Samara's case posed huge problems. The media had unfailingly portrayed her as a spoiled brat, a gold digger and a shameless adulteress. She was white and rich. Ac cused of plunging a knife into her husband's heart, she was hardly a candidate for sympathy. And the evidence would show that it hadn't been the police who'd lied this time around, but Samara herself who'd lied to them. Even her looks might work against her. Women of all ages, sizes, shapes and shades of color were likely to be jealous of Samara's prettiness and petiteness. Men, even as they might be dazzled by her beauty, could hardly be forgiven for identifying with her husband-victim.
Which left precious little room for the ideal juror. Unless, that was, Jaywalker happened to come across twelve equally pretty and petite gold diggers who'd had occasion to murder their husbands, either in real life or only in their fantasies.
As the clerk swore in the panel, Jaywalker looked
around the room to see which of the prospective jurors would choose to affirm, rather than take an oath that ended with the words "So help me, God." A prohibitive long shot in the trial, he was looking for anyone with the slightest anti-establishment bent. After all, it would take twelve jurors to convict Samara, but only one to hang the jury.
Every one of them took the oath.
The clerk spun a large wooden drum, the kind they used to use at bingo parlors, and pulled out a slip of paper. "Seat number one," she said, "Ronald Macauley, M-A-C-A-U L-E-Y." A man rose from the back of the room and made his way to the jury box. He was white, fiftyish, wore a dark suit and tie, and carried a Coach attaché case. No good, Jaywalker thought. On a tear sheet of a homemade chart on the table in front of him, he wrote:
MR. MACAULEY
W
NG
The clerk repeated the process until the box had been filled, with twelve jurors taking up the regular seats and another six relegated to the chairs set aside for alternates. Jaywalker made notes for each of them. By the time the eighteenth was seated, he had two OKs, five question marks and eleven NGs.
As he'd expected, it was going to be a very long day.
Judge Sobel addressed the panel, speaking loudly enough so that not only those in the jury box could hear him but so could those back in the spectator section. He introduced the "parties," as he referred to them—Burke, Jaywalker and Samara—and had each of them stand in turn and face the rear of the room. Then he described the case, reading the indictment as part of it, and made some general remarks. Next he asked if there were any prospective jurors who felt they were unqualified to serve on the case.
A sea of raised hands responded. One by one, jurors approached the bench to explain why they couldn't pos sibly serve.
"I could never judge a fellow human being."
"I look at her, and I know she's guilty."
"I'm indispensable at work."
"I have plane tickets to Aruba this Friday."
"I have a cat I can't leave home alone all day."
"I have an unusually small bladder."
"No speak English."
One by one, the judge excused them. Then he individu ally questioned the eighteen sitting in the box, a number that included some who'd been there from the start and others who'd been added to replace casualties of the process. He inquired about their occupations, their places of birth and their family status, and whether they'd ever been the victim of a crime or been accused of having com mitted one. Each time a juror said something meaningful to Jaywalker's way of thinking, he made a note of it on the corresponding tear sheet, and from time to time he even changed his overall impression of a particular juror. A couple of original question marks soured into NGs, and several NGs became NG!s. But at the end there were still only two OKs, and neither of those had sprouted an !
A very long day indeed.
Tom Burke rose, and for the next half hour he asked questions of the potential jurors, some general, some ad dressed to a particular individual. Burke was a no-nonsense lawyer with a nice way about himself. He asked the jurors what organizations they belonged to or donated money to, what magazines they subscribed to or read on a regular basis, and what television programs they liked best. He asked for their assurances that they wouldn't be influenced by the defendant's prettiness, or by the fact that she was a woman. He asked them to promise that if he proved her guilt by the legal standard, they would return a verdict of guilty.
They promised.
Jaywalker's turn didn't come until after the lunch break. Lunch for everyone else, that was. Jaywalker, who never ate breakfast and skipped lunch when he was on trial, found a spot on a windowsill by the elevator bank, and spent the hour reviewing his notes and composing his ques tions. But the truth was, he'd pretty much known what he was going to ask for weeks now, for months. His approach to jury selection was radically different from just about every other lawyer he knew. As much as he was interested in what magazines a prospective juror read, he never asked. He had two reasons.
First, while it was comforting to know that a juror pre ferred The New Yorker to Guns and Ammo, the price of learning that piece of information was that the D.A. learned it, too, and would now use it to exercise one of his peremptory challenges against the liberal New Yorker reader. So the knowledge gained was illusory and, in the long run, worthless.
Second, there was simply no time for such nonsense. Samara Tannenbaum was on trial for murder. The sixteen jurors whom Jaywalker was about to question had walked into the courtroom figuring she was guilty, either for sure or probably. A couple of them had even been honest enough to say so, or smart enough to know that saying so would get them a ticket home. Jaywalker had exactly half an hour to change that perception and turn the trial into a ball game. That worked out to less than two minutes a juror. He'd be damned if he was going to spend one second of that time asking them about magazines.
Nor would he ask them for promises of fairness. If a juror was the kind of person who was inclined to be fair, no promise was necessary. And if the juror wasn't going to be fair, it logically followed that no promise he or she made could be trusted. And again, there was simply no time to waste on such nonsense.
