The Trial of Jordan Colmar - 3. Chapter 3: Ex-Friends

Dan scanned his notes, then checked with Martin. At the eye contact, Martin gave him a brief head shake, and Dan looked up. "No further questions, Your Honor."

Unbuttoning his coat, he picked up his pen and sat down. Rankin stood, eying Jason like a lion would fresh meat.

"Mr. Tellerman, you and Jordan were once friends, isn't that true?"

"Yes, sir."

"Best friends even."

"No, sir, I don't think that's true."

"So you never told people you and he were best friends?"

Jason turned just enough to stare at Jordan. "I once thought we were best friends, but I was wrong."

"Objection, Your Honor."

"Mr. Tellerman," Judge Milton leaned over, drawing Jason's attention, "the question was if you ever told anyone you were best friends in the past."

Swallowing, Jason nodded. "Yes, Your Honor, I did that before Jordan let me know he wasn't my friend."

"Next question." The judge leaned back in his chair.

Stepping back from the podium, Rankin moved closer to Jordan. "Isn't it true that before Jordan told anyone about your sexuality, you threatened to beat the shit out of him?"

Jason's face tightened and his eyes locked on Jordan again. Martin started to worry about an outburst. "After he called me a butt-fucking, cock-sucking fag, I told him to get out of my face before I kicked the shit out of him."

Sitting back, he saw Dan writing something. Waiting for the note, he missed the next question.

"Yes, sir, I was so mad after he called me that, I probably would have hit him if he hadn't left."

Stop worrying he's doing fine.

"And that wasn't the only time you threatened Jordan, isn't that correct?"

"I threatened him when we were kids, but that was the only time since we've been in college."

"What about before school started last year, didn't you raise your fist to him?"

"No, sir."

"Isn't it true that Jordan tried to apologize to you before school started last year and you tried to punch him?"

Jordan nodded his head, slowly glaring at Jason. Martin watched as Jason stared back, shaking his head. "No, sir. Jordan grabbed me from behind and I raised my fist to defend myself. I thought he was going to fag-bash me."

"Objection." Rankin held up both hands.

"Basis?" Milton sounded annoyed to Martin.

"Side bar, Your Honor?" Rankin snuck a glance at the jury.

"Very well." Shifting slightly, the judge moved to the opposite side of his bench from the jury.
Dan led Martin to where the judge waited.

"What's the objection, Mr. Rankin?"

"First, it's non-responsive, second, it calls for speculation, and third, it is highly prejudicial."

"Mr. Humber, response?" From his tone, it was clear he didn't want to hear much before ruling.

"Only that the answer is responsive, it isn't speculative because it's what Jason thought, and a lot of damning evidence is prejudicial, but this goes to his client's bias against gays."

"Overruled."

"Your Honor…." Rankin drew an angry glare. He did not back down this time. "My question was properly worded and only required a yes or no answer. I would have been stuck with the answer if - as it seems - the witness said no. To allow him to say he thought Jordan was going to ‘fag-bash’ him is highly prejudicial without being probative."

"Mr. Rankin." Martin sucked in his breathing hoping this didn’t turn into a scathing lecture. Dan's comment about a mistrial made him wonder if that wasn't the defense strategy at this point. "I understand your objection, however, the answer is probative in that it answers whether or not the witness tried to punch your client when he tried to apologize. The witness said your client grabbed him from behind - meaning he did not apologize, and that he didn't try to punch your client but raised his fist in self defense. If you like, I'll give a limiting instruction on the fag-bashing comment as non-responsive."

"I'd like the instruction, Your Honor."

Martin wanted to object, but remembered this was Dan's witness. When he looked over, the older man shook his head, so Martin kept silent.

"Very well. Anything further?" Rankin and Humber shook their heads, and they returned to their places.

"Ladies and Gentlemen of the Jury," Judge Milton's voice seemed to shake a couple of jurors awake. "I'm going to ask that you disregard the last part of Mr. Tellerman's response, specifically that he thought Mr. Colmar was going to ‘fag-bash’ him. The testimony was not responsive to the question and cannot be used in your deliberations."

