Clifford Irving's Legal Novels - 03 - THE SPRING -- a Legal Thriller (22 page)

From Mickey Karp he had a fair idea of Ray Bond’s standards for jurors. Although they denied it, the Colorado district attorney’s office had profiles of what law enforcement considered prosecution-oriented jurors. If you were over forty, a Republican, and a blue-collar worker, you could be counted on to vote for a life sentence for any crime the far side of jaywalking. Retirees, civil servants, religious fundamentalists, young white males, and older black women were favored by the state. Anyone with a master’s degree or better was generally excluded as too intelligent. But most defense attorneys mistrusted them for the same reason.

Pitkin County had its own peculiarities. Rural Coloradans had elbow room and therefore a more easygoing view of life. Many people had settled in the Roaring Fork Valley on impulse. It was not easy to get a clear read on the prejudices of impulsive people—by definition, they were apt to change their minds. Dennis had long ago come to the conclusion that the science of jury selection, like medicine, was no science. He liked people on his juries with whom he had good eye contact. It had to
feel
right.

In the late afternoon the voir dire ended. Dennis and Mickey Karp conferred in the corridor outside the courtroom. “If I were you,” Mickey said, “I’d strike the Jewish dermatologist.”

“Why?”

“He’s retired. Came originally from Detroit, he told us. That’s a violent city. He’ll have a built-in bias against a defendant in a murder case.”

“You can’t equate Bibsy Henderson with some ghetto crackhead who holds up a liquor store and blows away the owner.”

“But maybe, unconsciously, that guy from Detroit can.”

“Did you see his feet?” Dennis asked.

“The dermatologist’s feet? No, Dennis, I don’t usually look at jurors’ feet.”

“He’s wearing running shoes without socks. I’ll bet his wife told him to wear socks to court, and he said, ‘Hell no, this is how I always dress at home and that’s the way I’m gonna dress today.’ He’s an independent thinker. I want him.”

“You’re in charge,” Mickey said.

Dennis used three of his strikes on the cowboy, the taxi driver, and the masseuse. Ray Bond struck the baker who had majored in philosophy, and the man with the master’s degree.

An hour later, at 4:55 in the afternoon, the jury was picked. Things were moving along on schedule and the judge looked pleased. No TV cameras were immortalizing his errors, and no book publishers were soliciting his memoirs. He had only to do his job as he usually did it, and the devil with what people thought. He was in command. He struck his gavel on the broad bench; it rang with an authoritative
crack.

“Court is in recess until tomorrow morning, nine A.M. sharp, at which time we’ll have opening statements.”

A criminal trial, it has been said often, is like a nineteenth-century Russian novel: it starts with exasperating slowness as the characters are introduced to the jury and the spectators—then come complications in the form of minor witnesses; the protagonist finally appears, whereupon contradictions arise to produce drama; and finally, as both jury and spectators grow weary and confused, the pace quickens, reaching its climax in passionate final argument.

A lot of interesting things, Dennis knew, could happen along the way, if the defense attorney was willing to take some risks. Dennis was willing. His client was guilty, his case was weak, but there was a weakness in the prosecution’s case as well—no live witnesses would come forward to say, “I saw what happened.” But that could be overcome—and had been overcome, time and time again—by a clever prosecutor.

No, in this case the weakness was there in the prosecutor himself. If I can get the jury to hate Ray Bond, Dennis decided, I may be able to win.

Chapter 19
Float Like a Butterfly

THE DAY BEGAN with the reading of the indictment. In her peach-colored fluffy cotton sweater and plain brown skirt—looking like everybody’s grandmother who baked chocolate chip cookies, never forgot anyone’s birthday and baby-sat the children so that you could go camping for a long weekend—Bibsy Henderson stood and spoke a clear, fervent “Not guilty.”

White haired and gangling, Scott uncoiled from his chair and also said, “Not guilty.”

Dennis’s eye roved among the spectators. Sophie had found a substitute teacher from Marble and sat at the rear of the courtroom among more than a dozen people who had come down from Springhill. She was flanked by Harry Parrot and Grace Pendergast. Behind them were Rose Loomis, Hank and Jane Lovell, Edward Brophy, several members of the Frazee clan, and half a dozen other citizens of Springhill.

