There are still flashes of the Church I knew, the Church from The Prosecutor, the Church who led this investigation for nearly six months, but it’s clear even on film that he’s now merely a melancholic man playing a role, a mediocre comedian doing an impression of a dynamic man he once saw perform.
Church says, ‘Most judges are so cynical, they strictly limit the time allotted for voire dire. If defense counsel complains, they remind everyone that jury selection is meaningless and accuse counsel of trying to indoctrinate the jury.’
‘Not enough defense lawyers even complain,’ Marissa says. ‘Some lawyers ask the same goddamn questions to every juror. That’s how Roderick Blunt’s attorneys did it. Routine questions, reliance on stereotypes and gut instincts – the lead attorney even boasted about it on camera during deliberations. Then they were shocked when an all-black jury returned a first-degree murder conviction against their client.’
Church says, ‘Most criminal attorneys use the same set of questions for every case, never mind each individual juror. Which is why so many incompetent prosecutors have such high conviction rates.’
‘So how do you select a jury?’ Brody asks.
Turning over the whiteboard, Church says, ‘Jury selection has nothing to do with selecting a jury, BQ. It has everything to do with getting the individuals who will hurt our client the hell out of the courtroom as fast as humanly possible.’
When Church moves to the right, he reveals his drawings on the whiteboard. Stick figures, and crude ones at that. Four dozen of them. Some male, some female, some blue-faced, others blank.
‘That’s got to be racist,’ I say.
‘It’s not racist,’ Church says. ‘Racist would have been if I’d given half of them slanty eyes.’
I throw up my arms. ‘That’s racist.’
‘It’s not racism when you’re making fun of racism. Christ, Riles, have you never heard of satire?’
I turn to Brody for backup. ‘Is this conversation satirical?’
‘Now it is, yeah.’
‘Minorities,’ Church says, ‘are represented here only to illustrate that falling back on stereotypes puts your client in peril.’
‘Actually,’ Brody says, ‘Hawaii’s the only state in the US where Caucasians are a minority.’
‘Good,’ Church says, ‘because I have plenty of honkey and cracker jokes.’
Marissa nods. ‘Nick’s an equal opportunity asshole.’
‘Our objective in jury selection,’ Church says, ‘is to determine which jurors will not be receptive to our theory of the case. And we can’t learn that by asking yes or no questions. Leading questions only lead to aspirational answers – responses that jurors think you and/or the judge want to hear. So we ask open-ended questions designed to expose preconceived notions that will hurt us. Once we figure out who possesses these preconceived notions, our job is to immediately dispatch them, not to try to change their minds.’
I say, ‘The questions you pose will be hypotheticals, right?’
‘Not hypotheticals,’ Church says. ‘Again, the juror will try to provide the “right answer”. The best indicator of what a juror will do in deliberations is what they’ve done before they stepped into that courtroom. We want to know as much as we can about each juror’s life, and any life experiences that might color that juror’s perspective in one way or another.’
‘Remember,’ Marissa says, ‘jurors don’t only answer with dialogue. They answer with body language. Sometimes the way they reply to questions tells us more than their words.’
Church says, ‘Be particularly cognizant of how each juror regards Ethan. If they have difficulty making eye contact, if they cringe when they see him, if they suddenly light up their fuck-me eyes, I need to know about it.’
Marissa says, ‘Also – and I can’t stress this enough – watch how each juror looks at Nick.’
Church nods with a mirthless grin. ‘Especially when my back is turned.’
Marissa says, ‘Since we can’t film jurors outside either, we’re going to need every pair of eyes at this table the morning jury selection begins. As potential jurors walk up those courthouse steps, you’re going to surreptitiously observe them.’
‘How do we know who’s a juror?’ I ask.
‘They’re the ones who look like they’re entering Disneyland,’ Church says. ‘Remember their faces. Eavesdrop. Identify what they’re carrying: a newspaper, a Grisham novel, marital aids. Read their T-shirts. If someone’s T-shirt reads “I’m with stupid”, note who’s standing next to them.’
