Judgement Calls

by Alafair Burke

  have me arrested." The clerks held their breath, sure that their judge

  was about to unleash. Instead, the story goes, she laughed and said,

  "Well, in that case, counselor, you should at least get out in the sun

  periodically. You could blind someone with those things." My guess

  was that Lesh had so much going for him on the stuff that mattered that

  people were almost reassured by his irreverence.

  Proving once again that he was a complete professional where it

  counted, Lesh went back on the record and made what I believed to be

  the right ruling. The jury should be allowed to consider Derrick's

  previous lie for the limited purpose of judging his credibility as an

  alibi witness in this trial. The problem was that if the jury knew the

  whole story, including the nature of Derringer's previous conviction,

  the unfair prejudice to the defendant would be overwhelming. So Lesh

  carved out a fair compromise.

  "Here's what we're going to do, folks. First of all, the State can't

  get into any of this until after the defendant's brother has taken the

  stand and offered testimony to exonerate the defendant. Until he does

  that, Ms. Kincaid, the evidence you want to use is irrelevant.

  "Even after the evidence becomes relevant, I am concerned about the

  potential for unfair prejudice. Ms. Kincaid, the only facts you

  really need to get to the jury are that Derringer Derrick Derringer, I

  mean provided an alibi for the defendant in the past and that the

  defendant, contrary to the proffered alibi evidence, eventually

  admitted that he was, in fact, at the scene. I assume you can find a

  way to put those facts into evidence without revealing the underlying

  charge to the jury or whether the defendant was ever actually

  convicted."

  I nodded in agreement, but then said yes aloud so the court reporter

  could transcribe my answer.

  "Alright, then, that's the plan. And, Ms. Kincaid, I cannot emphasize

  this enough. The facts that I just mentioned are all I want to hear

  from your witnesses on this matter: Brother supplied alibi for

  defendant, but then defendant later admitted he was there." He counted

  off the points on his fingers. "If I hear one other word one mention

  of sodomy, or kidnapping, or a teenage girl victim, or the fact that a

  jury found the defendant guilty of something I will declare a mistrial.

  And I may even declare a mistrial with prejudice. So I warn you to

  proceed with caution and make sure your witnesses understand the rules

  we're playing by. Do we understand each other?"

  I assured him that we did, and he moved to the rest of Lisa's

  motions.

  Lisa had filed a motion to suppress the evidence regarding Derringer's

  pubic hair. She tried to argue that the pethismo-graphic examination

  and the jail booking process consti

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  tuted unlawful searches in violation of Derringer's Fourth Amendment

  rights. But once she agreed that both processes were part of the

  normal corrections process and not intended to produce evidence of a

  crime, Lesh quickly denied the motions.

  In the alternative, Lisa asked the court to prohibit Derringer's parole

  officer from testifying that he had seen Derringer without his pants at

  the pethismographic examination. She argued that the evidence was

  overly prejudicial because it revealed the fact that Derringer was on

  parole for a sex offense.

  In the end, Lesh decided to permit Renshaw to testify that he was

  Derringer's parole officer and had occasion to see him without his

  clothes. The jury would not hear about the setting or circumstances. I

  didn't like it, because I thought the jurors might come up with their

  own oddball explanations as to why a parole officer would see a client

  naked. But I decided there was no other way to get Renshaw's

  observations in without letting the jury know about the prior sex

  offense, which surely would lead to a reversal on appeal.

  "Alright," Lesh said. "Now, before I call a jury panel up here, let's

  see if my rulings on these motions change anything about whether we

  need to have a trial. I assume from the fact that we're here that the

  two of you have had plea negotiations on this case by now."

  Lisa and I sat silently.

  "Nothing?" the judge asked. He told the court reporter to go off the

  record. "What the hell are you two doing? Now, before I say what I'm

  about to say, Mr. Derringer, I want you to understand that my comments

  have nothing to do with my opinion about your guilt. I haven't heard

  the evidence, so I don't have an opinion at this point. And, in any

  event,

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  that's going to be a decision for the jury, not me. But I've been

  involved in a lot of trials, both as a lawyer and a judge. And I've

  read the papers filed in this case, and I have some idea of what's

  coming around the corner."

  He turned his attention back to me and Lisa. "I'll be frank with both

  of you. From what I've read in the motions and the warrants, Ms.

  Kincaid, you've charged the hell out of this case. Frankly, I'm

  surprised you chose to present this to the grand jury as an attempted

  murder."

