T2C: Opening Statements

July 26, 2017:

U.S.A. David Archer and defense counsel Matt Murdock make their opening arguments in the trial of Bucky Barnes.

United States District Courthouse, Eastern District of New York

A historic federal courthouse on Cadman Plaza in Brooklyn.


NPCs: David Archer, Foggy Nelson

Mentions: Bucky Barnes


Mood Music: [*\# None.]

Fade In…

David Archer’s presence is a powerful one. Even before he opens his mouth he commands attention, sweeping to the center of the room. His dark blue suit and red power tie are perfectly tailored, projecting both confidence and authority. He walks right up to the jury box, and he solemnly looks each and every member in the eye.

It’s an advantage his opponent won’t have, that ability, and he uses it ruthlessly.

“In 1945, America lost a hero. He took a fall. A literal fall, yes, which left his body damaged deep behind enemy lines. He should not have survived. He should have gone on to reap his rewards in Heaven on that day.”

“But that is not what happened. Sergeant Barnes took a spiritual fall, instead.”

Dangerous territory, perhaps, saying a man should have died. There was a reason why he focused on eliminating soldiers, former POWs, and the family members thereof from the jury when he had his turn to start striking them. Unlike Murdock, whose strategy for dismissing jurors he still didn’t entirely understand. Sometimes he’d strike them for reasons that seemed wholly random to one David Archer.

It was neither here nor there. He stepped back from the box a little, his powerful, booming voice carrying across the entire courtroom.

“The enemy took him to their breasts. They nurtured him. They gave him a serum, the same serum that powers America’s most iconic hero, his former heart’s brother, Steve Rogers, our own Captain America. The enemies of the United States of America mended his unnatural body, grafting it with metal, putting their mark upon him, a mark he still wears.”

He looked over to point Barnes out for the jury, noticing, for the first time, that something had been done to the prosthetic. It looked like a regular arm now. Clever, Barnes, he grudgingly thought, wishing he’d realized that had happened before he included that line. Wishing Barnes hadn’t thought to do it. It would dilute the image of that terrifying metal arm punching directly through a victim’s chest, too.

But he kept that off his face, smoothly continuing.

“They whispered poison in his ear, and gained his loyalty. He deserted his post as a member of the United States Army, and he remained with them.”

“They made him into a living weapon, the very antithesis of the man we all grew up admiring, whom we’ve all admired for 72 years. Barnes walked the shadows, and where he walked, death followed.”

“Tell all the truth, but tell it slant.” he found himself thinking, sourly. As he stood here, spinning this version of the tale, he felt like a monster. His stomach churned with sour bile, his neck muscles tightened until they burned. Today he felt no particular comfort in preventing a war, or even in circumventing Wakanda’s brutal brand of justice.

“You will be tempted to look at James Buchanan Barnes and see a hero. But he is not a hero. He is a nightmare drenched in blood. Like most nightmares, he has a name. They called him The Winter Soldier.”

You will be tempted to look at this prosecutor and see a hero. But he is a politician washing his hands, and they called him Pontius Pilate.

He raised his voice, let it carry with the kind of ringing conviction that he had learned while in college, studying theatre, oration, and all the other skills that would carry him into a very successful 25-year career that had been all about putting away the bad guys.

“This soldier of winter has taken innocent lives, coldly gunning down lawmakers, diplomats, and peacekeepers around the world. He has destabilized governments and sparked wars which have ended countless other lives.”

You’d better start seeing him as one, or you’re going to have a hard time winning this trial, Archer, no matter what your case looks like.

“As early as January of this year, Barnes engaged in a campaign of murder, assault, kidnapping, and attempted murder grisly enough to make a serial killer blanche.”

“You’re going to hear the defense try to tell you that none of this is his fault. They’re going to tell you that Barnes was tortured. That he was brainwashed. That James Barnes is a victim, an American hero who deserves a “Get Out of Jail Free” card. You’ll hear that he’s home now, he’s safe in the arms of his friends, that they are good people who will surely help him prevent another fall from grace. That he should be allowed to live out his life, perhaps even serve the American people once more.”

“But the record will tell a far more complex and nuanced story, one that ultimately lays culpability at the feet of this man, this assassin. The People will show you a man who had multiple opportunities to escape his captors, and to seek help from the government to whom he owed his loyalty. He did not.”

His heartbeat settled. His stomach calmed. His muscles eased. There, now, was truth. It was a far more complex and nuanced story, and there were other things he could think of. He knew damn well that series of arsons and murders could be laid at Barnes’ feet, even if he couldn’t prove it. The man had gone on to a campaign of murder directly after his supposed redemption. He might even have done what Wakanda said he had done, at Mizizi.

