Michael Gresham: Secrets Girls Keep Part 21

"Oh holy s.h.i.+t!"

"Now you see where we're going with this?"

"Oh my G.o.d! Are they gonna think I was there and killed the girl?"

"Hold on, slow down. You were home with Ruby. Ruby can establish that. Plus, Jana was seen at the game wearing the m.u.f.fler, not you. So there are several witnesses who will testify to that. You're clear. It's Jana you need to be worrying about, not yourself."

"I didn't mean that I was seriously worried."

"Like h.e.l.l you didn't, Tim. You were worried, but you were worried about the wrong guy. Jana wore your coat and your m.u.f.fler to the game that night and you might as well get used to that idea. A whole bunch of people saw him there. And you didn't have your eyes on him all night because you're thinking he was upstairs in his room. Well, he wasn't. He went to the game."

"Why wouldn't he tell me?"

"Why would he take a mouse with him?"

"Because he planned to use it for something?"

"Now you're getting warm, Uncle Tim. Very warm."

30.

According to an entry of appearance I have received in today's mail at the office, Jana's case has now been a.s.signed to State's Attorney Trey d.i.c.kinson. I run the name through an online list of attorney biographies and find out Mr. d.i.c.kinson is the third generation in a family of Chicago attorneys, his grandfather having founded one of Chicago's premier criminal law firms in the 1940's, and his father having practiced law in that same firm from the 1970's to present. Trey evidently went to work for the Cook County State's Attorney right out of law school and he chalked up a record of 65-0 over the first three years of his term as a career prosecutor.

On Thursday, we meet in the office of Judge Winifred Lancer-Burgess. We are less than a month out from trial, and it is time for the regularly scheduled status conference on the case. Attending are me, Danny, and Mr. d.i.c.kinson.

Judge Lancer-Burgess is a feather of a woman with a huge, deep voice. It's pretty clear that she still smokes cigarettes even though she's in her sixties and should know better. Her skin has the sallow, grayish sheen of a smoker as well, and I can see a hint of nicotine-stained fingers on her right hand. She brushes the comma of gray hair from her forehead and examines the file briefly. Then she looks up.

"Gentlemen and lady, this case is set for trial January seven. Have you had any plea negotiations to date?"

I begin, "Your Honor, Mr. d.i.c.kinson and I have spoken briefly by telephone. Some time ago I was under the impression that the state wanted to discuss a plea, but now it seems they don't. That's the sum and substance of what I know as we sit here today."

Her gaze swings to her left. "Mr. d.i.c.kinson?"

"Your Honor, early on in this case we thought we had a problem linking the defendant to the victim at the football game. Now we have discovered other evidence that makes that link for us."

"What evidence is that, counsel?"

d.i.c.kinson flips through his notes. It is obvious to me that he is formulating how he's going to say what he will. It's equally obvious to me that the state has been hard at work on this-the mayor's daughter's-case. I will not like what I'm about to hear.

"Well, we have discovered physical evidence at the scene that links the defendant to the scene."

"Counsel," says the judge, "you're playing hide-the-ball with the court. Would you please come out and tell us what you mean?"

"Mouse hair, Your Honor. We have mouse hair."

The judge's lips part in the beginning of a smile.

"Yes, Judge, mouse hair. A mouse was taken from the victim's mouth by the medical examiner. The hair on that mouse was compared to hair samples seized from the defendant's bedroom and clothing. There is a definite match between the two, which, we will argue, implicates the defendant as the killer. Plain and simple."

"Mr. Gresham? What's your position on this?"

"Your Honor, until this very minute, I wasn't aware the state had any such evidence. My position is that I would like the court to direct the state to provide me with hair samples so that I can arrange independent testing for my client."

"Counsel," she says to d.i.c.kinson, "I want samples in defense counsel's office by close of business today. Do you understand me?"

"It will be done, Your Honor. And there's more. We also have a tube of Superglue seized from the briefcase of Ms. Gresham, here. That batch of Superglue matches the batch taken from the victim's mouth."

Danny begins, "I was about to turn that glue over to the police. That's why it was in my briefcase."

"I'm sure you were, Ms. Gresham," says Judge Lancer-Burgess in a low voice. "Not to worry."

Danny's face relaxes. The judge is taking her side on any possible argument that she might have been obstructing justice by keeping evidence away from the police. Score one for the defense, anyway.

"So, Mr. State's Attorney, where does that put us with regard to plea negotiations."

"First degree murder, Your Honor," says d.i.c.kinson. "With the possibility of parole."

"Mr. Gresham?"

"That's impossible, judge. We might just as well go to trial. The defendant has nothing to lose."

