When Marc finished, Tommy Harris took his turn. He did his best to make Zimmer realize that “beyond a reasonable” is not beyond all doubt. It was here that Zimmer’s change in attitude sounded an alarm in Marc’s head.
While conversing with Marc, Zimmer had been polite, responsive and even friendly. But while Harris asked him if he understood that beyond a reasonable doubt did not mean beyond any and all doubt, Zimmer almost lit up. He straightened and produced a broad grin while nodding his head in agreement. Barry Cline noticed it too and gently poked Marc in the ribs.
Harris turned to Judge Koch and announced that he had no objection to this juror. Marc quickly requested a conference at the bench which was granted.
“I want him rejected for cause,” Marc said when all four lawyers arrived in front of the judge.
“What cause?” Harris quickly asked. “He didn’t say anything to…”
“He lit up like a Christmas tree,” Barry said. “He’s covering a bias, your Honor.”
“One at a time gentlemen,” Koch admonished them.
“He can use one of his peremptory challenges,” Harris said.
Each side was given a specified number of peremptory challenges. Peremptory challenges are allotted to each side to allow them to dismiss a veniremen without the necessity of an explanation. The defense had fifteen and the prosecution nine. Because these were a limited number and jury selection was just beginning, Marc did not want to use his unless absolutely necessary.
“I’m inclined to agree with the defense on this one, Mr. Harris. I saw it too. Because of the extreme seriousness of this trial, I’m going to err on the side of caution and dismiss him. Please return to your seats,” Judge Koch told them.
“Mr. Zimmer,” she continued when the lawyers had been seated, “you are excused. Thank you for your time.”
Zimmer, with a surprised look on his face, stood and stepped down from the jury box. When he did he asked the judge, “Does this mean I can go home?”
“Actually, no it doesn’t. You’ll have to go back to the jury pool,” Koch replied.
While he walked past Marc, the excused Mr. Zimmer gave Marc a look that was obviously not friendly.
With a couple of short breaks and an hour for lunch, the process went on all day. Shortly before six, Judge Koch called a halt for the day. So far they had managed to select one juror, a twenty-eight-year-old Air Force veteran who was recently discharged and currently unemployed.
Normally, a vet would be considered maybe a little too law and order conservative. But both Marc and Barry agreed they saw something in the young man that told each of them he would be fair and open-minded.
Before the judge let them go for the day, she called the lawyers up to the bench.
“I want this trial done by Christmas. You guys need to cut out the repetitive questioning. If a question has already been asked, move it along. Do I make myself clear?”
“Yes, your Honor,” they all muttered in unison.
“Good,” she said. “Tomorrow morning, nine o’clock; be on time and be ready to move it along.”
FORTY-SEVEN
Craig Slocum rapped once on the conference room door then walked in. Seated at the table were his two assistants, Tommy Harris and Paul Ramsey and their jury selection team. These were from an outside business that specialized in jury selection; two women and four men. They traveled around the country profiling prospective jurors for both high-profile criminal and civil cases. Of course, they did not come cheap and it was the rare criminal defendant who could afford their services. The Hennepin County taxpayers, of course, had no voice in hiring or paying them. They just got the bill.
“Excuse me,” Slocum politely said to the group. “Tommy, I need to see you for a minute.”
It was early evening of the first day of jury selection. The prosecution was working on the jury list trying to fine-tune their selections. Everyone in the room agreed that Kadella screwed up allowing the USAF vet to be selected. Veterans were almost certainly pro-prosecution.
“Sure, Boss,” Harris replied.
“Just Tommy, Paul,” Slocum said to Ramsey when he started to stand up.
Harris walked with Slocum back to Slocum’s corner office. When the two men were seated Slocum said, “I’ve been thinking. We should make a plea offer to Kadella.”
Harris stared back at his boss for a few seconds then said, “I thought you were dead set against any type of offer.”
“I am. I know this Kadella. He’s an arrogant ass and I know he’ll turn it down. Then we leak it to the media that he made the offer and we turned it down.”
“His client will look guilty and you will look strong and resolute. You’ll look like the people’s lawyer out to seek justice for the victims,” Harris said, never one to miss an opportunity to suck up to Slocum.
“Exactly,” Slocum beamed. “I was thinking, we offer a plea to two counts of second-degree murder.”
“To run concurrently or consecutively?” Harris asked.
“I checked Traynor’s criminal history score. I would look both harsh and magnanimous recommending thirty-five years. But I know Kadella will turn it down. The ego on him loves the spotlight. He wants to try this case. He eats the publicity.”
Harris thought about this last statement for a moment before saying, “If that’s true, why did he oppose cameras in the courtroom?”
“Trust me,” Slocum said with a dismissive wave of his hand. “You’ll see. He’ll turn it down.”
Marc and Barry Cline were back at their office that same evening doing the same thing. Trying to decide which jurors might lean their way was actually more art than science regardless of what the prosecution’s “professionals” believed. More guess work than hard, factual evidence.
“We did okay today,” Barry said. “We only had to use one peremptory and…”
Suddenly Marc looked up from the table full of printouts and interrupted Barry. “I’m going to get a plea offer,” he said, slightly nodding his head up and down.
