“Can I prove this to you? I cannot. I didn’t see what happened in Felicity’s apartment or Cary Church’s apartment. But I don’t have to prove that Felicity is innocent. That is not how our justice system works. The defense does not have to prove that the accused didn’t do it. Why? If that were the case, anybody could accuse someone of committing a serious crime and there would be no way to prove them wrong.”
Sam pointed to the jury member closest to him. “I could say that you killed these men. Can you prove you did not? Do you remember exactly what you were doing last winter on the dates in question? If you were at a party, did you run to the store fora bottle of 7UP? Or did you murder a man instead? No? Can you prove it?”
Our judicial system protects the rights of the accused, he went on, by putting the burden on the prosecutor “to convince all of you that Felicity did exactly what he says she did. And he can’t. He doesn’t have that evidence. There is not one single speck of physical evidence that ties Felicity to this crime. I’m not saying that there is not one single speck of physical evidence that ties her to any crime. In fact, I will say right now, I believe she is guilty of the crime of moving a dead body. She is guilty of the crime of trying to cover up a death. These are serious crimes and if she is charged with them, and convicted, she could face three years in prison.
“But she’s not charged with that crime today. She is charged with first-degree murder, intentionally causing the death of two men, which the evidence will show is not only untrue but impossible.
“Someone killed Emil Gardener. Someone killed Cary Church. But it was not my client, Felicity Wild.”
Sam admitted that there might be times when attorneys, who are only human, tell a lie. They believe so strongly in their client’s innocence, and they don’t have the proof, so they make up what isn’t there. He personally had never faced that choice. He didn’t now. The joke he tried didn’t entirely work. “You may have noticed that my last name ends in a vowel. I’m Italian. I want you to meet someone.” Sam paused and extended his hand to Angela. “This is Angela Messina Damiano. Angie. She’s managing partner of my firm. She’s also my mother. Do attorneys tell lies? Sometimes they do. But I can tell you I’m not lying when I say that an Italian boy would never lie in front of his mother.”
That drew a slight laugh, as Sam pivoted to a serious, doleful expression. “A trial is a moral event, a consideration of rightand wrong. You could be tempted to think that a woman who made her living the way Felicity did is capable of anything. But we are not here to make a moral judgment on Felicity for engaging in sexual conduct for money even though that is a crime, a misdemeanor punishable with a fine, any more than we should judge the men who were killed because they made the choice to pay for sex, which is also a misdemeanor offense in this state.”
No one, Sam said, could further prove that Felicity Wild was motivated to kill by money. “The same could be said of the wife and children of Cary Church. The same could be said of the wife and nieces and nephews of Emil Gardener.” Sometimes, he said, we assume that if one event follows the other, then the first event must have caused the second. “It seems sensible, but it can be a trap. If she ever did think about how much she would benefit from the deaths of those men, and there is no evidence to suggest that she did, she did not act on it. And even if she told a friend, ‘Oh, I would be rich if Emil or Cary died,’ that still would not indicate that she had any part in those deaths.”
Sam would only call two witnesses, a longtime friend of the family and a faculty adviser. He had told me that he would not call Felicity, believing that her composed demeanor would be seen as cold. Did the fact that she stood alone, without her family, make her seem unwanted and unloved? At that moment, I hated Rev. Wild and Ruth, for putting themselves and their own issues ahead of Felicity in her dark time. At least her aunt was there. I was there.
Sam was there.
He said he had no idea why Cary Church and Emil Gardener decided to provide for Felicity in the event of their deaths, except that, clearly, they cared about her. Clearly, those relationships met a need. “Perhaps the primary reason was loneliness, which is something everyone can understand,” Sam said.
He proceeded quickly to refute Israel Ronson’s assertions.
“When Emil Gardener died, Felicity Wild was with her family, a hundred miles away. When Cary Church’s body was discovered, she was also with her family at a church service. Now, I know how ludicrous that sounds. The accused murderer, a known escort, was in church when the murders occurred. But Felicity Wild is the daughter of a minister and his wife, Ruth, a high school teacher and church secretary. Others in the congregation saw her. That is the first and most obvious exonerating fact.”
When she discovered Emil Gardener’s body, Sam said, “She did exactly the wrong thing. She assumed that no one would believe the truth. After all, she was a woman who sold sex for money. So in her fear, she called for help, and another man, who also loved her, came to help her. Cary Church came to help her. How did he later end up dead? Did he take his own life out of remorse, because he was the one who killed Mr. Gardener? Was his death accidental? Did someone kill him? One of those things happened. If she knew, Felicity would tell you, but she does not know.
“You may have heard the term Occam’s razor. It’s a way to explain that the most obvious answer is usually the correct answer. If you hear hoofbeats, you don’t think of zebras, you think of horses. But even when the most obvious thing seems true, it is not always true. In this case, it’s not.”
Sam took a risk then, one I would think about for years, never entirely satisfied that the gamble was justified.
“We talked about morality. What would be the greater moral wrong? Would it be to send an innocent young woman to prison, to try to survive the rest of her life among hardened criminals? Or would it be to set a young woman free who committed a terrible crime? Would you be afraid that if she wasn’t locked away, she would be a danger to society at large? You know the answer. In our society, we believe that it is better for a hundred guilty people to go free than to fail to protect one innocent person.
“You must answer just one question. Did Israel Ronson prove to your satisfaction that the person who killed Emil Gardener and Cary Church could be no one else but Felicity Wild? If you are not sure, then you must find my client, Felicity Wild, innocent of this crime. It is the right thing to do. It is your duty.”
The first day concluded with police officer Michaela Doherty’s account of the grisly discovery of Emil Gardener’s body. She was small, shy, young, blonde, the kind of example that men several generations ago used to prove why women could not be police. “I’m a traffic cop,” she said. “I was only working that night because I have low seniority and nobody else wants to work during the holidays. It was the first time I ever saw a dead body.”
“But you went to the police academy,” Israel Ronson prompted her.
“They didn’t... The cadaver for our class didn’t work out,” she explained. “It didn’t, um, last long enough.”
“And you’ve never been to a funeral.”
“No, I’ve never been to a funeral.”
“So you were shocked by the sight of the deceased.”
“Yes. You bet I was. He was just completely bashed around, all purple and blue, and swollen. And naked. Poor guy.”
Several jurors began to look uncomfortable, as did Sam, but not because of the description. He well knew that his adversary was counting on the emotional impact of the officer’s testimony; the more sympathy for the older man, the less for whoever put him there. When a crime-scene photo of the body was produced and distributed, Judge Martin had to declare a brief recess to excuse one juror, who, I later learned, threw up in the bathroom set aside for jury members.
“It was obvious that this wasn’t a death by natural causes,” Israel Ronson went on. Angela Damiano objected: Not only was this the first dead body that Officer Doherty had ever seen, but she also was not a pathologist.
“He looked like he had been run over by a truck,” the young police officer said, and Angela seemed about to object again, but shook her head wearily instead.
I went home to Nell’s house. Miranda was staying at a bed-and-breakfast inn, and had invited me to stay with her, but all I wanted to do was hole up like a denning animal, so Nell stayed with Mom. Alone in the kitchen, I ate a whole bag of taco chips and a whole carton of cottage cheese. I patted a sea mud mask on my face and, for five full hours, watched a British crime drama about a murderous pastry chef. Then I crept into my closet bedroom and slept nine hours straight. The junk food, the BBC, the excessive facial routine, and the sleep marathons would become the hallmarks of my life over the coming weeks.
In the morning came Dr. Moira McDermott, the Dane County medical examiner.
