I smiled.
“Is that how you like to play it? You get caught being underhanded, so you respond by accusing the other guy of being underhanded?”
Bosch laughed, his face colored red as he turned away from me. It was a gesture that struck me as familiar, and his mention of my father brought him to mind. I had a vague memory of my father laughing uneasily and looking away as he leaned back at the dinner table. My mother had accused him of something I was too young to understand.
Bosch put both arms on the table and leaned toward me.
“You’ve heard of the first forty-eight, right?”
“What are you talking about?”
“The first forty-eight. The chances of clearing a homicide diminish by almost half each day if you don’t solve it in the first forty-eight hours.”
He looked at his watch before continuing.
“I’m coming up on seventy-two hours and I’ve got nothing,” he said. “Not a suspect, not a viable lead, nothing. And I was hoping that tonight I might be able to scare something out of you. Something that would point me in the right direction.”
I sat there, staring at him, digesting what he had said. Finally, I found my voice.
“You actually thought I knew who killed Jerry and wasn’t telling?”
“It was a possibility I had to consider.”
“Fuck you, Bosch.”
Just then the waiter came with our steaks and spaghetti. As the plates were put down, Bosch looked at me with a knowing smile on his face. The waiter asked what else he could get for us and I waved him away without breaking eye contact.
“You’re an arrogant son of a bitch,” I said. “You can just sit there with a smile on your face after accusing me of hiding evidence or knowledge in a murder. A murder of a guy I knew.”
Bosch looked down at his steak, picked up his knife and fork, and cut into it. I noticed he was left-handed. He put a chunk of meat into his mouth and stared at me while he ate it. He rested his fists on either side of his plate, fork and knife in his grips, as if guarding the food from poachers. A lot of my clients who had spent time in prison ate the same way.
“Why don’t you take it easy there, Counselor,” he said. “You have to understand something. I’m not used to being on the same side of the line as the defense lawyer, okay? It has been my experience that defense attorneys have tried to portray me as stupid, corrupt, bigoted, you name it. So with that in mind, yes, I tried to run a game on you in hopes that it would help me solve a murder. I apologize all to hell and back. If you want, I will have them wrap up my steak and I’ll take it to go.”
I shook my head. Bosch had a talent for trying to make me feel guilty for his transgressions.
“Maybe now you should be the one who takes it easy,” I said. “All I’m saying is that from the start, I have acted openly and honestly with you. I have stretched the ethical bounds of my profession. And I have told you what I could tell you, when I could tell you. I didn’t deserve to have the shit scared out of me tonight. And you’re damn lucky I didn’t put a bullet in your man’s chest when he was at the office door. He made a beautiful target.”
“You weren’t supposed to have a gun. I checked.”
Bosch started eating again, keeping his head down as he worked on the steak. He took several bites and then moved to the side plate of spaghetti. He wasn’t a twirler. He chopped at the pasta with his fork before putting a bite into his mouth. He spoke after he swallowed his food.
“So now that we have that out of the way, will you help me?”
I blew out my breath in a laugh.
“Are you kidding? Have you heard a single thing I’ve said here?”
“Yeah, I heard it all. And no, I’m not kidding. When all is said and done, I still have a dead lawyer—your colleague—on my hands and I could still use your help.”
I started cutting my first piece of steak. I decided he could wait for me to eat, like I had waited for him.
Dan Tana’s was considered by many to serve the best steak in the city. Count me as one of the many. I was not disappointed. I took my time, savoring the first bite, then put my fork down.
“What kind of help?”
“We draw out the killer.”
“Great. How dangerous will it be?”
“Depends on a lot of things. But I’m not going to lie to you. It could get dangerous. I need you to shake some things up, make whoever’s out there think there’s a loose end, that you might be dangerous to them. Then we see what happens.”
“But you’ll be there. I’ll be covered.”
“Every step of the way.”
“How do we shake things up?”
“I was thinking a newspaper story. I assume you’ve been getting calls from the reporters. We pick one and give them the story, an exclusive, and we plant something in there that gets the killer thinking.”
I thought about this and remembered what Lorna had warned about playing fair with the media.
“There’s a guy at the Times,” I said. “I kind of made a deal with him to get him off my back. I told him that when I was ready to talk, I would talk to him.”
“That’s a perfect setup. We’ll use him.”
I didn’t say anything.
“So, are you in?”
I picked up my fork and knife and remained silent while I cut into the steak again. Blood ran onto the plate. I thought about my daughter getting to the point of asking me the same questions her mother asked and that I could never answer. It’s like you’re always working for the bad guys. It wasn’t as simple as that but knowing this didn’t take away the sting or the look I remembered seeing in her eyes.
I put the knife and fork down without taking a bite. I suddenly was no longer hungry.
“Yeah,” I said. “I’m in.”
PART THREE
—To Speak the Truth
Thirty-four
Everybody lies.
Cops lie. Lawyers lie. Clients lie. Even jurors lie.
