A/N: Once again, thanks to RebeccaInley for her painstaking work as a beta, and to Lynn for support, encouragement and insight.
Reckless Endangerment
Trial Part 3
Supreme Court 100 Centre St
9.30 am Thursday May 10th 2007
Regan sat with her hands folded in front of her, listening to the judge charge the prospective jurors. She felt as if she could feel the stares of the crowd in the body of the courtroom like a bull's-eye painted between her shoulder-blades.
They aren't looking at you, she chided herself, resisting the urge to turn around and make sure. If they're looking at anyone, they're looking at the judge.
Or at Jack.
Nonetheless, she felt the presence of the crowd as a pressure against her back. Some were journalists, some were looky-loos, some were friends or enemies of Jack McCoy. Together, they filled the seats and benches behind the bar.
It's standing room only back there, Regan thought.
And if it makes me nervous, how does Jack feel?
How many of those people are here hoping to see him go down?
Focus, girl! Your partner needs you to have your head in the game.
Regan looked back to the list of questions for the voir dire in front of her, most of them going to the same two points – had they or anyone they were close to ever been the victim of a crime like the one at issue here? And had they or anyone they were close to ever been prosecuted by Jack McCoy?
The written questionnaires would flush out those honest about those key facts. Regan hoped her carefully drafted questions would flush out the others. She would have liked another, more experienced trial lawyer beside her, someone whose judgment she could rely on – but Danielle was across town having Dr Jordan's signatures examined by experts, Serena was chasing the ADAs like Qiao Chen and Bill Fitzgerald who had been at the Lord Roberts that night, Sally was in court representing her own clients, and Nora had admitted to Regan as she took a seat in the front row behind the defense that it had been fifteen years since she'd been in a courtroom to represent a client.
Regan stole a glance at the lawyer who was sitting beside her, a trial lawyer whose experience dwarfed not only her own but most of the lawyers she'd ever met, whose keen judgment and mastery of courtroom tactics had resulted in wins against impossible odds. Jack McCoy was looking straight ahead, his face set, and Regan sighed. She couldn't expect any help from him.
At least he's here.
McCoy had turned up at the courthouse as the clock struck nine, and as Regan had watched him stride up the steps toward her she had been visited by the sudden irrational conviction that the past week had been nothing more than a nightmare, that McCoy would head past her to the courthouse doors and she would fall into step beside him, fielding his question about their witnesses for the day …
For just an instant, relief washed over her, sweet as a cool breeze on an August day. Then McCoy looked up and saw her waiting. His face was bleak, and Regan thought that the coldness in his eyes chilled another few degrees when he saw her. The illusion of relief vanished. This is real. This is happening.
He had responded in monosyllables when she spoke to him, not looking at her. It was clear that as far as he was concerned the argument they had had on Tuesday night was still ongoing. With neither the time nor the privacy to try again to talk some sense into him, Regan had concentrated on getting them both into the courtroom on time and making it clear to McCoy that she was going to take jury selection seriously, voir dire, challenges and all.
She stole another glance at him. Usually McCoy was the picture of relaxation in the courtroom, completely at home, leaning back in his chair with one arm resting casually on the bar. Today he sat bolt upright, eyes fixed straight ahead, his hands folded on the table. No, definitely no help there.
The jury filled in their questionnaires and the clerk gave copies to Mike Cutter and Connie Rubirosa, and to Regan. She began to separate them into piles, stacking the ones she would challenge for cause together on one side of the table and ranking the rest, the ones she was most concerned about on top.
It was only mid-morning but Regan already felt exhausted. She'd woken before dawn out of a confused dream of gunfire in One Hogan Place and screaming from outside her office door and Help me, El, help me, it hurts, oh god, it hurts …
She'd spent an hour writing a list of all the questions they needed to have answers for if they had any hope of winning the case. Is Dr Jordan's signature forged? Was it Keri who drugged Jack's drink? Usually Regan found the exercise calming, breaking the case down into manageable inquiries, steps that she had to take to get it trial-ready for McCoy, but that was when she had time to find the answers. This morning, she had been left with a churning stomach and a list of things she couldn't even begin to guess the answers to.
After a few minutes staring at the questions she'd listed, Regan had picked up her pen again, and added: What the hell is wrong with Jack McCoy?
She had stared at the question as if the words would dissolve and reform in the shape of an answer until the doorbell had told her Danielle Melnick had arrived to try and knock her opening statement into better shape.
That redrafted speech was tucked at the back of her file, ready for her to refresh her memory after jury selection.
Regan put another questionnaire into the 'no' pile, and glanced again at McCoy. Not that there's any indication I'm likely to need that opening statement.
She stretched out the jury selection process as long as she could, using every second of the time allotted to voire dire, pondering her challenges, both for cause and peremptory, until Judge Wright's tapping fingers let her know that any advantage she gained through delay was likely to be negated by annoying the judge.
As the judge gave his pre-trial instructions to the empanelled jurors, Regan glanced over her shoulder to catch Nora's eye. As she did she saw Danielle Melnick slip in through the back door of the court, expression grim.
