Misjudged

by James Chandler

  All in all, Sam thought, it looked a little like the depository at Fort Knox.

  On the side of the building was a circular drive where on Veterans Day in 2003, while 9/11 was still fresh in the minds of local elected leaders, an area of lawn was dedicated to all who had served or will serve in the military. Local artists had been contracted to create sculptures at great cost; the result was an eclectic mix of classical, modern, and downright odd testaments to the American fighting man and woman.

  Inside, stone wainscoting complemented floors of gray marble. Thirty feet above, ceiling fans circulated air above the gathering throng. At the north and south ends of the building, broad, curving stairways led to the second floor’s district court courtroom. At present, the stairways were filled with chattering residents and potential onlookers from outside of town. Bailiffs, augmented by contracted off-duty law enforcement, struggled to maintain order among the crowd. Janitors, at the bailiffs’ direction, were attempting to emplace dividers on the stairway with an eye toward allowing traffic to proceed both up and down the stairs. Both Fricke and Frac struggled mightily to meet the expectations of the officers, who were losing patience by the minute.

  The courtroom where Tommy’s fate would be decided was a large, square room with no windows. At the front of the courtroom were the judge’s bench, the witness box, and a box for the judge’s law clerk. An area immediately below the law clerk’s perch was reserved for the court reporter. The jury box, complete with fourteen chairs, including two for alternate jurors, was to the judge’s right. A lectern in the center of the courtroom was flanked by two library-type tables manned by the attorneys and parties from the prosecution and defense. On the walls were portraits of all those who had presided in this judicial district to date; each gazed upon the courtroom’s occupants with a stern, unyielding glare. Behind the tables, and serving to separate the trial’s active participants from the audience, was a waist-high divider known as “the bar.” Since the mid-twentieth century, all courtrooms in Wyoming contained such a barrier.

  The clerk of court had called the first extract of the jury panel and seated them numerically in the first six pews located behind the bar. Jurors’ reactions would be mixed, Sam knew. Some would be excited, anticipating being part of such an important, maybe even historical, event. Others, especially the gainfully employed, would be fervently hoping they would not be selected.

  At the far rear of the courtroom was a large double door through which all but the judge, his staff, the bailiff, and the defendant would enter and leave. The bailiffs standing inside the courtroom on either side of the doors were charged with ensuring that the number of spectators, participants, and media did not exceed the fire chief’s maximum, and that those who did make it inside were on their best behavior. The sheriff had duly assigned two of his burliest deputies to the job, and they had adopted a suitably surly disposition. Spectators were seated on a first-come, first-served basis. Woe be it to the spectator with a kidney that required relief, as seating was reserved, and anyone who left for any reason was replaced by the next person in line.

  Ann Fulks, Rebecca Nice, Punch Polson, and Buck Lucas sat at the prosecutor's table. Lucas had no real reason to be there, of course, but for the sake of appearances he would occupy the State’s table until the first break, at which point he would return to his office and get some work done.

  At the defense table, positioned closest to and perpendicular to the jury box, Sam sat closest to the lectern, with an outwardly nervous Tommy next to him. Sam was nervous as well. He’d seen his counselor three times in the past week, and it was helping, but he was feeling anxious. Trials were thought to be the lifeblood of the judicial system, but in fact they were few and far between. The tremendous costs precluded most defendants from mounting a defense, and—in a nod to the mutual avoidance of risking a bad outcome, and faced with a possibility of this versus the certainty of that—ninety-nine percent of trial attorneys would persuade the client into accepting a deal rather than present a case to twelve strangers whose knowledge, motives, intelligence, and interests were a mystery.

  Two weeks before the trial, the clerk of court had provided both Ann and Sam with copies of completed questionnaires that had been provided to potential jurors. The forms provided a baseline of information about each juror: name, age, marital status, employment status, education, and similarly bland background information. In theory, these juror questionnaires existed to provide counsel information by which informed decisions could be made prior to enduring jury selection. In reality, the juror questionnaires did no more than provide counsel with “profiling” information, suitable only to exclude those jurors who would most likely be averse to a party’s position. For example, prosecutors would generally exclude teachers and service workers, while defense attorneys would try to exclude law enforcement officers, their families, and friends.

  Sam watched Ann, knowing she was silently rehearsing her introduction and her first few questions for the potential jurors, while Punch and Buck Lucas chatted amiably. Nice was careful to nod a greeting to those voters she knew. From time to time, as the courtroom filled, Sam and Tommy spoke, Sam occasionally placing his arm around his client’s shoulders. Ten minutes after the scheduled starting time, Mary entered the courtroom and looked to the prosecutor’s table.

  “Ms. Fulks, is the State ready to proceed?”

  “We are.”

  Turning to Sam, Mary asked, “Mr. Johnstone, is the defense ready?”

  “We are,” Sam said, as deeply as possible, despite the butterflies in his stomach.

  “The judge will enter momentarily,” Mary said, and left the courtroom through an unmarked door leading to Daniels’s chambers.

