9

Chapter Eight

"Permission to approach the witness?"

"Permission granted," the judge said.

"Excellent; thank you, your Honor." With that, the prosecutor stepped around his table, and walked parallel to the jury box. "Good morning, Mr. Samuelson," DA Young started. His movement brought him closer to the witness, but the angle of approach was such that wherever Mick turned to follow the DA, he was also looking at the jury. "If you could please introduce yourself to the court?"

"Sure," the witness said. "The name's Micah Samuelson, but call me Mick. I'm twenty-two, Brooklyn born 'n raised, and work in construction." His face twisted, and he looked down at his broken leg with a look of such dismay that it had to have been practiced in front of the mirror. "Well. Worked."

"And that change to past tense," Lou started, taking another step towards the witness, "that wouldn't have anything to do with what happened on May 8th, would it?"

"Objection," I said, rising to my feet. "While the question is foundational, it is also leading, and I am certain an attorney of the DA's talent could phrase it differently."

"Overruled," Judge Andrews said, cutting off the DA before he could even answer. "While I agree it could be phrased differently, it is foundational. DA Young, you may continue."

"Thank you, your Honor," he said, though not before shooting a short glare at me.

A lot of people are under the impression that objections can only be used for actual, important things, such as when the other attorney isn't playing by the rules. This was an objection that I knew wouldn't be sustained, but I made it anyway. Why?

Because not all objections are created equal. Objections serve three main purposes, I've found. One, they make sure both attorneys play by the rules: if one party is trying to pull some shenaniganery, you can quite literally call them out for all to hear, and there is no getting around that. Two, they ensure that the attorneys have to stay on their toes: it's very hard to get complacent when even a single word out of place can lead to your entire argument getting cut off at the knees.

But it was the third purpose that I used here: objections can be used solely to interrupt the flow of the other attorney's argument. Many a witness's testimony relies on an unbroken chain of questioning, or a certain reaction from the audience it was meant for. An objection at the right time can completely disrupt the rhythm of question-and-answer, or even prevent the rhythm from getting off the ground in the first place. More than that, it rips the jury's attention away from the witness, and onto the attorney making the objection. Objections are the most interesting part of many a courtroom drama simply because they're dramatic and spicy.

An objection this early, and to something I clearly knew was okay, set me up as a firebrand for the jury. It let them know that I was somebody to pay attention to, that I would be entertaining. That any attention they gave me would be repaid in full for the theatrics they'd receive.

This was all step one… and I set it up right from the get go.

"I'll repeat the question," DA Young said, puffing himself up slightly as he adjusted the collar of his suit jacket. "The change to past tense in your construction work, that wouldn't have anything to do with what happened on May 8th, would it?"

"It would," Mick confirmed. "If it weren't for that mutie, I'd be fine!"

"Objection," I said again, rising to my feet. "Witness is speculating, offering testimony whose prejudicial effect substantially outweighs any probative value, and also improperly offering testimony as to the ultimate issue."

"Your Honor—" Lou Young started, but a raised hand from the judge stopped him.

"Objection sustained," Judge Andrews said.

"Motion to strike the witness's answer past the phrase 'it would', your Honor," I said, still standing."

"Motion granted," the judge said. "The jury shall disregard everything the witness said after his confirmation of the relevance of the May 8 date."

Now, a brief point of clarification: testifying as to the ultimate issue is a tricky objection. The action you're objecting to, testifying as to the ultimate issue, is just 'saying what the matter at hand is, definitively'. For a robbery case, it would be that a certain person was, in fact, the robber. For an arson, it was that the arsonist set fire to a house.

For the case at hand, it would be that St. John caused Micah Samuelson's injuries.

Now, testifying as to the ultimate issue isn't always a problem for lay witnesses– that is to say, witnesses with direct knowledge of what happened, who are testifying as to their own observations or opinions. The problem here was that this bit of testimony came before anything else, which was improper.

"Now, Mick– let's go back to that day, May 8th." Lou Young took two steps back from the witness stand, and was almost at counsel's table again. I recognized the tactic for what it was: he was using his position to hint at the scope of his questioning, and would get closer and closer as the witness's testimony approached the juicy bits. "What were you doing?"

"Me, Jimmy, Theo, 'n Pat were chilling on the steps of Jimmy's building, havin' a beer and a smoke," Mick said. "Contractor called work early that day, something 'bout how it was supposed to rain. Ain't nobody what wants to be workin' construction in the rain."

"I can imagine!" Lou said, and shot a conspiratorial look at two members of the jury, both of whom were nodding along with knowing grins. I chalked those two up as lost causes, but thankfully they weren't on my list. "Now, just for clarification, who are Jimmy, Theo, and Pat?"

"Ah, sorry, forgot youse need full names," Mick said, again plastering a fake expression on his face, this one almost (but not quite) apologetic. "Jimmy is James Boothe, Theo is Theodore Nielsen, and Pat is Patrick MacEahern. We been buds since we was fourteen—thick as thieves, y'know?"