"Except that he might be sentenced to life with no possibility of parole," says the judge, insinuating that she might do just that. I have no response for her; sentencing is entirely within her discretion and we will argue that if I refuse the State's offer and I lose the case.

"There won't be a guilty plea," I tell the judge and I am instantly struck by the realization that I have zero idea what my defense is going to be for Jana. The mouse hair, the glue, the m.u.f.fler-he is a hundred percent guilty, according to most of the juries I've ever worked with. I can already hear the testimony in my mind and I have no idea at all what questions to ask in response. Research is indicated. As well as the investigation of other possible witnesses.

"Very well. Are there any issues with evidence or witnesses?"

"No."

"No.

"Good. I don't want any last-minute in camera motions, is that clear?"

Meaning, she doesn't want day-of-trial motions that would slow down the jury trial, motions that could have been filed days or even weeks before. Jury slow-downs are anathema to judges. One would think their re-election const.i.tuency is composed entirely of those who have sat in juries in their courtroom, so anxious are all judges to keep their juries happy. It goes with the territory and as a defense lawyer I always try to file motions well-ahead of trial.

"If there's anything else, file a motion and we'll jump right on it. Motion practice ends seven days before trial except emergencies. And I mean emergencies. If you file inside the cutoff, you better d.a.m.n well be able to convince me it's some kind of emergency or you'll be looking at sanctions. Any questions?"

"Does that mean all discovery has to be exchanged two weeks before trial?" I ask. "That's a good way to avoid last-minute motions. Otherwise, the Cook County State's Attorney Office is notorious for dumping discovery items on defense counsel the day before or the day of trial. That's a practice that I hope we're avoiding here."

"It is, counsel," she says. "All discovery by Christmas Eve. I'm marking this case Ready Status. That should do it. We're adjourned, ladies and gentlemen."

We gather our papers and leave the judge's chambers.

In the hallway I'm hopeful d.i.c.kinson will make a sudden offer that reduces from first degree to second.

But he doesn't. After all, it's the mayor's daughter.

Time to prepare. Time to do jury instructions, prepare opening statements, prepare direct and cross-examinations.

The ball is in play.

31.

Priscilla is in tears. She is angrily stuffing her schoolbooks into her book bag as she prepares to leave.

We are in the family room. Dania is seated in front of the TV in her Tiny Chair, watching a video while Priscilla and I are full-bore into the discussion of what exactly has prompted her to suddenly quit her job and leave our house.

I was at the office when I got her call. Danny was in court, so I'm the one who came rus.h.i.+ng home. This is what I found out: Priscilla's alarm didn't go off at five a.m. this morning, so she was late to her workout. She arrived at her gym and worked out for the full hour nonetheless, and then skipped her shower, planning to shower here at our house. She arrived at our house on time and settled into getting Dania's breakfast. She then jumped into the shower for a quick rinse-off while leaving Dania in her playpen with a favorite book and toy. It wasn't going to take even five minutes.

While she was rinsing, she heard the bathroom door open and close and felt cool air coming in from outside the bathroom. Someone had entered, and she instantly knew it was Jana. She saw his form outside the shower curtain but kept rinsing off. Slowly, the end of the curtain was peeled back and she suddenly found herself staring eye-to-eye with Jana, who was enjoying her nakedness.

She screamed; Jana fled, slamming the door behind him. He made no effort to close it quietly. He slammed it and she felt the blast of cool air. She toweled off and shrugged into her underwear, jeans and T-s.h.i.+rt and rushed into the family room to check on Dania. Dania was lying on her back, holding her book overhead, flipping through the pages. All good there. So then Priscilla rushed to the phone and called me. I told her to put Jana on the phone. She went to his old room and knocked; no answer. She then searched the house, but he had evidently left.

So now she's in tears, we're losing our nanny, and I am furious with Jana. Enough is enough.

"You never did get his key back," Danny says to me when I get her on the phone.

"You're right," I respond. "It completely escaped my mind."

"So now he can come and go whenever he wants. I want him arrested."

"G.o.d no," I say, "not right now. That could seriously impact his trial for first degree murder."

"So you don't think this is just as serious, that your daughter's nanny was a.s.saulted by this little a.s.shole?"

"I don't know. I only know I don't want the cops laying their hands on him right now. Trial begins in a week. Let's let it go and see how that turns out."

"Call the security service, Michael. Have them study the video. I want evidence for when I go to the police if you're not going to do it."

"Please. Hear me out, Danny. I'll have the locks changed today. He won't be able to gain access again."

"That little b.a.s.t.a.r.d," she says. "I could tear him a new one."

"I know, I know. So could I. But a first degree murder case is a thousand times bigger deal than a peeping tom case."

"Not to mention the burglary. Also a felony, when he came into our house."

