by Teri Ames
“I’ll do my best, but what if I miss something?”
“I’ll be watching and Toni will too. She’s good at reading people.”
“That helps. I’m so nervous, I’m afraid I’ll screw up.”
“I’m sure you’ll do fine.” Barry didn’t actually think Keenan would contribute much, but it helped the client to give them something to do during voir dire. The assignment would keep Keenan from burying his face in his hands and looking dejected and encourage him to make eye contact with the jurors. The only risk was that he would take the assignment too seriously. Better nip that in the bud. “But there are two things you should not do during voir dire. Don’t talk to me, even while the other side is doing the questioning. It looks rude and you don’t want the jurors labeling you before the trial even begins. Same thing goes for passing notes. We’ll have a minute or two to talk before we have to make decisions on the jurors. Save it for then.
“Okay.”
“And Keenan?”
“Yeah?”
“Try not to look panicked. I know you’re scared. That’s natural. But we want the jury to think that you trust them.”
“I’ll try.”
“And, whatever you do, don’t look cocky. If they think you think you’re getting away with something, they’ll hold you accountable.”
“Okay, so don’t look too scared, but don’t look cocky. What the hell does that look like?”
“I don’t know. Just be aware that they’re watching your every move so it’s important to be likable.”
“Should I smile?”
“No. That would look fake.”
“Okay. Serious, but likable. You’re not making this easy.”
“That’s because it isn’t.” Barry wished he could give him more concrete advice. “One last thing––it would really help if you would decide right now that you’re not going to testify.”
Keenan had shaken his head.
Barry knew that a trial was more about spin than truth. He also knew that there had been a fair amount of spinning going on in the media, most of it not good for his client. The media had presented the circumstantial evidence as if there were little room for interpretation, which had garnered a lot of sympathy for Shannon and her family and almost none for Keenan.
Barry was hoping to get a group of jurors who had not been unduly influenced by the media, but realistically he knew that was impossible. His best bet was to use voir dire to negate some of the damage already done and try to identify people who could keep an open mind. Unfortunately, the jury selection process was as flawed as the rest of the system. It relied on prospective jurors being honest and forthright about personal beliefs and biases in a very public setting. And normally that didn’t even involve a risk of being on TV. Very few people would be forthright with the reporters in the courtroom. One more way the media was influencing justice.
Barry rose from his seat. “Good morning.”
He spent a few minutes talking about Keenan and his love of hockey. He let them know that Keenan had volunteered at clinics for their local hockey program. He wanted them to think about Keenan as a real person and hockey players as athletes, no more prone to violence than the average person. He also asked questions designed to get the jurors thinking about reasonable doubt as an incredibly high standard.
Finally, he got to the media issue. “How many of you have read news stories about Keenan Brody?”
All the jurors raised their hands.
“Mr. Kearns. If you had to decide my client’s guilt based on what you read in the paper, how would you decide? Honestly.”
“Sounds like he’s guilty.”
“Thank you for your honesty. Anybody have a different opinion?”
Nobody raised a hand. Barry had expected the response, but actually seeing it drove home the enormity of the task before him. He stood staring at the jurors, trying to decide what to ask next.
“I think now would be a good time for a recess,” the judge said. “Let’s resume at one o’clock. And I want to remind everyone that they are not to talk about this case with each other or anybody else. Attorneys, I want to see you in my chambers.”
“I want most of them struck for cause,” Barry said. “They all just admitted they think my client is guilty.”
“Wait a minute,” Fred said. “I asked them if they could be fair despite the media coverage and they all said yes.”
“You can’t seriously expect them to overcome a bias as serious as a presupposition of guilt.”
The judge rubbed his chin for a few seconds before answering. “I’m inclined to agree with Mr. Dutton. They said they could be fair.”
“But that doesn’t mean they can or will. It just means they don’t want to admit they can’t, whether it’s to us or to themselves. Or to the press.”
“They haven’t heard the evidence yet. I’ve allowed you to educate them that there’s more to the story than what’s in the paper.”
“Then I’ll need more time with this panel.”
“I want a jury before we leave here today. Don’t drag this out.”
“Are you saying I can’t take the time to explore the biases of each juror?”
“I’m saying I want to finish this by five o’clock today.”
“You just sent them off for a one-and-a-half-hours’ lunch. My client can’t get a fair trial in Adams County if I can’t do a proper voir dire.”
“You’ll have all afternoon.”
“I need to talk to my client. If Your Honor won’t permit me to thoroughly examine the potential jurors, we’ll be filing a motion to change venue.”
“And I’m telling you based on what has happened so far, I’ll deny it. The law is clear that I have broad discretion on the issue. If you had filed the motion before we dragged a couple hundred people in here, I might have given you a different answer. But now that they’re here and they’re telling us they think they can be fair, I see no reason to waste the resources.” Before Barry could open his mouth, Jenkins snapped, “Especially if you’re really just judge shopping.”
“I want to put the motion on the record.”