"So you were with your friends and coworkers outside of Jimmy's building, at…" Lou Young looked down to his wrist. "What time was it at, would ya say?"

"Was probably around four o'clock?" Mick shrugged. "Don't remember exactly, but that sounds about right."

"So!" Lou Young clapped his hands. "Four in the afternoon on May 8th, out front of Jimmy's building. Just spending some time with your friends. What changed?"

"We saw him," Mick said, pointing at St. John.

"Let the record show that the witness is pointing at the defendant!" Lou bellowed, then joined his witness in pointing at my client for a few seconds.

I wanted to object to this kind of accusatory showboating, but none of the objections really worked here, so I had to bear it. I was already on the judge's shit list as it was; I did not need to throw out spurious objections that weren't even rooted in procedure and worsen my already shaky standing in this courtroom.

"Now, you say you saw the defendant," Lou continued. "What did you see him do?"

"Well, we saw him walk 'round the corner all quick like, head low 'n looking around, kinda like this." Mick demonstrated for the court, throwing an exaggerated rendition of a furtive glance to his sides. "Looked real nervous like, then he ducks into the corner store, 'n comes right back out thirty seconds later with a can o' coke. And we thought that was real weird, y'know?"

"And why was that?" Lou continued, taking a step forward.

"He was in 'n out of that store real fast. To get done with that so quick, he had to have stolen it!"

"Objection!" I called out, and stood. "Your Honor, the witness has offered improper testimony under FRE 602's need for personal knowledge. The witness himself stated only that he saw my client enter and exit the store; even had such a theft occurred, the witness could not have seen any such events, therefore he cannot speak to it. Due to this, the defense moves to strike the witness's answer."

"Your Honor," Lou Young broke in when I was done speaking. "Mr. Samuelson is only speaking as to his opinion, as should have been plainly obvious to anyone listening! And since it's his opinion, it's perfectly valid testimony."

"I'm inclined to agree on this one," Judge Andrews said. "Objection overruled."

"Thank you, your Honor," the DA said.

I pushed my tongue hard against my teeth to try and keep myself from saying anything else; the opportunity to object would come soon enough, and maybe this time the judge would use proper judgment.

"Now, Lou continued, "when you saw the thief steal—"

"Objection," I called out again, and rose to my feet. "Your Honor, Mr. Allerdyce is not being charged with theft of any type, nor does he have any criminal history whatsoever. To call him a thief as the DA does both assumes facts not in evidence and unfairly prejudices the jury against my client."

"Sustained," Judge Andrews said, to which I had to suppress a smile at the small victory. "DA Young, in the absence of any such charges or past convictions, please refrain from using words associated with such, and reframe your question."

"Of course your Honor." DA Young put one hand in his pocket, and took two steps to the side. "Now, where was I?" Right, right; when you saw the rapscallion—"

"Objection," I said, and once again took to my feet. "Your Honor, once again counsel's phrasing unfairly prejudices the jury against my client, and now it also consists of counsel testifying, and improper use of character evidence on top of that. The same should apply to any synonyms the DA has dug out of his thesaurus, such as scoundrel, rogue, or the like."

"Your Honor—!"

Judge Andrews again held up a hand, and let out a long, annoyed sigh.

"Sustained," he said. "DA Young, because I am getting tired of hearing this same objection, please simply refer to the defendant as such. I'm sure the stenographer would appreciate it in the long run."

Ugh. And there went all the momentum I could have built up from these repeated objections. By framing it as a favor to the stenographer instead of saying anything about prejudicing the jury, said jury was now free to continue regarding St. John as exactly what DA Young called him in his opening: a scoundrel, a rogue, a rapscallion, etcetera.

"Of course, your Honor." Lou turned back to his witness. "Now, after you saw the defendant leave the store, what did you do?"

"Well, the four of us, we thought it was wrong, y'know?" Mick said, raising both hands towards the jury. "This was our neighborhood, that was the corner store we went to all the dang time, and we'd be damned if some snot-nosed punk could just help himself to a five finger discount. So the four of us, we figured we oughta make him return the dang soda. Couldn't well do that, though."

"And why not?" Lou asked, taking another half-step closer to the witness.

"He opened the can right outside the store, and probably half the dang soda flew out," Mick explained, with an accompanying 'fwoosh' motion with his hands. "Kid looks up 'n sees me an' the boys getting up 'n headed his way? He drops the can and bolts!"

"And when he ran, what did the four of you do?" Lou was maybe five feet from the witness stand now, and the jury was leaning in towards the stand with him.

"Well, what else were we gonna do?" Mick asked rhetorically. "We chased him. He couldn't well return the soda, but we could at least get the buck it cost 'n give that to the owner for his troubles, make sure the dumb punk paid, y'know? So we followed him, and eventually we caught up to him in an alley off South Tenth."

At that, Lou walked back towards counsel's table and picked up a few 8x10 glossies, obligingly held out for him by his second seat.

"Let the record show that I am showing the document to the defense," he said.