Danielle slipped into the front row beside Nora, who moved along a little to make room for her.
Regan leaned back over the bar and whispered: "What have you got?"
"Not great news," Danielle answered, equally softly. "The experts are ninety percent positive that it's Rob Jordan's signature on the copy of that chart. Either he's lying to us or there's some other explanation."
"He has dozens of witnesses," Regan said. "Do you think he's lying?"
"I think that Serena needs to get back on the train and ask those witnesses if Dr Jordan really was in Baltimore General that night," Danielle said. "And I think that I'd like to have the originals of those records examined."
"Ms Markham," Judge Wright said, and Regan whipped round to face the front of the court again.
"Sorry, your honor," she said hastily.
Wright acknowledged her apology with a nod. "Mr. Cutter," he said. "Are you ready to proceed?"
Mike Cutter rose to his feet. "Yes, your honor," he said.
Regan hastily pulled a legal pad toward her and grabbed a pen, ready to take notes of the points Cutter would make in his opening, points she would need to be ready to rebut – or at least confuse. Her mind was whirling. How can Dr Jordan's signature be on a chart he never signed? She would have to strike out the part of her prepared opening that foreshadowed the defense discrediting the medical report, since she couldn't be sure that they would, in fact, be able to discredit it. And that means we don't have much to impeach Keri Dyson …
Cutter was talking, and Regan forced herself to put aside her worries and concentrate.
"You know, I joined the District Attorney's Office for a lot of reasons," Cutter said. His tone was conversational, his bearing relaxed. I'm just a regular guy, Regan wrote on her pad. "The pay's not great, but the health plan is excellent," Cutter went on with a grin. Regan saw three of the jurors smile back. Oh, shit, she wrote. "But there was one thing about this job that really sold me." Cutter let his smile drop away, looking from one juror to the next. "When someone in this city is mugged, or beaten – when a child is hurt, a shopkeeper robbed, a woman raped – there's one place they turn to for justice. The DA's Office. We don't chase criminals down the street, and we don't investigate crimes and arrest people – but we are the ones who stand here in the courtroom and fight for rights of the victims to have their pain recognized, and to have the wrong that was done to them repaid with justice."
Cutter shrugged a little, then put his hands in his pockets. "That's a lot of responsibility. Sometimes I look around my office, at all the files that represent victims who depend on me to get them justice, and I really feel the weight of them, you know? I wonder how arrogant he must have been, that young lawyer called Michael Cutter, to think he was really the best person qualified person to be the one they all depend on." Cutter smiled ruefully. Regan, already beginning to rise from her seat to object, saw jurors returning his smile. They like him, she thought, don't make them chose between us, not yet. She sank back silently.
Cutter shook his head, taking a step backwards, growing serious again. "But ladies and gentlemen, I can tell you one thing. I come in here and I do my best, my very best, for every victim, against every perpetrator. I joined the DA's Office because I wanted to be on the side of the good guys. I wanted to be one of the men and women who stand up for the law, stand up for the victims, stand up for the people of this city. That's what it says on the indictment, by the way. It doesn't say 'District Attorney against So-and-So' or 'Prosecution against What's-his-name'. It says 'People against Jack McCoy'. I'm here to represent the People – people like you, who just want to go along living their lives without being robbed, or threatened, or T-boned by a drunk driver – or attacked. And when I joined the DA's Office, I knew I was joining people who were just as committed, just as dedicated, to the law, to justice, as I was."
Cutter paused, shoulders slumping, sorrow on his face.
"Or so I thought. But this week, I learned that not everyone in our office was committed and dedicated to the law, to justice. I learned – "
"Objection, your honor," Regan said, trying to make her voice even and moderate, the voice of sweet reason rather than sounding like an angry lawyer beating up on that nice Mr. Cutter. "Counsel's opinion – "
"Sustained," Judge Wright said. "Ladies and gentlemen of the jury, Mr. Cutter's personal opinion of this case is not relevant, and not the appropriate subject of an opening statement. Please disregard it. Mr. Cutter, please limit yourself to the prosecution's case, not how it makes you feel."
"Your honor, this case – this defendant – the way it strikes at the heart of the people's trust in justice – " Cutter tried again.
"Your honor?" Regan said.
"Sustained. Mr. Cutter." Wright glared at the prosecutor, who shrugged his shoulders and spread his hands in defeat.
"Well, let's look at the case," he said to the jury, his tone adding since the judge won't let me tell you the real story. "The case I'm bringing before you here today is one that I never thought I'd have to argue. The defendant, Mr. McCoy, has been a colleague of mine, has been a prosecutor in this jurisdiction for more than thirty years. Has been one of those you depend on to uphold the law. But, as I will prove to you through the course of this trial, Mr. McCoy's apparent commitment to the principles and values that guide the representatives of the People was not as deep or as solid as we all thought. On Thursday last week, Mr. McCoy attended a collegial gathering of prosecutors at a local bar. He left that gathering with one of the young ADAs he is responsible for supervising. You will hear evidence that this is not – "
"Objection!" Regan snapped, forgetting to make her voice appropriately gentle. "Mr. Cutter is referring to inadmissible – "
"Your honor hasn't ruled on admissibility," Cutter said reasonably.
