Alan Jacobson - False accusations

“It’s important that each and every one of you work hard until you’ve accomplished your task. Because there was a real crime committed, ladies and gentlemen. Two real victims, and a whole lot of pain. It’s your job to determine if the defendant is going to pay for the crime that was committed. The prosecution is confident it will make its case against Brittany Harding; otherwise, I wouldn’t be standing here before you, taking up your valuable time, the judge’s time, my time, and the state’s resources-to present this case.

“No. If you look at the facts as presented and listen to the witnesses I will bring, you’ll see that there is only one truth. That Brittany Harding committed murder in order to carry out an act of revenge. And for that she must be held accountable. Thank you.”

Denton sat down, a bit lightheaded, the perspiration under his armpits disguised by the cover of his suit coat.

Judge Calvino nodded to the defense table.

Wendell Warwick, the public defender, removed his reading glasses. Tall and thin, with a sharp nose and small, beady eyes that appeared to be constantly squinting, he smiled at the jury as he arose and buttoned his suit coat. “‘Don’t be fooled. Don’t let the defendant’s attorney deceive you,’” he said mockingly. He stopped and smiled again, extended both of his lanky arms out in front of him, palms up, his back arched slightly backward. “Do I look like I’m here to deceive you, ladies and gentlemen?

“I’m not. I’m here for the same reason as the prosecutor: for justice to be served. But that’s where the similarity ends. Mr. Denton wants you to find my client guilty. To him, that is justice. To me, justice means that you will not find an innocent woman guilty and send her to prison for a crime she did not commit. But there is one other very important difference between Mr. Denton and myself. The prosecutor has to prove his case against my client. If he fails to make a believable case-that is, if he fails to prove beyond a reasonable doubt that my client is guilty-then you must find her not guilty.

“The prosecution has the burden of proof. They have to prove Miss Harding committed these crimes. As the judge will instruct you at the end of the trial, Miss Harding is innocent until proven guilty. Although the state has to prove guilt beyond a reasonable doubt, I do not have to prove innocence. In fact, I don’t have to prove anything.

“But what does reasonable doubt mean? It means that if you have even a small degree of doubt that my client is guilty, then these charges get thrown in the garbage can, where they came from.”

He began to walk a little bit as he spoke, starting from one end of the jury box and moving to the other. “Now, there are two types of evidence,” he was saying, as if teaching a class. “Direct and circumstantial. Direct evidence is something tangible: what a witness sees-his or her own perceptions. Circumstantial evidence is that type of evidence which requires you to make an inference…it means that you have to take the facts that are presented, and then make a leap of logic, to try to connect other circumstances to those facts you accept to be true.”

He paused, looking at the bewildered looks of the people on the jury. Denton knew that Warwick had accomplished exactly what he’d set out to do. Try to make the prosecution’s case so contrived and puzzling that they will take the easier route: acquittal.

“Confusing,” Warwick said with a slight chuckle, “I know. It confuses me at times too, and I deal with this stuff each and every day.” Relate to me, he was telling them. I’m just like one of you. Trying to get them onto his side.

“The state’s case is based solely on circumstantial evidence. In fact, they’re so desperate for something, anything they can hang their hats on, some form of proof that will show that my client is guilty-that they are trying to tell you that my client had motive. But motive is nothing more than circumstantial evidence!

Warwick shook his head at Denton, as if to say, shame on you.

“Did my client like Phillip Madison? No, she did not. He was rude to her, tried to rape her, and then tried to pay her off to stop her from taking the case public. He had a reputation to protect. A well-known surgeon publicly accused of rape? That would be… detrimental to his practice,” Warwick said, smiling, as if he were sharing a joke with the jury-an incredible understatement. Two jurors smiled back.

“No, he couldn’t let her go public. So he offered her money, and she took it-a mere forty thousand dollars to make the misery of a protracted and humiliating rape trial go away. But yes, she was still angry, and she did send the letter and photo to Phillip Madison’s wife. But what was wrong with that? It was nothing less than the truth. There wouldn’t have been a problem if Madison had told his wife about the settlement, but he kept it from her, lied to her. If Madison chose to lie to his wife and keep certain facts from her, well…” he said, smiling again at the jury, “you can’t blame my client for that.

“And you can’t find her guilty of murder because she merely wanted to avoid the publicity and embarrassment of a high-profile rape trial. Can you, now?”

He paused, for effect.

“No. My client, in fact, has nothing to do with these murders. Actually, Phillip Madison was the suspect they initially charged. But then, suddenly, a few days before his trial is to begin, the DA lets Madison go and charges Miss Harding. Why, we don’t know. Oh, he’s said it’s because of new evidence that they stumbled upon. I don’t buy it. But we’ll never know the true reason why he suddenly switched gears. Maybe it was pressure from someone-from the press, from some politician who owed Phillip Madison-”

“Objection!” Denton was on his feet. “Your Honor, this is completely inappropriate and Mr. Warwick knows it. He’s accusing my office of impropriety and, he has absolutely no proof of such an allegation.”

“Approach,” Judge Calvino said, his face as red as a strawberry, his left eyebrow twitching fiercely.

The two attorneys walked up to the bench; the judge looked down upon them from his perch and covered the microphone so the jury would not hear. “Mr. Warwick, explain.”

“Nothing to explain, Your Honor. I simply felt that there had to be some better reason for the DA to have dropped the charges against-”

“This is contemptible!” Denton said.

“Mr. Warwick,” Calvino said between clenched teeth, “let’s not get off on the wrong foot in this trial. You know the rules. That was a cheap shot against Mr. Denton. If you do anything of this nature again, I’ll hold you in contempt. No more warnings, understand?”

Warwick nodded. “Yes, Your Honor.”

Calvino motioned them away with his hands, as if he were shooing away flies.

“Ladies and gentlemen,” the judge said, addressing the jury, “Mr. Warwick made inappropriate remarks that have absolutely no basis in fact. I’m instructing you to disregard what you’ve just heard.” He shook his head and glared at Warwick. “Objection sustained.”

Warwick paced for a moment in front of the jury box, composing his thoughts, hand on his chin. Reprimand notwithstanding, Denton was well acquainted with the trick Warwick had deployed: a judge can tell a jury to disregard certain remarks, but the fact was, they heard them-and nothing anyone could say would miraculously erase those comments from their memory.

Warwick stopped pacing and faced the jury. “The DA will attempt to show you that there were cans of beer in the vehicle, and that these cans had traces of saliva on them. They extracted DNA from this saliva, and it showed a pattern of genetic material that supposedly matched that of my client. Whether or not DNA is a legitimate test is not important at this moment. What is important is that it doesn’t matter whether or not Miss Harding’s DNA is on the beer cans. All it proves, if it proves anything at all, is that at some point in time, those cans were in Miss Harding’s possession. It doesn’t mean that she was driving the vehicle when it struck the two pedestrians.