CHAPTER TWENTY-THREE
Even though Matthew Parker knew New York’s peculiar criminal procedure rules—where the defense lawyer speaks first in summation, followed by a single prosecution summation, with no rebuttal permitted—he hadn’t tried enough state cases to internalize it. So it didn’t register that Justice Zannis was calling his name, until it did.
“Mr. Parker?”
“Oh yes, thank you, Your Honor,” he said, standing quickly. He started speaking even before he reached the podium, as if what he had to say couldn’t wait. “I want to talk to you folks about four words that Mr. Kwon only bothered to say once in his opening, even though they are the bedrock of our justice system and the central obligation he bears.”
Now he raised his voice to near shouting. “Beyond. A. Reasonable. Doubt.” Then, dropping back to a normal tone, he said, “This isn’t about ‘maybe’ what happened or what ‘musta’ happened or what ‘might’ have happened.”
Wheeling to point at Kyra, he said, “Before the state may take that woman’s liberty, they must prove her guilt to you. They must prove it beyond a reasonable doubt. The reason Mr. Kwon didn’t spend a lot of time on those words is because they are a problem for him. Let’s go through it.
“Kyra had a motive, he claimed. Did she, though? Was there a single piece of proof that Kyra knew anything about Tony’s will? No. Oh, but the prenup. Well, you heard Conor McCarthy’s testimony, and Kyra’s. She believed he wanted to be generous with her. And without that, what’s the motive, exactly? That he was a sexual predator? Well, we all know that, don’t we? And we find it appalling. Why aren’t we all suspects, then? It’s just smoke, ladies and gentleman, not proof beyond a reasonable doubt.
“Now let’s turn to the ‘but she was in the lobby’ bit. Does that make any sense to you? Kyra Burke is a highly intelligent woman—highly. Mr. Kwon wants you to believe she was determined to kill her husband. So what does this brilliant woman do? She walks through a lobby she knows is covered by a camera, past a doorman she has known for years, kills Tony, and then walks out the same way immediately after killing him. So is she a brilliant schemer or a total idiot?”
Parker paused to let that sink in, pretending to look at his notes before looking up again.
“Your common sense tells you it wasn’t Kyra in the lobby. It sure was somebody who looked like her, wearing the kind of clothes she might wear, although I can’t imagine why she would wear sunglasses at night. But you know it wasn’t Kyra, because she isn’t that dumb. And you know it for another reason, because you know what people are like. Kyra Burke would never give the back of her hand to Mr. Ramirez. Never. She was a person of great good fortune, but she never treated other people rudely. He told you that.
“Oh, wait, but Kyra doesn’t have an alibi because her phone was off. Very suspicious, right? Except not at all, because the phone records show you that’s something she does all the time. Now maybe Mr. Kwon is going to get up here and argue that she laid the groundwork for the killing by spending weeks and weeks carefully turning her phone off to prepare for the night of the murder. Again, is she a genius or a moron? Why would she deprive herself of alibi evidence? Why not just keep the phone on and leave it at her house? You don’t need your phone to go kill your husband. Done.
“And why stab the needle through his sleeve if you are trying to make it look like a suicide? She’s smart enough to know that would give it away. Or to imagine that a favorite dinner might be delivered, something a person committing suicide would wait for. Again, is she a diabolical criminal or a total idiot? The prosecution can’t have it both ways.
“The truth is that it wasn’t Kyra in the lobby that night. The evidence tells you that. But I don’t actually need to prove that to you. Mr. Kwon needs to prove it was Kyra—Beyond. A. Reasonable. Doubt. Do you have doubts based in reason about whether she was dumb enough to march through the lobby? How can you not?
“Ladies and gentlemen,” Parker continued, and then found himself choked with emotion. Maybe it was that he thought his client may have blown it with her testimony. Maybe it was that he knew her raw terror at the idea of being caged again. Maybe it was that this was his last case. But whatever it was he stopped, looking down and then up at the ceiling before coughing into his fist.
“Ladies and gentlemen,” he tried again, “I don’t know whether you liked my client during her testimony or not. I hope you did, but this case isn’t about that. It’s about the evidence and whether the prosecution has proven her guilt beyond a reasonable doubt.” He had tears in his eyes now, looking directly at Juror 7, who was also crying. “They haven’t. Please end this nightmare for Kyra. That’s your sworn duty. Please do it. Thank you.”
As he took his seat, he saw a note in front of him in Kyra’s handwriting: So my testimony was pretty bad, eh? He scribbled back quickly. Radiate. #7.
Andy Kwon was wearing his best navy blue suit, a crisp white button-down shirt, and a red-and-blue striped tie. This was his big moment. He rose in the packed courtroom, buttoned his jacket, and picked up his notebook. All the jurors watched him walk slowly to the podium, which was at the middle of the jury box. He set his notebook on the podium, took a deep breath, and silently swept his eyes across the jury. Then he began, still going thin to win.
