Authors: William Bernhardt
“I was at the Bluebell Bar.”
“Just stopped in for a drink?”
“No. Actually I don’t drink.”
“Oh, of course not.” Swain grinned. “You’re probably a buttermilk man.”
Vick didn’t flinch.
“If you don’t drink, why were you at the Bluebell Bar?”
“I was looking for someone.”
“Who?”
Vick took a deep breath. “Tommy Vuong.”
“And why were you looking for him?”
Vick looked across the courtroom at Ben. His mouth remained shut.
Ben jumped to his feet. “Objection!”
Tyler peered down at him. “Got any grounds, counsel, or do you just not want the witness to answer?”
“I object … on grounds of relevance, your honor.”
Swain piped in. “Of course this is relevant. It goes toward establishing the defendant’s motive. It also establishes a predisposition for violence toward the victim.”
“We’ll stipulate that Donald wasn’t fond of the victim, your honor. So the question is unnecessary.”
Tyler shook his head. “The objection is overruled.”
Ben didn’t sit down. “Then I object on grounds of … um … lack of proper foundation.”
Swain’s forehead crinkled. “Do I have to respond to that, Judge?”
“No.” He pointed his gavel at Ben. “The quality of your objections is quickly deteriorating, counsel. Overruled. I suggest you sit down.”
Reluctantly Ben did as the judge told him.
“Let me ask it again,” Swain said. “Why were you looking for Tommy Vuong?”
Vick took another deep breath. “I would prefer not to say.”
“Is that a fact?” Swain looked to the judge. “Gosh, your honor, the witness would prefer not to say!”
Judge Tyler frowned. “The witness will answer the question.”
Vick closed his eyes and swallowed. “I won’t.”
“What?”
Tyler drew himself up like a grizzly bear rearing for an attack. “What do you mean, you
won’t?”
“I mean, I won’t answer the question. I can’t.”
“Mr. Vick, you took a solemn oath to tell the truth. The whole truth.”
“Yes. But long before today I made another promise. And I can’t break it.”
Tyler peered down at the witness. “If you do not answer the district attorney’s question, sir, there will be severe consequences.”
“If I do answer the question, someone else’s life will be ruined. I won’t do that.”
Ben could tell the jurors were disturbed by Vick’s sudden recalcitrance. Whatever good he had done for Vick during his direct examination was slowly oozing away. “Your honor, perhaps if Mr. Swain could phrase the question differently.”
“Okay,” Swain said. “I’ll play along. What did you say to Tommy Vuong?”
“I—I can’t tell you.”
“We’ve heard you two talked for several minutes. What did you talk about?”
“I’m sorry. I can’t say.”
Swain spread his arms wide. “Your honor … what can I do?”
“Once again,” the judge said, “I instruct the witness to answer the question!”
“I’m sorry, sir. I mean no disrespect. But I can’t do that.”
“You
will
do that!” Tyler pounded his gavel. “I will not allow this contempt of court!”
“You’ll have to, sir.”
“I will insist on an answer if we have to stay here all night!”
“Then I invoke the protection of the Fifth Amendment and respectfully decline to answer.”
Ben closed his eyes. It was enough to make a lawyer cry. His defendant agrees to take the stand, only to plead the Fifth and refuse to answer the DA’s questions. It would’ve been better if Ben had never put him on the stand at all.
“So that’s it, then?” Tyler demanded. “You’re going to take the Fifth?”
“Yes, sir. I am.”
“In that case,” Swain said, “what’s the point of proceeding? I have no more questions.”
And no need to ask them, Ben realized. The expression on the jurors’ faces had changed dramatically. There was outright hostility toward Vick now. He was hiding something.
“Very well,” Tyler said. “Mr. Vick, you’re excused. Get out of here.”
Vick scurried out of the box, without once looking back at the jury. It was just as well. He wouldn’t have liked what he saw.
“Any further testimony, Mr. Kincaid?”
“No, sir,” Ben said regretfully. “Mr. Vick is our only witness.
“Any rebuttal from the prosecution?”
Swain shook his head happily. “I see no need, your honor.” And of course, he wanted to rush this trial to its conclusion while the memory of this disaster was still fresh on the jurors’ minds.