I flipped open my trial binder and made my way to the prosecution's first exhibit: a set of enlarged photographs of the alleyway, showing its entrance, its dimensions, and some of the extent of the scorch marks. It very specifically did not show how they cut off at an almost perfect straight line.

"Your Honor, permission to approach the bench?" Lou asked.

"Granted," Judge Andrews said, one hand extended to receive a copy of the evidence.

"Now, Mick," the DA continued as he returned to the witness stand, and gave his second set of the photographs to Micah Samuelson. "What are these that I've just handed to you?"

"Well, they look like photos," Mick said, flipping through them.

"And what's the subject matter of the photographs?" Lou followed up.

"This one looks to be the corner store," he flipped to the next, "this looks like the street we chased the kid down, this one's where he took a turn, and these last two are the… t-the alley," Mick finished. I had to resist rolling my eyes at the obvious fake stutter and tremor in his voice. Broadway would have kicked this kid out on his ear in two lines, I swear.

"And are these photographs a complete and accurate representation of these locations, to the best of your knowledge?"

"Not sure why that maters, but yeah," Mick said.

It matters, young man, because this is the proper procedure for introducing evidence. You know, the procedure that every single court drama tv show skips.

"Your Honor, at this time the Prosecution would like to introduce into evidence Prosecution's Exhibit 1, Photographs of the Crime Scene and Surrounding Areas," the DA said, showing the photographs to the jury as he moved.

"Any objections?" the judge asked.

"The defense has no objection, your Honor," I said, knowing that I'd be using these exhibits myself later.

"Very well then. So entered," Judge Andrews said.

Now, allow me to explain: the proper procedure for entering evidence into the record is a three-step process.

First, you need to lay the foundation for the evidence. In the case of, say, a medical record, you need to establish that a person visited the hospital, that their visit produced a record, and that the witness on the stand has personal knowledge of the record's creation, existence, etcetera. Evidence does not just spring fully-formed into the ether ex nihilo; somebody has to have known it existed in the first place for it to be evidence. Once you've established that yes, the evidence has a known and relevant background with the witness on the stand, you may produce the document.

Second, you need to authenticate the evidence. To continue the analogy: it is not enough that the witness on the stand knows that a medical record was created. You have to show the evidence to the person who you used to lay the foundation for said evidence, and that person then has to state that yes, this is the actual document. In the case of medical records, you can't say they knew John Hancock's visit produced records, and then expect any set of records you give them to also be John Hancock's. Unless they specifically tell you that yes, this is in fact John Hancock's medical record, it could be Jane Doe's instead.

Step two-point-five only occurs in a few cases. When you have certain kinds of evidence, such as a photograph, you have to confirm that the contents of that photograph are a "clear and accurate representation" of the subject matter– that is, that the photo hasn't been doctored, spliced, or otherwise played with. It's a lot harder to do without modern Adobe tools and digital computers, yes– but believe me, it's absolutely doable.

And lastly, step three: you have to request that the court enter the document into evidence. You give it a name, make sure the judge has a copy, and request its entry into the record. If you forget this crucial step, the jury does not get to use your evidence when deliberating. And yes, you would be amazed how often people just… take for granted that the evidence they introduced has been entered into the record.

"So Mick, these photos," DA Young said, waving the photo spread towards the jury. "This is the route the four of ya took when chasing the defendant?"

"Yeah, it is," Mick said, holding the photos loosely in his hand. "We followed him north a block, he hooked a left 'round the corner, another left at South Tenth, then crossed the street and into an alleyway."

"And where did you catch up to him?" Lou asked, already shuffling to the appropriate photographs.

"In the alleyway, right around the middle of it," Mick said. "I was the fastest of us, so I grabbed the punk by his backpack and pulled a bit. It threw him into a dumpster, but that didn't hurt him none. He—"

"Objection," I said, standing. "The witness does not have the expertise or personal knowledge to definitively state that his actions did not harm my client. Defense moves to strike."

"Once again, objection overruled," the judge said. "A reasonable juror can readily assume that he's speaking his opinion. Continue, Mr. Samuelson."

"R-right, sorry," he said, pulling away from me as much as his chair would allow, to which I simply raised an eyebrow. Somehow I doubted any juror would actually believe he was afraid of me, but you never knew. "Anyway, the kid pulls himself up, then turns and gives us this look. Felt like someone was walkin' on my grave for a sec there, 'n then he gives this god-awful smile. God, if only that was the worst of it," Mick said with a shudder.

"What was the worst of it, dare I ask?" Lou Young was two feet away from the witness stand now, and the jury, to my dismay, was hanging on his and Micah's every word.

"Well, when we ran after the punk, we still had our cigarettes 'n our beers," he explained. "Kinda a shame to waste them. Big mistake. Kid makes this weird twist 'n pull motion with one hand in a claw, then suddenly our cigarettes go out, and he's got a fuckin' fireball in his hand!"

Loud murmurs came from the jury box and the gallery, loud enough that Judge Andrews had to pound his gavel on the bench.