  Nervous chatter began anew. Moments later the clerk reappeared, and the bailiff—seeing the judge following in her wake—ordered, “All rise!”

  “Thank you,” Daniels said. “Please remain standing and join me in reciting the Pledge of Allegiance.” Thereafter, Daniels turned from the flag positioned immediately behind his chair and ordered all present to be seated.

  “Good morning, ladies and gentlemen,” he began.

  “Good morning,” the audience replied, like a Sunday morning congregation in response to the preacher.

  “We are here in the matter of the State of Wyoming versus Thomas Olsen. My name is Preston Daniels, and I will be your judge. The State is present and represented by Deputy Custer County and Prosecuting Attorney Ann Fulks. Mr. Olsen is present and wearing the sports jacket with an open-collared shirt. He is represented by Sam Johnstone of the Norquist Law Firm. We—”

  Sam was on his feet. “Your Honor,” he said, as politely as possible.

  Daniels glared at Sam. “Mr. Johnstone?”

  “For the sake of an accurate record, Your Honor, it is incumbent upon me to tell the court that I am no longer affiliated with the Norquist Law Firm,” Sam said.

  “Can’t hold a job?” Daniels asked. The audience tittered with laughter. Sam reddened but held his tongue. “So noted,” Daniels said as Sam sat back down.

  “We are here for a trial,” Daniels continued, looking out on the assembled audience. “I want to start today by speaking a little bit about jury service, and I’d like to begin by extending congratulations to you for being selected.”

  Hearing the audience laugh, Daniels continued to gaze upon them. “Do congratulations sound strange?” Seeing the nods, he continued. “Many people consider jury service to be at best an inconvenience, and at worst an outright intrusion in their lives. That is unfortunate, in my opinion, for while jury service is one of the responsibilities of being a citizen, it is much more. It is a privilege. Very few governments trust their citizens sufficiently to allow them to perform this function.”

  Daniels looked about the courtroom, and then commenced a lengthy monologue on the history of the American jury system, ending with a ringing endorsement of its importance to criminal jurisprudence. Those at the library tables had swiveled their chair
s to face the potential jury members as the judge began his speech. Sam was attempting to make and hold eye contact with each juror. He took notes on a yellow pad, marking for his later reference which men or women held eye contact, refused it, or avoided looking at him altogether. As the judge continued, Sam was looking at Juror 465, a pinch-faced woman of about fifty-five, and recalling an adage from one of his trial advocacy professors: “Never allow to be selected for the jury a woman with a mouth like a cat’s ass.” At the time, Sam had no idea what the old lawyer meant. Now, looking at the woman’s pursed lips, folded arms, and generally defensive demeanor, he knew exactly what his mentor had so inelegantly tried to communicate many years ago.

  Sam watched the jurors while Daniels outlined the procedure that would be followed to select the jury. Occasionally, he would look at his notes, trying to memorize each juror’s face and match his notes from their questionnaires. Daniels had moved on and was now providing a general overview of the roles of everyone involved. “Before we begin jury selection,” he said, “I need to tell you about the main players in this trial. I’m one of the judges in this judicial district. The judge’s role in the trial is sometimes compared to that of an umpire. I will keep order in the court, and I will ensure that the evidence is presented in an orderly manner. I will also ensure that the evidence presented to the jurors is proper and lawful, meaning that I will allow admissible evidence to be presented for the jury’s consideration, and I will exclude improper evidence. I will also instruct the jury on the law that you must follow in this case. Thus, in an ideal situation, I will be seen but rarely heard.”

  The audience laughed, as expected. Juries and audiences always laughed at a judge’s jokes. Pointing to counsel, Daniels continued. “As all of you know, the attorneys have an important role in the trial. They lie at the heart of what we call the adversary system. Our system rests on the assumption that if both parties come before an impartial body and argue their positions aggressively, the truth will emerge from a clash of positions. In other words, our system is based on the belief that, from the consideration of competing arguments, the jury will be able to reach a correct result. It is through the attorneys that evidence, the testimony, the documents, and other items will be presented for the jury’s consideration. The attorneys will explain and argue the case and try to help the jury understand what’s going on.”

  Daniels gestured toward the potential jurors. “The jury finds the facts and, as part of the fact-finding process, decides which witnesses are believable and what weight should be assigned the testimony and other evidence. The jury applies the law as instructed and decides the case.

  “At this time, I will read the charges to you. Before I do, I want to caution you that you are not to consider what I’m going to read as evidence of guilt on the part of Mr. Olsen. It is only an allegation made by the State to give the defendant notice of the crime with which he is charged so he can prepare to meet those charges. Remember, Mr. Olsen is presumed to be innocent of any crime, and the State must prove his guilt beyond a reasonable doubt.”

  Looking to the document, Daniels read, “In this case, it is alleged that on or about October 31 of last year, in Custer County, Wyoming, the defendant, Tommy Olsen, did violate Wyoming Statute Section 6-2-101 by killing C. Emily Smith purposely and with premeditated malice.”

