The Victim's Wife Page 30

  Vivian shook her head. “I don’t recall. I asked him how he was doing. I probably danced around the issue, not wanting to address it head-on because I knew how strongly he felt.”

  She was slick. I was trying to lay the groundwork to put Mason on the stand to contradict her. She was trying to have her cake and eat it too. I feared I would get this answer for some of the other key questions I wanted to zero in on.

  “Did you have a conversation with anybody else that night?”

  “I spoke with Ronald,” she said. “I also spoke with Frank. I talked with Mason.” Vivian shrugged. “It’s all kinda hazy now.”

  “Did you talk with Max that night?”

  “No, I never did.”

  The answer came too quickly and was said with such confidence that I was sure now Karen Barr had told me the truth.

  “Let me just be clear. You never talked with Max that night after the meetings. Correct?”

  “Nope, I only saw him at the meetings and dinner. I didn’t see any point in visiting him. He wasn’t worked up. It was only Mason who was upset.”

  I looked down at my notes, wondering if this was the best place to leave off.

  I was afraid I wouldn’t be able to lock her down, but she had let me lock her down.

  Why?

  Was it because she knew I could never get Karen Barr to testify? Or did she have something on Barr that would paint her in a bad light so it wouldn’t matter what Barr said?

  “Thank you. I have no further questions for this witness, but I reserve the right to recall her if necessary.”

  I sat down, glancing over at Mason, who had a bewildered look on his face.

  He had expected me to ask Vivian additional questions, but I wanted to leave the jury focusing on that last answer.

  She had not met with Max.

  She had emphasized it. I’d had her answer that question twice just to make sure

  “That was short,” Mason said, leaning over and whispering into my ear. “I expected you to dig into her.”

  I patted him on the shoulder. “Trust me. I know what I’m doing. A little bit can go a long way, especially in a jury trial.”

  Steve Barnum was up next, and he spent a lot of time asking questions about that night that were really just regurgitating what we had already gone over.

  Cindy finally stood. “Your Honor, Mr. Barnum is retreading ground. Does he have any novel questions, or should we just ask that he sit down?”

  Judge Lewis looked from Cindy to Steve, and then at the clock. “She has a good point here, counselor.”

  “I will skip the redundant questions,” Steve said, looking down at his notepad and crossing off one question, but his next question was redundant too.

  Cindy’s sigh was loud enough that it could be heard throughout the whole courtroom. Judge Lewis let the questioning go on for ten more minutes before admonishing Steve to skip the redundant questions. After that, Steve asked a couple more questions and sat, looking bothered that he had been rushed through his cross-examination.

  I think in Steve’s mind, his cross-examination was not retreading, but rather trying to bring out details he thought were significant.

  After Steve had finished, Vivian was dismissed.

  That’s it? I wondered as Steve sat and Vivian left the stand, glancing over Penny.

  I was surprised that none of the information Penny had alluded to earlier in the morning had come out, leaving me to believe that she didn’t actually have anything.

  I wasn’t the only one bluffing, I thought as Judge Lewis looked at his watch and then at us.

  “Is there any business we need to take care of without the presence of the jury?”

  I stood. “Yes, Your Honor, I have one item that has come to my attention.”

  “Very well,” Judge Lewis looked at the jury and admonished them to not talk about the case and then dismissed them for an hour and fifteen minutes.

  After the jury filed out, Judge Lewis looked at me. “You have fifteen minutes. I hope it doesn’t take longer. I don’t want to keep these fine folks waiting because I need an hour for lunch today.”

  I nodded, glancing at the back of the courtroom. I was glad to see that Winston had shown up with the paperwork I had requested via an email I had sent to him. I motioned for him to approach. He handed me an envelope that I opened, pulling out the contents within.

  “Judge Lewis, we have obtained information that Vern Goodman, juror number twelve, withheld information as to a substantial bias. I move that we replace him with the first alternate.” I handed the paperwork to the bailiff, who distributed a copy of the news story to the other parties and the judge. After the judge had reviewed this, he looked at Cindy.

  “Do you have any concerns with the defense’s motion?”

  I could see Cindy was conflicted. On the one hand, the bias was clear, but on the other hand, the guy probably would have at least delivered her a hung jury.

  She knew.

  “I think we ought to ask a few questions before we summarily dismiss him,” Cindy said.

  “Your Honor,” I said, “during the trial, I have noticed him glaring at my client multiple times. This is why I instructed my investigator to see if he could find the bias. I think we run the risk of inflaming the juror’s emotions if we question him. It’s clear if you read the article’s contents that this was a time of turmoil for their family. The juror is looking for somebody to blame. I don’t think it will serve us or him any favors if we ask him any questions.”

  “I am inclined to agree,” Judge Lewis said, looking at Cindy. “I recommend we just replace him with an alternate juror and send him home.”

  “Your Honor,” Cindy stopped and changed what she’d been about to say. “I agree. The bias is clear.”

