Di Silva did not exercise his peremptory challenges anhl Jennifer had exhausted hers, and she could not understand why. When she discovered the reason, it was too late. Di Silva had outsmarted her. Among the final prospective jurors questioned were a private detective, a bank manager and the mother of a doctor-all of them Establishment-and there was nothing now that Jennifer could do to keep them off the jury. The District Attorney had sandbagged her.
Robert Di Silva rose to his feet and began his opening statement. "If it please the court"-he turned to the jury= `and you ladies and gentlemen of the jury, first of all I would like to thank you for giving up your valuable time to sit in this case." He smiled sympathetically. "I know what a disruption jury service can be. You all have jobs to get.back to, families needing your attention."
'It's as though he's one of them, Jennifer thought, the thirteenth juror.
"I promise to take up as little of your time as possible. This is really a very simple case. That's the defendant sitting over there-Abraham Wilson. The defendant is accused by the State of New York of murdering a fellow inmate at Sing Sing Prison, Raymond Thorpe. There's no doubt that he did. He's admitted it. Mr. Wilson's attorney is going to plead selfdefense."
The District Attorney turned to look at the huge figure of Abraham Wilson, and the eyes of the jurors automatically followed him. Jennifer could see the reactions on their faces. She forced herself to concentrate on what District Attorney Di Silva was saying.
"A number of years ago twelve citizens, very much like yourselves, I am sure, voted to put Abraham Wilson away in a penitentiary. Because of certain legal technicalities, I am not permitted to discuss with you the crime that Abraham Wilson committed. I can tell you that that jury sincerely believed that locking Abraham Wilson up would prevent him from committing any further crimes. Tragically, they were wrong. For even locked away, Abraham Wilson was able to strike, to kill, to satisfy the blood lust in him. We know now, finally, that there is only one way to prevent Abraham Wilson from killing again. And that is to execute him. It won't bring back the life of Raymond Thorpe, but it can save the lives of other men who might otherwise become the defendant's next victims."
Di Silva walked along the jury boa, looking each juror in the eye. "I told you that this case won't take up much of your time. I'll tell you why I said that. The defendant sitting over there-Abraham Wilson-murdered a man in cold blood. He has confessed to the killing. But even if he had not confessed, we have witnesses who saw Abraham Wilson commit that murder in cold blood. More than a hundred witnesses, in fait.
"Let us examine the phrase, `in cold blood.' Murder for any reason is as distasteful to me as I know it is to you. But sometimes murders are committed for reasons we can at least understand. Let's say that someone with a weapon is threatening your loved one-a child, or a husband or a wife. Well, if you had a gun you might pull that trigger in order to save your loved one's life. You and I might not condone that kind of thing, but I'm sure we can at least understand it. Or, let's take another example. If you were suddenly awakened in the middle of the night by an intruder threatening your life and you had a chance to kill him to save yourself, and you killed him-well, I think we can all understand how that might happen. And that wouldn't make us desperate criminals or evil people, would it? It was something we did in the heat of the moment." Di Silva's voice hardened. "But cold-blooded murder is something else again. To take the life of another human being, without the excuse of any feelings or passions, to do it for money or drugs or the sheer pleasure of killing-"
He was deliberately prejudicing the jury, yet not overstepping the bounds, so that there could be no error calling for mistrial or reversal.
Jennifer watched the faces of the jurors, and there was no question but that Robert Di Silva had them. They were agreeing with every word he said. They shook their heads and nodded and frowned. They did everything but applaud him. He was an orchestra leader and the jury was his orchestra. Jennifer had never seen anything like it. Every time the District Attorney mentioned Abraham Wilson's name-and he mentioned it with almost every sentence-the jury automatically looked over at the defendant. Jennifer had cautioned Wilson not to look at the jury. She had drilled it into him over and over again that he was to look anywhere in the courtroom except at the jury box, because the air of defiance he exuded was enraging. To her horror now, Jennifer found that Abraham Wilson's eyes were fastened on the jury box, locking eyes with the jurors. Aggression seemed to be pouring out of him.
