Matter of Trust (52 page)

Marshall took a breath and allowed his eyes to scan subtly from the jury to the media on the opposite wall and across to the defence desk. There was no question he had captured the jury's imagination, and the media were now staring at Cavanaugh in an attempt to determine his reaction to Marshall's engaging opening. Not that it was easy to gauge anything from the bruised face of the lead counsel for the defence. Cavanaugh had turned up this morning looking like a defeated prizefighter in a monkey suit. Marshall had no idea what that was about – but he was secretly hoping that Chris Kincaid had used those busy fists of his to beat his old friend senseless, for not coming up with anything close to a believable defence.

‘To cut a long story short,' Marshall continued as he paced casually in front of the chosen fourteen. ‘Marcy had a short affair with Bob, and eventually, school gossip being what it was, Marcy's husband Frank found out and confronted her about it. Marcy confessed and swore it would never happen again, and Frank, being the big man that
he
was, forgave her. And they are still married – happily I might add – to this day.'

Marshall paused to meet the juror's eyes, before, just as he had practised in his full-length bedroom mirror last night, turning ever so slightly so that the jurors would follow his eyeline directly toward Rebecca Kincaid.

‘People make mistakes, ladies and gentlemen, and nine times out of ten most of us find it in our hearts to forgive them.' Marshall was creating a scenario from the outset – one that said Chris Kincaid was an adulterer and Rebecca Kincaid had forgiven him. ‘But this trial – as much as it appears to be – is not about husbands and wives and the problems between them, it is not about illicit affairs and how they destroy a family, it is not about whether a man's infidelity betrayed the image he asked his voters to believe in – and it is not even about a wife's attempt to paint a picture of domestic bliss so that her husband might escape the punishment he deserves.'

It
was
about all these things Marshall knew – and how he had cleverly planted them in the jurors' minds by mentioning them in the first place.

‘Your Honour.' Cavanaugh obviously could not contain himself. He had expanded his crew to three, the old coot now whispering something in his ear.

It was highly irregular for defence counsel to interrupt an opening
statement, it was seen as poor form – impudent even – which was just what Marshall was hoping for.

‘If this is an opening statement, then I am an extra on a TV soap opera,' Cavanaugh began, the bruise under his right eye now angled directly toward the jury. ‘Mr Marshall is taking an early opportunity to prejudice the jury against my client by insinuating he was—'

‘I'm sorry, Mr Cavanaugh,' interrupted Judge Jones. ‘While I see your point, the criminal justice procedure here in Essex County states that Mr Marshall here may use the time allocated to his opening statement as he deems fit.'

Marshall could barely contain himself – Cavanaugh was being painted as the ignorant outsider from the outset.

‘I would presume, however,' the judge continued as he turned toward the FAP, ‘that a summation of the evidence he intends to present is next on the agenda.'

‘Getting right to it, Judge,' smiled Marshall.

Cavanaugh sat down defeated and Marshall could have sworn a reporter from the local
Star Ledger
smiled.

‘I am sorry, ladies and gentlemen.' Marshall shook his head in apology as he turned back to the jury. ‘I suppose I was trying to make the point that this trial is not about aesthetics. It is not about who sits where or who hugs who, or who feels obliged to blindly honour the memory of an old friendship.'

This was a subtle dig at Cavanaugh – a little cheeky perhaps, but one Marshall could not resist.

‘This,' Marshall lifted his hands at their surroundings, ‘as Judge Jones so astutely pointed out, is about the evidence that proves that this man committed a murder.'

Marshall held up three fingers in preparation for the next part of his soliloquy – last night deciding on using his three middle fingers given his nuggety thumb and almost non-existent pinky made no impact whatsoever.

‘Firstly, it is about the evidence that presents us with a man who cheats, lies, sneaks around and resorts to violence when agitated. Secondly, it is about the evidence that shows us that Chris Kincaid will do anything to protect his precious political career. And finally it is about the evidence
that
proves
to us that Chris Kincaid carried out a violent, brutal, heartless murder during which he beat his lover before throwing her still-breathing body into the freezing winter waters of the Passaic.'

