The Lawyer's Lawyer

CHAPTER Fifty-Nine



The real show started on Wednesday. People were lined up at daybreak to get seats in the courtroom. Television kiosks were set up everywhere and reporters were reporting even when there was nothing to report. One was comparing Jack to the famous criminal defense lawyer, Clarence Darrow. Another was comparing the trial to the O. J. Simpson fiasco.

The reality was far different. Jack and his defender, Tom Wylie, were not interested in making the trial a spectacle. They were trying to reduce the issues to their simplest terms and get the spectacle over with as soon as possible. Merton liked the grand stage a little more, but even he planned to stick to the facts.

Judge Holbrook walked into the courtroom promptly at nine o’clock after being announced by the bailiff. The noise from the full courtroom standing up was almost deafening: The benches creaked, the floorboards creaked, the overhead fans squeaked, and the air conditioners, which weren’t working all that well, rattled. Judge Holbrook had to shout for everyone to be seated.

Jack was dressed in a blue pinstripe suit and was seated next to Tom, who leaned over and whispered in his ear. “Now I know why people from the Old South talked so loud,” he said, pointing up at the overhead fans. Jack smiled. His lawyer was trying to keep him loose.

Judge Holbrook began the proceedings by admonishing the spectators.

“A man is on trial for his life. You are here as spectators to witness the American justice system at work. However, you don’t have an individual right to be here. You will sit and observe in silence and you will not react to anything that happens. If you react in any way, or if you do not remain silent, your privilege to observe will be revoked, and you will be removed from the courtroom.”

He didn’t ask them if they understood his words. He simply turned to the lawyers.

“Do you have anything you want to discuss before we bring in the jury?”

“No, Your Honor.”

“No, Your Honor.”

“Bring in the jury,” the judge told the bailiff.

Moments later, the twelve jurors and one alternate entered the room—eight men and four women, the alternate being a woman as well.

“The lawyers are going to give their opening statements now,” the judge told them. “Opening statements are designed to give you an overall view of each side’s case. Listen carefully because the evidence does not often come in as timely and as precisely as we would like. Witnesses often testify out of order, depending on their schedules. And some evidence is never admitted. I caution you that what the lawyers say is not evidence. The only evidence is what is said from the witness stand and the documents that are admitted into evidence during the course of the trial.

“Mr. Merton, you may proceed.”

Robert Merton strode to the lectern that was facing the jury, but he stood next to it, not behind it. Being small in stature, Merton had learned a long time ago that the lectern only diminished his stature.

“Good morning, ladies and gentlemen,” he began. “This case is about this man, Jack Tobin.” He took the time to point directly at Jack, a tactic that he would use over and over again during the trial. It had no effect on Jack, who had seen every tactic in a courtroom that there was to see. “This man, a very famous and successful trial lawyer, utilized his talents to free a serial killer on death row.” Merton paused for effect. “For money! And when that serial killer double-crossed him by killing again before he could collect his money, Jack Tobin intentionally murdered his own client.”

It was a very aggressive tactic—go for the jugular immediately, leave the details for later. Reduce Jack in the eyes of that jury as quickly as he could. Jack and Tom had expected nothing less. They didn’t expect what came next, though.

“But this case doesn’t start with the murder of Thomas Felton. It starts with the beginning of the deal. The defendant had to get Felton off to get Felton a payoff from the Florida legislature—and I will explain that process to you in a moment. And to get Felton off, the defendant had to attack the people who arrested him—impugn their character.

“You will hear from two of those officers: Danni Jansen, a retired homicide detective who was a member of the original task force, and Sam Jeffries, the head of the task force that tracked Felton down so many years ago and now the chief of police of our town. Sam had already lost his wife at Felton’s hand. The defendant brutally and effectively attacked Sam’s handling of the case, accusing the entire prosecution of planting evidence.”

Tom was on his feet. Lawyers didn’t usually interrupt other lawyers during opening statements, but Merton was way over the line.

“Objection, Your Honor. Mr. Merton is trying the wrong case here. Thomas Felton was released by the Florida Supreme Court. We can’t try his appeal all over again in this case.”

“That is a speaking objection, Mr. Wylie. I told you I won’t have speaking objections in my courtroom. Overruled.”

“But Your Honor—”

“Overruled, Mr. Wylie. Mr. Merton, you may proceed.”

Tom sat down next to Jack, extremely frustrated. “This judge is going to be a big problem.”

“We now know what Merton is going to use for his emotional impact. His victim isn’t Felton, it’s Sam Jeffries,” Jack said.

“Exactly. And the judge is going to let him get away with it.”

