Zealous Defense
Trial Part 3
Supreme Court 100 Centre St
1 pm Thursday May 10th 2007
Jack McCoy folded his hands on the defense table and looked straight ahead. He was acutely aware of the jury's gazes on him and just as conscious of his two colleagues – soon to be former colleagues – at the prosecution table. He could not bring himself to look at any of them, to see what was in their eyes.
Beside him, Regan Markham was reading over her notes. Behind him, Nora Lewin and Danielle Melnick sat side-by-side, ready to offer Regan advice if she needed it.
The trial was sliding out of his control. Oh, it had always been an illusion, that he could control the trial – he was the defendant, and he knew well enough the tricks that the prosecution would use to run the trial the way that suited them, especially in presenting the People's case, but he had at least assumed he would be able to insist Regan follow his instructions, play dead, run silent, get it over with …
Wright had put a stop to that. Party of McCoy's mind was turning over the possibility of an injunction against the judge, for his refusal to accept a plea of guilty, for his interference in the conduct of the defense's case. But that would be a bigger circus, and a far more public one, that this.
He suppressed a yawn. The few hours sleep he'd managed to get the night before had been broken by confused dreams of courtrooms where Claire Kincaid sat beside his sister and his mother in the jury box, where his father sat in judgment and used the gavel to pound Abbie Carmichael to a bloody mess, dreams from which he woke with his heart pounding and his throat as raw as if he had been screaming.
But simply enduring the trial, sitting impassively while Mike Cutter laid bare the kind of man he'd become, had been even harder than he could have had imagined.
The singleover-riding thought beating in his head had been Let it end soon. Let it end soon.
Let it end.
Regan had wanted to make an opening statement, to cross-examine witnesses, to press every point of a case she refused to accept was futile.
If he could have explained to her – no. The thought of saying those words, of telling Regan, telling Abbie, Danielle … saying I really am that man. In the end, the man you thought you knew was nothing more than a disguise– he had steeled himself to bear Cutter's allegations, he could face a jury verdict, had prepared himself to endure sentencing and prison – but he could not find the courage to say those words out loud. To say I am, when all is finally said and done, my father's son.
No. He had been determined to leave no chance that, even with Danielle and Sally and Serena coaching her, Regan could frustrate what McCoy knew to be justice: a guilty verdict.
Perhaps Regan was right: it was unfair to her, as she had told him over and over again. But there's not much about any of this that is fair.
And if she trusted me as much as she's always saying she does, she wouldn't need my explanations.
It had always been easy for him to understand what drove other people – he had won more than one difficult case based on those moments of insight alone. He had sensed the truth of Linda Drosi's utter refusal to consider that her daughter had been honest; he had seen not only why Danielle Mason felt she had no choice but to claim she had been raped but also just which threat would persuade her to tell the truth.
And he had been able to tell how desperately Regan wanted to spring to his defense, to fight for him, just as McCoy himself had not even hesitated before joining Adam Schiff's efforts to overturn the Governor's decision to appoint a Special Prosecutor for the cruise ship shooting trial.
It was easy to be angry with her for pressing the issue, it was easy to give in to his need to argue back, to win –
McCoy looked sideways at Regan as she put down her pen and flexed her fingers, pulling a face at the movement of her bruised and battered hand, now with new marks that McCoy guessed had come from her furious battering at his door the previous day. It was a visible token of her frustration. Easy for her to be angry, too, McCoy thought.
It's always easy to be angry.
Until he had pushed open the door of the women's restroom, prepared to berate her for walking away from him, and seen her retching up her guts as her very body rebelled against the idea of letting Cutter's case go through to the catcher. Pushed past breaking point.
One more casualty of what I've become. Keri Dyson, Abbie, Regan …
She'd looked so pitiful, crumpled in on herself with her head on her knees, the woman who had gained the courage to go toe-to-toe with him, who had once put her career in his hands and told him We all have to trust somebody as if it were a complete explanation, shattered by the demands he'd used that trust to make.
And as furious as he'd been with her blackmail, the desperation it had revealed had been more painful.
Regan had told him she was thinking like a lawyer, but the calm face she had turned to him had been all cop: a cop with a gun to his head, whose instructions to raise his hands were not in the slightest bit negotiable. A 730 exam, of all the high-wire acts – even Danielle Melnick never tried that on a client!
Talk about lateral thinking!
Judge Wright gaveled the court back into session, and Regan rose to her feet. "Your honor," she said, looking not at the judge but down at McCoy, "at this point the defense wishes to recall – "
"No," McCoy said, keeping his voice low but putting every ounce of I'm-the-DA-just-watch-me into it that he could.
Regan didn't blink – or miss a beat. "Or rather, moves for an immediate – "
"Regan," McCoy hissed.
