Bad Lawyer (29 page)

I went directly back to the office after dinner, paused only to make a pot of coffee before I sat down to work on my opening statement. A number of recent studies, published in various law journals, had concluded that many jurors decide guilt or innocence solely on the basis of the opening statements. And why not? If consumers are dumb enough to be motivated by television advertising, and voters dumb enough to be influenced by twenty-second TV spots, why shouldn’t jurors convict or acquit before actually hearing the evidence? It’s the American way.

For the next few hours, I buried myself in work. Except for the most complex trials, it was my practice to deliver my opening statement without reference to notes of any kind, not even index cards. My primary job, as I understood it, was to sell myself to the jury. Or at least, to sell my boy-from-Brooklyn
persona
. I couldn’t appear to be reading from a script.

Beyond that bit of self-aggrandizement, I had several substrategies. In theory, the purpose of an opening statement is to outline the evidence you intend to introduce at trial. Lawyers are not supposed to argue their cases. In practice, you get away with whatever you can. Some judges will put you back on track without an objection from opposing counsel. Others, like Delaney, prefer to let the attorneys fight it out. As I’ve already stated, juries don’t like frequent objections, especially in the course of opening and closing statements which provide the only real drama present in most trials. Carlo would know this, of course. But provoked by declarations like, “The prosecution would have you believe that the only time a woman has the right to defend herself is after she’s dead,” I was sure he wouldn’t be able to contain himself.

On still another level, my opening, taken as a whole, would form the first skirmish in what would soon become an all-out attack on the victim. Maybe the claim of self-defense would rise and fall on Priscilla’s credibility, but there was hard evidence that her husband was a brutal manipulator. It was not only possible, but actually likely, that some of the jurors, once they got a good look at the photographs and medical reports, would vote for an acquittal even if they believed that she’d killed him over money.

Around eleven, just as I was about to assault a pint of macadamia brittle ice cream, the phone rang. I’d been screening my calls through the answering machine, avoiding reporters, but when I heard Ettamae Harris’s voice, I ran into the office and picked up.

“Ettamae? It’s Sid. Wait a minute while I shut off the machine.” I sat down in my chair, pressed the button. “There. How you doin’?”

“Not so good.” Though her tone was free of inflection, it somehow carried a measure of desperation. “I keep thinking that he’s here. I keep seein’ him.” She went on, changing the subject as if Caleb’s presence was an unavoidable reality she’d simply come to accept. “Tell me why Caleb and Julie went up there, Sid. I know I asked you this before, but it keeps comin’ back to me. What were they tryin’ to do?”

“It’s real simple, Ettamae. They went there to protect Sid Kaplan.” I let the words hang for a moment, as hard as if they’d been ground into glass. “It wasn’t what I wanted or what I expected. In fact, I told them
not
to go. Be that as it may, I was the only one at risk. They, themselves, were in no personal danger.”

After a brief silence, Ettamae took an audible breath. I could hear her lips brushing the mouthpiece as she spoke. “Caleb really loved you, Sid. He talked about you all the time, the crazy things you did in court, the way you acted with your clients. Caleb said you tried to come off real cynical, but underneath you were soft as butter.”

“Softer, Ettamae, much, much softer. Just ask my girlfriends.” The humor, weak as it was, served its purpose, deflecting the conversation away from my relationship with Caleb and Julie. But it couldn’t obscure the central truth: Sid Kaplan, miserable mutt that he was and is, had for a brief period in his adult life been actually loved. And it was obvious to Sidney Kaplan, as he listened to Ettamae Harris, that he would never be loved in that way again.

“You gonna win, Sid? You gonna get her off?”

“Most likely, Ettamae. Most likely she’ll walk.”

“And then you’ll be famous again. Is that the way of it?”

“I’m already famous.” When she didn’t respond, I continued. “The only real question here is whether it was Priscilla’s fault. Guzman’s beyond punishment.”

“And that’s supposed to make some kind of a damn difference?” Her voice turned hard, reflecting the anger she needed so desperately to feel. “Seems to me like it don’t matter what Priscilla did. Don’t matter if she pulled the trigger on Caleb her own self. Don’t matter if she pushed Julie into the river. Priscilla’s still gonna go free and y’all are still gonna be famous.”

