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“I filed a pretrial motion asking for a separate trial for Ms. Nichols. This court denied the motion because the defendants were not presenting inconsistent defenses by pointing the finger at each other. If you allow the prosecution to inject this testimony into evidence, we will have exactly that: one defendant blaming the other. I will have no choice but to move for a mistrial. Then we can start all over again—with separate trials for each defendant.”
“Judge, that’s a ‘sky is falling’ argument if I ever heard one,” said the prosecutor.
The judge shook his head. “Mr. Owens, we are not going to have two trials, and I have no intention of starting all over again.”
“But, Judge—”
“Nobuts. You can withdraw your question and play it safe, or you can live dangerously and let the witness answer. But if the witness volunteers that Mr. Nichols blamed Ms. Nichols for the whole scheme, I am going to declare a mistrial. And I amnotgoing to be very happy with you. Proceed accordingly.”
The lawyers returned to their places. Jack wasn’t entirely sure that his argument was right under the law, or that the judge had made the right ruling, but it had carried the day. On the other hand, Jack was absolutely certain that the witness had been primed to blurt out “it was all Imani’s idea,” whether or not it was true. The prosecutor was between a rock and hard place.
Owens stood at the lectern, silent, as he weighed his options.
Imani leaned closer to Jack and whispered, “What’s happening?”
Jack was suddenly thinking of his old mentor at the Freedom Institute, Neil Goderich, and something Neil used to say about prosecutors who built their case on the testimony of a convicted felon who had cut himself a deal.
Jack whispered back, “When the prosecutor reaches into the sewer, rarely does a swan end up on the witness stand.”
“What does that mean?” asked Imani.
“Watch.”
The prosecutor closed his notebook. “I withdraw the question. Nothing further for this witness.”
Maybe the prosecutor was simply making a tactical decision and playing it safe. Maybe he—like Jack—had come around to the view that ‘it was all Imani’s idea’ was a bald-faced lie offered up by an inmate in hopes of a nice letter from the prosecutor to the parole board. Either way, Jack took the win.
The judge looked toward the defense table. “Any cross-examination, Mr. Swyteck?”
Jack rose. “Yes, Your Honor.”
Jack positioned himself in front of the witness, feet apart and shoulders squared, full eye contact. It was the “control posture,” the body language of a trial lawyer that denied wiggle room during cross-examination.
“Mr. Paxton, I’m going to ask you a few questions that can be answered yes or no. First, on the night you claim to have met with Mr. Nichols and talked about what to do with the body, you never saw Imani Nichols, did you?”
“No.”
“You didn’t talk to her on the phone, text her, or communicate with her in any other way. Did you?”
“No.”
“Did you speak to Imani Nichols at any time before that night?”
“No.”
“Did you speak to Imani Nichols at any time after that night?”
“I probably ran into her at some point as Mr. Nichols’s bodyguard. I might have said ‘hello’ or ‘good afternoon.’”
“Other than an occasional ‘hello’ or ‘good afternoon,’ have you ever spoken to Imani Nichols about anything?”
“No.”
Jack could have ripped into him about his criminal history and the possibility of a deal between him and the prosecutor. But the fact of the matter was, his testimony had implicated only one defendant.
“No further questions,” said Jack, and he returned to his seat.
“Ms. Ellis?” the judge said. “Cross-examination?”