Meanwhile, Merton spent the rest of his opening putting meat on the bare-bones accusations he had made. He took the jurors through the facts he intended to prove in a meticulous fashion although he left a few things out. Tom didn’t know if it was meant to keep the jury curious or to surprise him and Jack, or both.

“Mr. Wylie, are you ready to proceed?” the judge asked Tom when Merton had finished.

“Yes, Your Honor,” Tom said and stood to face the jury.

Tom Wylie had a slow, easy manner about him that tended to put everyone around him at ease. It was a stark contrast to Merton’s aggressive style. Because of his height, Tom could stand behind the podium and still comfortably address the jurors, although he preferred to walk about.

He started his remarks by reminding the jurors of the burden of proof, the same thing he’d done with each juror during jury selection. Tom believed firmly that, when it came to the burden of proof, you had to repeat it to the jury over and over again.

“When I talked to you during jury selection, I told you that the State has the burden to prove its case beyond a reasonable doubt. And I told you that the defendant has no burden and no obligation to put on even one witness in his defense, and, if the State does not meet its burden, you as jurors must acquit the defendant. And I asked each one of you if you understood and I asked if you could decide this case following that burden of proof, and you all assured me that you could. Now the trial has begun and I remind you of your promise and I ask you as you listen to the witnesses on both direct and cross-examination to always keep that burden of proof in your mind.”

Tom paused to look each and every juror in the eye. By making eye contact, he was getting that individual commitment one more time. Merton didn’t even notice. He was writing furiously in his yellow pad. Tom continued.

“Now you heard Mr. Merton say just a few minutes ago that this case really has its roots in the original appeal of Thomas Felton when the defendant—and I quote Mr. Merton—‘brutally and effectively’ attacked Sam Jeffries’s handling of the investigation. Facts, ladies and gentlemen, you are guided by nothing but facts—not unfounded accusations, not character assassination.”

Tom spoke the words softly. He wasn’t pointing any fingers at Robert Merton. It wasn’t his way.

“And the fact is, ladies and gentlemen, that the supreme court of this state, not Jack Tobin, set Mr. Felton free. And the supreme court of this state produced a written opinion about why Mr. Felton should be set free. That opinion is the law of that case, which every one of us, including Mr. Merton, is bound to follow. So please, do not be fooled by those deceptive words from the prosecution that would have you believe Mr. Tobin did something improper in his defense of Thomas Felton. They are false words designed to derive sympathy from you for Mr. Jeffries and anger from you toward Mr. Tobin. They have no place in this trial.”

Tom paused for a moment, knowing what was coming. Merton rose from his chair, his face turning a darker shade of red at each movement so that when he was fully erect, his face was almost purple with rage.

“Objection, Your Honor.” He shouted so loud that, despite the noise from the ceiling fans and the clanging of the air conditioners, every person in the courtroom could clearly hear his words. This was what they had come for—the showdown at the OK Corral. And it hadn’t taken long for the fight to begin.

“Your Honor, Mr. Wylie is directly attacking my character and I won’t have it.”

Tom looked at Jack, who nodded. They both thought that Merton was high-strung despite his obvious talent in the courtroom. This was the initial experiment to see if they could get him unhinged, and it had worked to perfection. Merton was now headed toward the center of the courtroom and was out of control.

“May we approach, Your Honor?”

“Stay right there, Mr. Merton,” Judge Holbrook said. “I want the jury to hear this.

“We are going to try this case in a professional manner. If you two want to go outside when this trial is over and have a fistfight, so be it. But in this courtroom you will conduct yourselves as professionals. There will be no personal attacks. Is that understood?”

Merton stuck his chest out triumphantly, looking at the jury as he walked back to his seat. “Yes, Your Honor,” he said as if he were the conquering hero.

Tom was as calm as a man could be. He looked at Merton and then back at the judge. “Yes, Your Honor. And I apologize to counsel if he took my statements as a personal attack. They were not meant to be. I was merely commenting on the statements that he made to the jury.”

Merton was not yet in his seat. “Your Honor?” he pleaded.

“Mr. Wylie,” the judge said, “you heard my comments. Now, move on.”

“Yes, Your Honor.”

Tom was satisfied that he had significantly exposed Merton’s character to the jurors. A lot of times close cases came down to what lawyer the jurors liked best. He spent the next ten minutes talking about the facts.