I
SAW CALEB TWICE
on the way to court the next morning, once getting out of a subway car at the other end of the platform as I boarded, then again buying a newspaper at an outdoor newsstand on Chambers Street. Each time, some logical corner of my brain jumped through the usual hoops. It wasn’t Caleb; it couldn’t be; Caleb was dead and buried. Furthermore, confusing him with every overweight black man I came across actually insulted his memory. But on another deeper level, I was absolutely serene. Caleb was free to come and go as he wished. Julie, too. Their appearances, whether visitations from the other side or mere wishful thinking, meant less than nothing.

Both of these denials came unbidden, proceeding from a corner of my brain I no longer used or needed.

It was very early, barely eight o’clock, when I approached the courthouse, but not early enough to avoid a knot of demonstrators and camera crews from CBS and NBC. Two blond women, so close in appearance they might have been sisters, came rushing forward. They thrust foam-covered microphones in my face, jabbing them at me as if fending off an attacker.

“The prosecution claims she killed him over money,” the one on the left shouted. “How do you respond to that?” Her name was Sissy Crowley and she wore a fetching lime-green dress that neatly complemented her frosted hair.

I was at the door by then, the door marked
AUTHORIZED PERSONNEL ONLY
. Behind the glass, a skinny, middle-aged court officer stared glumly at my chest. “Wake up, Sissy. Prosecutors don’t trot out their jailhouse rats unless they, meaning the prosecutors, are desperate.” A little shot for Carlo, one he was sure to take personally. “I intend to present medical and police reports, have doctors and cops testify. The prosecutor intends to present a repeat felon who wants to get off the hook.” I pushed the door open with my left hand, took a half-step forward. “Ya know, the sad truth is that if it wasn’t for the publicity surrounding this case, it would never have come to trial.”

Priscilla was already present when Sergeant Mason let me into the courtroom that served as our impromptu office. She was leaning forward, huddled over a cigarette, her hands crossed on her knees.

“Good morning, Priscilla.”

She turned at the sound of my voice, unfolding like a wild flower in a nature movie. “Good morning.”

“You look great.” I gestured to the navy suit she wore, the white rayon blouse beneath it. “Much better than yesterday.”

“My mother bought it last night. The skirt’s too big. I had to pin it.”

She raised the hem of the jacket, showed me the safety pin binding the waist of her skirt. I reached out, touched the head of the pin as if about to unsnap it. Priscilla held herself steady, her gray eyes seeming curious as they stared into mine.

“After you’re acquitted,” I asked, “where will you go?” My right hand hovered by her waist.

“I guess I’ll have to go back to my mother’s.” Her smile vanished. “Being as I have no money.”

“Then you’ll be looking for a job?”

Janet Boroda, dragging her evidence bag on a wheeled luggage carrier, came into the room before I got an answer. She set down a paper bag, began to pull out coffee and bagels. Janet was a Sephardic Jew, both parents having come to this country as young children from Morocco. She had the exotic good looks, the olive complexion, and large round eyes, common to Mediterranean Jews. “A mini-feast,” she declared, adding a tub of cream cheese and a package of sliced lox. “To celebrate victories past and future.”

Delaney spent the first hour of the court day outlining the basic structure of trials to the jury. Then he cautioned them, first, to not make up their minds without hearing all the evidence and, second, to not discuss the case, either with each other or with outsiders.

“And you are not to read about this case in the newspapers or watch news reports dealing with the case on television,” he piously intoned. “Media reports are not evidence and you are not to be influenced by them.”

The whole business was routine and I’m sure Delaney knew, as did we all, that the jurors would go home every evening, discuss the case over dinner, watch every bit of the coverage. And why not? It was their fifteen minutes, too.

I studied the jurors closely as Delaney droned on. They were fidgeting in their chairs, casting sharp, quick glances at Priscilla, longer looks at Byron and myself. Under other circumstances, I would have been extremely nervous, but on that day I felt entirely at ease. Even Carlo’s powerful opening statement failed to penetrate my confidence. He would prove, he told the jury when his turn finally came, that Priscilla had loaded the gun herself, that Byron, desperately ill and utterly intoxicated, had been sitting in a chair when his wife pulled the trigger.

