William Bernhardt - Capitol offence

Guillerman pressed his hands against his starched white shirt. "I didn't call a press conference. All I did was answer a few questions."

"From the press."

"And they didn't even pertain to the murder trial. They were about the defense attorney."

McPartland was not impressed. "And you thought that would have no relevance to the trial?"

"Not really."

"Amazing that a man with your naivete could survive so long in the world of politics."

"I just do my job." Guillerman shook his head with dismay. "I'll admit, I had no idea the media would sensationalize my remarks on the evening news. Very tabloid. Might as well be Entertainment Tonight."

"I guess you've never watched the evening news before."

"Well… I stay pretty busy at work."

McPartland drew in his chin. This was the most overt display of irritation Ben had seen since the trial began. "You know, I'm enjoying this inane repartee, but it's essentially irrelevant. I issued a gag order and you violated it."

"I don't recall you ever using the words gag order. You just said not to talk to reporters about the case."

"That's what a gag order is, counsel. You're making me wonder if you went to law school. Except I'm pretty sure that's a requirement for becoming district attorney, and last I heard, you were teaching night classes."

"Your honor, I mean no disrespect. But I maintain that I did not violate your order because I did not discuss the substance of the case."

"You told a city full of couch potatoes that the defendant conspired with his attorney to get away with murder, which is basically your whole prosecution theory. That's commenting on the case. And it's exactly the same line your man was dishing from the witness stand last week."

Guillerman chose to remain silent. Ben was glad he was not in his shoes. The judge was displeased, and that never worked in a lawyer's favor, as he knew all too well.

Judge McPartland ran his hand back and forth over his chin. "You know what this means? I'm going to have to sequester the jury now. I've got no choice. The press won't let go of this anytime soon. I heard about it on the radio driving to work this morning, and I was listening to a hip-hop station. The jurors will not be happy. And I don't blame them. City hall won't be too pleased, either. Sequestration costs a fortune." He leaned back in his chair. "The jurors will go into a major tailspin."

"Are the accommodations provided that bad?"

"No, they'll stay at the Ambassador Hotel down the road. But these people have already given up days of their lives and expect to lose more before it's over. Imagine their reaction when they find out they don't get to go home anymore."

"Who knows?" Guillerman said optimistically. "Some may be happy about it."

"No, Mr. District Attorney, no one will be happy about it, not even the housewife with six kids who hasn't had a vacation in eight years. And let me tell you why. Two words: no television."

Ben gulped. "No TVs at the hotel?"

"We have them removed. Can't take the risk, especially not when coverage is all over the airwaves. So now imagine the scenario: away from home, away from family-no glass teat. Horrifying, huh?"

"Dreadful."

"It gets worse. We take out the minibars, too."

"No!"

"Have to. State can't buy liquor for anyone. Against the law."

"Do they at least get pay-per-view?"

"No. I'm telling you, Uncle Sam can be a cruel master. But I'll do this to those poor public-minded citizens to cure this mess you've created."

Ben raised a hand. "Shouldn't we consider my motion first?"

"Good point. Because you're hoping there won't be any need for the jury." He thumbed through a stack of papers on his desk. "I assume you're moving for a mistrial."

"Yes, your honor." Ben cleared his throat. "Um, sort of."

McPartland peered at him over his bifocals. "Sort of?"

"I am moving for a mistrial, your honor, but specifically I'm asking for a finding of prosecutorial misconduct and a ruling that double jeopardy has attached."

Judge McPartland gaped. "You want me to set your man free?"

"In effect."

"Do you know what those reporters you two are so fond of would do to me if I complied?"

Ben shrugged. "It's not your fault, your honor. If there's been deliberate prosecutorial misconduct, you have no choice."

"The rank-and-file Joe Beer Can NASCAR pork-rind-eating voter won't see it that way."

"I understand. But of course the court has to rule on the law, not the potential professional ramifications."

"Of course."

"And I know we can count on your honor to do just that."

McPartland pointed a finger Ben's way. "My momma told me never to count on anything till I see it in writing. That was good advice." He swiveled his chair around and stared out the expansive window at downtown Tulsa. "What if I declare a mistrial but simply order a new trial?"

"We're not asking for that relief, sir."

"You're telling me you wouldn't accept a new trial?"

"No, your honor."

He looked incredulous. Guillerman appeared more than a bit surprised himself. "May I ask why?"

"Because my client doesn't want that. He's willing to accept a double jeopardy ruling-though he isn't happy about it. He wants a jury to declare his innocence."

"Every defendant does, counsel. Few get it."

"But he does not want a new trial at some point in the distant future. This trial has been hard on him, especially coming so close on the heels of the loss of his wife. He wants it over, one way or the other."

McPartland's eyes narrowed. "Counsel, is this some kind of twisted trial tactic?"

"No, sir. And I don't think I'm violating any confidences to say that this is not what I recommended. But it is what he wants."

"All or nothing, huh?"

"Exactly."

Judge McPartland swiveled back around to his desk. "You boys are not making my job easier, you know that?"

Guillerman smiled his million-watt smile. Seemed he could be charming even when he was under fire. "Do we ever, Judge?"

"No." He took a deep breath. "Well, the first thing you should know is, I brought the jury in early this morning and quizzed them with a court reporter present. Only two say they saw any of the news coverage of this case over the weekend."

"They're lying," Ben said succinctly.

"Very likely. I know I'd be watching if I were them. How could they not? They are human beings, after all. But what I did not get, as I questioned them, was a sense that anyone had changed their mind because of what they saw, or that anyone's mind was made up, or that the jury pool was tainted. Even the two who admitted seeing the coverage said it didn't affect them, and I believe them. One of them turned it off before it was over."

"Your honor-"

"Let me finish. I'm going to remove the two jurors who admit to seeing the televised story. I will sequester the rest. I will give them strict instructions not to consider anything they didn't get in the courtroom. And I'm also going to instruct them to disregard that last little salvo from your witness, Mr. Guillerman." He gave the prosecutor a harsh look. "I'm hoping that will get the message across. Whether they know what the witness was implying or not, they will decide this case on the relevant evidence presented at trial."

"That works for me," Guillerman said. And no doubt it did, Ben thought. He was getting away with prosecutorial misconduct with virtually no substantive penalty.

"Your honor," Ben said, "I respectfully object. This is not enough. We're talking about deliberate misconduct."

"But for what purpose?"

The question took Ben aback. "What do you mean?"

"Well, see, Senator, I've read the law on this subject. Reviewed it just this morning, in fact. And prosecutorial misconduct doesn't necessarily mandate a mistrial. That extreme sanction only kicks in if the misconduct was engaged in purposefully."