"Order!" He yelled. "This is a courtroom. If you want to gossip like tittering schoolgirls, the ladies rooms are outside and to your right!"

Did I take offense to the way he phrased that? Yes, obviously; I was the female lawyer here, and there was a very real chance that anything I or my eventual character witness said would be treated as the gossip of, and I quote, 'tittering schoolgirls'. Was there anything I could actually do about it?

Not particularly, no. I could file a complaint with the judge, but an objection wasn't really going to help me here. It was just one more reason this whole thing stank: judges generally try not to editorialize like that, because it can (and often does) sway the jury. If they see the judge holds a certain opinion, theirs tends to fall in line with the judge's.

Regardless: my complaint to the judiciary was getting quite robust.

"Now, after you saw the defendant make a fireball," Lou continued, putting particular emphasis on the obvious use of a mutant power, "what happened next?"

"Theo 'n Pat started running," Mick said. "They was always the slowest of us, and we'd been in enough bad spots as a crew to know that they needed to rabbit first, and Jimmy 'n I could catch up. Right as they do that though, the mutie turns the fireball into a goddamn flamethrower!" Mick shuddered. "My uncle told me stories about 'Nam, what those things could do. Never thought I'd see one up close, thought I was gonna piss myself, Jesus Christ."

"Objection, your Honor," I said. "Given that we have two veterans in the jury box, the witness's secondary statements of opinion carry such substantial risk of prejudice that it outweighs any probative value they could provide. Defense moves to strike every word after 'flamethrower'."

"Your Honor," the DA took over, "the statements provide necessary context to frame the witness's response to the events as they happened. While the prosecution acknowledges some prejudicial value, the insight they provide into the witness's state of mind is imperative, and its probity substantially outweighs any risk of prejudice."

"Thank you for saying it for me, Louis," Judge Andrews said to the DA before turning to me. "Objection overruled."

And if I'd needed any more proof that Phil and Louie were in bed, politically speaking, there it was.

"Thank you, your Honor. Now." Lou Young was at the very front corners of both the witness stand and the jury box now, guaranteeing that they would be looking at each other. "A flamethrower. An honest-to-god flamethrower—"

"Objection, counsel is testifying," I said, standing. "Does the DA intend to ask a question, or just practice crooning like Sinatra?"

"Overruled," Judge Andrews said. "Ms. Schaefer, it's plainly obvious he was about to ask question before you objected. That said, DA Young, please do get on with it."

"Of course. Now, Mick." He leaned in again, but this time closer to the jury. "After the honest-to-god flamethrower came out, what did the mutant do with it?"

"He lit up that alley like the Fourth of July," Mick said. "Actually wait, no, that just happened, and the alley was way brighter 'n hotter than this last Fourth. There was fire crawling up the walls, all over the dumpsters, and that's before he started aiming that flamethrower at Pat 'n Theo!"

I knew that wasn't what happened in that alley. Mick knew damn well that wasn't what happened in that alley. And St. John knew better than any of us that what Mick was describing absolutely, positively, definitely was not how it happened.

My only problem now was getting him to fess up.

"And what did you do when you saw that?"

"Well, ya know how we still had our beers?" Mick mimed a swinging motion with his arm. "I held my bottle in front o' me to get close, maybe catch the fire on the glass, an' I swung it at the mutie through the fire. I know I hit him somewhere, definitely felt something, but I couldn't see shit through all that fire. Once I felt that I hit something though? I up and ran."

Ah. That's how I get him to screw up on the stand.

This was also an object lesson in why you generally didn't want a long-standing district attorney, who had probably tried only one or two cases in their entire term, try a major case like this: they've spent so much time in a political and managerial position that they've forgotten the actual particulars behind doing their job right.

"Where?" Lou asked.

"Back out of the alley," Mick answered. "And I was gonna bank right back the way we came, but then I look back and see another goddamn flamethrower comin' right for me! I wasn't fast enough to get outta the way; that shit got me on my shorts, and I knew I had to get 'em off as soon as I could!"

"Let the record show," Lou Young said as he retreated to counsel's table again, retrieving a plastic bag from co-counsel, "that I am showing the exhibit to the defense." I simply gave a nod and turned my eyes to the images in my trial binder. "Permission to approach?"

"Granted."

"Mick. What is this?" Lou handed the bag to the witness, who turned it over in his hands a few times.

"They're my shorts," he said. "Here, I can see my initials on the label."

"And these are the ones you were wearing on May 8th, 1989?" Lou asked as a follow-up.

"They are," Mick confirmed. "You can see where it caught fire here, on the back of the left leg." He turned the bag in his hands to show as such to the DA, which also, given the DA's positioning, showed it to the jury.

"Your Honor, at this time the Prosecution would like to enter into evidence Prosecution's Exhibit 2, Victim's Burned Clothing."

"Any objections?" Judge Andrews asked me.

"Defense objects to the name of the exhibit," I answered as I stood. "Defense would prefer a name that looks neutrally upon the testifying party, such as Witness's Burned Clothing. Prematurely calling him a victim prejudices the jury against the defendant's affirmative defense."