“Byron Sweet didn’t die immediately. No, no. Byron Sweet, though he was shot through the heart, fell to his knees and crawled through a pool of his own blood in an attempt to get away. And his killer, the woman who pulled the trigger, his wife and business partner, did nothing to help him. She didn’t call an ambulance or a doctor or the police. Oh, no, ladies and gentlemen. What Priscilla Sweet did was watch her husband bleed to death.”

The performance was vintage Carlo Buscetta, his hatred for the defendant apparent in every stiff gesture. Priscilla Sweet was the embodiment of evil, a clear-eyed, cold-blooded killer. If the trial had ended after his opening remarks, the jury would have sent out for a rope.

I could have objected at any number of points, but I didn’t. My restraint stemmed in part from a determination to play the good guy, the one who kept the trial moving. Beyond that, I realized that Carlo was making a fundamental mistake by promising more than he could deliver. Though he might be able to present a case for Priscilla’s technical guilt, he would never prove that she was a monster.

Maybe he’d been overly influenced by years of prosecuting defendants without the resources to mount a serious defense. Or maybe he was so filled with anger that he just couldn’t stop himself. Either way, when my turn came, I attempted to elevate the emotional tone of Carlo’s delivery into the central issue of the trial.

“Listening to the prosecutor,” I began as I slowly approached the jury box, “I got the distinct impression that it was Priscilla Sweet who used to beat the hell out of her husband. Instead of the other way around.”

Carlo was on his feet before I finished the sentence. “I object, your Honor. Mr. Kaplan is arguing his case.”

Delaney sustained the objection, tossing in an additional caution against the use of profanity.

I apologized to the court, then continued in the same vein. Carlo objected again and again. At first, I barely reacted to the interruptions, then, as the jurors’ annoyance became apparent, I began to show my own feelings. By turns, I sighed, let my shoulders slump, shook my head, tightened my lips, shrugged apologetically.

“Your Honor, I allowed Mr. Buscetta to complete his opening remarks without interruption.”

I made the statement a half dozen times, my inflection as sharp as that of an unfairly punished child. Delaney, of course, wasn’t moved. Though he smiled from time to time, he sustained most, but not all, of Carlo’s objections.

Eventually (and inevitably), a few of the brighter jurors pulled back in their seats, holding themselves away from me. Their annoyance had begun to swing from Carlo to myself as they realized, perhaps, that I was doing it on purpose. By that time, I was keying off a juror named Rafael Fuentes, an electrical engineer with a master’s degree from Columbia. Fuentes, in contrast to the other jurors, had been taking notes, his eyes moving from the pad resting on his knee to my own. When he finally closed the pad and shoved the pen into his shirt pocket, I walked back to the defense table and pretended to consult my files.

A few minutes later, instead of returning to my former position in front of the jury box, I stepped up to a lectern near the witness stand and began to outline the case I intended to present. I named my witnesses, specified the medical and police reports I would introduce, promised the jury that they would hear from the accused. Carlo, though I hadn’t expected him to take the bait, again jumped in with both feet, launching one objection after another. Only this time, Judge Delaney systematically overruled him.

Finally, Delaney, his pink complexion now florid, called us both to the bench. As we approached, he waved off the court reporter.

“For Christ’s sake, Mr. Buscetta,” he hissed between clenched teeth, “we haven’t called our first witness.” Before Carlo could reply, he turned to me. “And I’ve had about enough of your games, too, Mr. Kaplan. Even if Mr. Buscetta wants to play, I don’t.”

I apologized immediately, though I didn’t intend to stop, not even if he cited me for contempt. Carlo, on the other hand, continued to insist that I was arguing my case. Delaney listened to him for a minute, then shut him down.

“Mr. Buscetta and Mr. Kaplan,” he said, “I have a trial on my calendar scheduled to begin two weeks from today and I intend to start on time. Now you people go back out there and get
this
trial going.”

I moved purposely across the courtroom to the jury box and rested my palms on the rail.

“Ladies and gentlemen, the defense will not tell you that Priscilla Sweet did not kill her husband.” I spoke slowly, and evenly, separating out the various pieces of information I wanted to convey. “Instead, even though we are required to prove nothing, we will clearly demonstrate the
fact
… the fact that Priscilla Sweet exercised a right
fundamental
to every human being, the right to preserve her own life. Thank you.”