Fourth Person No More

by John Gastineau

  A few moments later, Wood brought the Defendant in. Wood positioned him behind the chair between his attorneys, unlocked the cuffs, which held his hands behind him, and came over to stand beside Crandall.

  Reardon put an arm around his client and made of show of whispering something that was no doubt intended to be—or at least perceived to be—inspiring. The client rolled his eyes.

  He shrugged off Reardon’s arm, turned to Legs, and smiled. Before she could catch herself, she jerked back like she was slipping a punch. Reardon glared at her. He was probably relieved that the jury had not yet been seated. Her career as a criminal lawyer would be short-lived if she couldn’t at least act like her clients didn’t scare the hell out of her.

  When everyone was in place, the door beside the bench opened again. We barely had time to stand before Secrist blew in. With his robe billowing behind him, he took the three steps to the bench in one bound, rapped the gavel once, and said “Sit.” The moment we had all been waiting for.

  Secrist troweled a stern glare across the gallery. In his black robe, long hair, and wire rims, he made me think of the old circuit riders, the tough nuts who, after the territory became a state, covered dozens of counties on horseback, held court in log taverns until the courthouses were built, and, according to legend, might summarily hang a thief or a murderer from a tree.

  Secrist reminded us there was an order separating witnesses. He did not bother to explain, but most of us knew he meant that no one who would give evidence could be present in the courtroom during the testimony of other witnesses or talk about his or her testimony with anyone else.

  “If you know yourself to be a witness, leave now,” Secrist said. He asked the attorneys to look around and determine whether any of their witnesses were present in the courtroom. No one left, which was significant.

  I had already noted that Moze and McConegal were not in the courtroom, and I assumed it was because they were named on the lists of witnesses each side had to file with the court before trial. But a lawyer always lists more witnesses than she will actually call.

  Sometimes it’s a trap laid for the other side, done to smoke out the name of a witness who might be called to rebut or to define a hole in the other side’s evidence when he does not respond. Sometimes it’s done to distract an opponent, to make him worry she’ll call a witness whom she has no intention of calling.

  Mostly, though, it’s done out of what lawyers like to call “an abundance of caution,” which is, in the poetry of the law, another way of saying ass coverage. You name all the possible witnesses to avoid the other side claiming that you waived a right to call a particular witness by not naming him or her.

  The fact that people like Wood, the Crawfords, and the Russells, whom Crandall had listed, did not get up to leave meant that neither side planned for them to testify. Janelle drew a photocopy of the witness lists of each side from her duffel bag of a purse and crossed off their names. I was so proud of her.

  “May I see that?” I whispered to Janelle.

  The name of the Defendant’s wife was listed. That might explain her absence. Or it might not. We would see.

  Secrist warned us all that he would tolerate no interruptions, no outbursts, and no distractions. If we were going to come and go, it would only occur between witnesses or at the breaks he would frequently call.

  “Bother this proceeding a little, you’re out,” he said. “Bother this proceeding a lot, you’re in jail.”

  He bestowed a lingering glare on the clans.

  “Everybody got that?”

  The question was obviously rhetorical, but someone, probably a twink, promised aloud that he did.

  Secrist turned to the bailiff, an older guy with a gray, burr haircut and a pot belly that stretched the front of his blue blazer.

  “All right, Luther,” the judge said, “let’s take a look at the first batch.”

  Luther disappeared through a door next to the jury box and reappeared to welcome 14 citizens of both sexes and various ages to seats in the box. Some looked bored, one or two looked a little surly, but most looked uncertain and maybe a little spooked.

  Every reporter who was any good had called Crandall and Reardon before the trial and asked them what they wanted in the way of a jury. Since I hadn’t seen any stories on the subject, I assumed Crandall and Reardon told them the same thing they told me, which was nothing.

  Both were too experienced and certain of their abilities to employ jury consultants to assist them in picking the perfect jury, and neither was going to reveal to the other guy through the press what his jury-selection strategy would be. Still, for both, as well as anyone who’d been around criminal trials, it wasn’t hard to figure out what each guy would look for in a juror.

  Crandall’s job was to persuade not one but twelve of the Defendant’s peers to get over their natural presumption that one human being is incapable of killing another. Sometimes it has to do with something rational—whether the evidence is persuasive enough to make a juror believe a defendant had the means or opportunity to kill—but usually that instinctual bias is really what lawyers and judges are talking about when they speak of reasonable doubt.

  Since he seemed to have facts in abundance, the evidentiary chop Crandall would feed his jury would be stuffed with all the facts they would need to rationally conclude the Defendant was guilty. He would rub in enough emotional spice to sear the decision with Old-Testament anger, but not so much that it put the credibility of the facts in question.

  His profile would favor men and Republicans, preferably farmers or small-business owners. If he was going to consider women, he would look to older women, single ones or those whose children were grown and who might be more likely to imagine themselves in Lotty’s place, or to nurses or nurse’s aides, people who regularly decided matters of life and death and were immune to whining.