"I'll call the security service right now."

"And you're sure Dania's okay?"

"She's right here on my lap, pulling my necktie."

"Okay, then."

We hang up and I kiss my baby's forehead.

It's that innocence we all crave.

That's why we yearn to be children again.

32.

Priscilla has agreed to stay on until after the trial. At least one issue had a solution. As for State vs. Jana S. Emerich, I'm still searching.

Jana came to me a day after the Priscilla incursion. He was contrite and maybe embarra.s.sed, but determined. Determined that I allow him to use another attorney and for me to "get off his case." I said that would be fine, but he would need to speak to his father first. "Why?" he wanted to know. "Because," I told him, "you don't have the money to hire another attorney." I stop short of telling him that I haven't been paid for his defense, that I'm defending him because of my love for Father Bjorn. He was confused, by the time he left, saying he will go see his dad. Which he did. Father Bjorn called me and begged me to stay on, which wasn't necessary. I wasn't planning on going anyplace anyway. So, here we are, Jana and I, a team consisting of a less-than-thrilled attorney and a distant, withdrawn client. A team in name only.

Father Bjorn and Danny arrive at court early and commandeer two front seats in the gallery. He looks pallid and sleep-deprived. Danny and I have discussed what a terrible toll this whole thing is taking on our friend. He calls frequently, sometimes just to ramble and express his regrets and seek rea.s.surances that everything is being done for his son that can be done. Danny and I take turns a.s.suaging him, though we would need ten more clones to fas.h.i.+on the show of force his doubts really crave. Like the priesthood, one dedicated actor can make a huge difference in the practice of law. While the one is designed to save souls, the other is designed to save corporeal beings. How very different they are not. And so I understand his angst over the unconfessed sins of his congregants; I have the same worries about the young man I am defending and his apparent lack of remorse. We are brothers, Father Bjorn and I, far more than we are priest and penitent.

WE HAVE BEEN SELECTING a jury for three days now. We have twelve jurors in the box and we are exercising peremptories and challenging for cause until we, like the armies of the Spartans and Trojans, lay exhausted upon our s.h.i.+elds and our swords and accept the inevitable when our objections have all been spent.

The State's Attorney has just used his final challenge. The departed juror was a middle aged mother of three boys who had all been arrested for underage drinking. The eldest had served a week in juvie, which still rankled the mother and skewed her vote to favor the defendant. And so at last we have left ourselves with spice-free, tasteless vanilla. A jury of peers without important opinions, that have no relations in law enforcement, have never been arrested, have never been the victim of a crime, have never committed one, and weren't smart enough to come up with some bias or ailment that would have sent them home to watch Bonanza reruns and play hooky from work. The American jury system at its very best. And when they screw up the verdict in the case, which they too often do, the appellate courts will hold sacrosanct what that tribe of twelve in the court below has done because, after all and thank G.o.d, they were the almighty, all-knowing, all-wise and judicious jury. Their findings will go untouched. Only the law itself will be questioned. In that regard, the law will have on its side only law-school-trained advocates who will use every skill and cunning to pervert it. That is the American judicial system which I have come to know and fear.

But maybe I overstate. And maybe not.

So we are ready to begin.

Media comes bursting into the courtroom once the jury is sworn and seated. They were not allowed to broadcast jury selection, for anonymity purposes. This is Mayor Tanenbaum's daughter we'll be talking about. Judge Lancer-Burgess has allowed one TV camera inside. The jury cannot be shown. Court TV and WGN will receive and broadcast the feed. The news channels will get their soundbites as well from the feed. I recognize a few of the reporters from other cases and other days. They know better than to approach me when I'm at counsel table and so it is a safe zone where the attorneys and defendant and police and court personnel work on the north side of the bar.

Giving the first opening statement is a.s.sistant State's Attorney Trey d.i.c.kinson, who now finds himself surrounded by two junior attorneys who will review his every strategy and will catch him should he fall. Mr. d.i.c.kinson begins with a diatribe against crime generally, then, knowing he must offer more statement and less argument, switches gears to cover the case the jury will actually hear. He talks about Amy Tanenbaum and her place at Wendover High, the leader of the spirit squad, the freshman cla.s.s vice-president, a student who aspired to be a pediatric surgeon and her commitment to all the science and math cla.s.ses the school had to offer her. She was a mild-mannered girl, d.i.c.kinson tells the jury, a girl less willing to speak out in a group setting and more apt to share in a one-on-one basis. She was active in her synagogue's Rosh Hodesh: It's A Girl Thing! for teen girls. Why anyone would choose to murder this particular angel (d.i.c.kinson's words) was beyond imagination and he promised the jury that they would soon fall in love with her too as they learned more about her.