Marissa says, ‘Also keep an eye out for jurors who make friends. One, it indicates they’re extroverts who may have the potential to take charge in the jury room. Two, if Nick wants one of them on his jury, he’ll be sure not to make the other one cry.’
‘So there’s no specific personality we’re looking for,’ Brody says.
‘As defense counsel,’ Church says, ‘I’d personally love to have in the box twelve Type-A jurors, each with the courage to hold out, even when the count is eleven-one against them. Remember, only one is needed for a hung jury.’
‘But we want an acquittal,’ I say, perhaps with too much vigor.
‘And Marissa would rather be dating Hugh Jackman,’ Church counters. ‘We do the best we can with what we’re given.’
Unlike the shark that circled us so many times over the past half-year, this Church moves tenuously, as though guarding an injury. His typically clean-shaven face is all stubble, his modest island attire in stark contrast with his usual pricey garb.
At the board, Church says, ‘The lawyers should do the least amount of speaking in the room. In voire dire, we want the jurors to talk, we want them to say as much as possible, to divulge as many secrets as possible. Most lawyers are afraid a biased juror will taint the jury. Bullshit. A biased juror may expose other biased jurors, but no one is coming out of that courtroom a different person than when they went in.’
He picks up his glass and gulps some iced water. ‘Not only do we not want to silence a biased juror, we want to do everything we can to fatten that bias, to exploit it. We want to convince the judge to discharge that juror for cause so we can preserve our peremptory challenges – our golden tickets to toss jurors without needing a reason.’
Jesse says, ‘In Hawaii, in a criminal case where someone’s charged with an offense punishable by life imprisonment, each side gets twelve.’
Marissa says to Church, ‘Since we ultimately want to toss the jurors we think will be unreceptive to our theory of the case, don’t we need to know our theory of the case?’
Church sags in frustration. Says, ‘I told E-surance he needed to make a final decision today.’
In a move he’s clearly been dreading, Church digs his Android from his pocket, scrolls through his contacts, drops his phone onto the table, stabs at a number and places the call on speaker.
It rings five, six times, then finally Ethan’s voice. ‘Nick?’
Ethan had admitted to his lies of omission about Piper’s leaving for the mainland and her pregnancy, but swore that he had nothing to do with creating the Craigslist ad or email account. Someone else, Ethan insisted, must have had access to Piper’s computer.
Without preamble, Church says, ‘We’ve arrived at the point of no return. I need to start picking my jury, which means I need to know now whether our trial strategy is to attempt to pin this murder on some hypothetical thugs from another continent who may be out to do Piper harm because of the sins of her petty criminal father, or—’
‘Or we pin it on my brother,’ Ethan says glumly.
‘Or – I was about to say – we use the set of facts and physical evidence available to us to create in the minds of the jury a reasonable doubt that you, Ethan Jakes, murdered your soon-to-be-ex-girlfriend in your soon-to-be-ex-home on Mount Tantalus. I’ve prepped my team for either scenario, so what’s it going to be, E-wok?’
The night before jury selection formally began, I vomited in the gues
t toilet in Church’s suite – an infraction that would have gotten me tossed from the penthouse on nearly any other occasion. But tonight, I was needed. That morning we’d received completed questionnaires with basic information for the forty-eight jurors who would comprise the pool in State of Hawaii vs Ethan Jakes. We knew names, addresses, ages, marital statuses, occupations. We knew their education, whether they owned or rented their home. We knew their hobbies, their political and religious leanings, the names of their favorite television shows. Whether – and how often – they drank alcohol.
‘Roughly two thirds of most panels are unsympathetic to the defendant,’ Church said. ‘A quarter of the people think the police would never arrest someone for murder unless they were absolutely sure that person was guilty. One third wrongly believes the defense has the burden of proof in a criminal case.’
‘How do you overcome such staggering ignorance?’ I asked, admittedly more for the camera than anything.
