by Diane Capri
I am the most junior judge on the local federal bench. In seniority, age and the CJ’s affection, I have the least desirable location. I have no rank among my peers and receive no special privileges.
My courtroom and chambers are on the third floor, in the back. Getting there from the parking garage helps me keep my schoolgirl figure.
CHAPTER SEVENTEEN
Tampa, Florida
Monday 9:02 a.m.
January 24, 2000
FORTUNATELY, THE TRIP FROM Plant Key to the garage at the old courthouse is a short one. I was able to park Greta, jog up three flights of stairs, walk into my office, grab my robe and get onto the bench only two minutes late. Not bad.
The parties, seated at their respective tables looked very subdued. The Whitman Esquire Review attorneys numbered six, with two additional paralegals in the gallery. The president of the paper was the client representative. The woman sitting next to him was Mr. Tampa, the author of the offending piece of trash they were all here to defend. I’m told the Ann Landers newspaper advice column was once written by a man. I guess truth in media doesn’t extend to gender identification.
Boxes of exhibits and other papers were stowed behind the rail that separates the gallery of visitors from the rest of us so as not to be seen by the jury.
In what every trial lawyer would recognize as deliberate contrast, the plaintiff, Nelson Newton, sat by himself at the counsel table closest to the jury box. He had only one wrinkled, dirty, letter sized manila folder on the desk in front of him. He was holding an ink pen that looked like he’d picked it up at a car rental desk.
Newton’s somber navy blue suit, shiny from too many trips to the cleaners, could have come from J.C. Penney twenty years ago or the Salvation Army this morning. He wore a yellowed, dingy and frayed white oxford cloth shirt with a button down collar. His red, white and blue striped tie had soaked up its share of spilled lunches.
Dressing for court is a little like selecting the right costumes for a play. The idea is to have credibility with the jury, to look like a person they can root for; one they’ll want to win. A trial is a contest and there are winners and losers, as much as we try to pretend otherwise. The game is not decided on points. It’s one roll of the dice when the case goes back to the jury room; you never know who’s going to get lucky and who’ll go home broke.
The last time he tried a case in front of me, Newton had worn this same outfit every day for three weeks. He’d told me it was his lucky suit. The jury gave his client two million dollars that time on what I’d have said was a loser before the verdict came in. “Counselors, any last minute issues before I bring in the jury venire?” Little butterflies danced in my stomach. After all these years, my performance anxiety had reduced to a manageable level, but it was still there. I wondered if Laurence Olivier or John
Barrymore, great stage actors, ever conquered stage fright.
Media types, if they were in attendance, were of the print variety. No cameras were allowed.
This was the part of the trial to which I had to pay very close attention. It was my job to guide us through the morass of potential reversible error that lurked around every question during jury selection.
Both lawyers said, simultaneously, “Ready, your honor,” and I motioned the Court Security Officer to bring in the jury pool, the sixty men and women who had been waiting out in the hall for this moment.
I focused my attention totally on the process. My butterflies were still there, but I knew they’d calm down after the first half-hour. The trial had begun and my passion for my work lifted me into that place where time passes too quickly to measure.
Prospective jurors filed in, one at a time, and sat in the gallery. The clerk called out the numbers and names of each registered voter. The tension in the room rose to a level that resembled a high hum. As each name was called, the clerk directed the jurors to take one of the twelve seats in the jury box and then filled the six extra chairs the Court Security Officer had set up in front of the box.
One could take a bite out of the air in the courtroom at this stage. After a few days, a trial takes on a more relaxed feel. But in the beginning, the participants are uncomfortable and the jurors are mostly bewildered; the parties try like hell to select a jury that will be biased in their favor; everyone on both legal teams is tired and sleep deprived, worried about that one last thing they hadn’t done in preparation.
That tension was like nothing else in the world: The trial lawyer’s equivalent of an Olympic event. Ready, set, go. Sometimes, I really missed the entire experience, but after splashing the cold water of insight on my face, I always came to my senses.
This jury venire looked like all the rest. Mostly women, casually dressed. A few men, college aged students or retirees. Each carrying something to read during the long waiting periods inherent in the experience. All were here either because they couldn’t get out of jury service one more time or they didn’t have anything else to do.
Resting my hands on the desk to keep them from shaking with stress, I began to ask the preliminary questions from a prepared list I use in every trial: Did anyone know the litigants or the lawyers; did they have personal knowledge of the facts; was there any reason they couldn’t be fair? Stuff like that. Yes answers would get them released from service, for cause.
Then, unlike a lot of federal judges, I always turn the questioning over to the lawyers. After some earlier mistakes when I first took the bench, I’d learned not to let the lawyers get out of control, though. I limited their voir dire, or questioning of the prospective jurors, to one hour each. How they used that hour was up to them, but they got one hour, no more, no less, to determine how or if they wanted to use their preemptory challenges.
On television, two or three cases are tried in an hour. In real life, a trial is slow and tedious. Even the short ones. Jury selection alone could take several days for some cases. As a trial lawyer, I’d once tried a case for sixteen weeks. As a judge, I’d bend over backwards to keep that from happening.
