by D. W. Buffa
“The defendant is charged with the crime of murder in the first degree.” Holding the indictment in his hand, he twitched his nose, stifling a sneeze. “It is alleged that ‘on or about December twenty-fourth, nineteen sixty-five, Jamison Scott Haviland did knowingly and with malice aforethought’ take the life of Anna Winifred Malreaux by causing her to fall to her death from a window in the Plaza Hotel in New York City.”
Resting his weight on his right elbow, Scarborough bent forward. Two parallel vertical lines creased his forehead as he drew his eyes together in a stare of concentrated intensity.
“If you do not understand anything else I tell you today, I beg you to understand this: This charge, this indictment, this allegation is not worth the paper on which it is printed in terms of what it proves. It proves nothing whatsoever. It has no evidentiary value. It is nothing more than a formal notice of an intention, an intention to bring the matter to trial, to begin a proceeding in which you—the twelve people finally chosen to serve—will decide whether this accusation has merit. It is as simple as that. There is another piece of paper. I have it right here.”
Lowering his eyes, Scarborough reached for the file folder on the bench in front of him. He held up another sheet of paper.
“This document is a court record of a court appearance, an arraignment,” announced Scarborough, glancing from one juror to the next. “An arraignment is that proceeding in which a defendant is told in open court and on the record that a charge has been brought against him and what the nature of that charge is.
The defendant is then asked whether he wishes to plead guilty or not guilty to the charge. The defendant in this case—Jamison Scott Haviland—entered a plea of not guilty. That simple denial of wrongdoing, that plea of not guilty to the charge brought against him, must stand —unless and until there is evidence so clear and convincing to the contrary that no reasonable person could possibly doubt that the defendant is in fact guilty of the crime charged. Anything else is a dereliction of your duty as jurors, sworn on your oath, to render an impartial verdict in this case.”
Scarborough lifted his elbow from the bench, sat back against the hard black leather chair, and for a few brief moments stroked his chin. His eyes never left the jury. With an audible sigh, he moved slowly forward again, dropped both elbows on the bench and rested his chin on top of his folded hands.
“This is a murder trial. The defendant, Jamison Scott Haviland, is accused of the murder of Anna Malreaux.
You would think, however, from all the coverage the case has already received, that this trial has nothing to do with the defendant, and really, nothing to do, at least directly, with the crime; that this was really a trial about the credibility of a certain well-known public figure. There is a very good chance that Thomas Browning will be called as a witness in this case. It seems almost certain that he will. Whether any of us happens to be personally acquainted with Mr. Browning, all of us, or certainly most of us, have the feeling that we know him. Is this not correct? “The question is not whether you can banish from your mind everything you have ever thought about Thomas Browning—that would be an impossible thing to ask—the question is whether you can weigh his testimony with the same impartial judgment with which you weigh the testimony of any other witness. The task of the jury in this case is to decide a single question: whether or not the prosecution has beyond a reasonable doubt proven that Jamison Scott Haviland murdered Anna Malreaux. The effect of that decision on Thomas Browning, or on anyone else, must not even enter your minds. It is irrelevant; worse than irrelevant, it is an exercise of precisely that prejudice and bias that have no place in an American court of law.” he watched them carefully, studied their reaction to what he had said, teaching them by the intense scrutiny with which he examined their faces that the burden of their responsibility was as serious and profound as anything they had ever done in their lives.
“We’ll take a short recess. When we return, we will begin voir dire.”
“Almost makes you proud to be a lawyer, doesn’t he?”
remarked Jimmy Haviland as the door to chambers swung shut.
I had not quite heard what he said. I was thinking ahead to what I was going to ask on voir dire. The question of how old I wanted jurors to be, what I wanted them to remember, kept taunting me. I did not know what I wanted, and, worse yet, I did not know why.
“He’s the best I’ve ever seen,” said Haviland, marveling at what Scarborough had done. “Of course, I never practiced in courts where I was likely to run into someone like him. It’s what happens when you’re a sole practitioner in a small town: petty crimes, an occasional, friendly, divorce, real estate sales—everything pretty much cut-and-dried.”
“Do you think we should try to have jurors old enough to remember nineteen sixty-five, or do you think it’s better if they don’t know anything about it except what they’ve heard or what they’ve read? I can’t make up my mind,” I admitted, turning toward him with a puzzled look.
“You’re asking me?” replied Haviland. When he saw I was serious, he nodded and thought hard.
“Older, I suppose; better than younger. They’ll have more of a feel for what things were like.” He shook his head. It was not quite what he meant. “If they’re older, there is a better chance they know what it’s like to lose someone you love.”
I did not ask him whether he meant lose someone because she died, or lose someone because she loved another man. I was more uncertain than ever about what kind of juror I wanted to have.
