"Did I do a head count like on California Avenue?"
"Yes."
"No. Like I said, my house isn"t some jail."
"I am left with the impression that you don"t really know where your nephew was the night Amy Tanenbaum was murdered. Is my impression accurate?"
"I don"t know nothing about your impression. I don"t even know what the h.e.l.l you"re talking about, your impression."
He"s riled and I decide not to re-direct when the State"s Attorney breaks it off. Sometimes it"s best to leave an agitated witness alone. Emotion too often brings out the truth. The last thing I need right now.
So the witness is excused and we all have the same impression.
He didn"t know for sure on October 31 and he doesn"t know for sure now.
44.
It is eleven a.m. when Father Bjorn takes the stand. He has come to court wearing a black suit and white shirt and white collar. He is a diminutive man in stature though a giant in accomplishment and community regard. Everyone loves Father Bjorn, including, evidently, the mayor himself, who has stayed to watch our defense case and who gives a nice smile to his friend the priest.
I ask him questions about his education, his training, and his work history. He entered the priesthood at a very early age and has maintained a steadfast love of the Lord and Church ever since. Except, he says, for one time when his faith was weak. He was in his late twenties and he just lost his parents in a car wreck.
"How did that loss affect you?" I ask him.
"It devastated me. I began feeling as if G.o.d had turned his back on me. There was no real connection there and I became rootless."
"How did you meet Jana"s mother?"
"She was a long-time congregant of our parish. She came in for counseling when her fiance of two years abruptly left her for another man."
"So she was vulnerable?"
It is a sore point with him. It is probably the only time in his life this man has ever taken advantage of another person and he isn"t proud of it.
"She was vulnerable and I was lonely. We talked several times and prayed for her. I heard her confession. On perhaps her fourth visit to my office it happened. I crossed a line and she didn"t resist. Quite the opposite. We were extremely attracted to each other."
"What happened?"
"We began a s.e.xual relationship that lasted six months. Then she informed me that she was pregnant. I don"t have to tell you the Church"s position on abortion. So, there we were. I couldn"t leave the priesthood and I couldn"t even think of terminating the pregnancy. She was a devout Catholic and wouldn"t think of it either. So we made the best of a dire situation. I had some money saved and after Jana was born I helped her move to California and get set up there. Then the years pa.s.sed and my son grew up without a father."
"But she did marry at some point?"
"She did. But she would tell me when we spoke each Christmas that the new husband was anything but a father. He wouldn"t countenance even throwing a ball around with my son. I was in no position to criticize him."
"Because you were never a father to him yourself?"
"Exactly. The pot calling the kettle black."
"Did you ever see your son before he moved back to Chicago last summer?"
"No."
"What kind of boy is Jana?"
"Objection! Foundation."
"Sustained."
"Your Honor," I begin, "he"s the boy"s father. He"s known him since a short time, it"s true, but it"s his son and he is an expert judge of character."
"You haven"t laid a foundation for how he might know about the boy"s character at this point, counsel. The objection is sustained."
"Father Bjorn, how many times have you seen Jana since he moved here?"
"Four. Twice in my office, once at the movies and once at jail. Plus, in court, but those weren"t visits."
"During that time have you been able to form an opinion as to your son"s character?"
"I have. He"s-"
"Objection! Foundation."
The judge nods and gives me a fierce look.
"Counsel, I am not going to allow his opinion about his son"s character. There just isn"t foundation enough for that."
Meaning, the priest doesn"t know his own son well enough to comment on his character. Which was my whole point in putting the priest on the stand in the first place: to anoint the boy with the priest"s blessing in court. That has failed.
I then tread water on unrelated issues for ten minutes and finally break it off. On a one-to-ten basis I would give this witness"s effectiveness maybe a four. Maybe less.
There is no cross-examination. d.i.c.kinson doesn"t want to insult the three Catholics on the jury and it"s a wise move on his part. Neither would I, and I hope I haven"t. I was reaching, though, and they could very well have seen right through my ploy.
45.
It is the twilight of the trial and the question has come up again. As it always does.
