Proof, page 27
“Come on, Cy,” I say with a soft laugh. “I concede you got me started, mentored me, made me the lawyer I am. But you calling me in on this case just to help me out of a hole? I don’t buy it, Cy, I know you too well.”
James’s approach heads off Cy’s rejoinder, but he has the grace to offer me an acknowledging wink. “Your car is here, Mr. Kenge,” he says, bending over our table.
Cy, lost in his musings, appears not to hear.
I cover his hand with mine. “Time to go, old friend, time to go.”
CHAPTER 61
IT’S THE LAST SATURDAY IN February. I should be behind my desk preparing for Kate’s trial, which begins the week after next. Instead, I’m in a room of the downtown Hyatt expounding on work-life balance before fifty-three tired lawyers here to get credits for continuing legal education.
The organizers have structured the morning around themes. Work and relationships, work and health, work and culture. I’m work and children. Each panellist gives a short spiel, then takes questions. I listen intently to the presenters who precede me. Slick, confident, buoyed by quotations from books and lectures.
I am thoroughly shaken by the time my turn comes. I try to pull myself together as I walk to the podium.
“What I’ve heard has left me convinced that work is a toxic activity that should be avoided at all costs—it will destroy your relationship, your health, and confine you to a solitary bubble.” I catch a titter of nervous laughs. “But I have a confession to make. Work has saved my life.”
I look out over the audience. Some are smiling, a few are nodding. I think of what Cy said, and the notes on my iPad suddenly seem irrelevant; I decide to wing it. “I’m here to talk about work and children. I have a daughter—a wee one named Claire, who will soon be ten months of age. She is the centre of my life. She makes me a better person, and therefore, a better lawyer. When she was born, I considered not working, or not working until she was older. But now I know that while that is right for some parents, it would have been wrong for me. The truth is: the law is in me. The courts are part of me. I am less than I should be, than I want to be, when I deny the lawyer in me.” I pause. “I love my daughter, but I also need my work. So, I balance, I organize, I prioritize. I sit at the computer at night with Claire in my arms. Claire is happy, and I am content. How will it work out? I can’t say. But no one can ever know how it will work out. Parenting is an uncertain business. All we can do is our best.”
I fold my iPad; I don’t have any more to say. Then I think of all the ways Jeff has helped me, finding the right words to settle me, the right times to step in and take the pressure off.
“I have a good law partner, and good colleagues who believe in what we do. They tell me when I’ve invested too much time in my work and when I haven’t invested enough, and they respect my need to be with Claire. We can’t do everything in isolation; we have less control than we think we do. We need to reach out, ask for help when we need it, ask for perspective when we know we’ve lost it.” I take a step back and invite questions.
A woman in the front row stands and waves urgently for the floor mike.
“You’re defending Kate Sinclair-Jones, a woman who is accused of killing her baby. How can you defend such a woman?”
“Shame on you, Jilly Truitt,” a man shouts from the back of the room.
I reel back, shocked. I’ve heard this before, but never from a group of professional lawyers.
The room is stirring with murmurs. Some people nod, others are looking at me expectantly. What can you say to that, Ms. Truitt?
I feel their outrage. I know all the standard answers, know defending Kate is right. But I fear nothing I say will convince these doubters.
“I am a lawyer, sworn to uphold the law and use the law to protect the rights of those who need legal help. One of those rights is the right to a defence when charged with a crime. I am providing Kate Sinclair-Jones with the defence to which the law entitles her. The jury, in due course, will judge her guilt or innocence. My duty is not to judge, but to provide a defence.”
The woman who asked the question shakes her head, unconvinced. I could go on, talk about how the rule of law and the best traditions of the law require barristers to take on unpopular causes, but the moderator, sensing things are running off the rails, thanks the speakers and brings the session to a close.
I slip my iPad into my briefcase, leave the podium, and weave through the clusters of people preparing to go. A young man catches my eye and gives me a thumbs-up; the woman who questioned me stares after me, glowering. I feel utterly alone. Why did I ever agree to do this when I could be home with Claire, practising real work-life balance?