I tried to tell myself that it did not matter, that I did not have to make a decision in advance, that it was a mistake even to try. I had done this for so many years, I knew better than to formulate some hard-and-fast rule about which jurors to take and which to let go. Jury selection was an art, not a science. It was not until you talked to them, looked them straight in the eye—made them look straight back at you—listened to what they said and how they said it, that you got a sense of what kind of people they were and whether you could trust them to at least try to do the right thing, to follow the law, to assume without any doubt or reservation the strange and illogical obligation to acquit someone they were convinced must be guilty of a crime the prosecution had not quite been able to prove. I sank back into the chair, and tried to concentrate on the first juror and the question I wanted to ask her.
Ten minutes after Judge Scarborough called a recess, he returned to the courtroom. His step was quicker, his gaze more intense. He perched on the front edge of his chair, erect and alert, as if he were just waiting to spring back up again.
“Now we begin voir dire,” he announced in an eager, vibrant voice. “Because it is masked in those two foreign words, it sounds like something difficult, complex, something mere mortals could never understand. What it means in plain English is that an inquiry is made into the qualifications of those who have been summoned for jury duty to see if each of them is in a position to be fair and impartial. That’s all it is, nothing more.”
Smiling to himself, Scarborough tapped his fingers together under his chin. Wrinkling his nose, twisting it tight, then quickly moving his lips, pressed firmly together, first one way, then the other, he held back a sneeze.
“It is our habit to think we all know this, that we all know what a jury is and how the rules apply. But a habit—shall I tell you?—was described by the great Blackstone hundreds of years ago as a thing which has been done the same way for so long that ‘the memory of man runneth not to the contrary.’”
His eyes suddenly shot up to the windows high above the jury box. “‘Runneth not to the contrary!’” he repeated, jubilant, to whichever one of his fictional friends he now imagined. He placed his right arm on the bench, hunched his shoulders over it, and gave the jury a sharp look.
“In the beginning only the defense could challenge a juror’s capacity to serve. This was in England, not here.
The defense was given thirty-five challenges, and the prosecution got none. Thirty-five, no
t thirty-six, because if the defendant threw out three full juries he was not sufficiently serious about going to trial and they might just as well hang him as go to all the bother.”
With a glance to the side, he remarked, “I see Mr. Antonelli grinning, while Mr. Caminetti looks quite put out. That’s how they always react—defense lawyers and prosecutors—when I tell them how things used to be. Juries, on the other hand, just look terrified when I tell them that in one of the first jury trials that ever took place, the king did not like the verdict and put the entire jury in prison in the Tower of England until they came to their senses and changed their minds.” he held up his hand as if to parry an objection. “Yes, yes, I know: It sounds quite tyrannical. But the king only did it because the jury had been corrupted, and it was the only way to make sure justice was done. Believe me, whatever happens, you won’t be thrown in prison…”
Scarborough’s smallish head began to bounce; his eyes filled with mischief. “Assuming of course that you listen carefully during the trial and follow all my instructions at the end.”
The eyes of the jury had stayed on him the whole time; not once did a juror look toward the crowd of spectators and reporters, or steal a glance at either Caminetti or me. The courtroom belonged to Charles F. Scarborough.
He knew it, and, as I was about to find out, he would not have it any other way.
“Voir dire is often conducted by the lawyers. They ask the questions and they decide who should stay and who should go.”
At the word often I was suddenly alert. He was going to do something I did not like, take over at least some of the questioning himself.
“Rather than have the lawyers ask each juror what often amounts to the same thing, it will save considerable time if I simply ask you as a panel certain basic questions. Let me begin by asking if any of you are acquainted with the defendant, Mr. Haviland, or with either of the lawyers, Mr. Caminetti for the prosecution, or Mr. Antonelli for the defense.” he waited for a response, and when there was none, nodded his satisfaction.
“Very good. No one is acquainted with the defendant or with either of the attorneys. My next question has to do with witnesses. Let me read you the list of witnesses the prosecution intends to call; and please, if I read the name of someone with whom you are acquainted—or someone with whom you think you might be acquainted—simply raise your hand.”
None of the twelve knew any of the witnesses on Caminetti’s list. Scarborough glanced at the list submitted by the defense. Pursing his lips, he raised his eyebrows. His head began to nod up and down, a silent acknowledgment of the difficulty he faced.
“Are any of you personally acquainted with Thomas Browning. And I emphasize the word personally.
Anyone? No? Good. The next question I want you to think about quite carefully. Is there anything about Thomas Browning—anything about the way you feel about him—that would make you view the testimony he gives either more credible or less credible than that of any other witness called to testify in this case?”
No one raised a hand, but Scarborough sensed a reservation. “This is very important. If you have any doubt at all, even the slightest hesitation about whether you might be inclined to treat the testimony of one witness differently than you would that of a witness you did not know, then you have an absolute duty to say so and to say so now.”
A woman’s bare arm rose slowly from the far corner of the back row of the jury box. Scarborough raised his eyebrows, then lowered his eyes briefly to a chart on which he had written each of the juror’s names.
“Yes, Mrs. Warfield?”
“I think I would tend to find Mr. Browning more credible. I like him. I like what he stands for.”
“But I assume you would not, for that reason, believe him on a point you knew, or that was shown to be, false?” she agreed immediately that she would not. He asked her several more questions and then turned to the district attorney.