"DA Young?" Judge Andrews turned back to the DA for his response.

"The prosecution will graciously concede on this matter," he said, tone and words working together to make it seem like he'd done me some huge favor, when in reality we both knew he wasn't going to be able to win on any objection. Not unless he wanted to open his judge buddy to even further grounds for appeal than I already had.

"So entered as Prosecution's Exhibit 2, Witness's Burned Clothing," Judge Andrews said. "Continue."

"Now after these," DA Young pointed at the plastic evidence bag holding Mick's shorts, "caught fire, what did you do?"

"Well, first I yelled and caught Jimmy's attention, and I heard him yell at the other guys, 'n they turned around. Then what I tried to do is get the shorts off," he said. "But I was still moving, not watching where I was going. And I was running basically full tilt– I mean, nobody thinks straight when they're on fire! So I slam into this fence, and next thing I know it gives way, and I'm fallin' thirty feet, 'n land straight on my leg." Mick tapped on his leg, the one in the cast. "Broke it real bad. But at least all the loose dirt 'n shit at the bottom put the fire out, or I woulda been way worse off."

"And how did you get help?" Lou asked.

"Objection," I said, rising to my feet. "The question lacks foundation."

"I'll rephrase," Lou said, preempting the judge. "What happened after you broke your leg?"

"My buddies called an ambulance with a payphone, right by the construction site," Mick said. "We was scared to all hell that the mutie was still there, waitin' for us to show ourselves, but Jimmy took a look and said he was gone."

"Objection," I rose to my feet once more. "Mr. Boothe is not the one testifying at the moment. While the statement could theoretically enter under the present sense impression exception to hearsay, this statement would be more appropriately entered into the record when Mr. Boothe testifies. As such, defense requests that the witness's recounting of Mr. Boothe's out of court statement be declared hearsay and moves that it be stricken from the record."

"Your Honor, the defense has outright ceded the point that this statement is an exception to the rule against hearsay, and gone and cited the specific exception it falls under," Lou Young argued.

"Regardless, defense also raises the point that the one who made this statement is due to be on the stand next, and can make the statement himself," Judge Andrews said. "The objection is sustained. Everything following the word 'ourselves' in the witness's answer is to be stricken from the record."

An infinitesimal victory, yes. But it was key to break up the flow of things every now and again.

"Once the ambulance arrived, where did it take you?" DA Young asked, forcing himself back into the rhythm of questioning again.

"The hospital," Mick answered. "Doctor there told me I'd need to wear this cast for three or four months, and that even after that I may never walk right again."

"Objection," I said, rising to my feet. "The witness is offering an out of court statement meant to prove the truth of the matter asserted; in this case, that he sustained injuries sufficient to meet one element of the charges against my client. The witness does not have the medical expertise to make these statements himself, and is only relaying out-of-court testimony of yet another of the prosecution's witnesses who is yet to testify. If the prosecution wants the specifics of the witness's injuries on the record, let them be entered into the record by a medical professional who can testify to them."

"Sustained," Judge Andrews said, at which point Lou's co-counsel let his hand drop, taking a sheaf of papers with it.

"Defense moves to strike every part of the witness's answer past 'the hospital'," I added.

"Motion sustained; let the offending parts of testimony be stricken from the record." Judge Andrews nodded at the stenographer, who obligingly pulled out a red pen and crossed out the offending parts of the transcript. "Continue."

"Just one more question for you, Mick," Lou said. "Your leg's stuck in that cast, you're out of a job, and for all we know your life as an able-bodied young man is over. Is there anything you'd like to share with the jury, or tell the defendant?"

"Objection!" I yelled, unwilling to let even one word through. "Your Honor, testimony from a victim regarding the extent of the harm they have suffered presupposes that they are, in fact, the victim, and that the person they are addressing did in fact cause their harm, which itself presupposes that the defendant is guilty, and completely contravenes the purpose of our justice system! Furthermore, my client is alleging an affirmative defense of self-defense; the answer to the DA's question would be so outrageously prejudicial to my client's ability to pose that affirmative defense that the question should not be allowed, and this is after we consider that there is absolutely zero probative value to this question's answer!"

"Your Honor," Lou Young began, "if the jury is to properly make a decision based on the charges that were brought, they need to truly understand the nature of the harm suffered! And while a doctor's account of the dry specifics is all well and good, a first person account of what effect these injuries have had will be substantially more probative than any prejudice it could cause."

"Your Honor," I took back over, "the jury only needs for the prosecution's expert witness to tell them whether an injury sufficient to meet the elements of the charges has been suffered. They do not need a lay witness to wax poetic about his condition in order to make that determination of fact."

"Your Honor—"

"Save it, DA Young," Judge Andrews said. "In this, at least, the defense has a point." Oh, and now we're going to prejudice the jury with backhanded comments like that? One more on the list, I suppose… if I didn't already loathe Judge Andrews, I would now. "Either rephrase the question to something that actually has even an inkling of probative value, or withdraw it entirely."

