24

Whiteout Conditions

As was customary during these courtroom proceedings, on Wednesday morning, January 28, 2009, the judge and counsel from either side began their morning’s work with the jury outside. Business that the jury did not need to hear was, when possible, taken care of first, so the panel wouldn’t have to be ushered back and forth from the jury room. On this morning, that early-morning business ended up negating the entire day.

Before a word was spoken, nerves were already on edge. Outside, Syracuse was getting blasted with a snowstorm. With the exception of the defendant, everyone had to battle whiteout conditions on the roads just to be in attendance. No one was frazzled—these were all local people who handled the grueling winter well—but there was just a touch of that got-out-of-the-wrong-side-of-the-bed feeling.

First subject: Chuck Keller said he wanted to call Lynn Pulaski to the stand as a defense witness. He planned to ask her why the will she signed had been backdated two years. The prosecution objected to the whole idea, because the witness would have no way of knowing for sure why this was done, that even if Pulaski had some understanding as to the motive for the backdating, at best she was basing it on hearsay. She only “knew” what Stacey had told her to be true, and anything Stacey had said to her friend was apt to be so self-serving as to be useless. The judge ruled that Lynn Pulaski should not be called by the defense for that purpose.

Keller wasn’t done. He announced that he only planned to call one new witness that day, a computer expert. A summary of the expert’s testimony had been given to the prosecution only minutes before.

“Talk about coming out of the blue,” Bill Fitzpatrick complained. The DA vigorously objected to the planned testimony. It was based on an expert’s findings. “We haven’t had adequate time to study those findings,” he said, adding that he felt “ambushed” by the defense.

Keller replied that he wasn’t ambushing anyone. He had given the prosecution almost as long to look at his expert’s results as he himself had. “I received this report via e-mail at two o’clock this morning,” Keller said.

Judge Fahey lent a sympathetic ear to Fitzpatrick’s objections and declared that no witnesses would be called on this day, and the time should be used for the people to familiarize themselves with the computer expert’s findings and prepare cross-examination.

Keller had another issue to take up, and he sounded testy this time. He asked Judge Fahey to admonish Fitzpatrick for comments he made “during yesterday’s testimony,” comments made during the cross-examination of Michael Overstreet that the defense felt were “disrespectful and unprofessional.”

“This is the way I behave in trials,” Fitzpatrick said. “I don’t need lectures from defense counsel.”

Judge Fahey said, “Everyone, take a step back. Let’s do it professionally and politely. Let’s just leave it at that.”

Fitzpatrick wondered aloud why the defense didn’t fill the day by putting the defendant on the stand. Keller, hot under the collar at this suggestion, replied that he didn’t feel he had to change the order of his witnesses just because the people said so. Judge Fahey agreed.

When the jury was called back into the courtroom at 9:24 A.M., it was only so Judge Fahey could apologize three times for bringing them all the way into court during a snowstorm, only to send them right back home again.