Judge Henry, now visibly spent, interrupts. “Mr. McFarland, is your client going to take the stand or not?”
Evading the question, I stay on message. “Your Honor, Mr. Hanson had no intention, has no intention, of fleeing the jurisdiction. He very much wants his day in court, he wants the chance to be here to dispute the specious charges brought against him.”
Bill Henry doesn’t skip a beat. “Then let’s make sure he gets his wish. I am revoking the defendant’s bail and remanding him to the county prison, to remain there until and through the duration of his trial.” With that he nods to the two deputies, who walk to the front of the courtroom, cuff David, and lead him out the side door, their destination the holding cells in the subbasement. David will stay there until five o’clock, at which time he will be loaded into the sheriff’s bus and transported to the Curran-Fromhold Correctional Facility in Northeast Philadelphia.
I watch David’s exit, watch him hold his head high, keep his back straight, trying to retain as much dignity as he can. Before the deputies close the door behind them, David glances back into the courtroom. I’ve seen the “last glance” from dozens of defendants, seen the guilt, sorrow, regret, fear, numbed disbelief plastered all over their faces as they take in a final look at the loved ones they’re leaving behind, sometimes for good. But David isn’t looking back in sadness or distress. And he isn’t looking at Marcie. His eyes hold only hatred for his real enemy. For Edwin. According to David, it was Edwin who placed the anonymous call to the DA’s office. Somehow, his half brother had found out about his taking the money from the Mexican subsidiary and tipped off the prosecution.
I look from one brother to the other. Then, in my peripheral vision, I see two other people watching David. The first is Marcie. Her eyes are narrowed, her lips turned down, but her head, like David’s, is held high. Resolve. The second person whose eyes I see locked on David surprises me. It’s Tommy. He’s standing in the back of the courtroom, legs spread apart, arms crossed. Tommy’s lips are turned up in a smirk.
“Chambers in ten minutes,” the judge announces from the bench, summoning counsel for both sides into his private office.
When I arrive at the judge’s chambers on the twelfth floor, I find only Devlin Walker in the waiting area. He must’ve sent Christina Wesley and Caroline Robb back to the DA’s office. Bill Henry nods to his law clerk as soon as we sit, and she hands Devlin and me a sheaf of papers.
“I’ve ruled on your omnibus motion, Mr. McFarland,” the judge begins before I have a chance to scan his order.
The Pennsylvania Rules of Criminal Procedure require defense attorneys to put all their requests for relief into one all-encompassing, or “omnibus,” motion. I submitted ours weeks ago, as did Devlin. Among Devlin’s requests was that the court exclude the evidence of the burglaries in Jennifer Yamura’s neighborhood during the weeks before and after her murder. Judge Henry tells us he’s reserving his ruling on that motion, that he will wait and see how strong the other evidence is supporting the defense theory that Jennifer may have been murdered as part of a burglary gone bad.
The judge then turns to my requests and announces his decision to exclude any evidence of the calls to my office from Jennifer Yamura’s cell phone during the time period within which she was murdered. “There is no proof that Mr. Hanson made those calls,” he explains. “In fact, we know from Ms. Toscano’s testimony that the first call was definitely not from Mr. Hanson. As to the second call, any probative value is outweighed by the unfair prejudice to the defense should the calls be allowed into evidence.”
In my omnibus motion, I also asked the court to exclude all of David’s clothing, collected upon his arrest, on the grounds that the police had lacked probable cause to arrest him. My argument was that although David was caught fleeing Jennifer’s apartment, it was hours after her death. And, I contended, the police had no business being there in the first place because the 911 phone call tipping them off—in which the caller claimed he’d heard sounds of a struggle—had to have been a ruse, because by that time, Yamura had been dead for hours. I also asked the court to exclude David’s statement at the police station that he’d been at work all afternoon, also on the grounds that the police had no probable cause to arrest my client. Finally, I asked for a change of venue to Pittsburgh or Williamsport, arguing that the pretrial publicity had irredeemably poisoned the jury pool against him.
I expected the court to deny my first two requests. Our appellate courts have found probable cause to arrest on far less evidence than the defendant fleeing the scene of the murder after being caught red-handed trying to clean it up. I am a bit surprised, however, when the judge announces that he’s denying my change-of-venue request, until he explains himself.
“I was all but ready to move this case out of Philadelphia,” Judge Henry says, looking at me, “until I saw all those well-placed articles in the newspaper about your client’s wonderful gifts to charity and his personal mission to bring jobs back to the city. How could any reader think ill of Mr. Hanson after reading those articles? In my mind, those stories more than made up for the prosecution’s anonymous tip to the newspapers about Mr. Hanson’s love nest in New York.”
“That was not us, Your Honor,” Devlin interjects.
“Even so,” I interrupt, ignoring Walker, “the court must surely recognize that it will be impossible for Mr. Hanson to find an unbiased jury given the prosecution’s latest motion and Mr. Hanson’s imprisonment on the eve of trial.”
“Oh, no, no, Mr. McFarland.” Bill Henry shakes his head and smiles. “Your client brought that on himself. Violating his bail terms by jet-setting all over the globe. Withdrawing millions of dollars just weeks before a trial that might wind him up in prison for the rest of his life. No, counsel, this case is here to stay. And Mr. Hanson will be here, too. Of that we can now be sure.”
“He can always plead,” Devlin says. “I’ve told defense counsel we’ll accept voluntary manslaughter if Mr. Hanson admits to accidentally killing the victim. Of course, he’d have to produce the victim’s laptop and other missing items.”
The judge thinks for a minute, then asks Devlin, “You think he got into a fight with the decedent? Lost control and pushed her down the stairs?”
“I think it was premeditated, and he should go away for first-degree murder. But if the defendant can convince me I’m wrong, I’ll let him plead to the lower charge.”