In the corridor, near the deserted registration table, I spy a tall, gangly figure in a rumpled black raincoat. He looks up and I recognize him.
“What are you doing here, Jeff?”
“Learning about work-life balance, what else?” He turns serious. “I told you that day we drove to Dante’s, Jilly, I have your back. I suspected Elissa Moreau would hit you with the how-can-you-defend-a-criminal question. It’s her latest campaign, and I wanted to be here for you.”
I want to hug him, but people are watching, so I just put my hand on his arm and look up at him. His eyes are warm behind his round glasses, and he is smiling. “You did well, Jilly.”
I start to remove my hand when he covers it with his. “One more thing, Jilly. I’m with you on this trial. At your side. All the way.”
CHAPTER 62
IT’S TUESDAY, FEBRUARY 28, AND we are gathered in the boardroom for a final strategy session on The Crown v. Kate Sinclair-Jones, which is set to open March 6.
The last two weeks have been a blur of pre-trial activity—witness lists, pre-trial conferences, the business of cross-examination strategy and witness preparation. Not that we have many witnesses. Our case rests on Kate and the slender hope that the jury will believe her protestations of innocence. That and the suite of pedos haunting Tess’s penumbra.
We have come to know our judge, Wilfred Tesik, through a series of pre-trial conferences. Tesik is a slender man with red hair and a sharp nose, who spent the bulk of his career arguing appellate cases for the Crown. He is earnest and struggles to be fair. But he appraises every piece of evidence, every legal argument through the eye of a veteran prosecutor. We start with one hand tied behind our backs.
Now I look around the table at Alicia, Richard, and Jeff. I beam at Jeff in gratitude; I would never have got through the past week of trial prep and motions without him. In the background, Shanni runs around filling coffee cups, lowering the blinds to keep out the late winter sun, and generally making herself useful. Damon can’t make it today, says he’s too deep into whatever things he’s into to pull out now.
“Thanks for being here,” I say. “The trial starts Monday. Today, we’ll run through how we think it might play out, step by step, witness by witness, and what our strategy is at each stage.” I catch Jeff’s skeptical look. “Of course, trials are notoriously unpredictable. We must be prepared for anything to happen. But we have to start somewhere.”
DAY ONE, I write on my whiteboard. I make three notations under the heading—JURY SELECTION, JUDGES’ INSTRUCTIONS, and CROWN OPENING.
“Let’s talk about jury selection,” I say.
“What’s to talk about?” says Jeff.
“For starts, we want some ethnic diversity—preferably two or three people who identify as Black. They’ll sympathize with Kate, how she’s been treated by Trist and the media, how difficult it’s been for her, the only Black girl in his White world.
“But the bigger problem is the press circus that’s surrounded this case from day one,” I go on. “How we can get an impartial jury in a case like this where people have already made up their minds? When they’ve had their opinions repeatedly confirmed by social media and the press? Richard canvassed passersby and found that eighty-two per cent believed Kate was guilty.” At the end of the table, Richard nods.
“We’ll have to play it by ear,” Jeff says. “The jurors will be asked if they know about the case and have formed conclusions they might not be able to put aside. If we get fourteen—twelve and two spares—who say they can be impartial, we’ll have our jury.”
“And if we don’t?” asks Alicia.
“We have the judge bring in more people and keep trying.”
“Or we apply to have the trial with judge alone.”
I think of Justice Tesik’s sharp nose and prosecutorial bent. “Not with this judge.”
“So, we hope for fourteen people of diverse ethnicity who will swear to listen to the evidence and give an unbiased verdict, based on that evidence alone.”
“And, if we’re lucky, a few liberal-minded people who understand mental illness and won’t write Kate off as an evil ditz,” Jeff adds.
I nod. “Moving on, the judge’s initial instructions to the jury. Not much we can do about that. He’ll outline the various possible verdicts, first-degree murder, second-degree murder, dropping to manslaughter if they don’t find intentional killing beyond a reasonable doubt.”
“Tesik will be clinically fair,” says Jeff.