“You will hear from Jack Tobin. He does not have to testify but he is going to. And he will tell you that he was in those woods because he wanted to protect retired police officer Danni Jansen from harm. Was that a reasonable thing to do? You will have to make that determination. He saw Thomas Felton coming from the direction of Ms. Jansen’s house. He called to him. Felton turned. Mr. Tobin thought Felton had a gun and that Felton was going to shoot him so he fired his gun. That’s all there is to it—self-defense. And that, if nothing else, should create reasonable doubt in your minds.”



They broke for lunch after the openings. Tom stayed in the courtroom with Jack. They shared a couple of Snickers bars and talked about the case.

“Good start,” Jack told him. “Good opening. It will be interesting to see if Merton figures out we were pushing his buttons.”

“I’m sure he will,” Tom said. “But I don’t know if that will help him. The guy is wound pretty tight. Who do you think he’ll call this afternoon?”

Jack didn’t hesitate. He had the State’s case programmed in his mind—at least most of it. “I’d say the two cops and maybe the coroner if he has time. He’ll save Sam for the morning when the jurors are fresh.”

“I agree, but what about Danni?”

“She’ll come after Sam just to buttress his testimony about what happened and about the phone calls. They’ll put on the handwriting guy before Sam, but we’ll make him go away.”

“So they should be done tomorrow afternoon.”

“That’s it,” Jack said. “Short and sweet.”



The two police officers were the first two witnesses in the afternoon just as Jack predicted. Their testimony was pretty much identical. They were there to establish one thing—Jack Tobin said he was going to kill Thomas Felton. Tom’s cross-examination was pretty much the same for both although he went into greater detail with officer Richard Brown. Tom never deviated from his soft-spoken, easygoing manner.

“Why were you at Mr. Tobin’s condo in the first place?”

“We were told to go there by the assistant chief.”

“Where was the chief?”

“We didn’t know.”

“So the chief disappeared after his daughter’s death?”

“I wouldn’t say disappeared. He could not be located for a few days.”

“And the assistant chief was worried that Chief Jeffries might go after Mr. Tobin, isn’t that correct?”

“I don’t know that.”

“Well, weren’t you instructed to go there to tell Mr. Tobin to get out of town?”

“Yes.”

“And didn’t you tell Mr. Tobin that the chief of police, Sam Jeffries, was missing?”

“We may have.”

“You may have? Wasn’t the gist of the conversation—the chief of police is missing, we can’t protect you, so get out of town?”

Merton couldn’t sit still any longer. He hadn’t gone into any of this stuff on direct examination.

“I object, Your Honor! This is beyond the scope of direct examination.”

Tom saw his opportunity. He’d asked a question that didn’t need an answer and he had a good idea what the judge was going to do.

“I’ll withdraw the question, Your Honor, and move on. Officer Brown, what was Mr. Tobin’s condition at the time you spoke to him?”

“He was intoxicated.”

“Severely intoxicated?”

“Yes.”

“So he was not of sound mind?”

“I don’t think so.”

“And this was at a period of time, right after the murder of Kathleen Jeffries, when tensions were high with everybody, correct?”

“Yes.”

“And that includes Chief Jeffries, correct?”

“I don’t know.”

“Weren’t you sent to Jack Tobin’s condo because the assistant chief was concerned that Chief Jeffries might do him harm?”

Merton was on his feet again. “Objection, Your Honor.”

“Sustained!” Judge Holbrook said. “Mr. Wylie, I’ve already ruled on this once.”

“Yes, Your Honor,” Tom said, even though the judge had not ruled on the first objection. “Thank you, Your Honor.” Tom turned back toward the witness.

“Officer Brown, why did you go to Mr. Tobin’s condo?”

Merton was up again—furious. Tom was pushing his buttons—again. “Objection, Your Honor.”

“Sustained. Mr. Wylie, I have already ruled!” the judge shouted. Tom was pushing both their buttons now. Tom remained as cool and calm as ever.

“That was a different question, Your Honor. The State put this witness on to testify that he went to my client’s residence. Surely I can ask him why he went there?”

Merton cut in at that point. “He asked that question already, Your Honor. Officer Brown said he didn’t know. Asked and answered.”

Tom had made his point again, or maybe not. You never knew with a jury. In any event, it was time to retreat.

“I’ll withdraw the question, Your Honor, and move on.”

“And don’t revisit this subject again, Mr. Wylie.”

“Yes, Your Honor.” Tom turned his attention back to Officer Brown.

“How many officers do you have in the Oakville Police Department, Officer Brown?”

“I don’t know for sure—fifty, fifty-five.”

“So if an order went out, say, directing officers to look for Thomas Felton in a certain location—like the woods behind Danni Jansen’s house—you would know about it, wouldn’t you?”

“Yes.”