  “Counselor,” Judge Lewis looked at Steve Barnum. “You’ve been quiet. Do you have anything to add?”

  “No, Your Honor,” he said coldly, “nothing that wouldn’t be a restatement of anything already said.”

  Judge Lewis either did not notice or care that Steve was still smarting from the judge’s rebuke. He issued a ruling, dismissing the juror and replacing Vern Goodman with the next alternate.

  I let out a long sigh of relief and looked over at Mason once we were adjourned.

  “That’s the thing about a trial; you never know how it’s going to go. Seems like we’re doing a bit better, doesn’t it?”

  Mason nodded as he stood.

  I paused, giving him an opportunity to say that he wanted me to reach out to Cindy again about discussing a plea bargain. He studied me for a moment but left without another word.

  58

  Once I was back at the office with a sandwich and a Coke, I shut the door and started to eat. I didn’t get in more than two bites before my phone rang.

  “Cindy Seakowics,” Ellie said, “is on line one for you. Do you want to talk with her?”

  I glanced at my watch. I needed to keep the conversation short.

  “Send her through.”

  The phone line clicked.

  “Mitch,” Cindy said, “are you guys ready to throw in the towel yet? Things are not going so well for you out there.”

  I sputtered, glad it was audible through the phone. “They’re going better than I planned. I couldn’t be happier with the current position of the trial.”

  “Come on, stop being so optimistic. I’m not your client. I’m not paying your bills. You and I can drop the charade and level with each other.”

  “Oh, really? You think I’m being false?”

  “Come on, even you have to admit that it looks like your client is going to jail for a long time.”

  “I dunno, things could be worse,” I said with a chuckle. I took another bite, chewed, and swallowed. “They could always be worse. You and I both know there’s no way to predict what’s going to happen at this stage of the trial. The only way certainty comes is if we strike an agreement or see it to the end. I passed the offer on to my client. He
is considering it.”

  Cindy gave an exasperated sigh. “There is just no talking to you sometimes. You know that?”

  “Sorry, that’s the professional risk you take when engaging with me.” I chuckled again. “I thought you’d learn your lesson in times past?”

  “What is keeping your client from accepting my offer? It is more than fair.”

  “I told him,” I said, “he still hasn’t given me a decision. He’s an executive who is used to making decisions on his own time, not on other people’s.”

  “Tell him he has until you present your defense. If you get that far, deal’s off the table.”

  “I’ll let him know.”

  She hesitated as if she were going to say something more but then hung up.

  She was frustrated, but there wasn’t much I could do. My hands were tied unless Mason decided to make a deal. I had done everything within my professional responsibility. Sure, I had maybe nudged him towards seeing how the trial played out a little bit longer, but I believed he had a shot.

  After I finished my sandwich, I called Mason.

  “I just got a call from the prosecution,” I said, “you need to know that if we don’t accept their offer before we begin our defense that the deal is off the table.”

  “What do you think we should do?”

  “The choice is yours. It’s always hard to say, I could tell you what I think, and then you could come back and tell me that I made a mistake. Because of it, you’re going to jail for the rest of your life. I don’t like to have those consequences on my shoulders. I always urge clients to make these decisions independent of me because you must live with the consequences, not me.”

  “So you think it would be a mistake to take the offer?”

  I hesitated. “That is not what I said.”

  “That’s the implication of what you said, though, isn’t it?”

  “Don’t read anything into my words. I’m not trying to send you subliminal clues here. There is no right answer. It’s a question of what you want to do and what you can live with. It’s up to you. I wash my hands of these decisions.”

  “Do you really think we have a chance?”

  “There’s always a chance. It’s a question of risk. If the verdict comes back and you go to jail for twenty-five years to life, you’re not gonna be there for your children’s graduation. You won’t be there when they go to college. You won’t be there when they get married.” I paused. “If you compare that with three years, with the possibility of parole sooner than that, it might be a no-brainer decision.”

  “Do you think things went well with Vivian today?”

  “I thought they went well enough, but in the end, it is the jury who makes the call.”

  Mason was quiet for a long time. “Let’s let it ride. I want to see how this plays out.”

  “Great.”

  Mason made as if he were going to hang up, but I stopped him. “One more thing, I’m going to put you on the stand first.”

  You could’ve heard a pin drop on the other side of the phone.

  “What?” He finally managed to get out. “Are you sure that’s wise?”

  “Yes, I think it’s our best strategy. Are you prepared for that?” I rarely ever called a client to the stand, but I was starting to think that it made sense in this instance.

  Mason hesitated again, this time for so long that I had begun to wonder if he was having second thoughts about not taking the deal.

  “Why are you doing this? Help me understand why you think this makes sense.”

  “We covered some good ground today. I think we have planted the idea with the jury that you are a victim of the situation. That’s what we want to reinforce. I want to get you on the stand to testify about how you felt like you were not yourself and how you were out of your mind. I want you to testify about how you ate those candy bars and then later learned that they had been poisoned.”

  “It’s a risk, isn’t it?”

