In The Plan - 13. Chapter 13

13

Once he'd dispatched Muraro, Lee pretty much had the trial to himself. Jenkins had finished presenting witnesses, and Lee could begin with his own. But before he did, he made the obligatory motion to dismiss the indictment based on the state's - Jenkins's - failure to present a Prima Facie case. That simply meant that the state hadn't met its minimal requirement to prove the elements of the crimes that Brad Coghlan was charged with - namely, Aggravated Assault and Driving While Intoxicated. This was a perfunctory motion that is almost always dismissed, and that's exactly what happened. It seemed the judge wasn't about to let Brad Coghlan off so easily.

So Lee continued. Still, as he'd warned the judge during the short Muraro hearing, both sides of the case were built on circumstantial evidence. So Lee's witnesses and their testimony differed little from Jenkins's.

But at least, Lee had his experts. Though he'd wondered - after what he'd done to eliminate Jenkins's and to discredit Muraro - if Jenkins would go after his guys. But Jenkins wasn't that kind of lawyer. He believed in playing fair even when that wasn't in his favor.

Jenkins also never discovered the weakness in Lee's argument - Ahmed Patel's conflicting statements. The problem with being a prosecutor - as Lee remembered from his own happily limited days in that job - was there was never enough time or money.

Jenkins didn't ask many questions of Lee's witnesses, as - in many ways - how could he? So many of these people were friends of both Brad Coghlan and Doug Hodges. They all hung out at the Railroad Inn, they had for years, and they would for years to come. To attack any of them meant attacking the whole group, and that's what kept Lee fairly silent when Jenkins had presented some of them.

Fortunately, Lee could also call Greg Mackel - Brad Coghlan's business partner - to testify that he didn't think Brad was drunk - despite the later blood alcohol test proving otherwise. "I sometimes can't tell," Mackel had to admit. "I've been drinking with Brad for years - like Cole, probably since high school. Sometimes, Brad seems to get goofy after just a sip of wine. But mostly, even when you know he's downed half a bottle of cheap Scotch, he still seems sober."

Soon after that, Nolan Starizny - the owner of the bar - said the same thing. "It goes without saying that I've been watching drunks for years," he began. "You can't survive in this business without becoming something of an expert. You gotta know when to cut people off - which Robyn did that night with Brad. And, yeah, Brad was still rowdy - as Cole, and Russ, and Nick have all said. At one point, Brad even had Cole in a headlock. But Brad's just a big kid sometimes. He's playful - you know what I mean? Like a high school wrestler or the football player he once was. And sometimes, you can't tell when he's horsing around and when he's being a horse's you-know-what."

He'd slipped in the euphemism only at the last second and then laughed at his near mistake.

"Anyhow," he went on, "I didn't think Brad was that drunk that night - though all the guys around him were saying he wasn't fit to drive home. I mean, he only lives four blocks away. And it's right across the highway - almost a straight shot. Left at the light then a quick right and boom. And Brad's one of those deceptive drunks - like my son-in-law, Greg, just said. You're positive he's fine, and then he empties his guts all over your shirt."

Several people in the courtroom laughed at that, and Starizny kind of smirked. "What?" Lee could almost hear him think. "I didn't say 'puke' or 'barf' or even 'vomit.'"

Lee smiled to reassure him, and when Jenkins waived cross-examination, Lee excused Starizny to call his next witness.

Robyn Nguyen, the head bartender, also set herself up as an expert. She said she never would have given Brad another shot of "Aftershock," but she would have allowed him another beer. "Heck, he and Greg had been in the bar for a couple of hours, and all they did was split a pitcher - that's less than four eight-ounce glasses each. Plus Brad had several shots. They were eating, too - downing burgers, chips, and fries - because they came in hungry. They both always joke that they're surrounded by food all day in the deli but never have time to eat. So with all those burgers, they weren't exactly drinking on empty stomachs."

Lee felt the jury seemed to trust these three witnesses - two of them professionally not-drinking - maybe more than all of Jenkins's. Those were well-meaning friends who'd come to the bar to party then were too soon sounding unfair alarms.

After his experts testified - about how Brad Coghlan couldn't have been driving because of the way he landed and how Doug Hodges had to be driving because all his injuries confirmed that - Lee handed the trial back to Jenkins.