“Is there anything you wish to add, Mr. Caminetti? Any question you think I may have left out?”
Caminetti jerked to attention. “No, Your Honor,” he said with an abrupt, emphatic shake of his head.
Scarborough turned back to the jury.
“Your Honor?” I insisted as I rose from my chair.
Scarborough’s head turned just a shade farther than it had before. “Yes, Mr. Antonelli?”
“I have just a few questions…”
“Are you sure, Mr. Antonelli?” asked Scarborough.
His head came all the way around. There was no mistaking the look of profound disappointment in his eyes. “You can, of course—if you wish; but I had hoped to finish with all of mine first. The reason I invited Mr.
Caminetti to add something if he wished was only because the witness under discussion is one of yours and not one of his.”
It was a point of procedure, a way to achieve a desired result: a fair and impartial jury to decide the case. I was free to disagree with it, to insist on my right to take the juror up and make my own inquiry. All I had to risk was the enmity of a jury that now looked to the judge as the source, not only of counsel and guidance on how they should conduct themselves, but of the standard by which they should measure everyone else. Whoever controls the courtroom controls the case, and I knew that this time it was not going to be me.
“Yes, of course, Your Honor. I did not understand.”
The disappointment vanished from Scarborough’s eyes, replaced by something close to gratitude. It was almost as if he believed he owed me a favor for yielding to what on this occasion he thought best.
He asked several more questions of the panel concerning their knowledge of Thomas Browning and whether any of the things they knew about him might influence their judgment about either his credibility or, depending on his testimony, the ultimate issue in the case: the guilt or innocence of Jamison Scott Haviland.
Finally finished, he made the strange remark that it might be better if jurors were selected only if they had some knowledge of witnesses, and not just them, but of the defendant as well.
“It is one of the peculiarities of the present arrangement that one of the few phrases we all remember about trial by jury has a meaning completely different than it had at the start.”
Reaching across his chest, Scarborough rubbed his right shoulder. The creases in his forehead deepened; a bemused expression entered his tranquil eyes.
“You know the phrase; you remember it well.
Everyone has the right to a trial by a ‘jury of their peers.’ That used to mean a jury made up of people that knew the defendant and knew the witnesses: people who would know if they were lying or telling the truth. I mention this in part because I do not want you to feel too much the burden of knowing something about a famous man who happens to be a witness in this case. It seems to me that it can only help to know that someone who comes into court is more, or less, likely to tell the truth.”
With that, he began to ask more questions: whether any of them were related to anyone in law enforcement; whether any of them had been the victim of a crime.
There were several women, married early, who had never worked; there were several others who supported their children by holding whatever low-paying jobs they could get. There was a retired postal clerk, a black man who had never been outside New York except for the years when he fought as a foot soldier in the Second World War. Three of them had graduated from college; the rest had a high school education, if they had that.
Scarborough talked to them as if they were all as smart as he.
If I had just been a courtroom spectator who had dropped in to watch, I would have marveled at Charles Scarborough’s capacity to bring others up to a level higher than they had known before. But I was not some disinterested observer, and the only feeling I had was the gnawing sense of an opportunity lost. I had won cases on voire dire by leading a jury to see things the way I wanted them to see them. That was not going to happen here. Judge Scarborough had seen to that.
“Does
counsel wish to challenge any of these jurors for cause?” he asked in a calm, friendly voice.
Caminetti sprang to his feet. “No, Your Honor.”
“Mr. Antonelli?”
I still did not know what I wanted, and now I knew that I was not going to have the chance to find out. Only after I said it did I began to think that it might carry the advantage of a show of confidence.
“No, Your Honor, the defense will not challenge any of these jurors for cause. Nor will the defense exercise any of its peremptory challenges. We’re satisfied that this is a fair and impartial jury. We accept the panel as it stands.”
Hunched over the table, jotting a note to himself about the jurors he wanted to excuse, Caminetti froze.
His head came up, slowly, methodically; his eyes narrowed into a shrewd, calculating stare. He had to decide right then, and I knew before he did what that decision would be. It was the one thing I knew I could count on, this belief that was as much a part of him as the city itself, that if you ever ran away from a challenge you would be running all your life.
“The People are satisfied,” he reported with a brief, emphatic nod. He tried to make it sound as if it had been his idea all along.
CHAPTER 17
It was like a street scene from Manhattan, the quick, abrupt, sharp-angled movements; the sudden way he turned his head, looking one way, then the next; the eyes that stared right at you while his mind was racing through a dozen different thoughts. Bartholomew Caminetti insisted that the evidence the prosecution would introduce at trial would be sufficient—no, more than sufficient—to prove the guilt of the defendant in the murder of Anna Malreaux.
It was, he remarked as he paused in his breathless pacing and lowered his voice to a solemn tone, “a heinous crime, a crime that has to be punished.”
With his right hand resting on the railing in front of the jury box, Caminetti rolled both shoulders forward and with whispered gravity reminded them of what they had been told before.