‘Preparation. The first step is creating a profile. What type of juror are we looking for, given this set of facts? No wrong answers here,’ Church assured us. ‘Just use common sense.’
‘A misogynist,’ I said. ‘Someone who thinks Piper had it coming.’
Church scribbled on the whiteboard. ‘Lifetime members of the He-Man Woman Haters Club, good. But not ones with daughters between the ages of twelve to, say, twenty-nine.’
‘People with imagination,’ Brody said. ‘With the ability to think in abstractions. People who will accept that the simplest answer isn’t always the right one.’
Church nodded. ‘Artists, good. Musicians, actors, writers. Who else?’
The gist of the exercise was first to select jurors who could best empathize with the defendant: the young, the broke, the dreamers, the hopeless romantics. Next, we lined up the most likely witnesses for both the prosecution and the defense, making note of each witness’s nationality and other known characteristics. For instance, the lead detective, Lance Fukumoto, was an older, openly gay Japanese man, so we most likely wanted to avoid other older, openly gay Japanese men. With respect to our own witnesses, the strongest was currently Cheyenne Oh, a now-separated Korean mother of two, whose husband had cheated on her with the victim. Women scorned might well sympathize with her, though not those who had personally known victims of domestic violence. The factors to be considered seemed endless.
As did the night.
For hours, we plumbed the bowels of the internet, studying the social media accounts of the four dozen most boring mammals ever to walk the planet. At first, hey, it sounded like fun, delving into the lives of forty-eight strangers, determining who they loved, what they loathed, crafting narratives about their existence. But after the first few searches, I was already sick of navigating through timelines, tweets, throwback Thursdays and #FridayReads.
Right, I recalled, this is why I abandoned social media in the first place.
At three a.m., Brody and I finally began packing away our cameras. Court started precisely at nine. I once again envied Marissa, who had gone to bed more than an hour ago.
‘Don’t drive,’ Church said. ‘Let me call Ollie, get you guys a room downstairs.’
As he moved toward the phone, I made a show of gazing around the ginormous penthouse suite that could comfortably sleep ten people, at least.
‘Not an option,’ Church said as he dialed. ‘Night before jury selection, I can’t even think of sleep. As soon as you leave, I intend to wake Marissa. And I plan on things getting as weird as they do loud.’
THIRTY-FOUR
In the editing room, I replay the shaky footage of Church escorting us to our own room overlooking the night ocean. As we enter, he turns to the right, checks the light switch twice then slowly moves on to the lamps.
‘What is this?’ I say. ‘Some sort of OCD thing?’
‘Not at all,’ he says, as a three-way goes the distance twice. ‘It’s habit. Let’s just say that, occasionally, my “disorganization” makes visits from the hotel staff unworkable.’
‘So you need to make sure none of the bulbs are burned out?’
‘Not just that,’ he says. ‘Light affects my mood so much, I need to know that no bulbs are on their way out.’
I follow him to the rear of the room. ‘So you make sure none are dim?’
He switches the lights in the bathroom on and off twice, then turns to look at me, sweat beading the flesh on his forehead and upper lip, despite the cool temperatures both outside and inside the room.
He says, ‘You’d think so, right? But no.’ He steps past me and opens the hall closet. ‘For some reason, it’s always the brightest bulbs that are the first to flame out.’
The next morning, Naomi Lau and Nicholas Church stood side by side before the first twelve jurors, eying them like they were selecting the ripest cantaloupe in the produce aisle. I half-expected Lau to reach out and start squeezing cheeks.
‘Please, share with us the worst thing you or someone you know has done to their brother or sister,’ Church asked of a middle-aged female juror with three siblings. We knew little else about this woman, other than that she was a private elementary school teacher and ‘Other Pacific Islander’.
Instantly closing herself up like a flower in reverse bloom, she was so transparent the blind could have read her body language. ‘I suppose it would have to do with a will.’
‘A parent’s Last Will and Testament?’
‘Yes.’
