“I want to revisit your testimony on direct examination about your representation of this young man named Rudy. You said that after Rudy was executed, you became a prosecutor and prosecuted the police officer who arrested Rudy and whose testimony convicted Rudy, is that correct?”
“That’s correct.”
“Is it also correct that you became a prosecutor for the sole purpose of prosecuting that police officer and after that prosecution was over, you resigned your position?”
“That’s correct.”
“You weren’t trying to get even then, were you?”
“No, I was trying to prosecute a man who deserved to be prosecuted and who, in fact, was convicted.”
“The police officer wasn’t the only person you prosecuted over the death of this young man Rudy, was he?”
“No.”
“You also prosecuted the former state attorney who successfully sought Rudy’s execution, didn’t you?”
“Yes.”
“And at the time that you prosecuted that former state attorney, he was a sitting federal judge, wasn’t he?”
“Yes.”
“You weren’t trying to get even with him?”
“No, I wasn’t. I was seeking justice for Rudy.”
“You were not successful against the judge, were you?”
“No.”
“Is it correct that the judge you unsuccessfully prosecuted was assassinated by a sniper’s bullet six months later?”
Tom was on his feet. “Objection, Your Honor.” He didn’t ask to approach sidebar. He just walked toward the bench.
The crowd started murmuring right after Merton finished asking the question. The jurors looked shocked as well. Judge Holbrook raised his gavel and lowered it again and again.
“Silence in the courtroom!” he shouted. “If you can’t be silent, you will be removed.”
Nobody stopped talking.
“Remove the gallery,” the judge told the bailiffs who dealt with the gallery.
“Take the jury out,” the judge told the bailiff who was assigned to the jurors.
In a matter of minutes, the courtroom was empty. The press was gone as well. Only then did Holbrook speak to the lawyers.
“Mr. Merton, just what do you think you are doing?”
“Asking a question, Your Honor.”
“A question that carries the implication that Mr. Tobin was involved with the murder of a federal judge.”
“I never meant to imply that, Your Honor.”
“Your Honor, I’d like to move for a mistrial,” Tom said. “And I’m requesting that this court rule that my client cannot be retried since double jeopardy has attached.”
“Relax, Mr. Wylie. There’s not going to be a mistrial. The witness is not going to answer the question, and I am going to instruct the jury not only that it was an improper question and that they should disregard it but also that the only inference to be drawn from that question is that the prosecuting attorney committed an egregious error in asking it. Now are there any more questions?”
Nobody said a word.
“Bring in the jury.”
The courtroom was still empty as the jurors filed in and sat in their respective seats.
“Ladies and gentlemen of the jury, sometimes things occur in trial that we don’t expect. Sometimes lawyers ask questions without thinking. The last question Mr. Merton asked should never have been asked. It is not enough for me to tell Mr. Tobin he does not have to answer the question. I need to tell you that it should not be a part of this case and you should wipe it from your memory. And the only inference you should draw from that question being asked is that the prosecuting attorney, Mr. Merton, overstepped his bounds and committed an egregious or gross error when he asked it. Now, can you all do that?”
The judge asked each juror individually and had each juror say “yes” on the record.
“Okay, ladies and gentlemen, it has been a long day. We’re going to recess for the weekend. Remember the admonitions that I have given you. This trial is almost over but it’s not over yet.”
After the jury left, Judge Holbrook addressed the lawyers.
“Mr. Wylie, do you have any other witnesses in your defense?”
“Not at the moment, Your Honor, but I’d like to have the weekend to assess everything before I rest.”
“That’s fine.” The judge’s attitude toward Tom and Jack had suddenly changed.
“And what about you, Mr. Merton?” the judge growled. “Are you going to have any rebuttal?”
“I don’t plan on it at this time, Your Honor, but it will depend on what Mr. Wylie does on Monday.”
“Fine. I’ll see you both here Monday morning at nine. And Mr. Merton, I don’t want to be seeing your face on television talking about the events that occurred here this afternoon.