The plaintiff, Newton, would begin every phase of the trial and was positioned closest to the jury box because he had the burden of proof. He stood up and slowly buttoned the middle button of his single-breasted jacket, fumbling a little on purpose, beginning with his first gesture to win the jury over to his view of the case.
Newton walked over to about the middle of the rail in front of the jury box and stood there, letting them get a good look at him.
He was short and overweight. What hair he had left was grey and cut in a fringe around his spherical head. His eyebrows were grey, too, making his violet eyes more startling somehow.
Newton put on his best good ole boy accent, even though he was educated at Harvard just like I was, and said, “How many of you all believe you’re entitled to personal privacy regarding your own life, assuming you’re not doing anythin’ illegal and ain’t hurtin’ nobody?”
The jurors identified with him instantly. That connection was the one thing he had that couldn’t be contrived. All good trial lawyers perfected the art, or they quickly accepted another line of work.
“Please raise your hand if you agree.” Every hand went up. He looked at them all, one at a time, made eye contact and nodded slowly, confirming a silent contract with each one.
“Are any of you all public figures?” No one admitted it, if they were. “Does anyone know what a public figure is?” He said the word as if it rhymed with “jigger.”
The bewilderment I saw on their faces surprised me. Hard to believe there was anyone left in America who didn’t know what a public figure was.
The Andrews nomination had spawned countless hours of discussion by the media about the character assassination our law allows of public figures. Obviously, just because some people thought Supreme Court appointments were required viewing, that didn’t mean everyone agreed.
One juror, a young man in the back row dressed in a Pewter Pride golf shirt, raised his hand. “A public figger like who?”
he asked, “say one of the Bucs?” He meant one of the Tampa Bay Buccaneers football team. Everybody nodded, apparently in agreement that Bucs were public figures, since it was impossible to live in Tampa without being aware of the team.
“Yes, that’s right,” Newton nodded, too. “Does anyone here recognize me to be a celebrity or a politician?” All heads shook negatively. I suppressed a smile. That must have been a blow to his ego at the same time it supported his case.
Newton had never been modest. In fact, over the years his name had probably been in the paper at least as many times as any local football player. The walls of Newton’s office were lined with the newspaper and magazine accounts of his trial successes. He’d been on television enough that some of the jurors might have seen him.
“Well, lemme ask y’all this,” he started, and my antennae went up. I sat a little straighter. I’d developed a sixth sense about trials. I knew I was going to have trouble from the defense team by the posture of lead defense counsel.
Newton continued talking to the Bucs fan in the third row who had answered his last question. “Suppose your wife had an affair, Mr. Bates. Now, I’m not sayin’ she did, because I don’t know nothin’ of the kind. But let’s just s’pose she did, for the moment, alright?”
Mr. Bates looked unsure, but he agreed by nodding slightly. “Would you like it if The Tampa Tribune printed that information in the paper?”
“No!”Mr. Bates responded emphatically, and he looked quite indignant about it, too.
“If The Tribune printed that your wife had an affair and it wasn’t true, do you think they should get away with that?” Newton put his hands in the pockets of his suit coat, which made his elbows stick out like chicken wings while he rocked forward on the balls of his feet.
“Certainly not!” Mr. Bates showed his indignation plainly. “And if The Tribune did print such a thing, such a scandalous thing, do you think it would hurt you or your wife or your children in any way?” Newton asked.
“Your honor!” Defense counsel jumped to his feet, almost shouting his objection. “He is trying to prejudice this jury by asking questions that he knows do not represent the true facts in this case. He knows he is a public figure under the law and what was printed about him was absolutely true. He’s trying to mislead this jury and taint the whole panel. I move for a mistrial.”
Newton was guilty of all this, just as the defense attorney was posturing to undo the damage as early as he could.
Again, in deliberate contrast, Newton acted unperturbed. “Judge, I think it’s for the jury to decide what the true facts are in this case. That’s why we’re here. And I’m entitled to explore their opinions. That’s what voir dire is for, as counsel well knows. I oppose any motions for mistrial and,” he stopped for a moment so that his point would be emphasized, “I promise to be polite and not interrupt defense counsel if he will stop interrupting me.” The jury snickered. Newton was smooth and sure. He knew the game and he knew how to counter all the other side’s moves. There is no substitute for experience in the local jurisdiction. The home field advantage applied to the game of trial, just like any other high stakes game.
By now, my butterflies had relaxed and I was well into the rhythm of the trial. I overruled the objection, but instructed the jury that defense counsel was well within his rights to make it. I denied the motion for mistrial and instructed both counsel to make any such motions at the bench, out of the hearing of the jury, because I did not intend to have my trial interrupted by grandstanding.
It was familiar territory to all but the jurors. Like a drama in its hundredth performance, each of the actors recited the well-worn lines and like the untutored audience they were, the prospective jurors remained ignorant of the backstage tricks that made the performers successful.
Newton continued his voir dire in the same vein, raising the issues with the jurors and making The Review out to be a scandal sheet of the worst order. Which, of course, it was.