Jennifer said in a low voice, "Abraham'
He did not turn.
The District Attorney was finishing his opening address. "'The Bible says, `An eye for an eye, a tooth for a tooth.' That is vengeance. The State is not asking for vengeance. It is asking for justice. Justice for the poor man whom Abraham Wilson cold-bloodedly--cold-bloodedty-murdered. Thank you."
The District Attorney took his seat.
As Jennifer rose to address the jury, she could feel their hostility and impatience. She had read books about how law- yers were able to read juries' minds, and she had been skeptical. But no longer. The message from the jury was coming at her loudly and clearly. They had already decided her client was guilty, and they were impatient because Jennifer was wasting their time, keeping them in court when they could be out doing more important things, as their friend the District Attorney had pointed out. Jennifer and Abraham Wilson were the enemy.
Jennifer took a deep breath and said, "If Your Honor please," and then she turned back to the jurors. "Ladies and gentlemen, the reason we have courtrooms, the reason we are all here today, is because the law, in its wisdom, knows that there are always two sides to every case. Listening to the District Attorney's attack on my client, listening to him pronounce my-client guilty without benefit of a jury's verdict your verdict-one would not think so."
She looked into their faces for a sign of sympathy or support. There was none. She forced herself to go on. "District Attorney Di Silva used the phrase over and over, `Abraham Wilson is guilty: That is a lie. Judge Waldman will tell you that no defendant is guilty until a judge or jury declares that he is guilty. That is what we are all here to find out, isn't it? Abraham Wilson has been charged with murdering a fellow inmate at Sing Sing. But Abraham Wilson did not kill for money or for dope. He killed to save his own life. You remember those clever examples that the District Attorney gave you when he explained the difference between killing in cold blood and in hot blood. Killing in hot blood is when you're protecting someone you love, or when you're defending yourself. Abraham Wilson killed in self-defense, and I tell you now that any of us in this courtroom, under identical circumstances, would have done exactly the same thing.
"The District Attorney and I agree on one point: Every man has the right to protect his own life. If Abraham Wilson had not acted exactly as he did, he would be dead." Jennifer's voice was ringing with sincerity. She had forgotten her nervousness in the passion of her conviction. "I ask each of you to remember one thing: Under the law of this state, the prosecution must prove beyond any reasonable doubt that the act of killing was not committed in self-defense. And before this trial is over we will present solid evidence to show you that Raymond Thorpe was killed in order to prevent his murdering my client. Thank you."
The parade of witnesses for the State began. Robert Di Silva had not missed a single opportunity. His character witnesses for the deceased, Raymond Thorpe, included a minister, prison guards and fellow convicts. One by one they took the stand and testified to the sterling character and pacific disposition of the deceased.
Each time the District Attorney was finished with a witness, he turned to Jennifer and said, "Your witness."
And each time Jennifer replied, "No cross-examination."
She knew that there was no point in trying to discredit the character witnesses. By the time they were finished, one would have thought that Raymond Thorpe had been wrongfully deprived of sainthood. The guards, who had been carefully coached -by Robert Di Silva, testified that Thorpe had been a model prisoner who went around Sing Sing doing good works, intent only on helping his fellow man. The fact that Raymond Thorpe was a convicted bank robber and rapist was a tiny flaw in an otherwise perfect character.
What badly damaged Jennifer's already weak defense was the physical description of Raymond Thorpe. He had been a slightly built man, only five feet nine inches tall. Robert Di Silva dwelt on that, and he never let the jurors forget it. He painted a graphic picture of how Abraham Wilson had viciously attacked the smaller man and had smashed Thorpe's head against a concrete building in the exercise yard, instantly killing him. As Di Silva spbke, the jurors' eyes were fastened on the giant figure of the defendant sitting at the table, dwarfing everyone near him.
The District Attorney was saying, "We'll probably never know what caused Abraham Wilson to attack this harmless, defenseless little man-" '
And Jennifer's heart suddenly leaped. One word that Di Silva had said had given her the chance she needed.