She paused, raising her eyebrows, and McCoy had no choice but to give in with a reluctant nod.
"At this point the defense recalls Mr. William Fitzgerald," Regan went on smoothly.
"Are you sure?" Judge Wright asked sarcastically.
"Yes, your honor, quite sure," Regan said serenely, but McCoy could see her hands shaking where they rested on the table.
And they say I have brass balls, McCoy thought. He should be furious with her, and he was – any client had every right to haul a lawyer through every disciplinary mechanism in the state for that kind of stunt –but mingled with that anger was a certain pride. Ten months ago she was nervously preparing to arraign her first murderer, he thought. Look at her now!
Her hands might be shaking, but Regan strolled across the well of the court as if it were her own backyard, hands loosely clasped in front of her, coming to a stop by the witness stand as Judge Wright reminded Bill Fitzgerald he was still under oath.
"I just have a couple of questions for you," Regan said gently, "If that's okay, Mr. Fitzgerald?"
"Yeah, sure," Fitzgerald responded, swallowing nervously. Regan gave him a reassuring smile and the young ADA smiled back. Showing the jury she's not the bad guy, McCoy thought. It was a familiar tactic, and one he'd used himself countless times. So familiar was Regan's approach that he almost expected her to rest one hand lightly on the railing of the witness stand the way he himself did, but instead she put her hands in her pockets. Of course, McCoy thought, she doesn't want the jury to see that counsel for the defense looks like she herself might well have committed the crime in question.
Turn toward the jury, he willed her. Include them in the conversation.
"Mr. Fitzgerald, I want to ask you about the evening of May 3, last Thursday," Regan said, shifting her stance so that her shoulder was no longer turned to the jury box, but keeping her attention steadily fixed on Fitzgerald. "You've testified about the time you spent at the Lord Roberts. How did you get to the bar?"
"By cab," Fitzgerald said.
"Alone?" Regan prompted, taking her left hand from her pocket and resting it on the railing of the witness stand.
McCoy had a strange sense of recognition, seeing his own courtroom mannerisms in Regan's stance, her tone, her gestures. Like a fun-house mirror – identifiable, but distorted. He couldn't help being reminded of the last time he had sat in a courtroom with his future in the hands of a young assistant, when he had sat in the body of the courtroom, watching Claire Kincaid cross-examine Diana Hawthorne.
The contrast could not have been sharper. Claire had been slender, willowy, her domination of the courtroom the result of her intelligence and personality, not her physical presence. She had had her own style as a lawyer, a style in which McCoy had been able to see traces of Mac Gellar, Ben Stone, and even himself, but a style that was all her own. Juries had trusted her – she had exuded composure, confidence, class. And her beauty was an asset as far as jury sympathy was concerned, too.
Regan had no such advantages. There were moments when a trick of the light, a change in expression, turned the spare planes and hollows of her face to beauty – but she would never have Claire's loveliness. Or ever be as classy. Regan would never be anything but a beat-up ex-cop, working-class made good, nothing like the hot-house rose that had been Claire Kincaid. McCoy wondered if he was the only one in the courtroom who could tell that Regan felt uncomfortable in her business suit, uncertain in front of the jury. A cop playing dress-up in lawyer's clothes.
Claire never had any doubt she belonged in a courtroom. Doubts about the usefulness, the ethics, the politics of prosecutions – she'd had plenty of those. But never any doubts about herself, not when it came down to the crunch in the courtroom.
"No, I shared a cab – with you and with Mr. McCoy," Fitzgerald answered Regan's question.
"Was Mr. McCoy drunk?" Regan asked. Her voice was quiet, but her tone uncompromising.
Claire would have put a little sarcasm into her voice on that question, McCoy thought. Humor gets the jury onside.
He caught himself thinking that Claire would have handled this cross-examination so much better than Regan was – and then remembered that he hadn't wanted the cross-examination to occur at all. And I can just imagine Claire's response to that! he thought.
But imagine was all he could do. A phrase from a book came back to him. The past is another country.
And not one you can get a visa for, McCoy added.
For a moment the thought grew vivid – a visit to the Embassy of the Past, the stamp on the passport, the queue for the boarding gate with AA 1994 flashing over the door, and then disembarking, looking for that one familiar face in the arrivals hall …
Then heimagined the look on her face when she saw him, the silent reproach. McCoy strangled that thought unborn and forced himself to focus on the well of the court, on Regan Markham and her borrowed tactics.
"You know he wasn't drunk," Fitzgerald said firmly.
Regan smiled. "I can't testify, though, Mr. Fitzgerald. Or this would be a very short trial."
Cutter was on his feet "Does counsel have a question?" he asked tersely.