“Three—Cy’s opening. We can’t do anything about that either, but it will be tough to listen to. Cy is passionate about securing a conviction, and he’ll use every ounce of his eloquence to paint Kate as an irresponsible parent prepared to do anything to get her child out of the hands of Trist and Lena. He may cross the line between fact and embellishment. We need to be prepared to object, keep him in check.”
“Without giving the jury any hint that we are worried or outraged. Poker faces, everybody,” counsels Jeff.
I erase the whiteboard, write CROWN WITNESSES. Beneath, I write the first name on the list Cy has produced: TRIST.
“Trist will describe the events leading up to Tess’s disappearance. Including how he fell asleep. Cy will also take him through the custody saga and how Kate’s behaviour made it necessary to remove even weekend access. In cross-examination, we’ll try to establish that Kate was a good parent before she started to get sick after the separation.
“There’s something a little off, exaggerated, about the Crown’s contention that Kate’s parenting was so bad it put Tess in danger. Lots of general noise, only a few specific incidents—taking Tess out without proper clothing, letting her play unsupervised in the front yard, and the final incident of Tess howling on the kitchen counter while Kate was passed out upstairs. All from Selma—meaning Trist only knew what she told him. So we’ll go hard on that angle. Also, we’ll bring out that Tess continued to love Kate, even at the end when they dragged her away from supervised visits, crying and protesting.”
“Trist won’t know much about that. Selma picked Tess up,” Shanni puts in.
I nod. “We’ll be walking a fine line in cross-examining Trist. On the one hand, we want to show that Kate isn’t a bad mother. On the other, we want the jury to think that he—maybe Lena—had something to do with Tess’s disappearance. To do that, I need to attack him—he was content to leave everything to Selma, was careless about the paparazzi around his child. Was he smoking weed on the day Tess vanished, was he drinking, was Tess throwing Lena’s omelette on the floor the last straw? Same with Lena. In chief, she’ll say she loved Tess, but in cross we need to bring out how she resented her, wanted her out of the way.”
“Not to mention the red wine she gave Trist and the fact she was operating a boat like the one in Dante’s photo,” Alicia adds.
“That red wine story is just too pat,” Shanni muses. “Maybe the truth is he was smoking weed or something worse. Tess wandered away while Trist was high, went too far out, and drowned. Which would make Trist guilty of manslaughter.”
“But the gouge in the sand shows a small boat came up on the beach,” Alicia puts in.
“No problem,” Shanni replies. “Lena comes home, finds Tess missing. She’s petrified that the police will charge Trist, so they go down and run the boat up to make the mark. They had time before the police arrived.”
I consider Shanni’s words. I’ve played with the idea of Trist’s involvement many times, only to reject it, but Shanni has made it sound believable. “Good thinking, Shanni. We can play up these points in cross-examination. It might trouble the jury enough to make them think convicting Kate is unsafe.”
“Assuming you knock out the identification of Kate and her hair in the boat,” Jeff grumbles. “And don’t underestimate Trist. Trist is smart and he’s a performer. My bet is he will be on for this show, sober and persuasive. The grieving father. One eye on the jury, the other on his fans.”
“Moving on to Lena,” I say. “Our goal is to establish that Lena might have been the woman in the boat and that she had motive and opportunity.”
I write DANTE on the board, followed by SELMA. “I know Lena will testify, but Dante and Selma are the big ones. Let’s take Selma first. The nanny. This is an important witness for Cy. He needs her to paint the picture of Kate as an inadequate parent who repeatedly endangered her child and was crazy enough to find a boat, steal Tess, and drown her. We have Selma’s witness statement; she doesn’t talk about Kate ever saying she would kill Tess. We’ll see what she says on the stand.”
“The crazy piece is critical for the prosecution’s case,” Jeff says thoughtfully. “Without Selma’s testimony that Kate was irrational, the jury won’t buy that Kate had malice aforethought to kill her daughter, which leaves Cy with manslaughter at best. He has to portray Kate as totally mixed up, narcissistic, and ready—in her crazy mind—to do anything to end her pain and the pain she believed Tess was suffering. The jury will have trouble believing any parent could kill their child. To make its theory work, the Crown must show Kate was the rare exception, and to make that work, they need Selma’s evidence.”