Marshall paused, leaving his hand in the air a few seconds longer as the weight of this argument sunk decidedly into the now riveted fourteen brains.

‘And so, before I summarise the lengthy and comprehensive evidence we have compiled against the defendant, I want to tell you one more thing. I have been a prosecutor for a long time, ladies and gentleman, and in all honesty I do not think I have ever been involved in a case where the evidence is so comprehensive. And while that may make your job easier, it does not, by any means, diminish the depth of your responsibility.'

Marshall rested his hands on the jury rail, his tightly cuff-linked shirtsleeves stopping neatly at the base of his wrists.

‘It is no easy task to send another human being away for life, but Chris Kincaid made his choices, and as you can see he is very much alive and well. Marilyn Maloney, on the other hand, lies cold and lonely in her grave, and all you can do for her now is listen closely to the evidence that identifies her killer. For once you have done that, you will have fulfilled your obligation with dignity. Once you have found the defendant guilty, you will have spoken for the woman who has been silenced forever, so that she might finally rest in peace.'

 

‘He's a fucking fraud,' said McNally. The detective hadn't been in the courtroom for obvious reasons, but David and the team had repeated Marshall's open statement word for word. They were in a tiny conference room down the hall from the courtroom, the judge having called a mid-morning recess before David gave his own opening statement.

‘The last time I spoke to that asshole,' McNally went on, ‘he called Marilyn Maloney a lush. He basically said she was a whore who got what she asked for.'

‘It doesn't matter if he's an ass, McNally,' said a serious-faced Arthur, now limping around the tiny space sans walking stick. ‘He gave a flawless opening statement, he manipulated the judge into reinforcing the media's allusion to David's inexperience in a New Jersey courtroom, and the jury was hanging on his every word. And worse still, they like him.'

Arthur turned to David then, glancing once around the room at Nora, Sara and McNally before obviously deciding this was no time for sensitivity. ‘David, whatever sparked this altercation with your brother . . . you have to put it behind you. I know this has been tough – coming home, defending your old friend – but time is up, son, and like it or not,' Arthur pointed directly at him, ‘the buck stops here.'

David had shared Sean's revelation with a shocked but understanding Sara – who had spent the afternoon listening and the night holding an icepack against David's right eye. But he had decided he had no right to repeat the tightly held secret that his mother and brother had guarded for so long with anyone bar his wife. The fact that his client might be his brother placed a whole new set of pressures on David, but Arthur was right, this was no time to allow the emotions of the past day – the past
months
– to cloud his focus. Right now Chris needed a lawyer more than he needed a friend – or a brother – and that was what David intended to be.

‘You're right,' he said as he met Arthur's eye, ‘about everything. Marshall's opening statement was a work of art, and somehow I have to better it.'

‘You can't go the way you planned, David,' said Sara. ‘Marshall shot your “family man” speech down in flames.'

She was right. David had planned to use his opening statement to establish Chris's good character – largely because the evidence he had to support his case was so scant. But the time for skirting around the issue was gone. David needed to match Marshall's confidence if he had any chance of winning this thing, which meant trusting in his instincts that catching the true culprit was not beyond them.

‘We can build up Chris's character all we want, but in the end he's a politician and the jury will have a predisposition to distrust him,' David began. ‘We can try to portray Marilyn as easy, but the truth is, she wasn't – and both Chris and I would feel uncomfortable supporting such a notion in court.'

He looked to Arthur, and his boss accepted his decision with a nod.

‘So we go with what we have,' David continued. ‘We tell the truth, the whole truth and nothing but. We fight on with our only weapon, the knowledge that we know we are right – and we pray that it's enough.'