For his closing statement, Jenkins was confident. The loss of his expert was balanced by the strength of Joseph Muraro's in-court identification of Brad Coghlan as the driver, and Jenkins was sure the jury was wise enough to recognize that Lee's personal attack was entirely separate from Muraro's observations. He reminded the jury that Muraro had been able to remember specifics about that night, and that he was particularly being a Good Samaritan after almost being killed moments before the accident. Also, that he'd notified the police almost immediately and followed up by going to the police station to file a report only two days later. That was as soon as he could, considering he didn't live or work in that area. He also emphasized how credible and reliable Doug Hodges was, as both a witnesses and a man, and how every one of the other witnesses who'd been called as part of the prosecution's case was equally trustworthy. Finally, he mentioned that although, indeed, Mr. Lee's experts had presented plausible explanations of the accident, there was often a big distance between plausible and possible. And that it made no possible sense that sober, conservative Doug Hodges would ever drive a car the way it had been reported that evening.

Following immediately, Stu Lee - in his own closing statement - reminded the jury that Doug Hodges also promised a bar full of people that he would never let an obviously drunk Brad Coghlan drive his car. "Never" was an extreme word, Lee admitted, but coming from a man as consistently trustworthy as Doug Hodges, it was as binding as an oath taken in court. There was no reason to doubt Hodges' promise, especially one almost a dozen witnesses had testified to hearing. And it didn't matter that he later contradicted that promise with a story of what supposedly had happened in the car. Lee allowed this new story was possibly self-defensive, created after the accident had done serious damage to Hodges' memory. He reminded the jury that what a person remembers is sometimes far from what's proved true and stressed that Mr. Jenkins - try as he had - didn't come close to proving Beyond a Reasonable Doubt that Brad Coghlan was driving. That, everyone admitted, was central to this trial, and since Coghlan couldn't have been driving, he was in no way responsible for the accident. Lee also acknowledged that while Doug Hodges certainly didn't initiate the trial - that was done by the state, largely over the Driving While Intoxicated charges - Hodges had a definite interest in the trial's outcome and the resulting insurance settlement. If Brad Coghlan were found guilty, Hodges was guaranteed an easy delivery of a million dollars. Further, he didn't need the money to pay his medical bills - those were covered by his own auto insurance. He didn't need the money to live - he hadn't been permanently disabled and, in fact, had been back to work at his high-paying Wall Street tech job for over a year. The accident didn't even interfere with his personal life - he'd recently found time to get married and go on a two-week Caribbean honeymoon. As further proof of Hodge's interest, Lee noted that Hodges's personal injury lawyer - Ben Carleson - had only been in the courtroom on the day Hodges had to testify - possibly to make sure his client only said the right things. Lee questioned the importance of this one day - meaning Carleson didn't care about the fairness of the rest of the trial. Lee purposely made no reference to Joseph Muraro, his in-court identification, or his membership in Hells Angels. He knew the jury wouldn't forget that and overkill might backfire. Finally, Lee repeated what he'd said at the beginning of the trial and reminded the jury to use its own common sense. He asked them to decide if a man as trustworthy as Doug Hodges would ever go back on a personal promise and concluded that - to him - it just didn't add up.

After Lee finished, the judge gave the usual jury charges - routine technical instructions - and the jury left. Lee expected a quick return, and when that didn't happen, he was hoping for a fair debate. Jenkins felt the same way - the longer the jury talked, the more he thought they'd consider.

What actually happened was the jury couldn't reach a quick consensus. The foreman called for an almost immediate vote - "Just to see where we are" - but, privately, she wanted to see how strongly people felt. Or how confused they were.

"I don't understand this Reasonable Doubt thing," one of the younger men began. "Can't things just be true or not?"

That took a half-hour's discussion, with everyone trying to explain Reasonable Doubt as they understood it. But maybe because this was New York, and particularly Long Island, almost everyone had a different opinion and reasons to support it. The problem, they discovered, was Reasonable Doubt was such a nebulous phrase that it meant different things to different people. In a way, lawyers - in this case, particularly Stu Lee - depended on that fact, and Lee hoped at least one juror would define the words to mean Brad Couglan was Not Guilty.

The foreman let the jury take its time because she wanted to make sure everyone had a chance to speak. And she wanted to be sure the few people who weren't contributing were comfortable with letting others talk for them.

"I don't feel I have anything to say - or anything I need to add," one of the younger women admitted. "You all seem so much more experienced. I just want to get on with the vote."

So they did. Several times. Each time getting a slightly different count with different mixes of opinion. That resulted in different discussions.