I nod. “The question is how far Selma will go. Will she be content talking about incidents where Kate endangered Tess? Or will she go further and suggest Kate was acting irrationally where Tess was concerned? If she does, the Crown’s psychiatrist will complete the picture with his expert evidence that Kate could have decided the only way out was to end Tess’s life. That’s Cy’s plan.
“Cross-examination is all about understanding the witness,” I say. “I wish I had a better handle on Selma. In the TV interview, she set Kate up as the abductor. But talking to her, I didn’t get the impression that she hated Kate. Sure, she thought Kate was a bad mother, thought she couldn’t be trusted with Tess. But does she want to see Kate behind bars? Perhaps. She said as much to me when she threw me out of her house. I can’t figure out what’s driving her. I like to have a better handle on a witness before I cross-examine them, so with Richard’s help”—I glance across the table—“I’ll keep working on it.”
“That leaves Dante,” says Jeff. “What to do with Dante? That is the question.”
“First, we cross-examine to undercut his identification of Kate and the convenient fact that the photo is too blurry to be sure who was in the boat. Second, we bring out his past file—if the judge lets us—to suggest he is interested in little girls. Third, we get him to admit he saw Tess at Trist’s house and took her photo, showing he was interested in her. Fourth, we establish he could have done it—he was on the island with a vehicle, he could have picked up Tess and then taken her away in the vehicle, losing the pink shoe and planting the beach evidence on the way. The photos of the woman in the boat were designed to clear him. He could have photoshopped them. It may just be enough for reasonable doubt.”
I sigh and make a new heading: POLICE AND EXPERT REPORTS. A collective groan goes around the table.
“Okay, okay, we’ll skip through this one. The Crown will call a psychiatrist to give an opinion on Kate’s state of mind based on what Trist and Selma say about her behaviour. We’ll discredit it in cross on the basis he’s never talked to Kate, and call Kate’s psychiatrist for the defence to blow it out of the water. Or try to.”
I scan the room, decide to ignore the dubious glances. “Unfortunately, we lost our motion to keep out the partial fingerprints. But we’ll call our expert, Dr. Essex, to show that the partials could have belonged to any one of thousands of people and are of no value.” I look up at Richard. “Still no match for the mystery fingerprint on the seat?”
“No. I’ve tried, but without more clues, it’s impossible to close in on identification.”
We move on to the final and critical group in the Crown’s case. The police.
“Kan will outline the investigation; other cops will come in to fill in the details. We’ll cross-examine them all on the parts that don’t fit, like the other pink shoe in the clearing behind Trist’s lodge.”
Alicia snorts. “Hammer them, Jilly. Detective Kan and his whole investigation have been a fucking disaster from day one. You need to hit Kan hard, destroy his credibility.”
“Alicia, I go to sleep every night counting the boats this investigation has missed—and the mythical one it’s fixated on. One, believing Dante despite blurry photos and an undisclosed involvement with kiddie porn. Two, botching the island search. Three, failing to fingerprint the boat rudder. Four, failing to follow up on the second shoe and the CCTV camera sighting, blah, blah, blah. I’ve been honing an approach to humiliate Kan on the stand.”
“Way to go,” says Alicia.
“But it could backfire,” I say cautiously. “Kan has an enormous reputation, which makes me fear he’s cleverer than we think. He has a tragic backstory, which Cy may find a way to make known to the jury. And he has an infuriating way of making every error seem like a stroke of genius, or at least eminently rational.”
Alicia gives me a look. “Are you losing your balls, Jilly, or are you into this creep?”
I stifle a smart retort.
Jeff interrupts. “Jilly is right. Kan is good and wily. We have to handle him with care, play it by ear. Subtle insinuation may go further with the jury on this one than a hammer to the head. That doesn’t mean we won’t be ready with a shopping list of his failings.”