"-We may never know the reason for the defendant's vicious attack, but one thing we do know, ladies and gentlemen -it wasn't because the murdered man was a threat to Abraham Wilson.
"Self-defense?" He turned to Judge Waldman. "Your Honor, would you please direct the defendant to rise?"
Judge Waldman looked at Jennifer. "Does counsel for the defense have any objection?"
Jennifer had an idea what was coming, but she knew that any objection on her part could only be damaging. "No, Your Honor."
Judge Waldman said, "Will the defendant rise, please?"
Abraham Wilson sat there a moment, his face defiant; then he slowly rose to his full height of six feet four inches.
Di Silva said, "There is a court clerk here, Mr. Galin, who is five feet nine inches tall, the exact height of the murdered man, Raymond Thorpe. Mr. Galin, would you please go over and stand next to the defendant?"
The court clerk walked over to Abraham Wilson and stood next to him. The contrast between the two men was ludicrous. Jennifer knew she had been outmaneuvered again, but there was nothing she could do about it. The visual impression could never be erased. The District Attorney stood there looking at the two men for a moment, and then said to the jury, his voice almost a whisper, "Self-defense?"
The trial was going worse than Jennifer had dreamed in her wildest nightmares. She could feel the jury's eagerness to get the trial over with so they could deliver a verdict of guilty.
Ken Bailey was seated among the spectators and, during a recess, Jennifer had a chance to exchange a few words with him.
"It's not an easy case," Ken said sympathetically. "I wish you didn't have King Kong for a client. Christ, just looking at him is enough to scare the hell out of anybody."
"He can't help that."
"As the old joke goes, he could have stayed home. How are you and our esteemed District Attorney getting along?"
Jennifer gave him a mirthless smile. "Mr. Di Silva sent me a message this morning. He intends to remove me from-the law business."
When the parade of prosecution witnesses was over and Di Silva had rested his case, Jennifer rose and said, "I would like to call Howard Patterson to the stand."
The assistant warden of Sing Sing Prison reluctantly rose and moved toward the witness box, all eyes fixed on him. Robert Di Silva watched intently as Patterson took the oath. Di Silva's mind was racing, computing , all the probabilities. He knew he had won the case. He had his victory speech all prepared.
Jennifer was addressing the witness. "Would you fill the jury in on your background, please, Mr. Patterson?"
District Attorney Di Silva was on his feet. "The State will waive the witness's background in order to save time, and we will stipulate that Mr. Patterson is the assistant warden at Sing Sing Prison."
"Thank you," Jennifer said. "I think the jury should be informed that Mr. Patterson had to be subpoenaed to come here today. He is here as a hostile witness." Jennifer turned to Patterson. "When I asked you to come here voluntarily and testify on behalf of my client, you refused. Is that true?"
"Yes."
"Would you tell the jury why you had to be subpoenaed to get you here?" "I'll be glad to. rve been dealing with men like Abraham Wilson all my life. They're born troublemakers:"
Robert Di Silva was leaning forward in his chair, grinning, his eyes locked on the faces of the jurors. He whispered to an assistant, "Watch her hang herself."
Jennifer said, "Mr. Patterson, Abraham Wilson is not on trial here for being a troublemaker. He's on trial for his life. Wouldn't you be willing to help a fellow human being who was unjustly accused of a capital crime?"
"If he were unjustly accused, yes." The emphasis on unjustly brought a knowing look to the faces of the jurors.
"There have been killings in prison before this case, have there not?"
"When you lock up hundreds of violent men together in an artificial environment, they're bound to generate an enormous amount of hostility, and there's-"
"Just yes or no, please, Mr. Patterson."
..Yes."
"Of those killings that have occurred in your experience, would you say that there have been a variety of motives?"
"Well, I suppose so. Sometimes-"
"Yes or no, please."
"Yes."
"Has self-defense ever been a motive in any of those prison killings?"
"Well, sometimes-" He saw the expression on Jennifer's face. "Yes."
"So, based on your vast experience, it is entirely possible, is it not, that Abraham Wilson was actually defending his own life when he killed Raymond Thorpe?"