“Ladies and gentlemen, as I told you in my opening, this is a simple case. Based on the testimony and exhibits presented in this courtroom, these are facts you know: Somebody Tony Burke knew killed him in his own study. It was somebody who could just walk into a fancy apartment building, who knew the elevator code, who knew where to find him. It was somebody he wouldn’t fight, somebody who even knew about his insulin. Who was it? You don’t need to guess, because you saw it with your own eyes.”
Wheeling toward the defense table, he pointed at Kyra and raised his voice for the first time in the trial. “There is the person who was in the lobby that night. You saw the video and you heard Mr. Ramirez. Despite all the noise, there she is, the person who murdered Tony Burke.”
He then walked the jury slowly through all the prosecution’s evidence—crime scene, medical examiner, lobby video, doorman, financial motive proof, statements from Kyra’s Columbia colleagues—and ended by picking up the large map showing how close her place was to the murder scene.
He twisted to look at the map, studying it, then turned back to the jury and continued in a quiet voice. “And where was she that night? She says she wasn’t in the lobby, she was less than a mile away at her place, reading. She says that what you saw must have been some look-alike, some actor playing Kyra Burke. She says a lot of things, but she can’t show us where she was that night because she turned her phone off, so there is no proof where her phone really was. Let’s be clear about this, because I worry there is confusion around this phone thing. There is no evidence that Kyra Burke was someplace else that night. None. The only evidence you have is what you saw with your own eyes. She was in the lobby, moments before her husband died and moments after.
“Now why would an accomplished person like Kyra Burke want to kill her husband? Well, the evidence and your common sense tell you why. She had a powerful financial motive, which you’ve heard a lot about, but it was even more than that. She hated him for what he had done to other women, but she hated him most of all for what he had done to her. Sometimes it’s hard to make sense of why people hurt each other. Not here. He was a bad guy who had done terrible things and was going to keep on doing them, to her and to others. That doesn’t make it right—in a civilized society, murder is never okay—but it explains it. Your common sense tells you that.
“You also got the chance to see her testify. In our system, a defendant doesn’t need to testify, doesn’t need to say anything at all. That’s the way it should be. But she can. That’s her right. She can get up there and tell her story. And when a defendant does, the jury is entitled to consider it—to evaluate it—just like any other evidence. So think about Kyra Burke’s testimony. Did she strike you as someone who regretted the death of another human being? Did she strike you as someone who couldn’t possibly form the intention to harm him?
“I would suggest to you the answers are no. In many ways, I suppose, you have to admire her candor. She showed you in this courtroom how much she hated that man. Well, maybe she had good reasons, but she must be held accountable for killing another human being, no matter the reasons.”
He paused, getting ready to wrap up.
“Mr. Parker has done his best to make this case sound complicated. It isn’t. If you listen to the law as Justice Zannis gives it to you and apply your common sense—your ability to assess situations and people, which is the product of your lifetime of experience—you will conclude that the evidence establishes beyond a reasonable doubt that Kyra Burke is guilty. Thank you.”
It was Justice Zannis’s turn. “Thank you, Mr. Kwon. Ladies and gentlemen, it is now the court’s duty to instruct you on the law that will govern your deliberations.” She launched into the invariably too long “jury charge,” telling the jurors how they should consider different types of evidence, what “reasonable doubt” means, and the elements of the crime. When she finished, she invited counsel to sidebar to see if there were any objections or suggested corrections. There were none, so she sent the lawyers back to their tables, and then thanked the alternate jurors for their service and excused them, sending the remaining twelve out to deliberate.
Only Juror 7 glanced at Kyra as the jury walked out. The rest either looked at Andy Kwon or stared straight ahead. Parker turned and nodded to his jury consultant, who quickly rose and walked out of the spectators section. Her job was to follow the alternate jurors out to the street and see if any would speak to her about their impressions of the case.
When the jury was gone, Justice Zannis instructed the lawyers to stay nearby in case there were early notes from the jurors. Parker and Kyra went to a defense conference room adjoining the courtroom and sat in silence for about five minutes before the jury consultant returned. Two of the jurors had agreed to speak with her, but only briefly as they’d walked to the subway.
“What’d they say?” Parker asked.
The consultant hesitated, glancing at Kyra. “Lay it on us,” Parker said. “She can handle it.”
“They both said they weren’t sure you were guilty until your testimony. I’m sorry, but they said you came across as cold and they thought you did it. Maybe you had good reason to kill him, but they thought it was you.”
Parker dropped his head. “Thanks, Sheila. I appreciate you hustling after them. And thanks for all your work on this.”
“My pleasure,” she said. “And we still have number seven.”
“Yes, we do,” Parker said.
When they were alone, Kyra waited a long time to speak before saying, “So we’re just going for a hung jury here, aren’t we? Meaning, best case, I get to do this again.”
Parker let out an exhausted breath. “Yes, I think that’s the best we can hope for right now. But the best case is actually no retrial because we convince the DA to stop this bullshit.”
They sat in silence as Parker picked up his phone and sent yet another text to Benny Dugan.