There is a school of belief in criminal law that says every trial is won or lost in the choosing of the jury. I’ve never been ready to go all the way to that level but I do know that there is probably no phase in a murder trial more important than the selection of the twelve citizens who will decide your client’s fate. It is also the most complex and fleeting part of the trial, reliant on the whims of fate and luck and being able to ask the right question of the right person at the right time.
And yet we begin each trial with it.
Jury selection in the case of California v. Elliot began on schedule in Judge James P. Stanton’s courtroom at ten a.m. Thursday. The courtroom was packed, half filled with the venire—the eighty potential jurors called randomly from the jury pool on the fifth floor of the CCB—and half filled with media, courthouse professionals, well-wishers, and just plain gawkers who had been able to squeeze in.
I sat at the defense table alone with my client—fulfilling his wish for a legal team of just one. Spread in front of me was an open but empty manila file, a Post-it pad, and three different markers, red, blue and black. Back at the office, I had prepared the file by using a ruler to draw a grid across it. There were twelve blocks, each the size of a Post-it. Each block was for one of the twelve jurors who would be chosen to sit in judgment of Walter Elliot. Some lawyers use computers to track potential jurors. They even have software that can take information revealed during the selection process, filter it through a sociopolitical pattern–recognition program, and spit out instant recommendations on whether to keep or reject a juror. I had been using the old-school grid system since I had been a baby lawyer in the Public Defender’s Office. It had always worked well for me and I wasn’t changing now. I didn’t want to use a computer’s instincts when it came to picking a jury. I wanted to use my own. A computer can’t hear how someone gives an answer. It can’t see someone’s eyes when they lie.
The way it works is that the judge has a computer-generated list from which he calls the first twelve c
itizens from the venire, and they take seats in the jury box. At that point each is a member of the jury. But they get to keep their seats only if they survive voir dire—the questioning of their background and views and understanding of the law. There is a process. The judge asks them a series of basic questions and then the lawyers get the chance to follow up with a more narrow focus.
Jurors can be removed from the box in one of two ways. They can be rejected for cause if they show through their answers or demeanor or even their life’s circumstances that they cannot be fair judges of credibility or hear the case with an open mind. There is no limit to the number of challenges for cause at the disposal of the attorneys. Oftentimes the judge will make a dismissal for cause before the prosecutor or defense attorney even raises an objection. I have always believed that the quickest way off a jury panel is to announce that you are convinced that all cops lie or all cops are always right. Either way, a closed mind is a challenge for cause.
The second method of removal is the peremptory challenge, of which each attorney is given a limited supply, depending on the type of case and charges. Because this trial involved charges of murder, both the prosecution and defense would have up to twenty peremptory challenges each. It is in the judicious and tactful use of these peremptories that strategy and instinct come into play. A skilled attorney can use his challenges to help sculpt the jury into a tool of the prosecution or defense. A peremptory challenge lets the attorney strike a juror for no reason other than his instinctual dislike of the individual. An exception to this would be the obvious use of peremptories to create a bias on the jury. A prosecutor who continually removed black jurors, or a defense attorney who did the same with white jurors, would quickly run afoul of the opposition as well as the judge.
The rules of voir dire are designed to remove bias and deception from the jury. The term itself comes from the French phrase “to speak the truth.” But this of course is contradictory to each side’s cause. The bottom line in any trial is that I want a biased jury. I want them biased against the state and the police. I want them predisposed to be on my side. The truth is that a fair-minded person is the last person I want on my jury. I want somebody who is already on my side or can easily be pushed there. I want twelve lemmings in the box. Jurors who will follow my lead and act as agents for the defense.
And, of course, the man sitting four feet from me in the courtroom wanted to achieve a diametrically opposite result out of jury selection. The prosecutor wanted his own lemmings and would use his challenges to sculpt the jury his way, and at my expense.
By ten fifteen the efficient Judge Stanton had looked at the printout from the computer that randomly selected the first twelve candidates and had welcomed them to the jury box by calling out code numbers issued to them in the jury-pool room on the fifth floor. There were six men and six women. We had three postal workers, two engineers, a housewife from Pomona, an out-of-work screenwriter, two high school teachers, and three retirees.
We knew where they were from and what they did. But we didn’t know their names. It was an anonymous jury. During all pretrial conferences the judge had been adamant about protecting the jurors from public attention and scrutiny. He had ordered that the truTV camera be mounted on the wall over the jury box so that the jurors would not be seen in its view of the courtroom. He had also ruled that the identities of all prospective jurors be withheld from even the lawyers and that each be referred to during voir dire by their seat number.
The process began with the judge asking each prospective juror questions about what they did for a living and the area of Los Angeles County they lived in. He then moved on to basic questions about whether they had been victims of crime, had relatives in prison, or were related to any police officers or prosecutors. He asked what their knowledge of the law and court procedures was. He asked who had prior jury experience. The judge excused three for cause: a postal employee whose brother was a police officer; a retiree whose son had been the victim of a drug-related murder; and the screenwriter because although she had never worked for Archway Studios, the judge felt she might harbor ill will toward Elliot because of the contentious relationship between screenwriters and studio management in general.