Dan leaned over before Rankin could resume his cross. "I'll ask it on re-direct. Milton specifically said it was non-responsive."

Martin held back a smirk. "It's your ass that'll get chewed off if you're wrong."

"Mr. Tellerman, it's fair to say you didn't like Jordan after he told people you were gay."

"Yes, sir."

"And you were still mad at him when he tried to apologize before the beginning of last school year, isn't that true?"

Jason shook his head, causing Rankin to frown slightly. "No, sir that's not true."

Martin rolled his eyes when Rankin feigned a shocked expression. "Are you telling us you were still friends with Jordan when he tried to apologize to you?"

"No, I was answering your question. You asked if what you said was true; it was not. Jordan never tried to apologize to me."

Dan scratched a quick note and passed it over. What'd I tell ya!

Looking less cocky, Rankin pulled over a piece of paper. "Back on Friday, August 28, 2009, you're telling the jurors you still thought of Jordan as your friend?"

"No, sir. You didn't ask that. Jordan hasn't been my friend since he told the world I was gay."

Martin resist turning to his right, knowing Dan would be preening. So the kid wasn't going to mess up, and he could relax a bit.

"So, after the encounter outside the student union, you didn't like Jordan."

"No, I did not."

"And when he tried to talk to you on August 28th, you didn't like him, correct?"

"Yes, sir."

"On October 7, 2009 you didn't like him."

"Correct."

"And when you talked to the detectives on October 8th, you didn't like him, right?"

"Right."

"And as you sit here today you don't like Jordan, do you?"

"No, sir. I do not like him today either."

"No further questions, Your Honor."

"Re-direct, Mr Hember?"

"Thank you, Your Honor." Dan stood, causally buttoned his suit jacket, smiled at the jury and stepped in front of counsel table.

"Jason, why did you react to Jordan by raising your fist?"

Martin nodded to himself - the old guy went right for the jugular.

Rankin flew to his feet. "Objection! Move for a mistrial!"

"Counsel, approach." The flustered expression on Milton's face left Martin unsure who was getting chewed out. "On second thought, take your seats."

Dan turned, but his face gave little away. Inappropriate as it was, 'don't play poker with him,' was Martin's first thought.

"Ladies and Gentlemen." Judge Milton smiled at the jurors. "I note it is about time for our afternoon break. Rather than have you sit through our discussion, I'm going to break a bit early, deal with the legal matter and not inconvenience you in the process. Please be back in the Jury Room no later than 3:15."

The lawyers and Jordan all stood while the jury was ushered out. Martin smiled at Jason who kept staring at him and Dan.

"Young man." Jason titled his head so he could see the judge. "I should have excused you first, but I got a bit ahead of myself. Would you step outside for me, please? Remember you're still under oath, so don't discuss your testimony with anyone during the break."

"Yes, sir."

Still unsure what to expect, Martin watched Jason walk over to his parents and follow them out.

"Lawyers to my ready room," Milton growled, leaving the bench as the bailiff announced the recess. The court reporter picked up her equipment and followed the judge out of the courtroom.

Rankin led the way, a smile on his face. The door was open when they arrived and Milton hadn't bothered to take off his robe or sit down.

"Mistrial?" His voice carried well beyond the small room. Rankin almost recoiled from the force of the word. "Is it your strategy to be found ineffective on appeal, so you can get a second chance?"

Rankin’s face lost any hint of victory and Martin found it hard not to smirk. No, this was not a winning strategy with this judge.

"Your Honor, with all due respect…."

"When a lawyer uses, 'with all due respect' it means he's about to insult me, so tread carefully. This county could easily find a way to spend the six figure fee you're earning for this case."

"Your Honor, my objection is to the presumed answer. They're trying to elicit the fag-bashing comment you struck during cross."

"I’ll deal with that in a moment, however, the answer never came out." Milton sucked air through his teeth. "How the hell can you scream 'mistrial' in front of a jury when no inflammatory answer has been given?"

Rankin mulled over the words, before nodding slowly. "My apologies, Your Honor. In my haste to avoid the government from having the witness give an answer you already struck, I jumped the gun."

