John Lescroart - Guilt

This one question lay buried under the rational arguments in the very pit of his being. There had been nights when it rose ghoulish and woke him in a sweat.

But the time for reflection had passed.

Thomasino, all business, ostentatiously opened his folder, read for a nanosecond, and was now skewering both attorneys' tables. 'Ms Jenkins,' he began, 'Mr Farrell. Before we call the first jury panel, we've got a four-oh-two to rule on.'

Jenkins stood up at her table. 'Yes, your honor.'

The Judge was reading again. 'You've got two motions here and both of them have to do with character evidence, which you know can only be used in rebuttal by the prosecution.'

Thomasino was clarifying this technical point, but that was what 402 motions were about. As a matter of law, evidence of bad character could not serve as proof that a defendant had committed any particular crime. One couldn't say, for example, that because Joe Smith beat his dog, it followed he'd killed his wife.

The law further recognized the perhaps natural, human inclination for the prosecution to want to tarnish a defendant's reputation by bringing up every bad thing that person had ever done, so that it would seem more likely that that person had done the particular thing they were accused of. So it created a check to keep this from happening.

Unless the defense brought up evidence of a defendant's good character first, the Evidence Code forbade the prosecution from introducing evidence of bad character.

Farrell had filed his motion because Amanda Jenkins's witness list had included some of Dooher's past co-workers, not all of whom had the fondest memories of him. But most of all, the accusations of both Chas Brown and Diane Price had become joined at the hip to the actual murder charges against Dooher.

Jenkins clearly thought that these were critical to an understanding of who Mark Dooher was. The thrust of her prosecution strategy, obviously, was that Dooher was not the man he appeared to be, and without character evidence, that was going to be a tough nut. She may have thought she had enough physical evidence and a proveable theory that stood a chance of convicting him, but she wanted more if she could get it.

On the other hand, if Farrell stuck only to refuting the physical evidence that Jenkins presented, the issue of Dooher's character would never come up. The defense had to be first to bring up character or it would remain inadmissible. So it was tempting to simply forget it. Farrell wasn't sure he was going to need it, anyway.

On the other hand, Farrell knew that sometimes you could refute all the evidence and still the jury would not see it your way. Innocent until proven guilty was a wonderful concept, the prosecution had the burden of proof, all right, but the day-to-day reality of human beings was to assume that people didn't get arrested and brought to trial unless they were probably guilty. So Farrell – like Jenkins in this regard – knew it never hurt to have more.

And he had the best possible character witness he could have dreamed of – James Flaherty, the Archbishop of San Francisco. Whether or not any of the jury members turned out to be Catholic, Farrell believed that the moral authority Flaherty would bring to the witness stand would be unassailable.

He was torn.

To be safe, he'd put the Archbishop on his witness list. His 402 motion asked for a ruling – once he'd called the Archbishop and thus put character at issue, would Jenkins be allowed to call Price and Brown? Farrell obviously did not want the jury to hear from either of them.

Jenkins was responding to this. 'Your honor,' she was saying, 'Archbishop Flaherty will not be testifying that he was with the defendant on the night of the murder. He doesn't corroborate Mr Dooher's alibi for the time of the murder. Therefore, his only possible connection to this case is to serve as a character witness. And once he does that…'

Thomasino's eyebrows lifted slightly and he spoke right up. 'I know the law, counsellor. But I still question the relevance of the proposed testimony of either of your two witnesses.'

'Your honor, if the court please.' Farrell was on his feet. 'Mark Dooher has lived most of the last year under the shadow of these ridiculous accusations, unsubstantiated slander without any shred of evidence to support them. Even if the prosecution had dug up some witnesses to bolster these baseless charges, they will be talking about alleged crimes from thirty years ago. This is very remote in time.'

These remarks brought the first unanimity from the disparate factions in the gallery, and it was negative. Everyone except the reporters was here with some kind of agenda, and Farrell was trying to nip in the bud any discussion of the social issues represented by the testimonies of Diane Price and Chas Brown.

'Remote in time, my ass!' One of the gallery women yelled. 'He still raped her.' She was ejected from the courtroom for her pains.

When Thomasino had restored order, Farrell stood again and found himself making a speech. 'Your honor, any examination of these charges will involve a substantial waste of court time, litigating ancient history. This whole trial – and we see proof of this already in this courtroom – will end up being about an alleged rape and alleged homicide that happened years ago and thousand of miles from here. It's going to confuse and prejudice the jury and it's just plain not fair to introduce this flimsy stuff. How are we supposed to defend against allegations from a couple of substance abusers who say nothing for thirty years, then come out of the woodwork at the first sign of a TV camera?'

At the explosion following this question, which Farrell expected, Thomasino slammed his gavel five times, glared, did it again. He ordered three more people out. After the bailiffs had gotten them removed, a deathly silence ensued. 'I want everyone to understand this.' Thomasino's voice was barely audible, forcing everyone to listen. He pointed a finger at the back of the courtroom, waving it back and forth to include everybody. 'You people watching these proceedings are not a part of it, and any attempt to make yourselves part of it will force my hand. Any more outbursts, I will clear this courtroom.' He pointed his gavel at Farrell. 'You may proceed, Mr Farrell. Carefully.'

Farrell got the message. The Judge understood that he had purposely provoked the gallery. This wasn't going to be tolerated. He deemed it prudent to wrap it up. 'Ms Jenkins hasn't got any real evidence in this case, so she's thrown in these baseless charges in the hope of convicting my client through attrition. She would have us believe these witnesses will testify about Mr Dooher's character, but that's precisely not what they're going to be doing. They're going to be accusing him of other crimes for which the prosecution has no evidence. They have no place in this courtroom.'

Jenkins had heard enough. 'We do have evidence…'

'Then formally charge him,' Farrell shot back.

The gallery didn't exactly rumble behind them, but Thomasino held up his gavel and whatever noise was starting came to an abrupt end. 'I would ask counsel to address their remarks to the court, not to one another.' He was silent a moment, then continued. 'The defendant is on trial here for killing his wife. That is all he has been charged with, and that is what this trial is going to be about.'

Farrell nodded with satisfaction. If this were the Judge's decision – that the jury wasn't going to hear from either Chas Brown or Diane Price – it was a good sign for them.

'Therefore,' Thomasino was going on, 'it is the court's ruling under Section 352 of the Evidence Code that the proposed testimony of Chas Brown regarding the alleged murder of an unnamed person committed by the defendant is Vietnam some twenty-eight years ago is inadmissible. It is much more prejudicial than probative. Not only is the alleged event remote in time, any discussion of it would be unduly consumptive of court time. Especially, Ms Jenkins, in light of the fact that Mr Brown did not see this alleged murder, and therefore cannot testify that this murder happened at all.'