial killer.

“When they say yes, then we’ve got to ask them if they know who you are,” Tom said. “If they say yes to that question, which
most of them probably will do, we have to ask them what they know about you. And when they tell us that you got Felton set
free, we have to ask them how they feel about that. And then we have to ask them what they know about this case, or what they
have heard.”

Jack had agreed with Tom’s assessment. They wanted jurors who thought Felton was a serial killer because they would be less
inclined to convict Jack for killing him although that inclination might not trump their anger for getting him set free in
the first place. That was the heart of it, and the two men would have to gauge each individual juror as they listened to the
answers and watched the body language.

“It’s a fine line we’re walking here,” Tom said.

“I’m not sure I understand.”

“Well, we have to hammer home at every opportunity the notion that every man, especially you, is cloaked with a presumption
of innocence and, at the same time, we have to hope and pray each juror does not extend that presumption to Thomas Felton.
Remember, the Florida Supreme Court had freed him and the State of Florida chose not to prosecute him.”

“I wonder if Mr. Merton will be bringing up the presumption of innocence that Felton enjoyed at the time I shot him,” Jack
said.

“Everything I’ve heard about Merton tells me he’s not that stupid,” Tom said. “Everybody knows Felton was guilty and everybody
knows Merton chose not to prosecute him for the attempted murder of Stacey Kincaid. Merton’s not going to try and play that
card.”

“He needs some emotional impact, though, to get the jury on his side. Without a victim, he’s only got me and their anger at
me for representing Felton.”

“Maybe he figures that’s enough.”

“Well then, I guess jury selection is going to come down to finding the jurors who are least angry at me for helping to get
Felton released.”

“I think that sums it up, Jack.”

Jury selection was surprisingly short. Both Jack and Tom had expected it to take a week, but it only took two days. Oakville
was a small town. Every potential juror believed Felton was a serial killer and every juror knew Jack’s role in getting him
set free. Still, most asserted that they could decide this case on its facts alone and would not let their opinions about
Jack’s representation of Felton influence their decision.

“I’m never inviting Mr. Tobin over to my house for dinner,” one woman said. “And I don’t think we will ever be friends, but
I can still hear the facts of this case and decide it on its merits. If that means setting Mr. Tobin free, then so be it.”

Tom and Jack decided to keep her. Robert Merton disagreed.