"Understood, your Honor," Lou said. "Thank you for bearing with mine and my friend from the other side's yelling," the DA said to Mick with a nod. "No further questions for this witness."

And with that, the DA walked back to his table.

"Would the defense like to cross-examine this witness?" Judge Andrews asked.

"It would," I answered, standing. "Before that, your Honor, the defense requests a brief twenty minute recess. The witness does not look particularly comfortable sitting in that position," I said with a nod at Mick, who scowled back. "And all of us could use an opportunity to get some fresh air. Or a smoke," I said with a nod at the DA, "if that is their preference."

"I am feeling a mite peckish myself," Judge Andrews said. "Very well. Court will reconvene with defense's cross of the witness in twenty minutes."

The gavel came down, and we all got a breather.

"At this time, does the defense still wish to cross-examine this witness?" Judge Andrews asked.

"It does, your Honor," I confirmed once more. "Permission to approach, your Honor?"

"Permission granted," he affirmed.

And with that, I entered the well of the court, hands clasped loosely in front of me.

"Mr. Samuelson," I started, positioning myself directly in front of the judge's position on the bench. "Do you know why, despite all his bluster and over-exaggeration, J. Jonah Jameson is essentially correct with regards to Spider-Man?"

"Objection," Lou Young said, rising to his feet. "Your Honor, what possible relevance could such a question have to the matter at hand?"

"Your Honor, the question is foundational, and the relevance will be revealed within two questions," I fired back.

"Overruled," Judge Andrews said. "I will admit, I am beyond curious as to how you plan to tie this back in, Ms. Schaefer. That being said, if I do not see the relevance within two questions, I will strike the question and any answers." He turned to Micah. "The witness will answer the question."

"No, I don't," he admitted.

"Would it surprise you, then, to learn that Mr. Jameson is correct because Spider-Man is engaging in illegal vigilantism?" I asked. "That is to say, he is illegally undertaking actions reserved for law enforcement?"

"Yes?" Mick answered, though it was a question more than a statement. "I thought it was fine, the Avengers and the Four do that shit all the time, don't they?"

"The Avengers and the Fantastic Four both have a special dispensation from the government of the United States and the State of New York which allows them to act as law enforcement under select conditions," I answered. "Spider-Man does not have such a dispensation, therefore his vigilantism is illegal. Mr. Samuelson, do you possess such a special dispensation?"

"What? Of course not!" Mick said.

"Mr. Samuelson, you testified that you and your three friends took it upon yourselves to either retrieve stolen property or, failing that, seize value equal to that of the stolen property, did you not?" I had my right hand under my chest, holding my left elbow, and had one finger on my left hand resting on my chin, as though in thought.

"I mean, yeah, but—"

"Therefore, it is your testimony that you, Mr. Boothe, Mr. MacEahern, and Mr. Nielson all engaged in illegal vigilantism when you ran down and physically assaulted my client, is it not?"

"Wha—"

"And keep in mind, Mr. Samuelson?" I took one step closer, and crossed my arms, affecting a disappointed expression. "Because you have already testified as such, you have waived your Fifth Amendment right to remain silent on this issue. Therefore, you must answer yes or no: is it your testimony that you, Mr. Boothe, Mr. MacEahern, and Mr. Nielson engaged in illegal vigilantism directed at my client?"

Murmuring filled the gallery of the courtroom. I could swear I heard a whisper of 'then why aren't they on trial?' from off to the back left, but I'd have to ask Matt for clarification on that later.

"Objection," Lou said, standing. "Asked and answered, and the defense cannot presuppose that the witness has waived his constitutional right, your Honor."

"Your Honor," I started, "while the Fifth must be clearly and unequivocally taken, a defendant need only implicitly waive his right to take the Fifth for its protections to be void, such as by discussing a matter at hand that would constitute self-incrimination. Which, as it happens, is the case here."

This was one of the prickliest things about the Fifth Amendment. If you want to take the fifth, you need to clearly and unequivocally state that you are invoking the right to remain silent. Simply remaining silent is not, ironically, enough to invoke that right. If you do something that would run counter to your Fifth Amendment right against self-incrimination, however, and you would reasonably have known that you had that right (such as, say, if you were on the stand and sworn in under penalty of perjury…), then any action that merely implies the choice to void the Fifth will suffice.

Is it stupid? Yes. Will it change?

Only if enough people can agree to force that kind of change through. Which meant we were stuck with it for now… and I was going to ruthlessly abuse it.

"No, asked and answered it has not been," the judge said. "Overruled. Furthermore, defense is correct in that the right against self-incrimination has been waived in this regard. The witness will answer the question," Judge Andrews said, looking down at Micah Samuelson from his podium.

"Y-yes, we did," he said. "But—"

"Moving on," I said, cutting off Mick before he could say anything further.

I turned away from the witness stand and moved across the well, physically 'moving on' from my previous position, so as to mentally set up for the jury that I was moving to a different point entirely.

"It was your testimony that you fell into the open construction site trying to remove your trousers, correct?"

