State’s Evidence Page 18
The door at the back of the judge’s bench opened and a little round man wearing a red bow tie and a pseudo-suede sport coat and a self-important smirk strolled to the small clerk’s desk in the center of the room just below the judge’s bench. After shuffling some papers he turned toward the spectators. “All witnesses are excluded from the proceedings,” he announced. “Witnesses please proceed immediately to room two-sixteen and wait until you are called to testify.”
No one left. The little clerk sat down and tugged his tie. The court reporter came in and set up her Stenorette, then sat primly behind it. Her skirt rose well above her knees. The clerk glanced at the expanse of thigh and smiled. The bailiff left the room. Three minutes later the doors banged open and about thirty people swept in, bringing a commotion in with them. They found seats and the din gradually subsided. One by one all eyes focused on the little door behind the bench.
The gavel banged.
The clerk ordered us to rise.
The judge entered.
She was tall and sharp-chinned, with dark arched brows above steel-rimmed glasses. Her hair was black and straight and fell in folds like her robe. Her high white collar could have served a cleric or a gull. She mounted the bench and took her seat with the inevitable reluctance of a veteran jurist.
In the singsong cadence of the rote, the clerk banged the gavel again and called the court into session, named the judge and called the case: “State of California versus Guiseppi A. Fluto.” Both sides pronounced themselves ready. The Honorable Susan McMinn, Judge of the Superior Court, directed the clerk to empanel the jury.
The tallest, thinnest, and oldest man at Fluto’s table stood up. “Your Honor,” he began slowly, “at this time the defendant has several motions to present. Since I am confident that the disposition of these matters will obviate the trial, I ask leave to present them at this time.”
The judge lifted her glasses off her nose and placed them on top of her head. “We went into this last week, Mr. Loggins. I heard your motions then, and upon due consideration I denied them. I told you I would not hear motions this morning; I told you to come prepared for trial.”
“Your Honor, my client has certain rights, and as his counsel I am compelled …”
“Your client’s rights have been and will continue to be scrupulously observed, as are the rights of all defendants, by this court. However, we are going to trial today, Mr. Loggins. You have had ample time to make whatever motions you deem necessary. Are you ready to proceed?”
“If it please the court, I would like the record to reflect the following seven motions which the defendant urges today, any one of which—”
“Sit down, Mr. Loggins.”
“Your Honor—”
“The clerk will empanel the jury.”
“May I make a statement for the record, Your Honor? Serious matters of prejudice are occurring here, and the record should reflect them. I insist—”
“You do not insist in this court, Mr. Loggins. I insist. The record will reflect that on Friday last you presented some twenty-one motions to this court on behalf of Mr. Fluto. All were denied. Any further record you wish to make regarding pretrial matters may be made in the Court of Appeals. The clerk will empanel the jury.”
“There have been developments since last week that are significant, Your Honor. Mr. Fluto’s son lies in a hospital room, the victim of an assault with a deadly weapon. This outrage clearly supports our contention that a conspiracy is afoot to persecute Mr. Fluto, to remove him from society at any cost—”
“Enough, Mr. Loggins. The veniremen are present. The clerk will empanel the jury.”
The little clerk released his nostril and stood at his desk and began pulling slips of paper from a little container and reading the names on them, struggling with the pronunciation of every other one. The persons named stumbled toward their seats in the jury box, looking alarmed and cowed. After twelve were seated the judge spoke again.
“Ladies and gentlemen, this is a criminal trial, the State of California versus Giuseppi A. Fluto. The charges will be explained more fully at a later time. Mr. Fluto is the gentleman seated in the center of the table beside you. He is represented by Mr. Lafcadio Loggins. Mr. Loggins is assisted by Mr. Daniel Rotunda and Mr. Jacob Goldberg. All three gentlemen are with the law firm of Loggins, Swain and Rotunda. The State is represented by Mr. Raymond Tolson, Deputy District Attorney. Mr. Tolson is assisted by Ms. Roxanne Epley. Do any of you know any of the attorneys I mentioned, or the law firm, or Mr. Fluto the defendant? Fine. At this time the lawyers for both sides are given the opportunity to question you in order to determine whether you can accord both sides a fair trial in this case. Sit down, Mr. Loggins. Your turn will come. Mr. Tolson?”