"I don't think it--21
"I asked if it is possible. Yes or no."
"It is highly unlikely," Patterson said stubbornly.
Jennifer turned to Judge Waldman. "Your Honor, would you please direct the witness to answer the question?"
Judge Waldman looked down at Howard Patterson. "The witness will answer the question."
"Yes..
But the fact that his whole attitude said no had registered on the jury. Jennifer said, "If the court please, I have subpoenaed from the witness some material I would like to submit now in evidence."
District Attorney Di Silva rose. "What kind of material?"
"Evidence that will prove our contention of self-defense."
"Objection, Your Honor."
"What are you objecting to?" Jennifer asked. "You haven't seen it yet."
Judge Waldman said, "The court will withhold a ruling until it sees the evidence. A man's life is at stake here. The defendant is entitled to every possible consideration."
"Thank you, Your Honor." Jennifer turned to Howard Patterson. "Did you bring it with you?" she asked.
He nodded, tight-Tipped. "Yes. But rm doing this under protest."
"I think you've already made that very clear, Mr. Patterson. May we have it, please?"
Howard Patterson looked over to the spectator area where a man in a prison guard uniform was seated. Patterson nodded to him. The guard rose and came forward, carrying a covered wooden box.
Jennifer took it from him. "The defense would like to place this in evidence as Exhibit A, Your Honor."
"What is it?" District Attorney Di Silva demanded.
"It's called a goodie box."
There was a titter from the spectators.
Judge Waldman looked down at Jennifer and said slowly,
"Did you say a goodie box? What is in the box, Miss Parker?" "Weapons. Weapons that were made in Sing Sing by the prisoners for the purpose of-"
"Objection!" The District Attorney was on his feet, his voice a roar. He hurried toward the bench. "I'm willing to make allowances for my colleague's inexperience, Your Honor, but if she intends to practice criminal law, then I would suggest she study the basic rules of evidence. There is no evidence linking anything in this so-called goodie box with the case that is being tried in this court."
"This box proves"
"This box proves nothing." The District Attorney's voice was withering. He turned to Judge Waldman. "The State objects to the introduction of this exhibit as being immaterial and irrelevant."
"Objection sustained."
And Jennifer stood there, watching her case collapse. Everything was against her: the judge, the jury, Di Silva, the evidence. Her client was going to the electric chair unless . . .
Jennifer took a deep breath. "Your Honor, this exhibit is absolutely vital to our defense. I feel-"
Judge Waldman interrupted. "Miss Parker, this court does not have the time or the inclination to give you instructions in the law, but the District Attorney is quite right. Before coming into this courtroom you should have acquainted yourself with the basic rules of evidence. The first rule is that you cannot introduce evidence that has not been properly prepared for. Nothing has been put into the record about the deceased being armed or not armed. Therefore, the question of these weapons becomes extraneous. You are overruled."
Jennifer stood there, the blood rushing to her cheeks. "I'm sorry," she said stubbornly, "but it is not extraneous."
"That is enough! You may file an exception."
"I don't want to file an exception, Your Honor. You're denying my client his rights:" "Miss Parker, if you go any further I will hold you in contempt of court."
"I don't care what you do to me," Jennifer said. "The ground has been prepared for introducing this evidence. The District Attorney prepared it himself."
Di Silva said, "What? I never-"
Jennifer turned to the court stenographer. "Would yon please read Mr. Di Silva's statement, beginning with the line, `We'll probably never know what caused Abraham Wilson to attack . . .'?"
The District Attorney looked up at Judge Waldman. "Your Honor, are you going to allow-?"
Judge Waldman held up a hand. He turned to Jennifer. "This court does not need you to explain the law to it, Miss Parker. When this trial is ended, you will be held in contempt of court. Because this is a capital case, I am going to hear you out." He turned to the court stenographer. "You may proceed."