“Did you or anyone in the department ever receive such an order?”

“No, sir.”

“Thank you, Officer Brown. No further questions, Your Honor.”



Merton called the coroner, Marie Vicente, next. Merton knew he needed to keep the jury focused since it was late in the day, so he introduced the coroner’s report into evidence, and got to the important stuff right away, starting from when the coroner arrived on the scene and finishing with the autopsy itself, although he skipped most of the details of the autopsy.

“Your report is in evidence, Doctor, so we don’t need to discuss all the details. Did you determine a cause of death?”

“Yes, I did.”

“And what was that?”

“Mr. Felton died from a gunshot wound to the chest.”

“And how did you determine that the gunshot wound was the cause of death?”

“Not to get too technical, the bullet, fragments of which we found in the body, nicked the aorta, causing severe internal bleeding.”

Merton had her identify the bullet fragments, introduced them into evidence, and wrapped it up.

“Thank you, Doctor, I have no further questions.”

“Your witness, Mr. Wylie,” the judge said.

Tom stood and walked toward the witness stand. “Thank you, Your Honor.” He didn’t speak to Doctor Vicente until he was standing directly in front of her.

“Doctor Vicente, you said the bullet nicked the aorta, is that correct?”

“Yes.”

“What does that mean in layman’s terms?”

“It means there was a slight tear of the aorta caused by the bullet.”

“And what is the difference between a slight tear and, say, a full-blown rupture of the aorta?”

“As far as cause of death, there is no difference.”

“How about timing of death? Is it accurate that the smaller the rupture, the longer it takes to die?”

Marie Vicente hesitated for a second and looked at Robert Merton. Jack caught it right away. He didn’t think the jury could see it, although he was sure Tom had.

“Not necessarily,” she answered.

Tom didn’t let it go. “What does that mean? Let me ask it another way: Is the blood flow greater when the aorta fully ruptures?”

“Yes.”

“So a person dies faster when there is a complete rupture, correct?”

“Not necessarily. And let me explain. We can surmise that the bullet nicked the aorta from the trajectory of the bullet, which we traced from the entry wound and the path of destruction in the body cavity. Once the aorta is breached and blood begins to flow, a complete rupture can be instantaneous.”

The doctor’s answer had taken most of the wind out of Tom’s sails but he had some left, so he kept on.

“You said ‘can be’ instantaneous, is that correct?”

“Yes, we’re never sure.”

“Okay, let’s assume there is a complete rupture—how long does it take to die?”

“Approximately ten minutes maximum. It could happen in five or even less.”

“And a partial rupture that does not become a complete rupture?”

“I’d say twenty minutes at the most.”

“Can you tell whether Mr. Felton died ten or twenty minutes after the fatal bullet struck?”

“No.”

Tom walked back to his table and retrieved the copy of the coroner’s report that Robert Merton had just given him minutes before. He’d already reviewed his own copy in great detail over the past three weeks.

“Your autopsy report also references severe injury to the lower base of the skull, does it not?”

“Yes, it does.”

“How did that happen?”

“I can only surmise based on the facts and the physical evidence.”

“And what did you surmise?”

“That Mr. Felton, when he was shot, fell backward. His head hit a large rock very hard and that rock smashed the base of his skull.”

“But that was not the cause of death?”

“It was not.”

“Could it have hastened death?”

“Yes.”

Tom looked at the judge. “Your Honor, I’m almost done. May I have a moment to talk to my client before releasing this witness?”

“You may.”

Tom walked over and sat next to Jack.

“You know what I want to ask her, don’t you?”

“I do. You want to ask her if it’s possible that somebody could have come upon Felton still alive, put a rock under his head, and smashed it until he was dead—is that right?”

“That’s right.”

“Don’t do it.”

“Jack, listen to me for a second. We’ve already got the cops at your door telling you to leave town because they’re worried Jeffries might be after you. Now if we can at least insinuate that Jeffries might have smashed Felton’s head in for whatever reason, we are on the road toward establishing a hypothesis that Jeffries took Felton’s gun to frame you. He was as angry at you at that point as he was at Felton.”

“Two things,” Jack said. “I don’t want to do it because we don’t have any direct evidence to support that theory and I don’t want to ruin whatever life that man has left. Second, it’s a bad strategy, Tom. It makes us look desperate.”

“Mr. Wylie, are you ready to proceed?” Judge Holbrook asked.

Tom stood up. “Yes, Your Honor. I have no further questions.”

When Tom finished cross-examining the coroner, it was close to five o’clock and the judge adjourned the proceedings for the day.

The stage was set for the testimony of Sam Jeffries.