  Lisa was never one to pass up an opportunity to ingratiate herself with

  the court. She jumped in to thank Lesh for telling me what she'd been

  saying all along.

  He stopped her cold. "Not so fast, there, Ms. Lopez. I've got even

  more for you. You may not have noticed, but your client's alibi rests

  on the word of his convicted felon brother who by all appearances has

  lied for the defendant before. Your client also is on parole for an

  offense that is strikingly similar to the one for which he now stands

  trial. I hope you have advised him that he is gambling in a very big

  way. I can tell you right now, if he loses, he won't be looking at a

  year in the pen this time. He's looking at a very long sentence, with

  a parole board that will remember that he burned them the last time."

  Having reminded both of us of our weaknesses, Judge Lesh wanted to hear

  our offers. I offered to dismiss the attempted murder and other

  charges if Derringer would plead to the kidnapping and sodomy, with a

  ten-year minimum sentence. I offered to reduce that to seven if he'd

  flip on Suspect Number Two. Lisa wouldn't hear it. She wanted Assault

  Three with eighteen months no cooperation. Lesh gave up when it became

  clear we'd never agree, and the clerk called up a jury panel.

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  Picking a jury can be the most difficult part of a trial. Most people

  can be convinced of just about anything, and one dud can sway enough of

  these sheep to yield very bad results.

  One of my first trials in Oregon was a slam-dunk controlled buy. An

  undercover used marked money for the drug buy; then the surveillance

  officers who watched the deal followed the suspect, keeping track of

  him by his distinctive two-tone spectator loafers. When the defendant

  was popped in the men's room of a nearby restaurant, the marked drug

  money was in his pocket. The dummy blew any theoretical chance at an

  acquittal when
he showed up on the second day of the trial wearing the

  same two-tone spectator loafers that every police witness mentioned the

  previous day when describing the suspect.

  After three days of deliberations, the jury hung, 7 to 5, in favor of

  guilt. The judge was so incredulous that he broke from the usual

  procedure and permitted the lawyers to question the jurors before they

  were dismissed. Turns out that one particularly headstrong guy

  convinced four of the others that the defendant must be innocent,

  because no one would be stupid enough to wear those shoes to court

  under the circumstances. The four sheep found it difficult to defend

  the decision, saying repeatedly, "We just don't think he did it." When

  I asked the leader about the marked drug money, all he could say was,

  "Now, that was a problem for him. I'll admit that." The seven sane

  jurors looked like their heads were going to explode after spending

  three days trying to argue with that kind of logic.

  My case against Derringer was strong, but I needed to weed out any

  jurors who might cut him loose on the most

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  serious charges, thinking that the victim deserved what she got. In

  the end, Lisa bumped two retired women who looked at Derringer like

  they were already afraid of him. I bumped two men with previous

  assault arrests and two who said they were surprised that a person

  could be charged with raping a prostitute. The worse of the two said

  it sounded more like theft, then suppressed a chuckle. I was glad he

  said it, not only because I knew to bump him but also because I saw one

  woman flinch in revulsion. Lisa apparently didn't see it, because she

  left her on the panel. A definite keeper for me. By the end of the

  day, we had picked our jury.

  Deciding that personal safety required me to navigate even further into

  the twenty-first century, I bit the bullet and had a top-of-the-line

  home security system installed that night. I could tell by the way the

  installation guy eyed my trashed house that he didn't think I'd be

  needing it. I didn't bother explaining.

  Just knowing that the system was there helped. I fell asleep the

  minute I hit the bed and didn't wake until the alarm clock advised me

  it was time to go to work. At least I'd be rested for the second day

  of trial.

  I walked into Lesh's courtroom prepared for my opening statement. On

  the way in, I checked to make sure that my witnesses were there: Mike,

  the EMTs, and the kids who found Kendra were subpoenaed for the

  morning. I figured there was no way we'd get through opening

  statements and all those witnesses before lunch.

  I had decided not to ask Kendra to attend the entire trial. Her mother

  could not miss enough work to accompany her, and I thought that the

  sight of Kendra sitting without a parent would feed the impression that

  she was something other than a victimized child.

  Fortunately, Derringer wasn't going to be getting an upper hand in the

  sympathy arena by packing the halls with loving supporters. The only

  people in the spectator seats were a few curious court-watchers and Dan

  Manning, a young reporter for the Oregonian who was always trying to

  branch out beyond his normal neighborhood beat by picking up crime

  stories that otherwise wouldn't get covered.

  I liked Dan. He tried to give potential future sources people like me

  good press as long as he could do it and still give the straight story.