“Very well. I’ll entertain any motions from counsel.” He checked his watch. “It looks like we can just squeeze in closing arguments before quitting time. And then,” he said to the jury, “this matter will be in your hands.”
D
ISTRICT ATTORNEY SWAIN BEGAN
his closing in a voice so hushed the court reporter had to strain to pick up his words.
“Donald Vick doesn’t want you to know the whole story. He only wants you to know pieces of it—the safe parts, the parts he can get away with telling. We, on the other hand, have shown you the whole story. We have shown you all the evidence. We have held nothing back. As a result, I believe that each of you can see what really happened.”
He pushed away from the jury box and crossed the courtroom, drawing the jurors’ eyes toward the defendant. “We know for a fact that Donald Vick is a member of a hate group called ASP, that he is the sworn enemy of the Vietnamese members of our community, and that he is a hothead who continually agitated for violent attacks against the Vietnamese.
“We know that on the afternoon of July twenty-fifth he sought out Tommy Vuong and found him at the Bluebell Bar. He has admitted this to you. He refused to tell you what they discussed. Witnesses have testified that soon thereafter Vick began beating Vuong with all his might. If it had not been for the intervention of others, Vick might well have killed Vuong then and there.
“We know that Vick had access to the murder weapon, and that he himself ordered and received the crossbow bolts. We know he used it, too—his hair was caught in the firing mechanism and his blood was smeared on the frame when the weapon was found shortly after the murder occurred. Which was only a few scant hours after Vick attacked Vuong in the Bluebell Bar.”
He returned to his original position directly in front of the jury. “I ask you to consider the evidence that has been presented, to consider it with your minds, and your hearts. Is there any other explanation for these facts? Is there any possible conclusion other than the conclusion that Donald Vick fired the fatal shots?”
Swain lowered his hands slowly to his side. “I suggest to you that there is not. We all want to live in a safe place. We want to live where our children can play, where we can raise a family, where our elderly can retire—without fear. Silver Springs used to be like that. But it isn’t anymore. Now you can’t walk the streets without wondering whether someone might step out of the shadows and put a crossbow bolt in your back.”
Ben started to object, then decided against it. Swain’s closing was dangerously close to being improperly prejudicial. He was asking the jury to convict in order to purge the community of evil, not because the evidence proved Vick’s guilt. But the jury had already heard it, and they were already hostile toward Ben’s client. He didn’t want to make matters worse by annoying them with a poorly timed objection.
“It doesn’t have to be this way,” Swain continued. “We can reclaim our town. We can take it back. You—the ladies and gentlemen of this jury—can put out the word that terrorism, and violence, and intolerance will not be condoned any longer.
“We have shown you Donald Vick’s motive, his nonexistent alibi, his access to the murder weapon, and the uncontested trace evidence found on that weapon linking it to Donald Vick. I respectfully submit that we have met our burden. And I request—indeed, for all our sakes, I
urge
you to render a verdict finding Donald Vick guilty as charged.”
As soon as Swain reseated himself, Ben slowly rose and approached the jury, well aware that he was about to do more than simply argue for a favorable verdict.
He was pleading for a man’s life.
“Ladies and gentlemen of the jury. ASP is not on trial. The future of Silver Springs is not on trial. Donald Vick is on trial. Period. And you are not being asked to determine what’s good for the community, or for your children, or for future generations.
“You are not being asked to take a stand against hate groups, or racists, or terrorists. You are only being asked to answer one question: has the prosecution proven that Donald Vick is guilty of murder in the first degree beyond a reasonable doubt? And if your answer is no, then the judge will instruct you that you must, not should, but
must,
render a verdict of not guilty.”
Ben returned to counsel table, bringing Vick back into the jurors’ field of vision. He wanted to remind them that this was a real living breathing person they were talking about.
“Every piece of evidence presented by the prosecution—without exception—has been circumstantial. None of it directly proves that Donald committed this crime. No one saw him do it, no one heard him do it, no one saw blood on his hands.”
Stupid choice of words; the jury would remember the blood on his shirt. Too late now—best to keep moving ahead.