  Younger women with children were probably too much of a risk. If their children were the same ages as the victims, their outrage at the senselessness of the crime might push them into the guilty camp. But if they thought like Naomi—that Lotty had not sufficiently protected the children—it might predispose such women to a not-guilty vote, and no one had to tell Crandall that Reardon only needed one steadfast dissenter to hang a jury.

  As far as any of us knew, Reardon’s case was light on facts. He would accordingly prefer as jurors those given to decision making by instinct and emotion. He would look for timid people, those who are comfortable with doubt or motivated primarily by fear of doing the wrong thing.

  Reardon, like Crandall, and me, would know whether each member of the jury pool was registered to vote and, if so, what party each member favored. He would look for what few Democrats there are left in these rural counties and prefer women to men. His jurors of choice would be teachers, social workers, and preachers, preferably Methodists or Presbyterians. A Quaker or a Unitarian probably was too much to hope for.

  If he were able to get a leader from that bunch, Reardon might also try for a couple of young, male factory workers, guys who would not care enough about the proceedings to do anything other than follow the leader in the hope of getting the whole business over with sooner. The irony of Reardon’s likely profile was that, at a minimum, to thwart a guilty verdict he needed people so apathetic or comfortable with uncertainty that they could not be persuaded to change their minds.

  And so, for a day and a half, Secrist ran grim-faced, skeptical citizens in and out of the jury box, so Crandall and Reardon could ask them questions. The questions ostensibly were aimed at determining whether the jurors would treat the Defendant fairly and would presume him to be nothing but not guilty. In reality, of course, the questions were a means of confirming that a particular juror would or would not fit each lawyer’s preferred profile and of delivering foretastes of each side’s case to those who would ultimately serve.

  Crandall asked whether t
hey would need to be 100 percent certain before they would convict, whether they watched Oprah, and whether they believed that a wife will always tell the truth about her husband. If a juror did not answer “no” to each of those questions, she was gone, no doubt by Crandall’s choice, although no one in the gallery knew what occurred in the murmured “sidebar” conferences the judge and lawyers held at the bench after each round of questions.

  For his part, Reardon wanted to know if anyone thought the police always told the truth, whether they thought it necessary for a Defendant to testify before the jury could find him not guilty, and whether they regularly watched NYPD Blue, Homicide, or Law & Order. The answer “yes” to any one of those questions punched the citizen’s ticket out of the box, no doubt thanks to Reardon.

  A little before noon on the second day, Crandall and Reardon finished their selections. Seven men and five women comprised the panel. An alternate of each sex was selected to listen to the testimony, but he or she would only participate in deliberations if a juror became sick or could not otherwise participate.

  The Bluff being a small, rural community, its citizens who made up the jury did not look or sound much different from those who occupy the small, rural community where the crimes occurred. However, the jurors’ ages, occupations, and dispositions varied widely. In other words, each guy got a little something he wanted, which, given the volatility of such mixtures, is what makes lawyers afraid.

  Crandall tried to start simply. “I will tell you facts and no more,” he said.

  “Objection,” Reardon called, his voice trailing off as though he was already weary.

  “I can’t imagine what for, counsel,” Secrist said.

  “Yes, Judge,” said Crandall, “I’m pretty curious myself.”

  Just before noon, Secrist had sworn the jurors to do their duty and read to them preliminary instructions that warned them not to read or listen to news about the trial and not to talk about the case among themselves or with anyone else until it was time to deliberate. Then he sent them off to lunch.

  The idea was to begin opening statements in the afternoon when everyone was clean, watered, and well fed. In fact, the afternoon session began late because neither security or spectators had figured out yet how long it took to get that many people past the wands.

  Secrist looked annoyed when he took the bench only to find that spectators were still being admitted to the gallery. Reardon and Legs looked tense. Only Crandall and the Defendant seemed untroubled by the delay.

  The Defendant homed in on the judge’s annoyance, watching Secrist with rapt attention, a cock-eyed, dreamy grin on his face. Crandall slouched in his chair, looking alternately at notes on a legal pad in front of him and the space between him and the witness box, paying no attention to anyone.

  When at last Secrist gave Crandall a nod, he had no more than stood, stepped away from the table, and opened his mouth to utter the first sentence before Reardon lobbed in the first objection. A radio guy took the pool on that one, a fast $100, so I heard later.

  It was Kabuki theater, of course, calculated and the outcome known, as Crandall would confirm to me later. Crandall would speak without notes. He had made a point of tapping his papers into a neat stack and dropping them on the table before he took up a position at the corner of the jury box away from the bench.

  Crandall’s stance drew the jurors’ attention away from Secrist, the room’s authority figure, and made them focus on him. He denied it when we talked, but it also allowed the jurors to look past him to the Crawfords and the Russells. He could count on his ability to make some or all of the jury weep at some point, Crandall would figure, and so begin the process of sparking then banking the jurors’ anger.

  With all eyes on him, Reardon sighed and said: “The jury is the trier of the facts and the law, Your Honor. The jury gets to decide what are facts and what are not. Mr. Crandall is arguing.”