“Thank you, Your Honor,” Tolson said as he rose. “Ladies and gentlemen …”
And we were off. Tolson had doubtlessly picked a hundred or so criminal juries. He knew the kind of person he wanted and, more significantly, the kind he didn’t want, and he knew how to find out which was which. Before long the spectators and I knew who was married, divorced, or single, who worked and at what, who read what magazines, who joined what clubs, who went to church, who belonged to a union, who had had trouble with the law at some time in their lives, who had previously served on a jury, and who was angry that they were losing a full day’s pay in return for the measly jury fee.
Then Tolson moved into the tough stuff. Whether any of them would be repelled by photos of a dead man. Whether they would hold it against the State if such photos were offered into evidence. Whether any of them had qualms about bringing in a guilty verdict. Whether they understood and accepted the concept of circumstantial evidence. Of reasonable doubt. And on and on, rephrasings and restatements and reformulations, all to smoke out the man or woman who, on retiring to the jury room after the close of the evidence, would pop up and declare, “I don’t care what anyone says, a man with a face like that just couldn’t have done what they say he did.” I went out for a cigarette and a Coke, and then came back.
I was interested to see what Loggins would do when his turn came, and it came at about eleven o’clock. Tolson had challenged one woman for cause—she was on the same bowling team with Fluto’s daughter-in-law—and then Tolson passed for cause and it was Loggins’s turn. As though lifted by the Lord himself, Loggins rose to his feet and stood behind the chair on which Fluto was sitting, gripping his lapels with tapered fingers, his head bowed in Lincolnesque gravity. After a few more seconds he placed his hands on his client’s shoulders and offered his eyes to the jury like alms.
“I have but one question,” he intoned. “Mr. Fluto sits here an innocent man, as innocent of this crime as you or me. The law requires you to presume that fact. And unless the State proves each element of the crime with which Mr. Fluto is charged—each element—beyond a reasonable doubt, Mr. Fluto must walk out of here as he came in—an innocent man—even if he does not utter a single word in his own defense. I repeat: even if he does not say a single word during this entire trial. Do you understand and agree to abide by that principle, Mr. Carson?
“Mrs. Robustelli?
“Mr. Lute?
“Mr. Wandrell?
“Mrs. Becker?
“Miss Abernathy?
“Mr. Nix?
“Mr. Donaldson?
“Mr. Liu?
“Mr. Mihalovich?
“Mrs. Walters?
“Mr. Jefferson?
“Thank you all. Your Honor, the defense is pleased with the panel. We pass for cause. We shall exercise no peremptories.”
It was a gamble for Loggins, but it seemed one worth taking. He won points with all of them by not kicking anyone off the panel, by not asking a bunch of personal questions, by seeming to trust their integrity, by not acting like a lawyer. The ball was back in Tolson’s court, and after a few seconds of whispering with his assistant he called Loggins’s bluff. “The State also is confident the panel will accord both sides a fair trial.”
Ray Tolson shuffled some papers, closed his eyes for a second or two, then stood and looked, one by one, at the twelve faces in the box in front of him, the twelve faces he would have to convince by the end of the trial.
“This is a case involving a man who was run over by an automobile,” he began. “The man was killed. His name was Phillip Vincent. The man driving the car that killed him was Tony Fluto, the defendant. The man sitting right there. After he ran down Mr. Vincent, the defendant kept on driving. He sped away without stopping once. This makes Mr. Fluto guilty of the charge of failing to stop and render aid. That is the least offense involved in this case. The next greater offense is manslaughter. If you believe beyond a reasonable doubt that Tony Fluto was driving the car that killed Mr. Vincent, then you must find him guilty of that charge. Finally, ladies and gentlemen, the evidence will show that the defendant, Tony Fluto, intended to kill Mr. Vincent, that he lured Mr. Vincent down to Oswego Street for just that purpose and that he did, in fact, carry out his intention willfully and deliberately, with malice aforethought. If you believe beyond a reasonable doubt that Mr. Fluto intended to and did kill Phillip Vincent by running him down with an automobile, then you must find him guilty of murder.”
