burden of proof, you had to repeat it to the jury over and over again.
“When I talked to you during jury selection, I told you that the State has the burden to prove its case beyond a reasonable doubt. And I told you that the defendant has no burden and no obligation to put on even one witness in his defense, and, if the State does not meet its burden, you as jurors must acquit the defendant. And I asked each one of you if you understood and I asked if you could decide this case following that burden of proof, and you all assured me that you could. Now the trial has begun and I remind you of your promise and I ask you as you listen to the witnesses on both direct and cross-examination to always keep that burden of proof in your mind.”
Tom paused to look each and every juror in the eye. By making eye contact, he was getting that individual commitment one more time. Merton didn’t even notice. He was writing furiously in his yellow pad. Tom continued.
“Now you heard Mr. Merton say just a few minutes ago that this case really has its roots in the original appeal of Thomas Felton when the defendant—and I quote Mr. Merton—‘brutally and effectively’ attacked Sam Jeffries’s handling of the investigation. Facts, ladies and gentlemen, you are guided by nothing but facts—not unfounded accusations, not character assassination.”
Tom spoke the words softly. He wasn’t pointing any fingers at Robert Merton. It wasn’t his way.
“And the fact is, ladies and gentlemen, that the supreme court of this state, not Jack Tobin, set Mr. Felton free. And the supreme court of this state produced a written opinion about why Mr. Felton should be set free. That opinion is the law of that case, which every one of us, including Mr. Merton, is bound to follow. So please, do not be fooled by those deceptive words from the prosecution that would have you believe Mr. Tobin did something improper in his defense of Thomas Felton. They are false words designed to derive sympathy from you for Mr. Jeffries and anger from you toward Mr. Tobin. They have no place in this trial.”
Tom paused for a moment, knowing what was coming. Merton rose from his chair, his face turning a darker shade of red at each movement so that when he was fully erect, his face was almost purple with rage.
“Objection, Your Honor.” He shouted so loud that, despite the noise from the ceiling fans and the clanging of the air conditioners, every person in the courtroom could clearly hear his words. This was what they had come for—the showdown at the OK Corral. And it hadn’t taken long for the fight to begin.
“Your Honor, Mr. Wylie is directly attacking my character and I won’t have it.”
Tom looked at Jack, who nodded. They both thought that Merton was high-strung despite his obvious talent in the courtroom. This was the initial experiment to see if they could get him unhinged, and it had worked to perfection. Merton was now headed toward the center of the courtroom and was out of control.
“May we approach, Your Honor?”
“Stay right there, Mr. Merton,” Judge Holbrook said. “I want the jury to hear this.
“We are going to try this case in a professional manner. If you two want to go outside when this trial is over and have a fistfight, so be it. But in this courtroom you will conduct yourselves as professionals. There will be no personal attacks. Is that understood?”
Merton stuck his chest out triumphantly, looking at the jury as he walked back to his seat. “Yes, Your Honor,” he said as if he were the conquering hero.
Tom was as calm as a man could be. He looked at Merton and then back at the judge. “Yes, Your Honor. And I apologize to counsel if he took my statements as a personal attack. They were not meant to be. I was merely commenting on the statements that he made to the jury.”
Merton was not yet in his seat. “Your Honor?” he pleaded.
“Mr. Wylie,” the judge said, “you heard my comments. Now, move on.”
“Yes, Your Honor.”
Tom was satisfied that he had significantly exposed Merton’s character to the jurors. A lot of times close cases came down to what lawyer the jurors liked best. He spent the next ten minutes talking about the facts.
“You will hear from Jack Tobin. He does not have to testify but he is going