"Do you, Ms Markham?" Judge Wright asked.
"Yes, your honor," Regan said meekly. She turned back to Fitzgerald. "Was there liquor on Mr. McCoy's breath? Was he unsteady on his feet? Slurring his words?"
"No, no, and no. In fact – " Fitzgerald said, and hesitated.
"In fact what?" Regan prompted gently.
"When we were in the cab, you were complaining about a witness you'd both been prepping, and Mr. McCoy said that it had been a hell of a long day, but nothing the first drink of the night wouldn't cure. Taking everything into consideration, I would bet he was stone cold sober when we got to the bar."
"And you testified … " Regan took a few quick steps back to the defense table and picked up a file. McCoy could see that it was in fact the collection of affidavits Serena Southerlyn had gathered, but Regan held it so the jury couldn't see what she was reading. "Here it is," she said, as if she was reading over a transcript of Fitzgerald's testimony. "You testified that Mr. McCoy bought drinks … Mr. Cutter suggested that Mr. McCoy's motives might be inferred from the fact that he bought Ms Dyson a drink. But he bought a drink for you, too, didn't he? Was he trying to get you into bed, Mr. Fitzgerald?"
Fitzgerald blushed, and one of the jurors snickered. "No."
"And you testified that some time after that you were – was it playing the piano?" Regan asked.
"Singing," Fitzgerald said.
"Singing. And you saw Ms Dyson hand Mr. McCoy a drink. Did Mr. McCoy seem intoxicated at that time?" Regan put the file back on the defense table and began to stroll back toward the witness stand.
"No. He seemed fine," Fitzgerald said.
"At around eight o'clock?"
"Yes."
"You sure?" Regan pressed.
"Positive," Fitzgerald said.
"And you testified that when next you caught sight of Mr. McCoy, about fifteen minutes later, he was sitting in a booth with Ms Dyson," Regan said.
"Yes," Fitzgerald said, and blushed again.
"And they were – what was the term you used?"
"They seemed to be getting along," Fitzgerald said, still blushing.
"Behaving indiscreetly," Regan said.
"Yes."
"Were you surprised?"
"Very," Fitzgerald said before Cutter could cut him off.
"Your honor – " Cutter said.
"You opened the door," Regan said quickly. McCoy shot a glance at Cutter and saw the prosecutor frowning, no doubt realizing that the latitude he had taken on direct examination would now be used against him in Regan's cross. Did he see the risk when he took it? McCoy wondered. He has a reputation for being fond of the high-wire.
McCoy himself had used similar tactics to Cutter's strategy of innuendo when a jury needed to be persuaded to convict on slim evidence. Juries like to lock up people who deserve it.
The problem with that approach is that all the defense needs to do is prove that the defendant doesn't deserve it.
I wonder if Cutter guesses how much of an uphill battle that would be for Regan with this defendant.
"She's right, Mr. Cutter. You did indeed open the door," Judge Wright said. "So, Ms Markham, proceed on through."
"Thank you, your honor. Why surprised, Mr. Fitzgerald?" Regan asked.
"Because it's a sacking offense," Fitzgerald said. "Because there's always gossip, but I never saw anything to support it. Because it seemed very out of character."
"Out of character," Regan repeated slowly. "Thank you, Mr. Fitzgerald."
She turned and began to walk back to the defense table. McCoy counted her steps, waiting for her to feign sudden recollection of a last-minute question. One, two, three – Regan turned back, as McCoy had known she would.
"One more thing," she asked. "You saw Mr. McCoy leaving, didn't you?"
"Yes."
"Did he seem intoxicated?"
"He had to lean on Keri to stand up," Fitzgerald said, and then looked past Regan to McCoy. "I'm sorry, Mr. McCoy, but it's true. I couldn't believe anyone could get so plastered in half-an-hour."
"You couldn't believe anyone could get that drunk that quickly?" Regan said. "Neither can I."
Cutter bounced to his feet, mouth open to object, but Regan already was back at the defense table. "Nothing further, your honor," she said calmly, sinking into her chair.
Cutter stayed on his feet. "No redirect, your honor," he said.
"Mr. Fitzgerald, thank you for your time," Judge Wright said.
As Fitzgerald made his way from the witness stand to the body of the courtroom, Regan rose to her feet again. "Defense would like at this point to cross-examine Dr Elizabeth Rodgers," she said.
"You've missed that boat," Cutter said immediately. "If you want to call her when you present your case – "
"Approach, you honor?" Regan asked, on her way to the front of the courtroom even before Wright nodded. McCoy couldn't hear what she said to Wright, but the judge nodded with every sentence.
"Step back, counselors," he said. "I'll allow this witness."