"If you had notified defense at discovery of your intent to pursue this line of argument," Regan retorted, "You know very well it would have been the subject of a Brady hearing." She glanced at the jury. "Approach, your honor?"
"Come on up," Wright said, beckoning both Regan and Cutter.
Cutter clearly was the kind of lawyer who believed that attack was the best form of defense. Like someone else I could mention, Regan thought. "Your honor, I am not required to give the defense a preview of my case. I have notified of all witnesses I intend to call. If Ms Markham thinks – "
"You're trying to set a skunk loose in the courtroom in your opening when you know very well your witnesses won't be able to testify in support of your imputations!" Regan hissed.
"You don't know they won't be able to testify," Cutter pointed out. "That's up to the judge."
"The evidence that Mr. Cutter is relying on to justify his opening is inadmissible on the ground of hearsay, inadmissible on the ground of relevance, inadmissible on the ground of character, and inadmissible on the grounds of prejudice," Regan said. "Your honor, I seek an immediate Brady on this matter."
"Too late, Ms Markham," Judge Wright said. "Trial's started. You should have foreseen this."
"Yes, your honor, I should have, and I should hate to see my client suffer an appealable conviction due to my incompetence," Regan said quickly.
Wright chuckled. "Threatening the trial judge with appeal – straight from the Jack McCoy playbook. And you, Mr. Cutter – I am putting you on a very short leash. I can see what you're doing. If you introduce in your opening statement facts that cannot be supported by admissible evidence, I will declare a mistrial at the close of your case. How would that look on your CV?"
"Better than an acquittal, your honor," Cutter said with a cocky smile.
"Don't be so sure," Wright warned.
Regan walked back to her seat, palms sweating. She caught Danielle's eye and the other lawyer gave her an encouraging smile. Regan tried to return it, but her face felt stiff and she thought her expression was probably closer to a grimace. She sank into her chair and picked up her pen. Jack's history, she wrote on her pad, and underlined it.
"Ladies and gentlemen," Cutter continued, "You will hear evidence that Mr. McCoy left the bar in the company of a young subordinate, Ms Keri Dyson. You will hear that they seemed to be on affectionate terms – at least from Jack McCoy's side. You will hear that no-one was surprised to see this."
"Mr. Cutter," the judge said warningly.
"And you will hear," Cutter went on smoothly, "that Ms Dyson, concerned that Jack McCoy was too intoxicated to find his own way home safely, accompanied him. That she assisted him into his building, and into his apartment." He shrugged. "You might have an opinion of the character of the kind of man whose use of alcohol affects his behavior to such a degree. But Jack McCoy isn't on trial here today for being – "
"Objection!" Regan said, on her feet before she knew it.
"Mr. Cutter," Wright said wearily.
"For being drunk," Cutter said. "Or for any other aspects of his behavior. He's on trial because once Keri Dyson had made sure he was safely in his own home, he assumed her concern was inspired by a more – intimate – motivation. And when he attempted to initiate sexual relations with this young woman who worked for him, and she rebuffed him, his reaction was not mere disappointment." Cutter turned to look at McCoy, who sat staring straight ahead. "His reaction was violent. You will hear how he struck her – not once, or lightly, although that would have been a crime. You will hear how he took her by the throat and punched her in the face, once – " Cutter turned back to the jury, bringing his clenched fist into the palm of his other hand. "Twice." Again his fist smacked into his hand, and beside her, Regan felt McCoy flinch. She put her hand over his, feeling the tendons standing out like wires beneath her fingers. "Three times." Smack.
Still not looking at Regan, McCoy jerked his hand out from under hers. His face was impassive, but Regan thought he looked pale, and there were beads of sweat at his hairline.
"Jack …" she murmured softly.
He didn't even glance her way. "Do the job I hired you to do," he murmured harshly.
"We will prove these facts, as unpalatable as they are – as unpalatable and disappointing as I find them," Cutter said. "I know that it is hard to believe that a man with Jack McCoy's history of public service can be a criminal. But if there's anything I've learnt in my years in this job, it's that anyone is capable of anything, if the circumstances are right. And if there's one single value I've learnt to put above all others, it's that no-one is above the law."
Cutter walked back to the prosecution table. Regan looked at her notes, then quickly glanced at the statement Danielle and Nora had helped her draft. She began to rise to her feet.
McCoy's hand shot out and closed hard on her wrist. "No opening," he said.
"Jack, he's killing us!" Regan hissed, excruciatingly aware of the jurors' eyes on them. "I have to – "
"No. Opening." McCoy ground out. He met her gaze for the first time since they'd walked into the courtroom, cold fury in his eyes. "Those are my instructions."
.oOo.