“We can do that after lunch. I’ll allow a verbal motion.”
“I’d also like to file a motion to increase the number of peremptories. If Your Honor is going to insist that we draw a jury today, I can’t get a fair jury with only six. Obviously, both sides would get more. Does Your Honor want that in writing?”
“I’ll take a verbal motion on that after lunch as well. My law clerk can research it during the break. I’ll see you both back here at twelve thirty.”
Fred and Barry left together but did not speak. Fred headed toward the stairwell, presumably to go to his office. Barry went in search of his client and found him in the conference room where Keenan’s parents had been waiting all morning.
“What happened with the judge?” Keenan said. “Anything we should know?” Barry didn’t believe in keeping things from his clients, but there was not much to be gained by getting the Brodys more worked up than they were.
“Just housekeeping matters.”
“What do you think of the jury so far?” Cassie asked.
“There are six people on that panel I could live with as jurors.”
“Can you get rid of the rest of them?”
“I can, but I’d have to use all my peremptories. Unfortunately, this is one part of the trial where the judge can make a big difference. Jenkins is not giving me a lot of leeway. We only get six peremptory challenges for the panel of twelve, then two more for the alternates. Do you have any thoughts about any of the jurors?
“I tried to do what you said and watch them,” Keenan said. “I’m afraid they all think I’m guilty.”
“You may be right. So, we need to get people who we think can keep an open mind. I like Mrs. Hiller. She’ll be able to identify with you because she has a son a few years younger than you who plays hockey. Mr. Martin is probably okay. Billings and Kramer too. Beyond that, I don’t h
ave much confidence.”
“So, what will you do?”
“I’m going to file a motion to increase the number of peremptories. It’s worth a shot. I’ll also do my best to get the people on the panel to admit their bias so we can get them struck for cause. There’s no limit to the number we can get rid of for cause, only the peremptories.”
“What can we do to help?” Greg said.
“Get something to eat. After today, you should bring lunch to court. It will give us the opportunity to use the lunch break to discuss the case.”
“We have a little kitchenette in our motel room. I’ll make sandwiches for everyone including you, Mr. Densmore,” Cassie said.
“Thanks, Cassie. I’ll take one as long, as you call me Barry. When you go out today, get something quick. Remember, you need to avoid the jurors.”
Barry called Marcy and had her bring him a sandwich to the courthouse. While he was waiting, he met with Toni, who had been watching from the back of the courtroom. She filled him in on her observations. Unfortunately, he couldn’t strike everybody she recommended. He’d give anything to have Judge Whippet back.
At twelve thirty, Barry and Fred met with the judge in the courtroom. The jurors were still at lunch, so the courtroom was empty. Barry put his two motions on the record. The judge promptly denied them both.
CASSIE AND Greg both embraced their son before he headed back into the courtroom. They could have waited back at the motel, but they wanted to be there with their son, supporting him. Cassie was frustrated with being isolated in the conference room, but Barry had been clear that they could not risk contact with the potential jurors. It could mean a mistrial and having to start over. Which might not be a bad thing, except that it would anger the judge. Barry had explained that, although the judge would not decide if Keenan was convicted, he definitely had the power to influence the outcome. At least the conference room had more windows than their motel room, and a better view.
FRED LIKED Judge Jenkins. He was relatively new, having been on the bench for three years. This was his second stint in Adams County. Fred’s underlings in the State’s Attorney’s Office were glad Jenkins was back.
Fred knew that both he and Barry would have benefitted from an increase in the number of peremptories, but Fred had figured that Barry would benefit more. It was clear that, in general, the panel was on Fred’s side.
Fred watched as Barry spent the afternoon trying to get the jurors to admit their bias against his client so he could get them struck for cause. He was only moderately successful. There were three rounds of culling, each of which involved an odd dance of musical chairs and another group of potential jurors being called from the gallery.
Finally, at five thirty, all the peremptories had been exercised. “We have a jury,” the judge said. “Now let’s get two alternates and call it a day.”
When he was back in his office, Fred looked over his final seating chart. He felt pretty good about the jury. They were all law-abiding citizens. More than half were women. Almost all had kids. There was one guy who was retired from the army. There were no engineers or scientific types. It was definitely a jury that could convict.
He filed the chart away. That phase was over. It was time to gear up for trial. He had met with all the witnesses during the previous week. He would meet with them all again over the next few days. He had some notes ready for his opening statement. He would need to polish that before Monday, but for the most part, he was ready.
Despite the hard work, it felt good to be trying a case again. He had forgotten how much he enjoyed the challenge. Besides, Barry might be his friend, but it would still feel good to beat him.
KEENAN WAS going crazy. During the whole jury selection process, he felt like a freak. People wanted to see him, study him, but they didn’t want to get caught doing it. And he was supposed to sit next to Barry, looking friendly and pretending it wasn’t bothering him. Like a contestant in a beauty pageant. On top of it, there was this false air of joviality to the whole thing. During the break, Barry had explained that conventional wisdom was that getting the jurors to like you was the most important part of jury selection. But every time someone laughed, he wanted to pull his hair out. Didn’t they understand that his life was at stake? That it was his life they were treating casually, as if he weren’t sitting right there watching the whole thing.