The court stenographer turned some pages and began reading. "We'll probably never know what caused Abraham Wilson to attack this harmless, defenseless little man-"
"That's enough," Jennifer interrupted. "Thank you." She looked at Robert Di Silva and said slowly, "Those are your words, Mr. Di Silva. We'll probably never know what caused Abraham Wilson to attack this harmless, defenseless little man . . :" She turned to Judge Waldman. "The key word, Your Honor, is defenseless. Since the District Attorney himself told this jury that the victim was defenseless, he left an open door for us to pursue the fact that the victim might not have been defenseless, that he might, in fact, have had a weapon. Whatever is brought up in the direct is admissible in the cross."
There was a long silence.
Judge Waldman turned to Robert Di Silva. "Miss Parker has a valid point. You did leave the door open."
Robert Di Silva was looking at him unbelievingly. "But I only-"
"The court will allow the evidence to be entered as Exhibit A."
Jennifer took a deep, grateful breath. "Thank you, Your Honor." She picked up the covered box, held it up in her hands and turned to face the jury.
"Ladies and gentlemen, in his final summation the District Attorney is going to tell you that what you are about to see in this box is .not direct evidence. He will be correct. He is going to tell you that there is nothing to link any of these weapons to the deceased. He will be correct. I am introducing this exhibit for another reason. For days now, you have been hearing how the ruthless, trouble-making defendant, who stands six feet four inches tall, wantonly attacked Raymond Thorpe, who stood only five feet nine inches tall. The picture that has been so carefully, and falsely, painted for you by the prosecution is that of a sadistic, murdering bully who killed another inmate for no reason. But ask yourselves this: Isn't there always some motive? Greed, hate, .lust, something? I believe-and I'm staking my client's life on that belief-that there was a motive for that killing. The only motive, as the District Attorney himself told you, that justifies killing someone: self-defense. A man fighting to protect his own life. You have heard Howard Patterson testify that in his experience murders have occurred in prison, that convicts do fashion deadly weapons.
What that means is that it was possible that Raymond Thorpe was armed with such a weapon, that indeed it was he who was attacking the defendant, and the defendant, trying to protect himself, was forced to kill him--in self-defense. If you decide that Abraham Wilson ruthlessly-and without any motivation at aIlkilled Raymond Thorpe, then you must bring in a verdict of guilty as charged. If, however, after seeing this evidence, you have a reasonable doubt in your minds, then it is your duty to return a verdict of not guilty." The covered box was becoming heavy in her hands.
"When I first looked into this box I could not believe what I saw. You, too, may find it hard to believebut I ask you to remember that it was brought here under protest by the assistant warden of Sing Sing Prison. This, ladies and gentlemen, is a collection of confiscated weapons secretly made by the convicts at Sing Sing."
As Jennifer moved toward the jury box, she seemed to stumble and lose her balance. The box fell out of her grasp, the top flew off, and the contents spilled out over the courtroom floor. There was a gasp. The jurors began to get to their feet so they could have a better look. They were staring at the hideous collection of weapons that had tumbled from the box. There were almost one hundred of them, of every size, shape and description. Homemade hatchets and butcher knives, stilettos and deadly looking scissors with the nds, honed, pellet guns, and a large, vicious-looking cleaver. There were thin wires with wooden handles, used for strangling, a leather sap, a sharpened ice pick, a machete.
Spectators and reporters were on their feet now, craning to get a better look at the arsenal that lay scattered on the floor. Judge Waldman was angrily pounding his gavel for order.
Judge Waldman looked at Jennifer with an expression she could not fathom. A bailiff hurried forward to pick up the spilled contents of the box.
Jennifer waved him away.
"Thank you," she said, "I'll do it."
As the jurors and spectators watched, Jennifer got down on her knees and began picking up the weapons and putting them back in the box. She worked slowly, handling the weapons gingerly, looking at each one without expression before she replaced it. The jurors had taken their seats again, but they were watching every move she made. It took Jennifer a full five minutes to return the weapons to the box, while District Attorney Di Silva sat there, fuming.
When Jennifer had put the last weapon in the deadly arsenal back in the box, she rose, looked at Patterson, then turned and said to Di Silva, "Your witness."
It was too late to repair the damage that had been done. "No cross," the District Attorney said.
'Then I would like to call Abraham Wilson to the stand."