"Yes, the statement." The judge’s eyes narrowed slightly as he slowly turned to Dan. "What say you to that, Mr. Hember?"

"Your Honor, thank you." Dan's deference still amazed Martin. It was like a switch, turning him from angry advocated to ass kissing sycophant. "If I recall correctly, you gave the limiting instruction based on it being non-responsive. The government feels it is entirely relevant and within the scope. Mr. Rankin skillfully tried to portray Jason as violent, acting without just cause. Clearly the reason he acted was because, as the indictment indicates, Mr. Colmar has a bias against gay men and Jason was merely reacting to an expected assault that he rightfully could believe was based on his sexual orientation."

"You couldn't say that in ten words, Hember? Milton growled, but Martin swore he saw a hint of a smile. Turning to defense counsel, the judge shook his head. "You opened the door to his question by attacking the witness’s credibility. You don't get to do that, then stop the government from probing deeper into the facts of the assault."

"It's not the facts of the assault that concern me, Your Honor; it's the inflammatory nature of his statement; saying he thought my client was going to fag-bash him."

"Mr. Rankin, I understand your argument, but you don't get to set the table for your closing argument without the government being given a chance to counter." Milton's body softened slightly, but kept its hard edge. "You're trying to set it up so that you can argue that Tellerman's a loose cannon; that he had no provocation for his attack on your client in January and again in August. You're going to argue to the jury he had no justifiable reason for his actions. Everyone in this room can see what the goal of your cross is.

"You can't set it up to argue before the jury what you presume the witness’s motivations were and then deny said witness the chance to tell the jury what his reasons were. The government is asking a legitimate question to clarify the situation. Just because the answer doesn't help your client's case, isn't grounds to keep it out."

"If I may add one more thing, sir?" Rankin paused, waiting for a signal it was okay to speak. When the judge nodded he continued, "Again, it's not the statement that he felt threatened we object to; his testimony about being grabbed from behind is what it is, and I can argue that how I like. My objection continues to be to the inflammatory nature of his choice of words - fag-bashed."

"Mr. Rankin, I do understand your objection." The hint of annoyance crept back into his voice. "Just because I don't preside in Philadelphia, doesn't mean I can't grasp the big picture here. The charge is a hate crime. Your client is accused of uttering biased hate speech to the victim just prior to the assault. In your opening you stated your client 'never used' such language; that night or before. Why is it you don't think this is admissible? And don't say it's inflammatory again, I understand what that means and that's the nature of hate speech."

"Your Honor, if my client had made such a derogatory comment during that encounter, or even prior to it, there might be some nexus for this comment. But here, the witness is relying on a statement made seven months prior to claim he felt threatened with a gay bashing from his ex best friend. It's complete conjecture on his part and his feelings are not important, only facts."

Milton nodded slowly. "Hember?"

"Your Honor hit the nail on the head. They want their cake and eat it too. They are going to argue that Jason had no good reason to cock his fist when in fact the boy was rightfully worried about a gay bashing. Colmar used extremely offensive language back in January and this was the first time since then the two met. Jason's motivation for his actions have to be discussed or else the defense can suggest all manner of reasons to the jury, while the truth is left out."

Judge Milton sat on the end of the desk, staring at the wall. Nodding to himself, he stood up. "Gentlemen, I'm going to agree with the defense in this instance. The anti-gay comments Colmar made seven months prior, without more since then, aren't enough for Tellerman to suggest he believed he was going to be ‘gay bashed’ or ‘fag bashed’. You can explore his motivation, so long as you instruct him not to give his opinion on whether Colmar's actions were motivated by sexual orientation or not. You have permission to speak to the witness about this issue so there are no slip ups during redirect."

"Very well, Your Honor." Dan nodded once and stepped back.

Rankin smiled broadly at his associate, looking ready to head for the door.

"However," the smile disappeared as quickly as it appeared when the judge continued, "By keeping this out, you may not comment on his motivation in closing arguments. If you try to suggest he had no justification for waving his fist, I'll not only allow the government to use the stricken comment in closing, I will instruct the jury they are permitted to consider the statement as substantive evidence. Are we clear?"