After the voir dire, Barry met with Keenan and his parents again.
“What do you think of the jury?” Greg said.
“I think they’re a reasonable group. That’s the best we can hope for under the circumstances.”
“What do we do now?”
“We get ready for Monday.”
“Is there anything we can do?” Cassie said.
“Try to keep Keenan from going crazy and make sure he shows up on Monday morning. I’ll meet with you guys on Saturday afternoon. I’ll update you then. In the meantime, I’m going to prepare our other witnesses and get ready for opening statements.”
Now even his own lawyer was talking about him like he wasn’t there. He mentally searched for a word to describe how he was feeling. Dehumanized. That was it. He imagined it was how a slave up for auction would have felt––completely without control of his own future.
Chapter 51
Friday, December 20, 2014
KEENAN FOUND the party easily. Out on the porch, coeds in sweatshirts and unzipped coats let off the tension of the end of a semester, laughing and howling. On-campus drinking was against the rules, so it had to be low key, but off-campus parties could be rowdier as long as they didn’t call so much attention that the police showed up.
The temperature was in the low fifties, unseasonably warm for a December evening, which provided another cause for celebration. Below-freezing weather and snow showers had reigned during the weeks leading to final exams. It had rained most of the day, washing away much of the snow that had fallen earlier in the month. The patches that remained were compressed to translucent by foot traffic making them extra slick. Although the rain had stopped, the air still felt thick with moisture.
Keenan searched the faces on the porch as he made his way up the front stairs. He recognized Jeremy from his dorm leaning against the wall, smoking a joint.
“Have you seen Shannon?” Keenan said.
“I did,” said Jeremy. “She was hanging with her friends tonight. You should be too. Here, have a hit.”
“No, thanks.”
“Why so uptight? You need to mellow out, dude,” Jeremy said, holding out the joint.
Keenan shook his head. “I’d get kicked off the team if I got caught.”
Jeremy shrugged and inhaled from the joint. Keenan waited until he opened his eyes.
“Is she still inside?”
“You are so whipped, it’s pathetic.”
“It’s not like that. I just need to talk to her for a minute. Do you think she’s still here?”
“She was in the kitchen a while ago.”
“If you see her, let her know I’m looking for her.”
Jeremy waved and went in search of another beer. Keenan tried to follow, but got stopped by the guy at the door collecting money. Reluctantly, he pulled five singles out of his wallet and let the guy put a smiley face on his hand with a Sharpie.
Bass-heavy music blared from the living room speakers. A trio of girls danced enthusiastically, spilling drinks onto the already stained floor. Two boys watched them from the tattered couch, not trying to talk over the music. Red plastic cups, some half full of warm beer, adorned every surface.
Keenan had to weave his way through a crowd in the dining room. He poked his head into the kitchen. Two girls in skinny jeans and sweatshirts were perched on the counter engaged in conversation. A bucket of red “punch” sat in the middle of the kitchen table, available for anyone brave enough to try it. A plastic soup ladle rested nearby amid blood-like splatters. A group of boys hovered around a keg. A few people loitered on the nearby back deck.
&nbs
p; Keenan found Shannon coming out of the upstairs bathroom. Two other girls came out behind her. The first two in line for the bathroom scurried to take their place and shut the door.
“We’re gonna drive to Maine. Jenna’s family ’ss a cottage there,” Shannon said. Her eye makeup was smudged and her blond ponytail was uncharacteristically off center.
“You’re going tonight?” Keenan said.
“Sure. S’not that far. Jenna said so. We can be back by lunch.”
“That’s crazy. It’s too far. And you’re drunk. Please don’t go. Besides, you said you had something to tell me.”
“I don’t want to talk to you now.” Shannon started down the stairs and Keenan followed.
Keenan took Shannon’s hand and pulled her onto the back deck, which was now deserted. He tried to pull her into a hug, but she pushed him away.
“Shannon.”
“I can’t talk to you.”
“Okay. But promise me you won’t drive.”
“I’m not that drunk.”
“Shannon, you’re not driving anywhere.” Keenan held out his hand. “Give me the keys.”
“Ss my car.”
“You can have the keys back tomorrow when you’re sober. Hand them over.”
Shannon tottered backward shaking her head.
“I’m not kidding. You’re in no shape to drive.”
Shannon reached into her pocket and pulled out her keys and phone. “I s’pose you want this too.”
“Not really. Just the keys. And only because I’m worried about you.”
“Well you can have them because I’m leaving.” She thrust the phone and keys at him. He picked up the keys, glad that she wouldn’t be driving to Maine that night. She shrugged and stuffed the phone into her jacket pocket. She fumbled with the zipper on the pocket for a few seconds, then turned away.