Complex. Nuanced. And ultimately, criminal acts had been carried out by that man’s hands. He could put his conscience at ease, and fight for what was right.

“We will show that there were multiple instances during which Barnes continued to commit crimes of his own power and his own volition, free from the influence of his handlers.”

He circled back to the jury box, and he leaned forward, meeting their eyes once more.

“Ladies and gentlemen of the jury, I want you to think about something as you settle in to start evaluating the evidence before us.”

“Many prisoners of war have been tortured. Many have been subjected to a campaign of psychological manipulation. Most, however, do not turn around and begin killing on behalf of their captors, are not released into the wild, again and again, to do their bidding.”

“The defense will try to tell you the story of what’s happening in a man’s heart and mind, when one man can never truly know the heart and mind of another. Rather, the Good Book instructs us that we shall know the heart by the fruits, and the fruits of this harvest, verified by concrete facts and witness testimony, are bitter indeed.”

He returned to his seat with his back straight and his head held high. Time to listen very closely to what Mr. Murdock would have to say.

Matthew Murdock sits in silence beside his second chair, Foggy Nelson, and his clean-cut client, as David Archer makes his opening statement. For all the attorney’s glaring disability, there’s still a watchful quality to the dark-haired gentleman as Archer outlines one take on the fall of Bucky Barnes. And he does, of course, watch — in his own idiosyncratic way.

Even he doesn’t buy it, Matt realizes, picking up subtleties of cadence, heartbeat, and breath. And he’s angry about it At himself, even. The knowledge is striking, and almost garners a pang of sympathy from the younger lawyer. Almost. Sorry, Archer, you don’t get points for feeling bad about all the horseshit you’re slinging.

When Archer is done, and the judge summons the defense, Matt angles his features towards Foggy and Barnes and gives the quickest and faintest of nods. It’s a slight but complex gesture, containing within it worlds of reassurement and commiseration. It looks like the sort of nod a soldier might give his comrades before picking up his rifle and charging into battle.

‘Go get ‘em, buddy,’ Foggy whispers in his ear.

Then Matt’s standing, buttoning the top of button on his suit jacket, and plucking his walking stick up from beside his chair and makes his deliberate way to stand before the twelve men and women on whom so much rests. He’s a young man — and looks younger for being clean-shaven today — but there’s a dignity and gravity to his manner that makes him seem older. It’s likely helped by the sheer weight of the moment he feels on his shoulders. He draws in a slow breath, exhales, and then —

“Ladies and gentlemen of the jury, I don’t envy you,” he begins, and his voice still somehow sounds soft-spoken even while it carries through the court chamber. “In the coming weeks you will bear a burden few juries have ever known. You’re not just being asked to pass judgment on the life of one man. In a very real way, you’re being asked to pass judgment on history itself. James Buchanan Barnes and many of the people you will hear about or even see take to the stand in this trial are the stuff of history. They’re in our textbooks, our museums — even our comic books.

He cannot look them in the eyes the way Archer can, it’s true, but most of Matt Murdock’s strengths lie in being the world’s biggest southpaw — someone whose power comes from unexpected places. He can’t see the jurors, but he can read them in the whisper of their fabrics as they shift in place, in the jump and ebb of their heartbeats. And he makes sure they see him as he makes makes his methodical procession along the court chambers.

“Until not too long ago, history told us that only two members of the storied Howling Commando unit died in World War II: Captain Steve Rogers and his lifelong friend, Sergeant Bucky Barnes. We were told told both men were killed in service to their country: Bucky Barnes fell from a train into the snowy Alps, while Captain Rogers’s plane went down into the frozen waters.

“History, it turns out, got it wrong on both counts. Steve Rogers was famously saved by U.S. forces decades later. And now it turns out that Bucky Barnes was also rescued, but under different, darker circumstances. Now, it’s up to the twelve of you to decide what happened next.

Alright, Matt thinks to himself once that preamble is finished, revising the carefully memorized script. If Archer knows and hates that this is a sham, let’s bait the bear and see what happens. It’s an advantage of the defense, getting to go second. You can rebut the worst of the prosecution’s points, adjust your own tack to account for the unexpected.

“Mr. Archer has offered you one possibility: that Barnes was seduced by the enemy and became their willing agent. But the facts — of which Mr. Archer is well aware — tell a different story. After being left behind by the Commandos, Barnes’ body was recovered by the same enemies he’d been fighting and killing for years. Far from being ‘nurtured,’ he was subjected to a decades-long campaign of torture and mental abuse, all with a single purpose: to erase the good man Bucky Barnes had been and turn his body into a living weapon.