He looked to Sara then, for a gesture of support, a word of hope. But she was gazing out the narrow eastern windows, as though an idea had taken her beyond these walls to a place where all things became clear.

‘What is it, lass?' asked Nora, who'd also noticed Sara's distraction.

‘Well,' Sara turned her attention back to the room, ‘first up, I think that we're looking at David's presence here in New Jersey the wrong way. David isn't inexperienced – hell, he knows this city better than anyone. He grew up here, he understands it, the defendant is one of his oldest friends and in his own way,' she looked at him, ‘he loved the victim.'

David gave her the slightest of smiles, grateful that she understood.

‘But I disagree with him when he says we should go with what we have,' she said plainly.

David's brow furrowed. ‘You do?'

‘Yes – I mean, not entirely. When we have enough evidence to nail Will Cusack, we do so. But right now we
don't
, so we
can't,
and like it or not, it's that simple.'

‘Then what exactly are you suggesting, Sara?' asked Arthur after a pause.

‘I'm saying that we're forgetting one very important thing – the one thing Marshall forgot to mention in his very long list of evidentiary assets.' She shook her head. ‘We don't go with what we have, we go with what he
hasn't.
We leave his jigsaw short of the piece that will complete his perfect picture – we go for reasonable doubt.'

 

‘My name is David Cavanaugh and I am a rookie.' David wasted no time approaching the jury the moment Judge Jones re-called the court to session. He wanted to counter Marshall's slow, easy but somewhat manipulative style with one based on openness and honesty.

‘Not at the criminal law stuff, I've been working on that up in Boston for close to fourteen years, but when it comes to trying a case here – in Jersey – well, I figure it best to be upfront and tell you that this is my very first time.'

The media were writing furiously, obviously lapping up the fact that the defendant's first chair was crazy enough to admit his own limitations. The jurors looked at one another in confusion – no doubt wondering exactly the same thing. Worse still, the fourteen were no doubt also pondering
why he was standing in front of a group of ‘locals', admitting to hailing from the ‘Hub of the Universe' – Boston was a city of firsts, and the general consensus was that Bostonians wore their historical importance with arrogance.

‘I grew up in Newark,' David said then, reminding them of another fact that had been mentioned in the press and would ‘play' with their perspectives. ‘And being back here,' he smiled. ‘I've got to tell you . . . the other day I visited my old school and the headmaster told me he drank a bottle of whisky when I graduated. I went to my old church and discovered I still knew half of the congregation, and right this second my almost one-year-old daughter is playing in the same backyard I grew up in. Hell, I live in Boston but I still barrack for the Yankees. Not an easy situation in anyone's books.'

He smiled and the jury smiled with him. He was making himself one of them.

‘But I have to tell you,' he continued, ‘my headmaster, the congregation, my backyard – as much as I feel close to these people, these places, they are not the reason I am here. I am here to present you with evidence, I am here to get to the truth, and, most importantly, I am here to stand up for
two
old friends – the defendant,
and
the victim.'

The jurors' eyes widened once again, as David confirmed his old friendship with Marilyn Maloney. There had been speculation in the media that he would shy away from it – but in this case, at least, they had been wrong.

‘Mr Marshall was right,' he said, confusing them yet again as he took a step back. ‘Your job here is to listen to the evidence presented before you – to the police officers and the forensics experts and the other specialists who will take the stand. But you won't be listening to any witnesses to the crime, because there aren't any. And you won't be given any evidence that Chris Kincaid was in the victim's apartment on the night of her death, because there is none. And most importantly, the prosecution will not be providing you with the name of the real killer because at least at this stage, they have no idea who he is.'

‘
Objection
!' Marshall was on his feet.

David turned to look at him. He could tell by the look on the FAP's face that he'd had no intention of objecting but simply could not hold back.

‘Your Honour, this is preposterous. Of course we know the identity of the real killer. Why, he is sitting right there.' Marshall gestured toward Chris. ‘Mr Cavanaugh has no right to—'