in every case: competence, credibility, and control.
So when it was my turn, I said, “Ladies and gentlemen, in criminal trials it is common for lawyers to stand before you during opening statement and tell you what the evidence will show. You just heard Mr. Radavich say that, over and over again. But as the judge told you just before opening statements began, that is only what the prosecutor thinks the evidence shows. I’m going to give you the other side of that argument. I am going to tell you what the evidence will not show.
“The evidence will not show that my client, Eric Richess, committed murder. The evidence will not show that my client is the only one who could have committed the murder in question. Indeed, there is another—”
Radavich was on his feet like a spring-loaded shotgun. “Objection. May we approach?”
“With the reporter,” Judge Hughes said.
I tromped up to the bench with Radavich, knowing exactly what he was going to say. Which was: “Your Honor, Mr. Buchanan is attempting to inject an alternative theory of the shooting, but unless he can offer proof to support it, it is prejudicial and immaterial.”
Judge Hughes looked at me. “Have you an offer of proof?”
“I’ll get it,” I said with about as much predictive power as my friend Only.
“Until you do, you will not say anything like that to the jury. And I will admonish them on this.”
When I returned to the lectern, Judge Hughes said to the jury, “Ladies and gentlemen, counsel expressed that there might be another explanation for this crime, but you are to disregard that statement. All right? Disregard it. Continue, Mr. Buchanan.”
I didn’t hesitate. “The evidence will not show that the conclusion the prosecution wants you to draw is a conclusion that is supported by law or fact.
“I say this to you during opening statement because the highest protection in our Constitution is for citizens who are accused of crimes. As you look at Mr. Richess right now, he is innocent. That is what the Constitution says. He is innocent. The only way he can move from innocence to guilt is for the prosecution to prove its case beyond a reasonable doubt.”
Radavich stood up. “Your Honor, this is a closing argument, and therefore not appropriate.”
“I agree,” the judge said. “Mr. Buchanan, confine yourself to a statement of what you think the evidence will show.”
“A gaping hole,” I said, turning back to the jury. “A great, big hole where evidence ought to be. It’s not there.
“You will hear, for example, about DNA. Now, I know you have all seen David Caruso on TV, or any one of those other CSI shows, and you might be led to believe that an expert sitting in the witness chair talking about DNA evidence pretty much determines the entire case. Not so here. Because we will show you that there is another explanation for why blood was found on the gun in question. It happened when my client went shooting with his brother at a shooting range. We will have a witness from the shooting range testify to that.”
I covered a few other areas, but didn’t want to overstay my welcome. Most lawyers yap too much when they address the jury. But they do like a big finish.
So to end, I walked to the front of the prosecution table, which is closest to the jury box. I pointed at the table. Radavich looked like he wanted to bite my finger.
“But here is the most important thing,” I said. “You see what’s on the prosecutor’s table? It’s a giant boulder. I want you to imagine that right now. A big boulder that the law says sits there right now. That boulder is called the burden of proof. And what the prosecutor has to do, using only admissible evidence, is chip away at that boulder until it’s all gone. Because any bit of it that’s left is called reasonable doubt, and—”
“Objection,” Radavich said.
“Sustained,” the judge said. “Conclude, Mr. Buchanan.”
I wagged my finger at the table once more for good measure. Then I said, “Simply put, the evidence is not there, and the prosecutor will not prove to you beyond a reasonable doubt that my client committed the murder of his brother.”
I sat down. Eric seemed half calm, half tense. Exactly like me. “Sounded good,” he whispered.
But was it good enough?
89
RADAVICH CALLED HIS first witness, Detective Lonnie Zebker, who was sworn.
“Good morning, Detective,” Radavich said.
“Good morning.”
Yes, it’s always a good morning when you start a murder