John Lescroart - The Motive

In a California murder trial, the defense attorney has an option. He can either deliver his opening statement directly after that of the prosecuting attorney, as a sort of instant rebuttal, or he can deliver his statement at the conclusion of the state's case in full. Hardy was a big fan of the former, believing as he did that the jury made up a great deal of its collective mind-impressions of the players, general believability of the state's narrative, strength or likely strength of the evidence to be presented-in the very opening stages of a trial.

Hardy's experience was that by the time the jury members had heard and seen all the state's evidence, even if the veracity and provenance of every bit of it had been questioned, denied and demeaned by a vigilant defense lawyer, the weight of all of it often just got to be too much to lift. So despite being the defense attorney, Hardy didn't want to fall into a defensive posture. The last thing he wanted was to be passive, parrying the thrusts of his opponent without striking any blows of his own.

No, a trial was a war, and the goal was to win, not simply to defend. And if you wanted to win, you had to attack.

Hardy knew the book on Rosen was that he never objected during open, believing, as did most lawyers, that it ticked off the jury. So he had a hunch he could mix a little argument into a straight recitation of his facts-in fact, his plan was to find out exactly how much argument his counterpart could tolerate.

So after his own low-key and affably gracious greeting to the jurors, Hardy wasted no time bringing out his own guns. "Well, we've all now heard Mr. Rosen's account of the murders of Paul Hanover and Missy D'Amiens, and I couldn't help but be struck by his use of the phrase, 'we will show, and prove to you beyond a reasonable doubt.' Just hearing him use those words creates a powerful impression, doesn't it? He's telling you he's got evidence to support his theory of Paul and Missy's deaths that is so persuasive that it will leave you in a state of virtual certainty, beyond a reasonable doubt, that Catherine Hanover killed them both.

"But let me tell you something. He doesn't have any such thing. He has, in fact, no physical evidence at all that places Catherine at Paul Hanover's house at or near the time of the murders." He stopped as though struck nearly mute for a second by the enormity of what he'd just said. "Can that be right? You must be thinking, How can the State of California have arrested and charged Catherine Hanover with this heinous double murder of her fatherin-law and his fiancee if there is simply no physical evidence tying her to the crime?"

A flummoxed look on his face, he turned first to the prosecution table as though he expected an answer to this very reasonable question. When none was forthcoming, he came back to the panel. "That, ladies and gentlemen of the jury, is a very good question. Because the pure fact is that Mr. Rosen does not have so much as a single fingerprint of Catherine Hanover on any part of the murder weapon. He does not have anything tying Catherine Hanover to the gasoline container that Mr. Hanover's killer used to start the fire at his house. He has, let me repeat this one more time, no physical evidence. Remarkable."

Hardy took a casual stroll of his own now across to the defense table where Catherine sat. Borrowing from Rosen's bag of tricks, he, too, raised his arm and pointed a finger at his client. "This woman is innocent, completely innocent of these crimes. She is guilty of nothing at all, in fact, except for drawing the attention and incurring the wrath of the lead investigating officer on this case, Sergeant Dan Cuneo, by resisting his inappropriate sexual advances and reporting them to his superior."

Out in the gallery, a low roar erupted. This was what all the reporters had come for! Sex and scandal. Salacious accusations and powder-keg secrets.

Hardy took a beat's quiet pleasure in the sight of Cuneo's startled fury, of Chris Rosen's jaw, visibly drooping. Startled and disconcerted, though he must have known that the issue would arise, he simply didn't seem prepared for the accusation so early in open court. Welcome to the big leagues, Hardy thought. He had drawn first blood.

It got better. Cuneo whispered something to Rosen, who belatedly rose to his feet. "Objection, Your Honor. Argument."

"The objection is overruled. He's not arguing, Mr. Rosen. He's telling his version of events, as you did. That's what opening statements are for. Go on, Mr. Hardy."

Hardy nodded respectfully. This was wholly unexpected. Not only had Braun ruled for him, but she'd thrown Rosen a backhanded rebuke in front of the jury. Hardy had to like it, but couldn't dare show any of it. "Thank you, Your Honor," he said.

He moved to the center of the courtroom. Again he turned and looked back over at the defense table. "I said a minute ago that there was no physical evidence tying Catherine to this crime. But more than that, there is no convincing evidence of any kind, physical or otherwise, that she is guilty." The adrenaline was definitely running now, and he was aware of a keen pleasure-almost a thrill-knowing that he was going to let it take him as far as it would.

"The critical prosecution witnesses are inconsistent and contradict one another. My client's statements have been twisted and taken out of context. The so-called motive has been exaggerated and distorted, and the whole foul-smelling mass has been coaxed into the feeble semblance of a case by an overhasty and careless investigation.

"Two people are dead here. And the evidence will show they were shot to death. The prosecution evidence beyond this is simply not clear enough, clean enough, convincing enough to convict Catherine of murder." He paused for a beat, confident now that he'd be able to slip in a last bit of argument. "At the beginning of your service," he said to the jury, "you swore an oath. As Catherine sits there now under your gaze," he said, "you must presume that what I have told you is the truth. You must presume that she is innocent. That is where this trial begins.

"Mr. Rosen would have you believe that she is not innocent. That she plotted and executed this double murder for financial gain. That she is guilty as charged. But no amount of political ambition, no desire to close a high-profile case can make her so. The law of this country presumes the innocence of the accused. It is on that presumption and upon your oath that we will rely."

He met the eyes of several jurors, every one rapt. Up to now, at least, he had them with him.

The only witness before the lunch break was John Strout, an ageless and usually uncontroversial figure at every murder trial that Hardy had ever attended in San Francisco. Prosaic as it might seem, usually one of the first orders of business for the prosecution was to establish that a murder had, in fact, taken place. Or, in this case, two murders.

Hardy had studied the forensics and the autopsy until he'd gone cross-eyed trying to find some wedge to cast doubt on the causes of death or, more specifically, to re-introduce the idea of murder/suicide. It certainly didn't look good, knowing all the facts as he did; in fact, the possibility was so remote as to be an impossibility. Still, he didn't see how it could hurt to give the jury a nugget of doubt about that point.

So when Rosen finished his none-too-rigorous direct on what had been the obvious causes of death of the two

victims, Hardy stood and walked up to where Dr. Strout sat with consummate ease in the witness box. As some people grow to look like their dogs, Strout the coroner had over time come to resemble a cadaver. Nearly six and a half feet tall, gaunt and sallow, Strout's many-lined cheeks were covered with a crepe-paper skin that sank into the hollows of his face. A prominent Adam's apple bobbed with every frequent swallow. But for all that, he somehow managed to retain something of a youthful air-a shock of unruly white hair, pale blue eyes that had seen it all and laughed at a lot of it. When he spoke, a Southern drawl cast much of what he said in a sardonic light. Although here, of course-on the witness stand under oath-he would strive to be nothing but professional.