“The prosecution’s version of the facts is, at best, only one possible version of the facts. It is not an inescapable conclusion. Just for a moment let’s imagine another possibility. Picture that lonely country road in the middle of the night—only this time let’s imagine that it was
you
out for a midnight stroll.
“Let’s suppose, just to make it interesting, that you had an argument with someone that afternoon. I’ll bet each of you has had a fight with someone at some time in your life. I bet each of you has lost your temper and done something you later regretted. But let’s suppose that just after you lose your temper and have that fight, the person you fought with is killed. And when the police come for you, you haven’t had the foresight to concoct a clever alibi. So they arrest you. Picture yourself sitting in that chair at the defendant’s table. On trial for your life.
“Preposterous, you say? That could never happen?” Ben spread his arms. “But that’s what the case against Donald Vick is. The prosecution wants you to convict him because he didn’t like Tommy Vuong, because he fought with Tommy Vuong, and because he didn’t have an alibi when Tommy was killed. But you say—that could happen to anyone. And I say to you—yes, you’re right. And that’s exactly the point.”
Ben placed his hands on the rail and stood closer to the jury than he had ever dared stand before. “You cannot convict a man of first-degree murder on a possibility. You cannot convict him because he might have done it. You can only convict him if you have eliminated all the other possibilities. You must be certain—certain beyond a reasonable doubt.
“And you know what?” Ben said. “I don’t think you are. I don’t think you could be. I think each of you has doubts. Maybe they aren’t big ones. Maybe it’s just one teeny-tiny doubt. But that’s enough. As long as that doubt remains, you have no alternative. Enter a verdict finding Donald Vick not guilty.”
Ben held their eyes for a few more moments, then returned to his seat.
That had gone well, better than he expected, actually. Unfortunately he didn’t get the last word.
“Rebuttal?” Judge Tyler asked.
“I think so.” Swain sprang to his feet. He undoubtedly realized the jury was tired of speeches. He was going to say what he had to say and get it over with.
“Well, Mr. Kincaid was very dramatic, wasn’t he?”
Now that, Ben thought, was the pot calling the kettle black.
“But he left a few details out. Like, for instance, the fact that Donald Vick had access to the crossbow and personally picked up the bolts the day before the murder. That he was found wandering around the crime scene shortly after the murder occurred—with blood on his shirt.”
Swain picked up the crossbow and waved it in the air. “Has Mr. Kincaid forgotten that Vick’s own hair and blood was found on this crossbow?” he shouted. “I think not. But he’s hoping you will.
“This crime could not have been committed by just anyone. Who else attacked the victim? Who else specially ordered the ammunition? Who else told the sheriff that Tommy Vuong deserved to die? No one else!” He whirled around and pointed at the defendant. “
No one else!
Only Donald Vick!”
Swain returned to counsel table, closed his eyes briefly, then looked one more time at the jury. “There is only one possibility, one alternative, one way to set the world right again. I ask you to find Donald Vick guilty of murder in the first degree.”
The judge instructed and cautioned the jury, then the bailiff led them to a room in the back of the courthouse. Judge Tyler told them to begin deliberating immediately, rather than waiting till the following morning.
It was clear to Ben, from the judge’s tone, that he didn’t think the deliberation would take long.
J
UST AFTER SUNSET COLONEL
Nguyen and Lan walked hand-in-hand through the loblolly pine trees outside the perimeter of Coi Than Tien. The night was still and peaceful; they could almost forget all the turmoil that surrounded them.
Colonel Nguyen left the courtroom after the jury was dismissed. They still had not returned. Nguyen told himself repeatedly that no one could be certain what the jurors’ thoughts were. But the evidence at trial had been strong, almost overwhelming. He had little doubt but that the jury would find him guilty, and the death sentence would be rendered against Donald Vick.
A man he was almost certain had not committed the crime.
“We came here to escape,” Lan reminded him. “But I sense your troubles have followed you.”
He smiled as best he could. He wondered if all this had not been hardest on her, all his trauma, his moodiness, his indecision. At least he was in control—he could chart his own course. She was at the mercy of the decisions of others.
“Are you still thinking of the trial?”