"I said that, didn't I?" Mick's voice was churlish, and he crossed his arms with a grimace. The witness clearly didn't like me, but guess what? That was fine.

I didn't want him to like me. In fact, I wanted him to really, really dislike me. The more angry and annoyed he got with me, the more likely he was to slip up.

"Yes or no please, Mr. Samuelson?" I replied, my voice customer-service pleasant.

"Yeah," he ground out. "I said that."

"And you tried to remove them because they were, per your testimony, on fire, correct?" I was at the far corner of the well from both the jury and the witness by this point, meaning both of them had to look away from each other to watch me.

"Yeah, they were," Mick confirmed.

"So your trousers were on fire while you were wearing them."

"I just told you that, lady," Mick scoffed. "You deaf?"

"No, just confused," I said. I paced around the well as I spoke, pacing from the back left corner to the front left corner. Once again, the jury's eyes followed me from left to right, but because of my positioning, they looked at me, not the witness. "You say your trousers were on fire, but you had no burns?"

"I… they got put out before they could burn me!" Mick blurted out, face reddening.

"So you had burning clothing," I ticked off my points with my fingers as I ran through them, and walked closer to the jury with each tick, "cotton clothing actively on fire, pressed directly against your skin, and you didn't get any burns."

"Like I said, it got put out super fast!" Ooh, and now he looked like a tomato! How exciting! From pale as can be to rose red, this young man was turning into quite the chameleon under my questioning.

"While I doubt it, that is your statement under oath, so either it is the truth, or you've committed yet another crime."

"Objection, your Honor!" Lou Young broke in. "Counsel is clearly badgering the witness!"

"Sustained." Judge Andrews looked to the jury. "Strike that statement from the record, and the jury will disregard. Thin ice, Schaefer."

No they wouldn't, I thought. The jury never disregards.

"My apologies, your Honor," I said with a smile.

Once again, I shifted my location in the well. This time, I wound up leaning against counsel's table, both hands flat on the table behind me. One quick reach behind me, and I'd be within arm's length of where Matt sat ready.

"One more thing, and then we'll be done," I told Mick. "You mentioned in your testimony that you swung at my client with a beer bottle. Was this before or after he used his power?"

"After, definitely after," he said.

"So you mean to tell me that you saw this great big jet of flame spewing your way, and you swung into it with a glass bottle," I asked, raising one eyebrow.

"Christ, lady, you deaf? Yes!" Mick yelled, slamming a hand on the witness stand to punctuate what he said.

"Mhmm." Without looking, I reached a hand over, and took the plastic bag that Matt held out for me in his hand. "Permission to approach the witness, your Honor?"

"Granted," the judge said.

"Mr. Samuelson, do you recognize what I have in this bag?" I walked towards him, keeping my angle such that he had to look away from the jury to answer.

"It's a beer bottle," he said. "Of course I know what it is."

"The beer bottle is open and empty, is it not?" I continued.

"Yeah, and?"

"Do you see this stain on the side of the bottle?" I turned the bag in my hand so that he could see the dark, reddish-brown stain on the label.

"What about it?" Mick asked.

"Yes or no, if you would," I said with a disappointed frown. "Do you see the stain, yes or no, Mr. Samuelson."

"Yes," he ground out. "I see your damn stain."

"Now, do you also see these markings on the neck of the bottle?" I turned the bag again and showed him the neck, but when Mick reached up to take the bag, I pulled it back. "Eyes only, Mr. Samuelson. Do you see these markings."

"Yeah, and?" Mick asked.

"Would it surprise you to learn they are fingerprints?" I said. "Your fingerprints, specifically?" I turned the bag again, letting him see the document inside the bag. "Do you see this document on the bag's label, marked 'Fingerprint Comparison between Unknown Subject & Samuelson, Micah R.'?"

"Yes," he said, for lack of a better answer.

"And you do recognize the sample, which is the fingerprints you gave at the police station on the ninth of June, 1989?" I asked.

"Yes," Mick said.

"Your Honor, at this time I would like to enter into evidence Defense Exhibit 1, Stained Beer Bottle with Micah R. Samuelson's Fingerprints, and have it be part of the record," I said.

"Any objections?" Judge Andrews asked the DA.

"The prosecution objects," Lou said, standing. "This item constitutes material evidence produced solely by the defense, not found by law enforcement, and not at the alleyway that constitutes the crime scene."

"Your Honor, this evidence was turned over to the prosecution in a timely manner, and they had ample opportunity to perform their own examinations," I said. "Furthermore, the fingerprint sample was provided by law enforcement, and was taken during their investigation and analysis of the evidence."

"Objection overruled," Judge Andrews said. Both the DA and I knew that this would be the result, but just as I'd had to make some perfunctory objections earlier, so did he. "So entered. You may proceed."

"Thank you, your Honor," I said. "Mr. Samuelson, this was the beer bottle you state you were drinking from when you first saw my client at the corner store, correct?"