Dennis was struck by their appearance; somehow they were set apart from the rest of the spectators. They were dressed as always like country people, their clothes clean but old, slightly out-of-date, definitely out-of-fashion. They were an attractive, healthy-looking group. Except for Sophie, pale and drawn, they looked as if that very moment they had stepped in from the invigorating winter morning.

Judge Florian ordered three cans of soda pop to be taken out of the courtroom. “Mr. Bond? Ready to make your opening statement?”

Ray Bond’s face had a flush that seemed permanent. He had a reputation for theatrical intensity and for sometimes approaching so close to the jury box with his appeals for common sense that he seemed to menace the jurors. Rocking back and forth on the balls of his booted feet but never moving from behind the prosecutorial table, he laid out the case for the state. Repeatedly using the phrase “The evidence will show,” he outlined the tale of cold-blooded murder of two elderly people at 12,500 feet on a fine August day.

“Who were these people? We think we know, but we can’t prove it, and so the law must identify them as Jane and John Doe. But we’d like you to remember, folks, that they were human beings. They probably have children, and even grandchildren. They certainly have names. We’re just not legally sure of them.”

He paused to let that register.

“Why did the two defendants murder these other two human beings? We don’t have the answer to that. We can speculate, and I’m sure you’ll speculate too, but the truth is: we don’t know. The People don’t have to prove motive. We only have to prove that a murder took place and that the defendants committed that murder. When it comes time, Judge Florian will tell you that what we call euthanasia, or mercy killing, or assisted suicide, is considered by Colorado law to be murder if it’s premeditated. We’re going to prove to you, ladies and gentlemen, that these murders
were
premeditated. The evidence will show that the defendants brought the murder weapons from their home to the scene of the crime. That’s certainly premeditation. And these weapons have no purpose other than to kill. They weren’t hunting knives or deer rifles that you might just happen to be carrying up with you in the backcountry. No! They were syringes filled with poison! I don’t think that any of you, if you go hunting or hiking, carry syringes filled with poison.”

Dennis rose to object. “Your Honor, that’s argument. There’s no predicate, and it’s inflammatory. Mr. Bond should know better.”

The judge frowned down at him. “He did say, ‘The evidence will show.’ I don’t think it’s inflammatory. Let the jury decide. You’ll get your turn, Mr. Conway.”

“Thank you, Your Honor.”

Dennis always said “Thank you” when he was overruled. He was not being sarcastic; he believed that jurors liked lawyers to be polite to juridical authority.

When Bond had finished, Dennis rose to face the jury.

“Beatrice Henderson and her husband have lived in this valley all their lives. Until today they’ve never been accused of breaking any law. They should not be in this courtroom except as spectators or, like yourselves, members of a jury in another case. Beatrice Henderson and her husband didn’t commit murder. They didn’t commit euthanasia. They are being railroaded by a prosecutor who needs a conviction and a scapegoat in order to get it. Before this ordeal is over, their innocence will be clear to you beyond any doubt.”

The veins on Ray Bond’s neck swelled as he sprang to his feet, shouting, “Your Honor! That’s unacceptable!”

The judge pounded his gavel until Bond quieted down. “Normally,” he said, in his most stern voice, “I would now call both attorneys to my chambers, where I would instruct you, Mr. Conway, to behave in a decent manner. But instead I am reprimanding you in open court. That accusation against Mr. Bond was inexcusable. Do you hear me, sir?”

“Yes, Your Honor,” Dennis said quietly.

“I order you to apologize.”

Dennis hesitated for as long as he could without incurring further wrath. Then he turned to Ray Bond, whose face had calmed now to a lobsterlike red. Dennis said calmly, “I apologize, Mr. Bond.”

“Do you have anything more to say, sir?” Judge Florian demanded of Dennis.

“Your Honor, I’ve concluded my opening statement.”

“Mr. Henderson?”

“Nothing further, Your Honor,” Scott said. “I’m going to leave most of this to Mr. Conway. We’re eating out of the same lunch pail. If I want to chip in something I’ll wave my hand in the air, like I did when I was a schoolboy.”

The jurors smiled. The tension had been eased.

“Call your first witness,” the judge said to Ray Bond.

Dennis understood that the prosecution’s approach to proof of guilt would be a simple, straightforward one. Bond would progress chronologically toward the shining moment that made all else come together and work: the moment of Bibsy Henderson’s confession. Queenie O’Hare’s testimony about that confession was the key to a guilty verdict.