“This is not simple brainwashing, though there were elements of that. What was done to Barnes is unprecedented — the stuff of horror novels and science fiction stories. They took off his arm, they altered his body, they even physically tampered with his brain — surgically installing computer chips and nanites meant to control his behavior. His memory was repeatedly wiped clean, and whole new identities were force-fed to him while he was locked in a metal chair right out of a medieval torture chamber.

A little passion has crept up into Murdock’s measured voice as he describes the depravities visited on Bucky Barnes, though the cadence of his speech remains even and measured. And now, to twist the knife a little:

“Mr. Archer says that it would be better if Bucky had died in that fall. And as he was strapped to that chair, Bucky Barnes probably thought the same — at least until they took his power to think for himself.

Murdock surveys the jury as only he can. They think they sit in silence before him, but every motion and breath tells a story. And so:

“I’m sure some of you are balking right now. It can’t be true, or if it is true, it can’t have worked. And I know how you feel. It’s scary to think that our identities are that fragile. That under the right conditions we can be turned against our own natures and values. If it’s any consolation, our minds truly are resilient. Crucially, the process used to control Bucky Barnes’ behavior only worked temporarily — eventually the new identity and programming would break down and the man he was would begin to reassert himself. That’s why the Soviet government and Hydra were clever enough to put him on ice for years, sometimes even decades at a time, taking him out whenever he was needed for a mission. Then they’d begin the wiping, the indoctrination, and the physical torture all over again.

“Note that it’s this ugly cycle of physical and mental abuse that Mr. Archer expects you to believe Sergeant Barnes willingly returned to time and again when his missions were complete.

“But this winter, some brave souls finally broke the cycle and set Bucky free. His handlers kept him out too long, and eventually the fabrication that was the Winter Soldier began to break down. Through interactions with others — including his oldest friend, Steve Rogers — some of the old Bucky began to emerge. It wasn’t pretty and it wasn’t clean, but it happened. A motley crew of misfits, vigilantes, busybodies and superheroes finally drew Bucky out of his decades-long sleep that January night in Ozone Park. Bucky Barnes came in from the cold.

“Mr. Archer is right that this story is nuanced. War changed Bucky more than most, and the man who sits in the chair behind me is not the gregarious, charming officer who shipped off to fight for his country. But what we do know is that Bucky has regained his sense of self and control over his actions, and that he has rejected the violence that America’s enemies forced on him. But now, instead of giving him the chance to rebuild the life he lost or giving him any care he might need — the government he fought and risked his life for wants to crucify him for the sake of politics.

“Still don’t believe it? That’s okay. We’re just getting started. But, you should know that a majority of the witnesses Mr. Archer plans to call to the stand believe it — including all of the prosecution witnesses who either knew Bucky Barnes before he was captured, after his escape, or both. And we know SHIELD — the entity that had hunted the Winter Soldier through the decades — believed it, because they had the opportunity to arrest him after he was freed from Hydra’s clutches, and didn’t.

“But perhaps most importantly, we know Hydra believed it — because we are able to document in detail the lengths they went to ‘condition’ Sergeant Barnes. Over the coming weeks you’ll have a chance to read Hydra journals and documents recovered at Ozone Park, hear expert testimony from witnesses — including a former Hydra officer — and even see video recordings of what Hydra called ‘compliance training’ — but which any reasonable person would call an abomination. It’s not for the faint of heart — this, too, is part of your burden.

The lawyer walks up and places a searching, fumbling hand on the bar between himself and the jurors. His voice drops a note or two as he turns from a relaying of the facts to something more conversational, in part, because he wants it to be the one thing they take away from his speech:

“In our system, to convict someone of a crime you have to find that they have the right level of intent. Fancy lawyers call it ‘mens rea’ — it means ‘a guilty mind.’ Sometimes being negligent or reckless is enough. But all of the crimes of which Bucky Barnes is accused require him to have acted with a knowledge, willfulness and autonomy that America’s enemies spent decades stripping from him when they created the Winter Soldier.

“Mr. Archer will no doubt spend a great deal of time telling you about the Winter Soldier’s violent acts. But we don’t contest that they happened, or that Barnes’ hands committed them. He wants you to believe I’m asking that you to feel bad enough for Barnes to let him off the hook, but that couldn’t be further from the truth. What I’m asking you to do is to review the evidence carefully and impartially. After you do, I think you’ll come to the same conclusion I have: that James Buchanan Barnes is not guilty of these crimes. Thank you.”

And then he’s making his slow, tap-tap way back to his seat.

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