Tolson told it simply, but with a touch of raw, uncooked elegance. The jury listened carefully, and looked at Fluto from time to time, measuring him against the charges Tolson listed. They seemed interested but not repelled; curious more than anything. For his part, Fluto remained impassive and impressive, capable of anything, even innocence.
For my part, I was mad as hell. Ray Tolson had lied to me yet another time. He hadn’t told me he was going for a murder conviction, and worse, he had denied that there was a connection between Fluto and the dead man. Now he was claiming Fluto had killed him intentionally, that it had been a hit. It might have made a difference, knowing that. I might have been more careful, for myself and for Teresa Blair. As I swore under my breath, the little man with the chipped tooth got up and hurried out of the room, his features crunched into a frown. If Teresa Blair hadn’t been due to begin her testimony, I would have stomped out after him and left El Gordo forever.
Tolson sat down and the judge spoke: “Mr. Loggins?”
Loggins got to his feet. “Defendant once again requests leave to present a motion to the court.”
“Request denied. Proceed.”
“In that event, defendant reserves his opening until the close of the State’s evidence.”
“Very well,” the judge said. “Call your first witness, Mr. Tolson.”
“The State calls Mrs. Teresa Blair.”
The judge banged the gavel to wake the bailiff, and he trotted off to fetch her, his pistol flopping like a fish on his flank.
If she was nervous, she was hiding it behind the slats of a flexless, stalwart face and within clenched, bone-white hands. She marched down the center aisle of the courtroom, with the gait of the righteous and the wronged, wearing a burgundy suit and a white silk blouse and a mantle of mature and emotionless credibility. As she stood before the witness box with her right hand raised, taking the oath to tell the truth, Ray Tolson had the thin lips and languid eyes of a man holding a pat hand in a straight game.
“Please be seated and state your name and spell it,” the clerk directed once the oath was taken.
“Teresa Blair. T-E-R-E-S-A B-L-A-I-R.”
The judge nodded to Tolson. He stood up, checked his notes, checked the jury, checked his opponent, then gazed steadily at Teresa Blair. “Where do you live, Mrs. Blair?”
“Twenty-one–ninety Vista Grande Terrace.”
“In El Gordo?”
“I’m sorry. Yes.”
“How long have you lived there?”
“Ten years.”
“Are you married?”
“Yes.”
“What is your husband’s name?”
“James. James Blair.”
“What does he do for a living?”
“He’s an accountant and an investment adviser.”
“Self-employed?”
“Yes.”
“How about you, Mrs. Blair? Do you work outside the home?”
“Yes. I work part-time at Bathsheba’s, a woman’s store. I’m part owner of the store, and I’m the chief buyer.”
Tolson glanced at the jury to make sure they were with him. “What does a chief buyer do, Mrs. Blair?”
“Objection,” Loggins interjected. “The operation of a women’s clothing outlet is exceedingly interesting, I’m sure, but hardly relevant, Your Honor.”
“The jury is entitled to know the witness’s profession, Your Honor,” Tolson countered. “In aid of their assessment of her credibility.”
“Overruled,” the judge said. “Although to be precise, Mr. Tolson, let’s ask her what she does for her store, not what buyers in general might do.”
“Very well, Your Honor. What do you do at Bathsheba’s, Mrs. Blair?”
She smiled. “My main function is to select the clothes to be carried in our inventory. I do this chiefly from catalogs and magazines, and twice a year I make trips to New York and Los Angeles, to the spring and fall showings.”