Does the defendant testify? Does the defendant take the stand, impart his story, and undergo decimating cross-examination by the prosecutor?
I say no, but the defendant, Jana Emerich, insists otherwise.
"Who are you to say?" he complains noisily after the priest has returned to the gallery and the jury is out of the courtroom during our recess. "It"s my case, dammit!"
Which is absolutely right. He has the final say in the matter of defendant testimony. It is not my or any other defense attorney"s decision to make, not ever. We can cajole and threaten and forecast devastation and dozens of years in prison, but, in the end, it"s Jana"s and every other defendant"s call.
And so he takes the witness stand and swears to tell the whole truth. As I knew they would, the jury is looking at him askance. They expect him to lie on his own behalf; they would do the same if it were them. It"s human nature and that"s how the game is played and everyone knows it. So, they are wary.
We hurry through the background without much detail. The more detail I leave for cross-examination the better. The theory is that the prosecutor can bring out fresh detail but he won"t be able to trap Jana with detail that I brought out. It"s a cat-and-mouse back-and-forth and we"re both expert at it, d.i.c.kinson and I.
Then, "Directing your attention to October thirty-first. Were you here in court when your uncle Tim testified about your activities that day after school?"
"Yes."
"Is there anything about his testimony that you need to correct?"
"No."
"Uncle Tim told the jury you didn"t leave your room that night. Is that true?"
Keeping in mind that he previously told me and Father Bjorn, at the jail the first time Jana and I met, that he had been at the game that night. No questions about it at that time, definite yes, he was there.
"Yes."
"Yes, he"s wrong?"
"Yes, he"s right."
I am stunned. He has just lied. No, he has told the jury something different from what he told Father Bjorn and me at the jail. However, my professional affect doesn"t change. I keep a straight face. I do not grimace and I do not telegraph how upset I am with Jana and his answer. I plunge ahead.
"So you weren"t at the game that night?"
"No. I went over to the field the next morning and climbed up in the stands."
"Why was that?"
"I wanted to get a look at what was going on down below. Bobby Knupp called me and told me there was a dead body under there."
"And-and-so you went to look?"
"Yes. I climbed up in the stands. The cop was over in his car talking on his radio. That must have been when I dropped my m.u.f.fler."
My mind is whirling. My hands twitch as I leaf through my notes, buying time. Where do I go with this? It"s unethical for an attorney to put false testimony on the witness stand. But there is a saving grace here for me: I don"t know that it"s false. I only know that it"s different from what he told me at the jail. At the jail he said he"d been at the game. Today he says he wasn"t at the game. Which one is true? I wasn"t there so I have zero way of knowing. And this is how lawyers get into serious trouble with the Bar a.s.sociation. They do it unwittingly or, like me, they do it half-a.s.sed, backing into a situation where they don"t belong. I should call a recess now and talk to Jana out of the hearing of the jury. But to do so would send up a flag that something is wrong. So, in the interests of preserving my client"s veracity (or lack) with the jury, I move it along.
"The night of the game. What were you doing in your room?"
"Listening to rap and doing my physics homework. We had a mid-term the next day."
"Uncle Tim said it was a math mid-term."
"He just didn"t know. It was physics."
"So he did get something wrong when he testified?"
"I guess so."
"Have you gotten anything wrong?"
"No. I know what I was studying that night. It"s only been four months."
"Do you know Rudy Gomez?"
"Yes."
"What is your relationship with Rudy?"
"Just a friend. We both have a snake."
"Does he come to your house?"
"He did last semester. Two times, I think."
"Did he take any mice from you?"
"I gave him three mice one time. He was out and his guy was hungry."
"His guy?"
"His snake was hungry."
"Jana, did you murder Amy Tanenbaum?"
"No."
"Were you with her the night of the game?"
"No. I already told you I wasn"t even there."
"Did you hear her friend Erin say you were there?"
"She"s confused. That was the game before."
"Did you know Amy from school?"
"No. She was a freshman and I"m a senior. We don"t mix."
"Was she in any of your cla.s.ses?"
"Maybe homeroom. I don"t know for sure."