He stared pointedly at the defense attorney, waiting for an answer. "Do you need time to mull this over? Because I will tell you right now, that if you do bring this up in closing, I'm going to wait until you're done, let the government ask me on the record and in front of the jury to reuse the stricken statement, and then I'm going to grant the request and I'm going to explain to the jury why they can consider it. I agree with your argument that it is overly prejudicial, but only insofar as you aren't trying to argue there is no evidence of motive."

Martin shifted his feet, intending to ask the judge to reconsider, but Dan shook his head slowly. At first, he was annoyed. This was his case and Hember was only a special assistant. But he saw a glint in the expression that made him wait.

"Did you want to say something, Mr. Pratner?" Milton's glare reinforced his decision to remain quiet.

"No, Your Honor."

"Good." He turned back to Rankin. "What's your decision, Mr. Rankin?"

"We don't want it into evidence and understand the court's ruling that if we make it an issue, Your Honor is going to let the jury consider it."

"Very well." He nodded to the court reporter, who collected her things and led the way out. Martin wanted to know why Hember gave it up without a fight. It'd better be a good reason.

**

"Can you two give us a few minutes, please?" Martin held his door open letting them know it was not a request. Slowly closing the door, he collected his thoughts so he didn't come off too harsh.

"Martin, you don't need to treat me with kid gloves. If you're angry, tell me, and we can talk about it."

He found Dan relaxing on the couch, so he dragged a chair over. "Angry isn't the right word. No pulling punches?" When Dan nodded, he continued, "I hope you had a good reason for not trying harder to keep the fag bashing statement in."

"I do." His smile took some of the edge off Martin's angst. "We just out maneuvered Rankin and set up Jordan Colmar."

The huge grin proved infectious as Martin grinned along with him without really knowing why. Dan didn't explain, so he ran through the exchange again.

"Worst case - we can't use the statement but the defense can't suggest Tellerman acted without a good reason."

Dan nodded. "That's how I see it."

So far, he followed his co-counsel's logic. "Best case - Rankin slips up, mentions it in closing and it's back in with an instruction they can now consider the statement."

Dan raised his hand, wiggling it up and down. "Maybe that's the best case. What else?"

What else? Feeling back in law school and a bit peeved by the way this was going, he closed his eyes to collect his thoughts. Right! "Best case is Colmar takes the stand and we box him in and get to recall Tellerman on rebuttal."

Making a gun with his hand, Dan pretended to fire. "That's my thought. If the little shit takes the stand, he's fair game for any line of questioning on cross. There’s no claiming a question is beyond the scope of direct, so we're free to go after him. My sense is they'll try to portray that incident as a total misunderstanding. One that they hope makes Jordan appear victimized by his angry, gay, ex-best friend."

Dan's theory was beginning to sound a bit better, but not good enough to balance the statement kept out. "Point taken, but why not fight harder to keep it in? Milton was with us at first."

"Two reasons, both strategic. First, it's a minor point. Let Rankin and Co think they've won this. Besides, the statement is out there. It's up to them to dance around it without stepping on it. That will demand some of their attention, attention better spent on bigger issues."

"Fair enough." It was not a crucial statement by any means. "What's the second?"

"Milton." Dan stretched his legs until they almost reached Martin's chair. "He's been a bit hard on Rankin and his defense team. I think this was him trying to soften up so they couldn't claim bias. He's smart, we both know that. He probably realized what we just agreed on; this isn't important to the case. By giving them this bone, it's a tougher sell that he's biased against them. And by not arguing with him, we let him know we've got more respect for him than they do."

"C'mon, Dan." He stood up to get some water. Grabbing two, he offered a bottle to his colleague. "Milton isn't going to 'like' us more because we gave up quickly on this."

Arching an eyebrow, he took a long drink from the bottle. "Really? Didn't you notice his reaction when you kept quiet? I believe his word was, 'good.' To me that was his way of acknowledging we're being reasonable. Look, this is trivial. We've already got plenty of evidence to show it was a hate crime. AND the jury heard it. Limiting instructions be damned, it's in their mind. Remember that cliché 'you can't un-ring the bell?' That's so true here. Milton knows it, and we know it. Why keep arguing?"