Harold Clark, the first witness, was a simple man who strained to tell the truth. His presence gave the jury the sense that good people were on the side of the prosecution. Young Sarah Westervelt conducted the direct examination. She moved along with a slow, studentlike precision, but her cheeks were flushed with excitement. When Harold had finished his tale of the dead dog and his visit to the Animal Control Office right there in the Pitkin County Courthouse, Ms. Westervelt looked at Ray Bond, received his nod of approval, and said, “Pass the witness.”

Dennis stood. “Your Honor, at times during this trial, I will be speaking both as attorney for my client, Mrs. Beatrice Henderson, and also for Mr. Scott Henderson, who’s representing himself. This is one of those times.”

There was an old legal adage: If you have nothing to gain by cross- examining, don’t. Most lawyers, however, couldn’t resist. Just a
few
questions, to air their lungs, to make the jury aware of them. Some felt it a sign of weakness if they didn’t do any sniping; it might lend additional credence to the witness. And defendants sometimes grew upset if their knight-errants didn’t level their lances at anyone who dared to get up there in the quest to put them behind bars.

Dennis said cordially, “We have no questions of Mr. Clark, and we thank him for taking the time to appear.”

Ray Bond promptly called Queenie O’Hare to the witness stand in order to continue the chronological thread of his narrative.

Queenie told of her trip to Pearl Pass on the snowmobile and of the way that Bimbo, her little Jack Russell terrier, had discovered the bodies. She was a credible witness: sympathetic, well spoken, intelligent, and sincere. The jurors smiled. They liked Queenie. Many of them had dogs. They loved the story of brave Bimbo skipping through the steep icy glades at 12,500 feet.

After Queenie told of discovering the bodies, and the French-made silver pillbox and its contents, and the Remington rifle, Ray Bond said, “The People will recall this witness later, Your Honor. We ask that she be on call. For the moment, we have no further questions.”

“No questions either at this time,” Dennis said.

The state called Deputy Sheriff Michael Lopez, the sheriff’s photographer and video camera operator.

Dennis had been to many murder trials in which the defense attorney had argued against the display of photographs that showed the full extent of the victim’s wounds and the amount of blood that could jet or flow from a human body. Such a display was “inflammatory, unnecessary, not probative,” the defense attorney always argued. The judge seldom agreed, and most of the photographs were usually shown. After those trials, when Dennis had queried jurors, many said they felt the defense attorney’s reluctance to have the photographs shown indicated that the defendant was responsible for the carnage.

You have to get inside their minds, Dennis believed. They don’t think like lawyers. They’re always wondering why you did this, why you didn’t do that.

Ray Bond said, “The People will offer into evidence this videotape of the crime scene and these six color photographs.” He held high the color photographs of a rotting Jane Doe and John Doe in their hidden unmarked mountain grave.

Dennis said, “Mrs. Henderson has no objection.” With the firmness of his tone and with his body language, he was telling the jury:
Look at them all you like. Beatrice Henderson had nothing to do with this horror.

The videotape was shown. The lights went back on, and the photographs were passed round.

Although Bibsy’s eyes had blurred with tears, Dennis felt he had no choice. Placing a hand on her shoulder, he said, “Your Honor, after the jury’s seen them, Mrs. Henderson would like to see the photographs too—if the prosecutor has no objection.”

After lunch came the parade of medical witnesses. Their authoritative presence usually weighed against any defendant. Doctors were godlike and hospitals were temples, even if some of both on occasion killed you. The public tended to assume there were no incompetent or even second-rate doctors. But Dennis always remembered the riddle: “What do you call the man who graduates last in his class at medical school?”—and its answer: “Doctor.”

Otto Beckmann, the gray-faced pathologist and medical examiner, came first. He testified as to the cause of death: Versed and Pentothal injections followed by potassium chloride. Dennis asked only a few questions. He decided to sidestep the issue of whether or not the two victims had any incurable diseases that might have led to an assisted suicide. If the prosecution had brought it up, Dennis would have counterpunched. It was no longer necessary The jury might wonder just as Dennis had wondered, just as Josh Gamble and Ray Bond had wondered. The answer had died with the man and woman at Pearl Pass.