“What size inventory does Bathsheba’s carry?”
“Approximately two hundred thousand, at wholesale.”
“Dollars?”
“Yes.”
“And you buy all those clothes yourself?”
“Almost all. My partner, Mr. Farnsworth, makes a buying trip to Europe each spring. He comes back with a few original gowns usually, but not many.”
“Can we get on with it, Your Honor?” Loggins pleaded from his chair.
“I’m surprised you’re so anxious to hear what Mrs. Blair has to say,” Tolson shot back. “I doubt that your client shares your eagerness.”
“No more of that, gentlemen,” Judge McMinn snapped. “Continue.”
“Mrs. Blair,” Tolson asked, “where were you on June ninth, 1980, at approximately seven P.M.?”
“I was in my car. On my way home from a friend’s house. It was a Sunday.”
“Did anything unusual happen that evening?”
“It certainly did.”
“Tell us about it.”
“Objection,” Loggins called out. “Calls for a narrative response.”
“I withdraw the question,” Tolson said. “Where were you that evening, Mrs. Blair? Precisely.”
She shifted uneasily, glanced up at the judge, and then at the defense table, and then back to Tolson. “As I said, I was on my way home from a friend’s house. I got trapped in the wrong lane of the freeway as I got near El Gordo—the traffic was very heavy—and so I got off the freeway going north on El Camino instead of south, toward my home. I didn’t want to block traffic by making a left turn—I never make left turns—so I turned to the right, intending to swing around and head the other way on El Camino. But because of some road construction I had to go several blocks before I could make another right turn, and it had gotten dark and, I don’t know, somehow I found myself down in the industrial area of town, in a place I had never been before.”
“What was the street?”
“Oswego, I believe.”
“How many blocks off El Camino?”
“About five, I think.”
“Was anyone in the car with you?”
“No.”
“So you wandered off your route. Then what happened?”
“Well, I pulled to the curb to look at my map of the city, so I could figure out where I was and how I could get out of there. I was frightened, I don’t mind saying. That’s a pretty rough area. I
wanted to get away from there as rapidly and directly as possible, without wandering into some place even worse.”
“Did you have your lights on or off while you looked at the map?”
“My headlights were off.”
“Why?”
“Because I was afraid. I didn’t want to attract attention. I used a flashlight to read the map.”
“Did you see anyone else in the area?”
“Not at first. But just as I was about to leave, a car came along. Just as it passed me, another car raced up after it, very fast, and forced the first car to the curb.”
“How far were you from where all this was happening?”
“About twenty yards, maybe.”
“Still parked?”
“Yes.”
“What happened next?”
“Well, the drivers got out of their cars and walked toward each other, right in the middle of the street. The man from the second car said something to the first man. For some reason, I thought they knew each other.”
“Why?”
“I’m not sure. They just didn’t seem to be strangers. The second man had clearly been chasing the first, for some reason. It wasn’t just a traffic accident.”
“Did you hear what either of them said?”
“No. My windows were rolled up and my heater was on.”
“Did the men see you?”
“I don’t think so.”
“Then what happened?”
“Well, I decided I didn’t want to be there, not at all, so I fumbled around and put the map away and put the car in gear and started to drive away.”
“Did you put on your lights?”
“No. I hoped neither of them would notice me. I didn’t want them to know I had seen them.”
“Why not?”
“I’m not sure. It just looked suspicious, like they were doing something illegal.”
“Objection,” Loggins said. “Speculation. Move to strike.”
The judge nodded. “The jury will disregard the answer to the last question.”
“What happened next?” Tolson asked.
“Well, I was looking back, ready to drive away, and I saw the man from the second car run back to his car and get in it. The first man stayed in the middle of the street for a few seconds, yelling something, it looked like. Then he started to run. And the man in the second car started it up and drove after the first man and, well, he just went faster and faster and the first man couldn’t get away and he ran him down. And the car just kept going. And the first man just lay there, all bent and twisted. It was terrible.”