Rodgers took the stand with her usual air of cynical impatience, although without the barely concealed disdain with which she usually regarded defense attorneys.
Regan got straight to the point. "You were about to tell the jury something about corresponding marks before Mr. Cutter stopped you?"
"Yes,' Rodgers said. "Based on the injuries indicated in the medical file and shown in the included photographs, it's my opinion that Ms Dyson's assailant would have suffered injuries to the right hand, particularly the knuckle."
"Noticeable injuries?" Regan asked.
"Objection, calls for speculation – " Cutter said.
"As did your questions to this witness," Regan retorted quickly.
Ignoring them both, Rodgers raised her voice so the jury could hear her over the arguing lawyers. "I would expect abrasions, possibly fractures," she said flatly.
"I'll allow the question," Wright ruled, a little behind the play.
"And, Dr Rodgers, did you have occasion to examine Mr. McCoy's hands recently?" Regan asked.
"Yes," Rodgers said. "On Sunday May 6, this Sunday recently past, you and Mr. McCoy attended my office for the purpose of seeking an expert medical examiner's opinion on whether the condition of Mr. McCoy's hands supported the accusation that he had assaulted Keri Dyson."
"And what did you conclude?" Regan asked.
"Well, as you can see from these photos – " Rodgers said, reaching into her attaché case and taking out a large envelope.
"Objection!" Cutter snapped. "Witness is referring to documents not in evidence!"
Regan took the envelope from Rodgers. "Defense One, your honor," she said, lifting the flap and pulling out several large, glossy prints. "As we can see from these photos, doctor?" she said, holding the photos so that the jury could see them.
Rodgers leaned forward to point to the photos as she answered. "There is a complete absence of any bruising or abrasions. In addition, I took a series of X-rays of both Mr. McCoy's hands and found no fractures of any kind."
"Thank you, doctor," Regan said. She handed the photos to the judge's clerk and walked back to her seat as Cutter rose from his.
"Redirect, your honor?" he said. "Dr Rodgers, can you conclusively say that Jack McCoy did not inflict the injuries Keri Dyson suffered?"
"Not conclusively," Rodger was forced to admit.
"Thank you, nothing further."
McCoy realized that Regan was on her feet again. "Re-cross, your honor," she said. "I have the right under – "
"I know you have the right," Wright said. "Get on with it!"
"Dr Rodgers, are you familiar with a drug known as GHB?" Regan asked.
"Gamma-Hydroxybutyric acid," Rodger replied. "Yes, I'm familiar with it."
"Could you describe the effects of Gamma-Hydroxybutyric acid to the jury?"
"It causes relaxation, reduced inhibition, drowsiness. It also causes amnesia. It's sometimes called the date-rape drug."
"Does it take effect quickly?" Regan asked.
"Quite quickly."
"And do the symptoms mimic alcoholic intoxication?"
"In the early stages, yes," Rodgers said.
"Thank you, doctor," Regan said. "I have nothing further, your honor."
"You're excused, doctor," the judge said. He glanced at his watch. "Given the hour, I think we'll adjourn for the day. See you all tomorrow at 9.30."
McCoy looked at his own watch and was surprised to see it was half-past four. He had been so absorbed in watching Regan's cross-examination he hadn't noticed the time passing.
As the jury filed out Regan turned in her chair and leaned toward Danielle Melnick. "How was that?" she asked anxiously.
"Good," Danielle said. "The jury was doubtful, but they listened."
Regan nodded, drooping a little in her chair. "He'll call Dyson tomorrow, you think?"
"It's likely," Danielle said.
Regan glanced toward the front of the courtroom, where the door was closing behind the jury. She shrugged out of her jacket and dropped it onto the table. Her shirt was dark with sweat and she pulled the collar away from her neck.
"It's harder than it looks, isn't it?" McCoy said.
She shot him a sideways grin, and for a moment they might have been sitting at the prosecution table having just tag-teamed a recalcitrant witness. "I could use a drink," she admitted.
"No time for celebrations," Danielle said from behind them, reminding McCoy that he was not –would never be again – on the right side of the aisle. "We've got a lot of work to do tonight."
"You can do it without me," McCoy said abruptly, getting to his feet. "Since my lawyer has clearly decided to run the case without my instructions."
Regan looked up at him without moving, and McCoy thought the expression on her face might be anger. Had to be anger.
Because if it wasn't anger, it was sadness.
And that made no sense at all.
.oOo.
A/N: Linda Drosi is the mother in "Blaze"; Danielle Mason is the teenage girl in "Good Girl"; the case where Schiff was removed by the governor was in "Terminal"
L. P. Hartley's 'The Go-Between' begins with "The past is a foreign country; they do things differently there", which is frequently misquoted as "The past is another country".