  He stopped me as I was walking in. "Do you have a few seconds for a

  quote? I'm thinking about using this trial as a centerpiece for a

  larger special-interest article about the dangers faced by teen

  prostitutes. You know, hoping to ride the coattails of the renewed

  interest about the Jamie Zimmerman murder, now that Taylor's back in

  the news."

  I prefaced my answer by explaining that the Rules of Professional

  Responsibility prohibit prosecutors from going very far in their

  statements to the media. I was relieved when he nodded; he knew the

  drill. For a prosecutor, media interviews are like navigating a

  minefield. Stay too safe within the lines, and your typical nitwit

  reporter looking for a story will make it sound like you don't believe

  in your case. Go too far, and you're looking at sanctions from the

  court and the bar.

  I told Dan I'd be happy to talk to him if he would assure me that he

  wasn't going to print Kendra's name. He agreed, reminding me that the

  Oregonian was one of the few papers that had not abandoned its policy

  of withholding information about the victims of sexual offenses after

  the William

  Kennedy Smith rape allegation triggered sensationalist paper-selling

  headlines.

  I gave Dan a few canned quotes about the trial and also plugged DVD as

  an aggressive, proactive unit working to prevent girls from entering

  the world of prostitution and to arrest and prosecute the adults who

  lure them into it.

  When it was time for opening statements, I delivered mine from memory,

  without notes.

  "Good morning. In case you don't remember, my name is Samantha

  Kincaid, and I'm a deputy district attorney for Multnomah County. I

  represent the State of Oregon.

  "I want to start this morning by thanking you for your candor when we

  spoke yesterday during the jury selection process. It is because of

  your honesty during that process that the twelve of you have been

  chosen to hear this case. And I am thanking you ahead of time, because

  I think you will find the next week or so to be a difficult one. It

  will be difficult because the process changes now. We don't get to

  talk to each other like normal people, the way we did yesterday. You

  are now jurors, and the rules of our trial system require a formality

  unlike any other setting in our society. You are entrusted with a

  profoundly important decision, but the rules require you to sit here

  passively, listening, without asking questions or even talking to one

  another about the case until all the evidence is closed and you begin

  your deliberations. I do not envy your task, but I promise to do my

  best to anticipate the issues you might find most important and to

  focus on them.

  "But I think you will find this week to be difficult for reasons other

  than those faced by any person fulfilling a citizen's responsibilities

  as a juror. You face an especially daunting task because this

  particular trial will force you to focus on the sadistic acts of the

  man sitting over here, Frank Derringer."

  I had their attention now. A few of them shifted in their chairs to

  move forward.

  "You are going to hear facts about what Frank Derringer did to a

  thirteen-year-old girl named Kendra Martin the kind of facts that most

  people go a lifetime without ever having to contemplate. This man" I

  pointed to Derringer "pulled Kendra Martin from the street, dragged her

  into a car driven by an accomplice, and drove her to an isolated

  parking lot with every intention of beating and raping her. And as he

  brutalized her face and body with his fists
and forced her legs apart

  to take him, something happened that made Frank Derringer's already

  horrific violence escalate and turned this crime into something I wish

  I didn't have to tell you about.

  "At the pivotal moment when Kendra Martin thought the defendant was

  going to force himself inside of her, the defendant found himself

  flaccid, unable to fulfill his intentions. So Frank Derringer found a

  different way to take out his rage against the scared thirteen-year-old

  girl who was pinned beneath him in the backseat of his car. He took a

  stick and rammed it repeatedly between Kendra Martin's buttocks. From

  the degree of tearing, doctors estimate that the stick was at least an

  inch and a half in diameter. They know it was made out of wood,

  because they found splinters inside Kendra Martin's anus. And when

  Kendra lay bleeding from the defendant's torture, Frank Derringer still

  didn't stop.

  "The defendant told his accomplice to do what he couldn't do himself

  and then watched while this second man raped and then sodomized Kendra

  Martin, now barely conscious. And when the whole thing was over, these

  two men drove

  Kendra to the Columbia Gorge and dumped her like a bag of garbage to

  die.

  "You're going to learn that Kendra Martin hasn't lived the kind of life

  that most thirteen-year-old girls get to live. She's going to get on

  the witness stand and tell you very personal facts about her home life

  and her background. And she'll tell you that she's not proud to admit

  that when the defendant kidnaped, raped, and sodomized her and then

  left her to die, she was a runaway girl engaging in prostitution to

  support a growing heroin addiction. She'll also tell you that she

  initially tried to tell the police what Frank Derringer did to her