“No way,” Barry firmly disagreed. “Slocum wants your guy’s hide and the pleasure of beating you too. And I’ll tell you something else. There’s no love lost between me and Tommy Harris, Slocum’s little boot licker. I’ve gone around with him myself a few times. He’s a smug little asshole that most of the defense bar despises.”
“I know about you and Harris and what other lawyers think of him,” Marc said. “I’d rather have him than Gondeck. Steve knows what he’s doing. I’m telling you, Slocum is going to make an offer. Something he knows Howie won’t take. Then he’ll leak it to the media that I made the offer. In fact, he’ll claim I practically begged for it.”
“I’ll believe it when it happens. I don’t think Slocum’s that clever,” Barry said.
“I’ll bet you ten bucks; a friendly wager that we get an offer by Friday. What do you say?”
“Done,” Barry said.
Marc picked up his phone, found the number he wanted and autodialed it.
“Hi, Marc,” Gabriella Shriqui said when she answered his call. “What’s up? Got something juicy for me?”
“Maybe but you have to promise to sit on it for a few days because it might not happen,” Marc.
“I’m not sure I like this,” Gabriella replied. “What are you up to?”
Marc told her about his suspicions regarding a plea offer. When he finished he said, “I just wanted to get on record with someone ahead of time. I am not, repeat not, authorized by my client to make any type of plea offer or agree to one. Howie Traynor maintains his innocence. I have not and will not make an offer to the prosecution for any plea agreement. I suspect they are going to make an offer to me that they know my client will not accept. They will then leak it to the press that I approached them.”
“You’re using me to make Slocum and Tommy Harris look like assholes.”
“Yes,” Marc agreed.
Gabriella thought it over then said, “I guess I’m okay with it but you owe me
one.”
“Why do I always owe you one?”
“Because I let you gawk at my legs,” she said with a hearty laugh.
“You let me? That’s an interesting way of putting it. Good night, Gabriella. I’ll see you in court tomorrow.”
Margaret Tennant called around eight o’clock to find out how the first day went. Marc tried again to get her to help him with jury selection. As a judge with many years on the bench, her insights would be invaluable.
“You know ethically, I can’t do that,” she admonished him again.
“I won’t tell.”
“Oh, shut up,” she laughed. “Besides, I doubt I know anymore about it than you or anyone else. Pick ‘em and hope for the best. Get home and get some rest and eat a decent meal.”
“Yes, Mom. I’ll do my best,” Marc said while guiltily looking over the empty burger bags from McDonald’s scattered around the table.
“Love you,” she said.
“Love you, too.”
By the Thursday lunch break there were only four jurors selected, two men and two women, a male African American and three whites. When they broke for lunch Judge Koch ordered the lawyers to see her in chambers.
“Here it is gentlemen,” Koch began while she hung up her robe. “Mr. Kadella, by my count, you’re down to six challenges, is that correct?”
“Yes, your Honor,” Marc agreed.
“And Mr. Harris, you have two left,” she said.
“Yes, your Honor,” Harris replied. “In fact, I was going to request an additional…”
“Not a chance,” Koch said. She was standing behind her desk chair leaning on the back of it. The look she gave Tommy Harris was clear that she would not consider allowing either of them any additional peremptory challenges.
“We have selected a grand total of four jurors. We need twelve more including four alternates. I’m telling you right now, once your challenges are used up, and I can make you use them, then it will be pretty much up to me to select this jury by denying your bias claims.
“Don’t make plans for Saturday. If we aren’t done by Friday evening, we’ll be here first thing Saturday morning and maybe Sunday if the mood strikes me. Understood?”
“Yes, your Honor,” all four lawyers said.
“Have a nice lunch,” she said in dismissal.
A little before 4:00 P.M. on Friday all of the jurors had been selected. Twelve total plus four alternates. The twelve were a decent cross section of the community and would likely be fair and impartial.
Of the total sixteen, nine of them had claimed they had heard about the case but had not really followed it very closely. Given the overwhelming media coverage, this was hard to believe. Even so, it was also likely true. A significant percentage of Americans paid scant attention to the world outside their own self-made bubble.
Before leaving for the weekend, Judge Koch swore them in and gave them a stern warning to avoid the news concerning this case. They were not allowed to talk to each other and certainly no one else about it at all.
When she finished Marc repeated his request to have them sequestered for the duration. Koch denied it again but assured him she would keep an open mind about it.
“Your Honor, I have another request to make,” Marc said while the jury was still seated. “The defense moves to have all charges dismissed. This jury is constitutionally invalid, your Honor. The sixth amendment requires that the defendant be tried by an impartial jury, a jury of his peers. None of these good people are his peers. Not a single one has ever been wrongfully convicted of a crime by the use of doctored evidence and then spent twelve years in prison…”
“Your Honor!” Harris practically exploded.
“Not another word!” Koch practically yelled at Marc. “Say another word and you’ll spend the weekend in jail.”