  The judge looked up from his reading as an audible rumble went through the courtroom. “Ladies and gentlemen. . . Ladies and gentlemen, I will have order!” he said. “This seems as good a time as any to talk about your decorum in this courtroom. We are here on a very serious matter, and I will not allow spectators, members of the media, or anyone else to disrupt the proceedings. I expect each of you to remain quiet and in control of your emotions. If I must stop this trial because of the reaction of one or more of you, I will have that individual, or those individuals, removed. If it occurs repeatedly, I will simply clear the courtroom of all but the necessary parties. Is that clear?”

  The courtroom was now deathly quiet. After gazing about for a few seconds, Daniels turned to his clerk. “Madam clerk, would you please administer the oath for voir dire?”

  After the oath was read, Daniels had everyone re-seated. “Now, beginning with juror number one, I will have each of you stand and provide us the information we asked for, which is spelled out on that board in front of you.” Formally, the process of jury selection had begun, although Sam had already made some preliminary selections, and he knew that Ann had as well. Each prospective juror would now stand and provide the court and counsel with the information contained on the board. Most of the general information was already included on the juror questionnaires, of course, but having the jurors recite the same information not only served to fact-check but also to allay any nervousness on their part. In addition, it gave counsel a final opportunity to “eyeball” each potential juror.

  After the seventy-five potential jurors had introduced themselves, it was the judge’s turn to ask some perfunctory questions.

  “This trial is expected to last approximately two weeks,” he began. “Is there anything about the length or scheduling of the trial that would interfere with your ability to serve?” Predictably, some potential jurors raised their hands. Daniels had them come forward individually to the bench, where he, Ann, and Sam spoke with them. Most indicated a lengthy trial would interfere with their ability to earn a living—a very real concern for all except the unemployed or retired. Unfortunately, as Daniels explained, no one can truly “afford” to spend the time to serve on a jury—a fact, Sam knew, that was the basis for the old adage that defendants having a jury trial “put their future in the hands of twelve citizens not smart enough to get off jury duty.” Having heard the jurors’ objections, and having overruled them, Daniels sent them back to their seats, and Sam—who had been watching their reactions carefully—made a note to exclude a couple of them, if possible.

  “Does anyone here have health conditions that would preclude their serving?”

  “Is everyone here a United States citizen?”

  “Has anyone here been convicted of a felony?”

  After weeding out potential jurors for cause, Daniels assembled a pool of men and women who were at least notionally qualified to perform the duties. “At this time, ladies and gentlemen, we are going to call several numbers. If your number is called, please take a seat in the jury box as indicated by the bailiff.” The clerk of court read fourteen numbers, and after some movement and a bit of shuffling, those jurors were seated in the jury box, forming the initial jury pool for the trial. As each potential juror’s number was called, Sam checked that name off the list that he had compiled from the juror questionnaires. A quick glance at the names indicated that the initial jury contained several that he was glad to see, and an equal number he would want removed.

  “Now, ladies and gentlemen, I will turn over the remainder of jury selection to the attorneys. Ms. Fulks, you may begin.”

  “Thank you, Your Honor. Ladies and gentlemen, as you know, my name is Ann Fulks. Judge Daniels has ensured that those of you remaining meet the basic qualifications for jury duty. My first job is to see to it that those of you who are seated as jurors will serve in good faith and in accordance with the dictates of the law.” She then asked questions designed to ensure that any juror selected would attempt to follow the law as prescribed by the judge and have no qualms about imposing the death penalty. Accordingly, her questions quickly headed in that direction.

  “Are you in favor of, or opposed to, the death penalty?”

  “Whatever your position on the death penalty, will you obey the law?”

  “Are you able to set aside your personal preferences to ensure a just verdict and sentence?”

  Occasionally, a juror would indicate some hesitation. At that point, a conference with the attorneys, the juror, and Daniels would again be held out of earshot of the other potential jurors. Sometimes, the juror was unsure of exactly what was being asked. Other times, he or she was c
learly hoping to get off jury duty by appearing to be more resistant to imposing the death penalty than was actually the case. Each time, Daniels listened carefully before sending the juror back to his or her chair. Experience had shown him that, once you started releasing people from duty for any reason, the number of people seeking to be excused would increase exponentially. Accordingly, Judge Daniels drew a hard line when it came to excusing potential jurors.

  Just before noon, Ann was finished with her examination of the fourteen jurors. “Ladies and gentlemen, this looks like a good time to take our lunch break,” Daniels announced. “Those of you in the jury box, please go with the bailiff. Everyone please be seated again at 1:30 p.m. I want to remind you that you are not to talk about this case with anyone—period,” he concluded, knowing full well that his order would not be followed.

  At 1:40 p.m., the bailiff called the courtroom to order and Daniels entered. “It is now the defense’s turn to ask questions,” he said. “Mr. Johnstone, please proceed.”

  As Sam stood to address the jurors, Daniels added, “Mr. Johnstone, I want to remind you that it is the court’s wish that we complete jury selection today, so be cognizant of the time.”