Why indeed? "I hate giving in."

Dan laughed softly. "Spoken like a true type 'A' prosecutor."

"You're right. This was one skirmish we could afford to lose." So long as they didn't lose too many more.

"Good." He slapped both knees. "Let me get the youngins back in here, and we can map out the plan for tomorrow."

**********

Rankin clutched what Martin recognized as a plea form; a plea form he executed. "Mr. Portman, you pled guilty to striking Peter Gregory with a bat, didn't you?"

The white shirt hung loosely around Edward Portman's neck. He looked tired, thin; not the same person Martin met eight months ago.

"Yes, sir." The answer was soft, but the head nod let everyone know he did.

"Son," Judge Milton's deep baritone boomed in comparison, "you need to keep your voice up so everyone can hear you."

Milton's interruption was better than an objection. Rankin contained his annoyance enough that the jury likely didn't notice, but Martin did.

Peering up, Portman nodded again. "Yes, sir."

"Continue, Mr. Rankin."

"Thank you, Your Honor." He glanced at the notes and Martin nearly laughed at the theatrics. Did he really think anyone, even lay people, believed he didn't know what was on the document in his hand?

"And you struck a deal with the government didn't you?"

"I did."

"That deal is going to save you a lot of jail time, isn't it?"

"I don't know yet, I haven't been sentenced." Despite his plea, Portman didn't look hopeful. He shouldn't, Milton was a tough sentencer.

"But you would agree that, as part of the plea, the government is only going to ask for seven years."

"Yes, sir, that was the agreement."

Seven years was a third of his lifetime, so while Martin might think it was a lenient plea offer, it was a tough sell to Portman and his family.

"Seven years for striking someone with a bat? That sounds like a pretty good deal, wouldn't you say?"

He watched Dan stand up as soon as Rankin began the question. So predictable. "Objection."

"Sustained." Even Milton sounded bored by the move. "The jury will disregard counsel's opinion on the length of time the government would ask for at sentencing."

One of the jurors smirked as she looked at Rankin. Good to know the tactic didn't work on all of them.

"So you cut a deal to help yourself, isn't that true?"

"I took responsibility for what I did in exchange for a recommendation at sentencing, yes."

Martin did his best not to smile. Dan had done a good job prepping their witnesses.

"The maximum for all the charges you faced, was well over a hundred years, isn't that true?"

"I believe that is correct."

“The three you eventually pled to, they added up to sixty years, correct?”

“Yes, sir.”

"And you got the plea down, to seven years?"

"That was the plea I was offered."

"And your plea offer required you to testify against Jordan, isn't that true?"

"The plea requires I testify truthfully against anyone who went to trial."

"Objection," Rankin paused waiting for Milton's nod, "non-responsive."

"Overruled."

Martin hoped Rankin would continue to argue, it seemed his way. Instead, he nodded politely.

"If you didn't testify against Jordan, they'd take back your plea offer, correct?"

"I'm not certain of the specifics, but I know at a minimum they don't have to ask for just seven years."

"In fact, they could ask for the maximum on each of the three charges you pled to, isn't that true?"

"That's what I understand, yes."

"And that would be sixty years."

"That's the maximum I'm facing right now, yes."

Martin glanced over to see Dan relaxed, but alert. He seemed content with his work so far.

"They offered you a different plea if you refused to testify, isn't that true?"

"Yes, sir."

"What was the maximum amount of time the prosecutor could ask for under those terms?"

"Twenty-five years." Portman's head turned toward the gallery and a soft sob could be heard. No doubt his mother.

When several jurors turned, Milton's face got tight. "Visitors are reminded to remain quiet or they will be told to leave."

"Twenty-five years," Rankin said softly, looking at the jury. Martin's instinct was to object, but he learned from experience not to make an issue over cooperation agreements.

"Move on, Mr. Rankin." Milton shot him a glare. "If you don't have any more questions, you can be seated."

"Yes, Your Honor." He turned back to the witness. "Let's talk about your role in beating Peter Gregory."