Marc stood with an impassive look on his face. He knew saying these things in front of the jury was going to get him in trouble. The mischievous little boy in him simply couldn’t resist. Plus, there was a possibility, minuscule at best, that Koch would agree. If she did, because the jury had been sworn in, jeopardy had attached and the case would be over. Double jeopardy would prevent the state from trying Howie again.
“The jury is dismissed until Monday morning,” Koch said still seething.
Harris and Marc sat down while the jurors were being led out. When they were gone, Koch turned back to the lawyers.
“Move for a mistrial, your Honor,” an obviously angry Tommy Harris said while still seated.
“Denied. I’m not going to begin over to pick a new jury,” she calmly said to Harris. “But,” she continued glaring down at Marc, “You will write a check for a thousand dollars to the court and you’d better not try to say something that inflammatory in front of this jury again. Do I make myself clear?”
“Yes, your Honor. I was merely zealously representing…”
“Give me a break,” Koch interrupted him.
“I’ll appeal the fine,” Marc said.
Koch thought about it and then said, “I’ll tell you what. I’ll suspend the fine, for now. But if you do it again, I’ll make it five thousand and you can appeal all you want. That goes for you too, Mr. Harris.”
“What did I do?” Harris whined.
“You’ve both been warned. I’m running this show and you will behave.”
With that statement, she adjourned for the weekend.
The dozen or so media members who had stayed until the end hit the door in a mad scramble to get this story out. This could be the beginning of an entertaining trial.
“Give us a minute,” Tommy Harris said to the two deputies who were about to take Howie back to jail. “I’ve been authorized to make an offer,” he continued looking at Marc while Barry Cline and Howie looked on. “He pleads to two counts of second-degree and…”
“No,” Howie said emphatically. “I ain’t pleading to anything.”
“You haven’t even heard it all,” Harris said.
“I don’t care. The answer is still no. I’m ready to go,” Howie said turning to the guards.
Marc held out his left hand to Barry, palm up. Without either of them saying a word to Harris and while Harris and Paul Ramsey watched, Barry laid a ten dollar bill across Marc’s palm.
“Told you so,” Marc said still looking at Tommy Harris.
FORTY-EIGHT
Gabriella Shriqui hurried from the government center to the outside of the building onto the front courtyard. The most recent snowstorm had moved into western Wisconsin and except for the mess it left behind, the weather was fairly nice.
Her cameraman, Kyle Bronson, was already set up and waiting for her when she arrived. Gabriella had called the station to let them know what she had and the decision was made to put her on live with Melinda Pace.
The entire second half of Melinda’s show was taken up by Gabriella’s report. Melinda was at her condescending best, or worst depending on your point of view, when Gabriella explained Marc’s attempt to have the case dismissed.
“So, Traynor’s lawyer tried to pull a fast one on the judge and she didn’t go for it,” was the way Melinda put it to her audience. “Good for her. It’s nice to know there are some sensible judges who won’t put up with the sneaky tricks criminal lawyers try to use to get their clients off.”
Gabriella bristled a bit at this last comment and found herself wondering why it bothered her. It was a sneaky lawyer’s trick and he did not get away with it.
“He’s just trying to defend his client,” Gabriella calmly said. “That’s his job, Melinda.”
“Thank you for a wonderful report, Gabriella. I just wish there was a camera in the courtroom.”
“The trial starts Monday, Melinda,” Gabriella said finishing her reporting.
On the walk to the parking ramp where she had left her car, Gabriella made a phone call.
“Hey,” Maddy Rivers said when she answered Gabriella’s call. “What’s up?”
“I need a d
rink,” Gabriella said, “and a bite to eat. Can you meet me?”
“Seven o’clock?”
“Perfect. I’ll see you then,” Gabriella said.
Gabriella started her car and just as she was about to back it out of the parking spot, her phone rang. She dug it out of her bag, looked at the I.D. and decided to take the call.
“Hello, Gabriella,” she heard the caller say. “It’s Derrick Boone, from the…”
“I know Derrick,” Gabriella agreeably said. Derrick Boone was a lawyer in the county attorney’s office. Gabriella had wooed him as a source during a trial she had covered and his information was usually quite good. Plus, despite the ring on his finger, he was hot to have her. “What’s up?”
“Can we meet for a drink? I have something juicy about the Traynor trial,” he said.
“Gee, Derrick, I’m sorry but I already have plans to meet a friend.”
“Bring her along, we’ll make it a threesome.”
“And you can bring your wife,” Gabriella tossed back in his face, immediately regretting it. She did not want to lose him as a source.
“Nice shot,” he laughed. “Okay, here it is…”
When Derrick Boone finished lying to her about the plea offer he claimed Marc made to Tommy Harris, Gabriella called her boss, Hunter Oswood. Twenty minutes later she was in his office. Also in attendance was Madison Eyler.
“This is bullshit,” Gabriella said. “Marc Kadella called me Monday evening and told me this was going to happen. They’re lying.”
“How do you know Kadella wasn’t lying?” Hunter asked.
Marc Kadella Legal Mysteries Vol 1-6 (Marc Kadella Series) Page 168