"I can't believe you trust that Hells Angels guy," one of the middle-aged businessmen insisted. "When he said he was out on a date, I immediately thought, 'Not with my daughter!'"

People laughed at that, though this time, the same young woman - who had a small, discreet "tat" on her ankle - added, "I don't know. You have to give that guy credit for stopping at the accident in the first place. And then going on to the police station a couple days later, when he was back in the area."

They all weighed in on that, then on racism, violence, gambling, drugs, and any illegal activity they'd ever connected to motorcycles, gangs, or Hells Angels. If Joseph Muraro had heard this discussion, he might have thought, "Maybe Lee wasn't so tough on me after all."

"Scum," was the last thing anyone called him, before the foreman redirected what she felt was turning into "negative energy." "Let's think about more useful things," she suggested. "Say the policeman's responsibility."

"The poor guy," the other younger women said.

"Why do you say that?" a businessman asked, probably a numbers cruncher. "There's a fifty-percent chance he was driving the car."

"That's true," the woman allowed. "But that was two years ago, and we could be taking his whole life away. His job. His future. Everything."

"He still has the deli," one of the older women said. "And they do pretty well. I shop in them all the time."

"It's not the same as being a professional..."

"There's nothing wrong with owning a store..."

"I'd be happy even to run a deli..."

So they talked for a while about what being a "professional" meant.

"Well, shouldn't the cop be blamed for causing the accident?" the special ed. teacher finally asked. "I mean, even if he wasn't driving, his being so drunk set everything off."

"But he almost died for that," one of the middle-aged women replied. "It took a year out of his life, and he's still limping. I'm sure he's in pain."

"I'll bet they both are," someone contributed.

"But the old guy's riding his bike again. He even said so."

"He's riding a bike because he can't run. He said that, too."

"He's over fifty. How long did he expect his knees would hold out?"

That got another laugh, but - in the end - everyone admitted they felt sorry for both men.

"Then cut them some slack," the construction worker insisted. "They suffered. They paid. There's no reason to punish either of them."

"Even more than that," one of the older women put in. "We were told over and over to be sure there was enough evidence. Beyond A Reasonable Doubt. Both sides kept repeating that, and I don't think there's enough here to decide."

No one had an answer for that, and the foreman quickly took it as an opportunity. "A vote to acquit," she reminded them, "will stop everything here." No one thought to remember a civil trial.

It was near the end of the day anyway, and it had been a long couple of weeks. And everyone wanted to go home.

'If we don't make a decision," the other older woman warned, "they'll just bring us back tomorrow - maybe even keep us overnight. I've heard of that happening to friends."

"And even in a nice hotel," one of the businessmen added, "with meals paid, it's no fun."

"The cop really is a cool guy," the teacher pointed out. "Just sitting there, calmly smiling, day after day. Not saying anything. Never being called on. Just waiting for us to decide his life."

"Can he go to jail for this?"

"Who knows what can ever happen?"

"He's sure to lose his driver's license."

"At least, for a while."

"How's he going to get to work?"

"We've got to give him another chance."

"That nice young cop."

So they voted to acquit. "If they don't like our decision," the oldest guy said, "they can just throw it out. Maybe another jury'll see it different."

"At least, we won't have to listen," the foreman joked.

Everyone laughed, and they were soon in the courtroom. After they gave their decision, they were happily allowed to leave.

Doug Hodges turned to Damon Jenkins and said, "I can't believe they didn't believe me."

Jenkins smiled and was sympathetic. "It's not really that," he explained. "It's more that they didn't think there was enough evidence. Not enough to decide. And they were trying to be fair. Not Guilty doesn't mean he's Innocent."

"Well, it's not fair to me," Hodges protested.

On the other side, Brad Coghlan was thanking Stu Lee for everything he'd done. "I couldn't have had a better lawyer."

Lee resumed his "Aw, shucks" folksiness - the tone he'd avoided during the trial. "We got unlucky then lucky," he told Coghlan. "Sometimes, it's best left at that."

They grinned and shook hands.

"Now you can go back to your life," Lee added. "And your career. All this is behind you."

"A relief," Coghlan admitted.

Of course, it wasn't behind him - not even close. As soon as Ben Carleson heard the news, he spoke with his investigators.

"Get me everything you can about Lee's experts," he instructed. "Both of them. And everything about this Joseph Muraro - 'Cowboy' he's called. And make sure every witness statement checks out. This wasn't right. In fact, it stinks."

And he picked up his phone to tell Doug Hodges that.