A couple of times I reminded him that this was not argument, but jury selection. Otherwise, I allowed him enough rope to hang himself.
The jury would remember Newton’s voir dire and that the facts he portrayed didn’t resemble what they heard in the trial. Whether they’d hold that against Newton during their deliberations or not was always the multi-million dollar question.
Newton finally ran out of time and yielded the floor to the blue chip, silk stocking law firm partner from New York who had been admitted to practice in my court specially to handle this case. Although the jury wouldn’t be told, he wasn’t a member of the Florida Bar, so he was burdened with the handicap of playing the game in an unfamiliar arena before he opened his mouth.
The man stood up to adjust himself before he began his voir dire. A new actor had entered the stage and the jurors paid attention.
He was about 6’2”, with a full head of expertly coiffed and colored blonde hair, manicured nails and a medium-grey plaid suit that looked as expensive as it undoubtedly was. He wore brown shoes and the hose (for they were not mere socks) picked up the pale brown threads in the suit.
His brilliant white shirt had French cuffs with gold knot cuff links just peeking out of the bottom of the sleeves of his suit. As he pulled down on first one cuff and then the other, straightening them just right as he flexed his shoulders, his clear nail polish reflected the glare of the fluorescent lights.
The tie was a yellow print knotted in a half Windsor and it hung straight down his flat stomach to just above the shiny gold monogrammed buckle of his brown alligator belt.
He looked the picture of what he was: an $850 an hour hired gun. His name, he told us all, was “A. (for Archibald) Alexander Tremain, VI.” When he announced himself to the jury, I noticed twittering in the back row, as I suppressed my own grin.
CHAPTER EIGHTEEN
Tampa, Florida
Monday 11:05 a.m.
January 24, 2000
TREMAIN STOOD IN THE same spot Newton had used to hold the prospective jurors enthralled for the last hour and then he turned to look at the remainder of the jury pool in the gallery behind where Newton was now seated. To each group, Tremain nodded his head slightly, but he didn’t smile.
“I want each of you to know that today, if you are selected for this jury, you will have the responsibility of deciding whether the United States Constitution is something we all live by, or whether it’s not.” He stopped and looked in turn at each of the eighteen prospective jurors in front of him. At this rate, his hour for questions would be up before he got any information at all.
“At the end of this trial, the jury that is selected here will be asked whether the First Amendment still means anything in this country, or whether true speech can be punished. Mr. Bates,” he picked out the juror who had seemed so sympathetic to Newton earlier, “do you believe in the United States Constitution?”
“Yes, sir, I do.” Mr. Bates gave the expected answer. Our voters are a pretty patriotic and conservative lot. Except for South Florida, which was populated primarily by liberal Democrats from the Northeastern United States, the rest of the state has had a strong, conservative Republican electorate for years. That dichotomy has gotten the state into trouble in national elections. But here in Tampa, it was best to remember the probable perspective of local jurors.
Someone had apparently clued Tremain in and he had taken the advice of trial specialists, attempting to condition the jurors early to laws they might find personally repugnant and excuse jurors who couldn’t make the commitment.
“Do you believe that you have the right to say just about whatever you want in this country? Not the privilege, but the right?” He raised his voice when he said “right” and pounded a closed fist into his flat palm.
“I guess so, yeah. But I don’t think you should hurt anybody by saying things that aren’t true. That’s not constitutional.” Mr. Bates remembered Newton’s hypothetical about his wife’s adultery.
“You’re right, Mr. Bates, you’re abso
lutely right. If you knowingly say something that’s not true, that shouldn’t be protected by the Constitution most of the time. But what if it is true? Shouldn’t you be able to say anything that’s true and not be afraid of being sued?” Tremain pushed his advantage and his theory.
“Sure.” Mr. Bates gave in. He was a true lawyer’s nightmare. He wanted to be on the jury so badly that he’d agree with anything you asked him. The lawyers had no way of knowing which way he’d vote, so leaving him on the jury would be a wild card. The trial lawyer’s equivalent of white-knuckle time.
There was nothing I could do about Bates. One of the parties would have to strike him or he’d remain with us through the course of the trial.
Tremain nodded approvingly, giving Mr. Bates a figurative gold star. Then he moved on. “I certainly hope none of you are gay or lesbian?”
There was an uncomfortable silence in the room. Some jurors shook their heads and looked from side to side, almost involuntarily, wondering where this was going. The statement of the case that was read to the jury at the beginning of the voir dire never mentioned what it was that The Review had printed about Newton.
“If any of you eighteen potential jurors are gay or lesbian, please tell us now, because you must be excused from this jury,” Tremain said firmly.
“Objection!” Newton shouted, jumping to his feet as I banged down my gavel and sternly admonished the defense attorney. The jurors chuckled self-consciously, looking around for raised hands. I asked to see both counsel in chambers and we left the courtroom for my smaller hearing room, each of the members of the defense team following behind Tremain the way goslings follow their mother.
I turned to defense counsel as we entered my chambers, “Just what exactly are you trying to do here? If this is standard voir dire in your part of the woods, I can tell you that’s not the kind of question we routinely ask here in Tampa.”