"Yeah, it is," Mick said, frowning at the bottle. I could only wonder what was going through his head right now. But thankfully, I was about to decide exactly how he thought.

"And this is the bottle that you swung at my client?"

"Obviously," he said with a scoff. A quick glance up at Judge Andrews, however, had him spooked straight, and Mick gave a proper answer. "Y-yes, it is."

"Now, you state that you took this bottle," I shifted my hold on the bottle through the plastic bag to grip it by the neck, "and used it to disperse any fire before you swung it into the flames, like so." Making sure my movements were slow, I swung the bottle around my right side to strike at an imaginary object in front of me. "Is that correct?"

"Yeah, but I don't swing like a girl," Mick said with a cocky smirk. Hook.

"Quite. Now, Mr. Samuelson, this means that you swung the bottle paper-side forward, into the fire, correct?" I let go of the neck of the bottle and manipulated the plastic bag holding it so that the side of the bottle faced the jury.

"Yeah, and?" Mick asked.

"Well," I said, tapping the paper through the plastic of the bag, "it's just that if I were to swing something with paper on it into a focused stream of flame, you would expect the paper to be burnt, wouldn't you?"

"Objection!" Lou Young got to his feet, pitching his voice so that its volume overpowered mine. "Your Honor, the question clearly calls for speculation on the part of the witness!"

"My apologies," I said with a wave of my hand. "Let me rephrase. Mr. Samuelson, you swung this bottle paper-side first into a focused stream of flame." I turned the bag around in my hand slowly, making sure to show every single side of it to the witness. "Is the paper burnt at all?"

"... don't look burned to me," Mick admitted. Line.

"Mr. Samuelson, I need a yes or a no," I said with a frown. "Is the paper burnt?"

"Objection, your Honor, badgering the witness!" Lou said, slamming a hand on the table.

"Overruled." Judge Andrews didn't even spare a moment to look at Lou Young. His objection had no merit, and all three of us knew it; it was only ever for the purpose of trying to break my rhythm. Regardless, the judge turned to look at Mick Samuelson. "The witness will answer the question."

"No, alright?" Mick said with a scowl. "It ain't burnt."

"And rather than being burnt," I continued, turning to show one side of the bottle to him, "the paper is instead bloodstained, is it not?"

"It's stained with something," Mick hedged. Sinker.

"Indeed." I walked towards the jury and showed them all the bottle, and how it wasn't burnt at all, while also displaying the blood that had darkened the Heineken label. "Now Mr. Samuelson. Given that the paper label on this bottle isn't burnt, and that it has a dried liquid stain on the label, I have to ask: did you actually swing this bottle at St. John Allerdyce before he used his power? Because given everything else you've said, swinging it afterwards seems to be impossible."

I walked back over towards and leaned back against counsel's table while asking this, hands resting flat on the table.

"Keep in mind that your sworn testimony, both to law enforcement and the court, has been in the opposite. And that lying to either, or God forbid both, is a crime."

Dead silence. All of the muttering in the gallery that had built up over time petered out to nothing. Every member of the jury, even the ones who had been against me from minute one, leaned in, eager to hear the answer.

"The witness will answer the question." Judge Andrews also leaned in from his spot on the bench, staring down at Micah Samuelson with one eyebrow cocked.

"I…" Mick looked away from the judge, past me, and towards DA Young. "I–"

"If you wish to plead the Fifth," I said as I stalked closer, crossing my arms under my chest as I approached, "then you need to clearly and unequivocally state that you are invoking your right to remain silent."

"I'm invoking my right to remain silent!" Mick parroted.

"Nothing further, your Honor." And with that, I walked back to counsel's table, slid into the chair, and observed the fruits of my labor.

Ladies and gentlemen of the jury, may I present to you Exhibit A: always assume your star witness is lying, even under oath, unless you can definitively prove otherwise.

"Would the prosecution like to redirect?" Judge Andrews asked, and I laughed inwardly. Oh, yes, please. I would love to see how you try and turn your star witness getting caught perjuring himself around into something positive.

"Not at this time, your Honor," DA Young said.

"Very well. Mr. Samuelson, you may step down from the stand," Judge Andrews said. "We will take a recess for lunch, and then the prosecution may call its next witness.

The gavel came down.

"I think we got a pair of jurors," Matt whispered to me.

"Good," I said just as quietly, eyeing the reporters in the gallery. "Just need two more, preferably."

Two more. I needed two more people willing to let reason take center stage in their minds as opposed to prejudice. It sounded so small. Two people, just two measly people.

But this first witness was quite literally as easy as it could get. The rest of this trial was going to be an uphill battle. But by God was I going to fight it.

And damn it all, but I aimed to win.

Notes:

The next chapter will feature the rest of the prosecution's case-in-chief, but in excerpt format. As you can see, even one singular witness can take a very long time. And when you get to expert witnesses, things just go even longer. As an example, when doing trial advocacy class, the testimony for expert witnesses took upwards of thirty minutes in very limited scenarios. There are some cases where the testimony of a witness, often an expert but not always, can take literal DAYS.