William Lashner - Falls The Shadow

Because it is the job, ladies and gentlemen. If he smelled like a dog dipped in shit, I’d stand just as close. But you don’t say that. Instead you wait there silently, letting the image sink in, before you start the usual tap dance.

“I want to introduce you to François Dubé, a loving father and a loving husband. He is a chef, he owned his own restaurant, he is an artist with artichokes and duck, with butter and lobster and vanilla beans, with the very sustenance of our lives. But most of all, this is a man who loved Leesa Dubé. She was his wife, had been his lover and best friend, was the mother of his beloved daughter. He loved her with all his soul. He loves her still.”

Now you have your client sit back down again. You don’t want the jury to look too closely, after all, you don’t want the jury to see his scarred hands, the insolence in his eyes, you don’t want the jury to feel the same way you feel about him. So you sit him down and slowly walk back to the front of the jury box.

“Was the marriage perfect? Whose is? Certainly not the marriage of the Dubés. Yes, they were having troubles, we won’t deny that. They were young, and François worked crazy hours in his restaurant, and the pressures of a young child in the household often take a toll on newlyweds. And unfortunately, yes, there was infidelity, and yes, they had separated, and yes, they had decided on a divorce. But, you see, they had decided, and they were working it out, and they were both parents to the same beautiful little girl, and they were making accommodations one to the other. This happens every day, everywhere, to half of all marriages in this great country.”

You look over to François and say, “It is a reason for sadness and regret, absolutely.” And now you turn back, raise your voice just enough to show your indignation. “But, ladies and gentlemen,” you say as you slap the rail for emphasis, “this is not a motive for murder.”

Step back now. Take a moment to compose yourself, a little dramatic pause to let the bite of righteous anger settle upon the courtroom. As you calm yourself, you rest your hand on the railing and lean on your straightened arm. This last bit is quite important, as you want to look completely at ease when you begin to mention, however obliquely, the prosecution’s evidence. The prosecutor has stood before this same jury and listed the great gouts of evidence she has against your client. You’d like to ignore it, let it disappear, but you can’t.

“Ms. Dalton spoke about the evidence collected by Detective Torricelli.” You step over to the prosecution table and stand right in front of him as you continue. “She told of all the things he so conveniently found after he determined that my client was the primary suspect. And you shake your head at such convenience, because it never happens like that in your own lives, only in books or movies, pieces of fiction created by quite imaginative folk.” As you make your point, you give the detective a smile, which is in stark contrast to the ugly sneer he gives you back. “But let me tell you, ladies and gentlemen, what you won’t be seeing during this trial. No one will testify that he saw this crime happen. There will be no video or photographs submitted showing the murder. No one will testify that he saw my client anywhere near the scene of the crime at the time of the crime. None of those fancy forensics tests you see on television will prove that François Dubé was in any way involved in this terrible murder that shattered his family and separated for all time his daughter from her mother.”

It’s time to pop a jab at the prosecution. “Ms. Dalton told you that the evidence in the case is wholly circumstantial. And we all know, ladies and gentlemen, what circumstantial means. It means that no one really knows what the heck happened, we’re all just guessing, and when anyone tells you otherwise, she is lying.”

This is when the prosecutor hops up and objects. It’s fun to see her jump, like a frog poked with a stick. Hop, hop. And her objection is a good thing, even when the judge sustains it, because it allows you to shrug, and smile a little half smile, and act as if you and the jury are all in on a little secret that the prosecution is trying to hide.

“Ms. Dalton told you that direct evidence is when you go outside and see for yourself that it’s raining, but unfortunately for her, she doesn’t have any of that type of evidence in this case. No one saw the murder of Leesa Dubé. And Ms. Dalton also told you that circumstantial evidence is when you see someone come in the front door and his hair and clothes are soaked, and from that you can infer that it’s raining. But the problem with circumstantial evidence is that the inferences drawn are only as sharp as the person drawing them. Now, we know that Ms. Dalton is a very sharp lawyer, otherwise why would she be pulling down the big bucks at the district attorney’s office and driving a Chevette?”

This time, as the jury chuckles, you glance back at the prosecutor, so the whole jury follows your gaze. The prosecutor will be doing a slow burn. You wait, patiently, until her obligation to the truth forces her to her feet and she says, through clenched teeth, “Objection, Judge. Mr. Carl knows full well I drive a Civic.”

Then you turn back to the jury, raise an eyebrow, watch as they all crack up at that. “A Civic,” you say, raising your hands high in the air. “I stand corrected. But even a lawyer as sharp as Ms. Dalton, tooling around town in her Civic, ladies and gentlemen, can see someone walk through her front door all sopping wet and assume that it is raining outside, when really she simply forgot to turn off her sprinkler.”

Bada-bing.

A fun little gag, sure, but all of this is routine, all of this any legal hack could pull off without breaking a sweat. But what to do now, there’s the puzzle.

Do you play it safe and do the old Reasonable Doubt Shuffle, a sort of jazzy dance in which you raise your arms and shake your legs and repeat those two words over and again, as if the jury had never heard them before? It is the safe opening, the no-opening opening, which leaves you free to create your theory of the case on the fly. But with no story of your own to tell at the outset, you’re playing defense the whole trial, and by the time you figure something out, the jury might have already made up its mind.

Or do you go right out and tell the jury your story from the get-go? If the story is convincing enough, and the evidence doesn’t contradict it, then the jury will do your work for you. On the downside, it’s like one of those cigars Curly Howard used to smoke – one contradictory piece of evidence and it can all blow up in your face.

What to do? What to do? Do you play it safe? Or do you take the gamble? Oh, what the hell. It’s only François’s neck on the line.

“Now, Ms. Dalton told you about François’s affairs, as if that was some big revelation. Yes, François had affairs. We admit it. He was a hound dog, even in his marriage. Nothing to be proud of, certainly. But now I need to tell you the other side of the equation. I’m not here to cast aspersions, the Dubés were separated, this is not a matter of blaming the victim, this is just the truth. Leesa Dubé, lonely after the separation from her husband, found solace of her own with another man. You will hear testimony about that, and about the nature of their relationship, and about the violence that was lurking within it.

“Why did Ms. Dalton not tell you this? I don’t know. Maybe she didn’t think it important enough to mention to you in her opening. Maybe she’s a little too eager to discount anything that doesn’t fit neatly within her theory. Or maybe so quick was the rush to judgment against François Dubé that she and Detective Torricelli never took the time to even learn of this man who had entered Leesa Dubé’s life. But he existed, and you will hear all about him, and it is far more likely that he, rather than the loving husband, committed this horrible crime.