  “It always is. But at this point, we want to appear like we have nothing to hide. Putting you on the stand does that. If I keep you off the stand, even though the jury will be instructed not to consider that, they won’t be able to help themselves. They’ll be biased against you because of it. They will naturally assume you are guilty and that’s why you didn’t want to talk with them. We want to get you on the stand to tell your side of the story, to emphasize the things we want you to emphasize. You need to be engaging. You must be compelling. If you ever took a speech or business presentation class, this is the place to use these skills.”

  I said this last bit to give him confidence, not because I really wanted him to be prepared.

  I wanted raw emotion when I got him up there. I had gone over some of the questions I might ask him, but not all. Some were meant to catch him off guard so that he would have a visceral reaction in front of the jury.

  “The prosecution will have a chance to question me too, right?”

  “And Penny’s attorney as well.”

  Mason hesitated. “You really think it is the best way?”

  “We can do it differently, but my instincts tell me that putting you on the stand is the right call. The jury must connect with you. They need to feel like you’re one of them. We want to portray you as a guy who just got caught up in a situation that anybody could have been caught up in. They need to feel like it could happen to them. The only way to do that is to put your face on it. We must make this real, make this personal. We don’t want them sending you to jail unless they know who you are.”

  “Can I think about this still, all of it?”

  “Yes, there’s a good chance we’re going to start our presentation today, so you don’t have long.”

  “Decisions.”

  “Let me know.” I was about to hang up but then decided I needed to give him a final warning. “And one last thing, I’m going to ask you some hard questions. I want you to be prepared. I don’t want the prosecution to get up there and pants you, so I’m going to pants you myself. It’s better that way.”

  Once Mason was off the phone, I finished my lunch and then took out my notepad to brainstorm but didn’t get anywhere.

  I was as prepared as I was gonna be.

  What were the odds of us winning?

  I started writing down my guesses, but then I scratched them up, ripping up the paper afterward and throwing it away.

  This was a black box. Sometimes I felt like I could call it, but this time I couldn’t. It could go either way.

  59

  As I walked back into the courtroom, I felt a hand on my arm. I turned to see that Cindy had come up behind me. She gave me a big smile. “Your client ready to talk turkey?”

  I shook my head.

  “I’m planning on wrapping up today, so if he’s going to make a decision, it’s now or never.”

  “I’ll tell him.”

  I let Cindy go ahead.

  After I had pulled out my things at the defense table and sat down, Mason joined me.

  “You ready?” I asked.

  “I don’t want to do the deal.”

  I arched an eyebrow. “You sure?”

  “Positive.”

  I smiled. “Let’s roll the dice.”

  He looked at Cindy. “Are you going to tell her?”

  “I’m going to keep her on her toes.”

  He nodded. “I like that. Good plan.”

  Judge Lewis entered a couple of minutes later, and court was back in session.

  Cindy called her next witness. It was the medical examiner, a woman by the name of Judith Anderson. After Ms. Anderson was sworn in, Cindy took her through her questions, laying the groundwork for talking about the autopsy, and then asking many other questions.

  My primary purpose in questioning the medical examiner was to ask about the toxicology report. Cindy touched on it but did not drill into it.

  “Your turn, counselor,” Judge Lewis said an hour later as Cindy sat. I stood, pulling out a copy of the toxicology
report as I went to the lectern.

  I smiled at Ms. Anderson.

  “Did you run the usual toxicology tests on the decedent, or did you check for anything outside of normal?”

  “Just the usual report. There was no need to do anything different.”

  “And did you find anything in his system?”

  “Yes, we found that Max had imbibed some alcohol during the evening, but his blood alcohol level was nowhere near the legal limit for safe driving.”

  “Do you think it was enough to affect his ability to think?”

  The medical examiner shook her head. “Probably not. Based on my examination of his liver, I deduced Max was a regular drinker. He probably didn’t have any more alcohol that night than he did on any other occasion. He had a slight buzz, but nothing that dampened his ability to think all that much.”

  “And did you check for α-Pyrrolidinopentiophenone in his system? It is commonly called flakka.”

  She gave me a puzzled look. “We did not.”

  “Why was that?”

  “There was no reason to indicate we should. We checked for the usual illegal drugs. We checked for alcohol. We checked for the usual prescription drugs that are abused. We didn’t find any of those.”

  I nodded to let that sink in.

  “During your investigation, were you made aware that Detective Thompson had found trace amounts of poison in Max’s home?”

  “After a case leaves my desk when I send back my report, I usually never see it again unless I’m called into court. In this instance, yes, I was made aware as I reviewed the file in preparation for my testimony today.”

  “Did you test his blood for any of those substances?” I asked, turning to the page where I had them all listed out.

  “No, as I just mentioned, I only found out about the stray substances in the victim’s home during the last couple of days. The victim was buried long before that time.”

  “Based on what you know now, would you recommend that the state have the body exhumed so you could perform further tests or do you have any other blood or tissue samples that you could use to run the tests?”