  Like Crandall, Reardon calculated the objection. It was a feint. Under the rules of trial procedure, Reardon surely had little hope of making it stick. He intended instead to show Crandall he would fight him at every step and to see how an opponent with a reputation for volatility would react.

  Reardon’s reasoning would also factor in putting Crandall off balance and drawing the jury’s attention away from Crandall to Reardon. There were some errors in his calculations.

  Twenty-eight juror eyes fell on Crandall, awaiting his response. While Reardon talked, Crandall had stood discouraged, head bowed, shoulders sloped, two old, liver-spotted hands folded below his paunch. When Reardon finished, Crandall raised his eyes, straightened his shoulders, and looked at each juror with a benign and understanding smile.

  “What Mr. Reardon is reminding us of is that at this time—what we call opening statement—the rules of this business allow me to speak only about what evidence will be presented to you. Evidence is usually facts and, within certain limits, opinions about facts.”

  “Your honor.” Reardon rose to his feet this time and held out his hand. “Now he’s testifying.”

  “Mr. Crandall, talk to the Court, not to the jury, if you please,” Secrist said, although without much force. He had pursed his lips as though suppressing a wry smile.

  Crandall had not looked away from the jury, at either Reardon or Secrist. He merely nodded as the judge spoke and continued.

  “I cannot, at this time, tell you what those facts and opinions mean and why they should lead you to convict the Defendant. I will do that later, after all the evidence has been presented to you.”

  Crandall laid a hand on the oak rail separating him from the jury and rubbed an invisible spot from it with his forefinger.

  “But I reckon I’m confused, just as you might be, about how I’m going to talk to you about the evidence you will hear if I can’t talk about facts.”

  Give the opening skirmish to Crandall. Instead of rebutting Reardon directly with a legal argument and letting the judge decide and explain, Crandall instinctively seized the opportunity to align himself with the jury, assuming the role of their teacher and confidante, by explaining things to them directly in plain English and claiming to share in their ignorance, even at some risk of further reprimand from the court. It probably didn’t hurt that he was able to take a subtle jab at the weak intellectual basis for Reardon’s argument either.

  The jury turned its attention away from Crandall only long enough for Secrist to announce “overruled.” Crandall looked from Secrist to Reardon, to whom, unseen by the jury, he raised a “what else you got?” eyebrow. He let his severe gaze continue around the room to the Crawfords and the Russells, to whom, also unseen by the jury, he closed his eyes in tribute.

  Then he turned back to the jury, to whose now eager trust he once more offered his promise: “I will tell you facts and no more.”

  But, of course, Crandall told them much more, as he no doubt intended. The facts he brought to the jury’s attention carried their own messages, as facts do.

  He told them that they would hear a story about a place not unlike their own county and people “not unlike you folks sitting in this jury box.” One of the people they would hear about was a single, independent, older woman beloved by three generations of the people who lived in that place.

  “So beloved is she that even today, as adults, many people in our county call her ‘aunt.’” He pronounced the word with the flat a commonly used by my fellow white, rural Midwesterners. “Aunt Lottie Nusbaumer,” he said.

  Three others were good and bright children who had been left in her care, Crandall said. He told the jury the children’s names. The children’s parents, Crandall said, left them with Lottie because they knew that in this woman’s home they would have some fun and be safe. They would come to no harm.

  At that, Naomi began to sob aloud and wipe her face with a shiny, red handkerchief. Crandall acknowledged her by turning his face away from th
e jury and catching her eye. From the jury’s perspective, Crandall’s head was cocked in sympathy, but for Naomi, his eyes flashed to warn her off.

  As he turned back, his gaze lingered on Ruth Russell. Her head was up, and she was quiet, but she clutched her husband’s hand in a white-knuckled grip, and a single tear left a glistening, wayward track on her cheek. For her, Crandall again closed his eyes in tribute and apology for saying what he would have to say.

  Into Lottie Nusbaumer’s home, Crandall continued, came two men.

  “Well,” he said, “one man. And a boy, really. The boy will talk to you.”

  He strolled away from his corner of jury box toward the center of the room. He said the boy will tell you that he and the man entered Lottie’s home without warning.

  “We in Austin County, probably like you here, don’t always lock our doors,” Crandall said. “’Least, we didn’t then.”

  The man and the boy, Crandall said, lined up the three children and the old woman face down on the floor of the living room in her home.

  “Then,” he said simply and shrugged, “they shot ‘em.”

  “That’s it, in a nutshell,” Crandall said. “Two people lined up four people face down on the floor and shot them. I shouldn’t have to tell you any more other than who did it and what evidence there is to support those conclusions. ‘Cept nothing like this is ever simple.”

  He walked closer to the defense table and turned his back to the jury.

  “They shot three children and an old woman in their backs,” he said pointing over his shoulder to his own back.

  “And in their heads,” he said pointing again.

  “They used shotguns,” Crandall said, still standing with his back to the jury.

  Crandall shouted, “Bang!”

  Two jurors jumped.

  “Bang!” he shouted and clapped his hands.

  He turned to the jury.

  “Bang! . . . Bang! . . . Bang! . . . Bang!” he shouted and clapped each time.