‘What did one sibling do to the other?’
‘She fed our mother secrets and lies during the final years of her life and had everyone but herself removed from our mother’s will.’
‘She exerted undue influence?’
‘That’s just what happened. That’s what we argued in court, but our case got dismissed, probably because she went to bed with the judge.’
Hightower spoke. ‘For the record, I did not preside over that probate matter.’
He soaked up what few chuckles wafted over from the gallery. Hightower looked like a different man from the one we’d first met at Ethan’s arraignment. According to Church, the judge had had his stomach stapled in order to appear trim for the cameras.
Church said, ‘Is there anything you think your sister isn’t capable of?’
‘Absolutely nothing.’
Church turned to the camera and mouthed the words, ‘She’ll do.’
Unfortunately, Lau, after trying and failing to have the juror dismissed for cause, used one of her peremptory challenges. But that was OK, Church assured us. ‘Every peremptory challenge she uses, it’s one less she has to kick the perfect juror out of the courtroom. Running out of peremptory challenges early is like having your star point guard foul out in the first quarter of Game Seven of the NBA Finals.’
To another juror, Church said, ‘Just a reminder. Some of my questions might be about sensitive topics. If you prefer to answer in private or at the bench, you may.’
The juror, a young Asian woman, with long black hair cascading over her shoulders like a painted waterfall, nodded her head.
Church said, ‘Describe for us the most serious time you or someone you know was cheated on.’
‘That’s easy,’ she said. ‘I was cheated on by my last boyfriend.’
Church encouraged her to keep talking.
‘He was a few years older but, you know, he liked me because he said I was so mature, even more mature than women his own age, so we start going out more and more, only we’d always grab a quick sandwich at Subway and bring it back to my place and eat while watching TV, so I just thought, you know, that he was a cheapskate, and I’ve dated cheapskates before, sometimes they’re better than the splurgers, right? But then I find out this ass— Sorry, but then I find out he is seeing like four other girls behind my …’
She continued while Church walked back to the defense table and drank from his mug. ‘I’ll tell you,’ he whispered to me, ‘this stuff tastes like shit but it gets the job done.’
&n
bsp; Church walked back to the rail, thanked the woman mid-sentence, and said, ‘Moving on …’
An hour later, Church was voire dire-ing an upper-middle-aged blue-collar man, who we knew had been divorced three times. ‘Describe for us the most serious mistake you or someone you know has ever made due to jumping to a snap conclusion.’
The man seemed to think about it, but I suspected he was thinking more about how to phrase what he had to say, rather than what he had to say.
‘My second wife,’ the man said, ‘she was the one. My soulmate. I had it in my head that she was cheating on me with my best friend. I accused her. She denied it. My best friend denied it. I couldn’t let it go. It became a tremendous source of tension between us. And eventually she left me because of it.’
‘She left you because you wrongly accused her of sleeping with your best friend?’
‘That’s right.’
‘And you regret losing her?’
‘Not one bit. Turned out she was cheating on me. Just not with my buddy but a complete stranger. What keeps me awake at night isn’t losing her, it’s losing my best friend.’
‘Riles? BQ? You two wear the same clothes so often you could be cartoon characters.’
That was how Church invited us to go shopping at Ala Moana Center later that day, a breathtaking open-air shopping mall with stores so ostentatious half of them have their own dress code.
‘Wardrobe isn’t exactly in our budget,’ I said.
‘Well, it’s in mine, and if you two are going to sit next to my client during trial, we’re going to dress you up in something that once bore a security tag.’
‘Great!’ I told him.
Brody appeared less effused. ‘Should we pick up Marissa?’
‘No-o-o-o-o,’ Church said. ‘Marissa doesn’t understand how the economy works.’
I was about to ask Church what he meant by that, when I became distracted, daydreaming about buying a dress that wouldn’t ride a conveyer and be crammed into a plastic bag with my toothpaste and tampons.
‘Should we take my Jeep?’ I asked.
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