A fourth prospective juror—one of the engineers—was dismissed when the judge agreed with his plea for a hardship dismissal. He was a self-employed consultant and two weeks spent in a trial were two weeks with no income other than the five bucks a day he made as a juror.
The four were quickly replaced with four more random selections from the venire. And so it went. By noon I had used two of my peremptories on the remaining postal workers and would have used a third to strike the second engineer from the panel but decided to take the lunch hour to think about it before making my next move. Meanwhile, Golantz was holding fast with a full arsenal of challenges. His strategy was obviously to let me use my strikes up and then he would come in with the final shaping of the jury.
Elliot had adopted the pose of CEO of the defense. I did the work in front of the jury but he insisted that he be allowed to sign off on each of my peremptory challenges. It took extra time because I needed to explain to him why I wanted to dump a juror and he would always offer his opinion. But each time, he ultimately nodded his approval like the man in charge, and the juror was struck. It was an annoying process but one I could put up with, just as long as Elliot went along with what I wanted to do.
Shortly after noon, the judge broke for lunch. Even though the day was devoted to jury selection, technically it was the first day of my first trial in over a year. Lorna Taylor had come to court to watch and show her support. The plan was to go to lunch together and then she would go back to the office and start packing it up.
As we entered the hallway outside the courtroom, I asked Elliot if he wanted to join us but he said he had to make a quick run to the studio to check on things. I told him not to be late coming back. The judge had given us a very generous ninety minutes for the lunch break and he would not look kindly on any late returns.
Lorna and I hung back and let the prospective jurors crowd onto the elevators. I didn’t want to ride down with them. Inevitably when you do that, one of them opens their mouth and asks something that is improper and you then have to go through the motions of reporting it to the judge.
When one of the elevators opened, I saw the reporter Jack McEvoy push his way out past the jurors, scan the hallway, and zero in on me.
“Great,” I said. “Here comes trouble.”
McEvoy came directly toward me.
“What do you want?” I said.
“To explain.”
“What, you mean explain why you’re a liar?”
“No, look, when I told you it was going to run Sunday, I meant it. That’s what I was told.”
“And here it is Thursday and no story in the paper, and when I’ve tried to call you about it, you don’t call me back. I’ve got other reporters interested, McEvoy. I don’t need the Times.”
“Look, I understand. But what happened was that they decided to hold it so it would run closer to the trial.”
“The trial started two hours ago.”
The reporter shook his head.
“You know, the real trial. Testimony and evidence. They’re running it out front this coming Sunday.”
“The front page on Sunday. Is that a promise?”
“Monday at the latest.”
“Oh, now it’s Monday.”
“Look, it’s the news business. Things change. It’s supposed to run out front on Sunday but if something big happens in the world, they might kick it over till Monday. It’s either-or.”
“Whatever. I’ll believe it when I see it.”
I saw that the area around the elevators was clear. Lorna and I could go down now and not encounter any prospective jurors. I took Lorna by the arm and started leading her that way. I pushed past the reporter.
“So we’re okay?” McEvoy said. “You’ll hold off?”
“Hold
off on what?”
“Talking to anyone else. On giving away the exclusive.”
“Whatever.”
I left him hanging and headed toward the elevators. When we got out of the building, we walked a block over to City Hall and I had Patrick pick us up there. I didn’t want any prospective jurors who might be hanging around the courthouse to see me getting into the back of a chauffeured Lincoln. It might not sit well with them. Among my pretrial instructions to Elliot had been a directive for him to eschew the studio limo and drive himself to court every day. You never know who might see what outside the courtroom and what the effect might be.
I told Patrick to take us over to the French Garden on Seventh Street. I then called Harry Bosch’s cell phone and he answered right away.
“I just talked to the reporter,” I said.
“And?”
“And it’s finally running Sunday or Monday. On the front page, he says, so be ready.”
“Finally.”
“Yeah. You going to be ready?”
“Don’t worry about it. I’m ready.”
“I have to worry. It’s my—Hello?”
He was gone already. I closed the phone.
“What was that?” Lorna asked.
“Nothing.”
I realized that I had to change the subject.
“Listen, when you go back to the office today, I want you to call Julie Favreau and see if she can come to court tomorrow.”
“I thought Elliot didn’t want a jury consultant.”
“He doesn’t have to know we’re using her.”
“Then, how will you pay her?”
“Take it out of general operating. I don’t care. I’ll pay her out of my own pocket if I have to. But I’m going to need her and I don’t care what Elliot thinks. I already burned through two strikes and have a feeling that by tomorrow I’m going to have to make whatever I have left count. I’ll want her help on the final chart. Just tell her the bailiff will have her name and will make sure she gets a seat. Tell her to sit in the gallery and not to approach me when I’m with my client. Tell her she can text me on the cell when she has something important.”
The Brass Verdict Page 23