Unlucky in Law

“Miss Reilly will make the opening statement on behalf of the defendant,” Klaus said.

“It’s customary for lead counsel in a trial to make the statement,” Salas said, thick eyebrows knitted over his reading glasses.

“We are an equal-opportunity defense team,” Klaus said, on his feet again.

“What’s that supposed to mean?” Jaime asked.

But Klaus, now seated, was enjoying a sip of water. Nina rose and looked down at the notes she had taken while Jaime was making his statement, which seemed so grossly inadequate she had to look up again, swallow, and read them one more time.

Flowery greeting. Right. She introduced herself and Klaus, and presented Stefan, who looked seriously at the jury, biting his lip.

She blanked her mind and waited for the words to flow like magic, unsummoned. This had happened to her many times before. In fact, she could almost rely on the trick, but apparently it only worked when she had already stuffed her unconscious with a prepared statement. Nothing came out, so she walked over to the jury box, put her hands in the pockets of her jacket, took them out again, and put them on the railing, clammy with fear. She forced herself to think about what the jury would want to hear and need to hear.

“Ladies and gentlemen of the jury, you have already gone through a long process in which you yourselves were judged. You have filled out a questio

“You were selected because you have demonstrated an ability and a willingness to listen with open minds to the testimony you will hear. You can be jerked left and right, but ultimately, your minds are open and you are thinking and weighing, and coming to the conclusion that fits the evidence you will hear. You have also shown us that you will be able to come to your verdict based on the legal standards that must be followed.

“There may even come a time when you don’t want to follow some of those standards. Like, for instance, the most important of those standards: the weighty burden borne by the prosecution-to show guilt beyond a reasonable doubt. Please remember throughout this trial-you ca

No, don’t get into the law any further, she told herself. Salas had begun to fidget on the bench. She anticipated the interruption forming in his mind and changed direction.

“I am not here this morning to talk to you about the specifics of the law, however.” She just had. She hoped she had gotten that all-important standard etched into their brains. “I’m here to tell you about the factual case which is about to be presented to you by the prosecution, and about the defendant’s case.

“Let me explain first that Stefan Wyatt will not be testifying in this case. He has the right not to testify, and later the judge will tell you that his failure to testify ca

“Before I tell you what some of our responses will be, let me point out important issues that will not be explained by Mr. Sandoval: no evidence, no facts, no witness will tell you that Mr. Wyatt, the defendant here, knew the victim in the case.” Pause. “No evidence will prove that he hid the body for a full day before burying it. No witness will tell you that they met or had a relationship, or that they had an argument and that there was bad feeling. Mr. Wyatt and Ms. Zhukovsky did not know each other. You ca

“Ask yourselves throughout this trial, Why would Stefan Wyatt kill this woman? He didn’t know her. You will learn that valuable goods and gold jewelry were left untouched in the apartment. In short, you will not hear that this murder occurred as a result of a robbery.

“Why, then, would this defendant kill this woman?” Nina held out her hands and shrugged, but the effect was lost when Jaime, behind her, said, “Approach the bench?” to the judge. It was payback time for Klaus’s interruption of Jaime’s opening statement. Salas motioned to her and, willy-nilly, she was pulled from the picture she was drawing for the jury.

Nina walked up to the bench, heels clacking.

“We don’t have to prove motive,” Jaime said. “Motive isn’t a required element. I request a corrective instruction so the jury sees this is all smoke and mirrors.”

He should talk about smoke, mirrors, and dirty work, but tit for tat, he had to object in order to keep the point count even, and she had to deal with it. “I am sticking to fact,” Nina said. “The prosecution has no idea why this woman was murdered. They can’t link the defendant to the victim. It has nothing to do with motive, it goes to the basis of the prosecution’s case, and we have a right to mention it.”

So no enterprising reporter could read his lips, Salas hid his mouth with his fingers, saying, “Stick to the facts. You’re arguing the case. I know what’s going on. You take your cues from the old man. You’re arguing the law and trying to prejudice the jury from the get-go. Listen. I won’t stand for it. You understand? Talk about what you’re going to prove and then sit down. Is that clear?”

“Thank you, Your Honor,” Nina said, hoping she sounded truly grateful. The old game was afoot. The jury must think the judge approved of her whenever she could pull it off. Salas waved them away, and she went back to the witness box.

“Er-as I was saying…” What had she been saying? Something that had got her slammed against a wall-talk about the facts-take control, be bold…

“Four facts,” she said. “The prosecution claims that four facts will show Mr. Wyatt committed this murder. Well, three of them do link Mr. Wyatt to a grave in Cementerio El Encinal.” That got the jurors’ attention.

“Mr. Wyatt’s footprints were indeed found near the grave. Mr. Wyatt did indeed place the remains of Constantin Zhukovsky in his car. When stopped by Officer Jay Millman of the Monterey Police Department, Mr. Wyatt did in fact have a medal in his pocket which had been buried with Constantin Zhukovsky in 1978. Those facts link this defendant to that grave, the grave where the body of the victim in this case was found.

“The evidence also will show that Mr. Wyatt, who had been unemployed for the previous three months, had five hundred dollars in his pocket. It will be up to you to draw a factual inference as to why Mr. Wyatt had that money and whether it was related to disinterring the remains of Constantin Zhukovsky.”

Right, keep the fact that he dug up an old man’s bones and stuck them in a grubby duffel bag at a distance by using words like “disinter.”

Hmm, the forewoman’s face said.

“Digging up a grave for someone is not murder,” Nina told the jurors. “Someone paid five hundred dollars. Who? Who else knew Mr. Wyatt would be digging up the grave that night? Ask yourselves that question as this trial progresses.”

Nina stopped. She could not accuse Alex Zhukovsky of anything outright, because Stefan Wyatt wouldn’t be testifying to say he had hired him in the first place. Zhukovsky denied he had hired Stefan, and all the defense had was five hundred bucks floating around in a pocket that never otherwise sported such riches to show Stefan hadn’t acted on his own.

She had said all she could on that topic. “Ask yourself this, too,” she went on. The i