"My name is Jaywalker," he told them, when finally it was his turn to get up and talk to them, "and I represent the defendant, Samara Tannenbaum." Standing behind her now, placing a hand on each of her shoulders. Just in case they'd missed it this morning.
Jaywalker's philosophy of jury selection, as radical as it was, was quite simple. It began with the proposition that, as the last of the three to ask questions—the judge having been the first and the prosecutor the second—he already knew enough about each of them to make an informed guess as to whether he wanted them or not. That, along with the fact that anything additional he might now learn would help his adversary as much as it would help him, meant that he almost never asked questions aimed at seeking more information. What he set out to do instead was condition them. Actually, a more precise way of put ting it would have been to say he wanted to brainwash them. But that term, however apt, carried a decidedly negative, Manchurian Candidate connotation to it, even were one inclined to think of the process in its most thera peutic definition.
brain•wash ('brane 'wosh), v., to cleanse the mind so as to rid it of prejudices and other preconceived notions that have
no goddamned business in a criminal trial in the first place.
The methods Jaywalker employed were twofold. First, in the guise of asking information-seeking questions, he would proceed to reveal to the jurors the most damning evidence against his client. Then, purely to avoid drawing an objection, he would ask them if, having heard that, they could still be fair and impartial. Second, again posed in question form, he would repeatedly hammer into them the magic words upon which they were ultimately going to base their acquittal of the defendant: that the prosecution, and only the prosecution, bore the burden of proof, a burden that not only required them to prove that the defen dant was guilty, but required them to prove it beyond all reasonable doubt. Over an
d over he would say those things, until the jurors could sense when the words were coming, knew them by heart and mouthed them along with him. They would take the words home with them at night, bring them back in the morning, and internalize them to the point that they were no longer just words but had become a refrain of sorts, a refrain that punctuated every line and every verse of the trial. A mantra.
And then Jaywalker would combine the two methods into one.
MR. JAYWALKER: Ms. Heywood, the evidence is going to show, not just beyond a reasonable doubt, but beyond all doubt, that when first confronted by the detectives, Samara Tannenbaum lied to them. Not only did she lie once, she lied twice. And she didn't just lie about silly stuff, but about stuff that turns out to look important. Hearing from me, her lawyer, that she lied like that, can you still give her a fair trial?
Now, it didn't matter a bit whether Ms. Heywood an swered that she could or thought she could, or that she'd try her best, or that it depended on the rest of the evidence. The important thing was that by bringing out the fact that Samara had lied before Tom Burke could establish the fact through the testimony, Jaywalker was defusing the issue, taking all the drama out of it. And by getting the jurors—for they were all listening, not just Ms. Heywood—to commit to being fair in spite of Samara's having lied, he was in effect getting them to discount it. If Ms. Heywood had answered no, she couldn't be fair, then Jaywalker wouldn't even have to waste a peremp tory challenge on her; he would get her excused for cause. MR. JAYWALKER: And when I say, "give her a fair trial," Mr. Monroe, you understand what I mean by those words. I mean that you must hold the prose cution to their burden of proof, and require them, if they can, to not only prove that Samara is guilty, but to prove it beyond all reasonable doubt.
And by placing great vocal stress on the word beyond, no one—not Tom Burke, not even Judge Sobel—caught the fact that Jaywalker had quietly changed the word im mediately following it from a to all. Not until the next day, at least, or the day after that. Not until it was too late, not until it had become part of the refrain, part of the jury's mantra. Not until Jaywalker's little sleight of hand had succeeded in raising the prosecution's burden of proof from "beyond a reasonable doubt" to "beyond all reason able doubt."
Sound like a little thing?
Perhaps.
But experience had taught Jaywalker that it was pre cisely the kind of little thing that translated into the differ ence between winning and losing.
So he didn't just tell the prospective jurors about Sa mara's lies to the detectives. He also told them about her presence in Barry Tannenbaum's apartment shortly before the time of his death, about the items found hidden behind her toilet tank, about the overwhelming certainty that Barry's blood was present on them, even about the life insurance policy application with Samara's signature on it. And after each damning revelation, he asked the jurors if they still could give his client a fair trial and hold the prosecution to its burden of proving guilt beyond all reasonable doubt.
A few said no, they no longer could. Which was fine; they would be excused for cause.
But the vast majority said yes.
Jaywalker took a glance at his watch. He'd been on his feet for close to twenty-five minutes now. He had barely five minutes left. And he had a cardinal rule that he never broke. It was a rule that, like so much else he did, set him apart from just about all his colleagues. As early as the jury selection process, he made it a hard and fast policy to tell the jurors whether or not his client would take the stand.
MR. JAYWALKER: Mrs. O'Sullivan, you heard the judge tell you this morning that the burden of proof rests entirely upon the prosecution, that they're the ones who have to prove guilt, and have to prove it beyond all reasonable doubt. You also heard him tell you that the defense doesn't have to prove any thing, doesn't have to disprove anything, doesn't have to call a single witness. That the defendant her self doesn't have to testify, and that if I elect to not put Samara on the stand, you may draw no inference from that whatsoever.
Nevertheless, I tell you right now that in this trial, Samara Tannenbaum is going to testify. She's going to take the stand, and she's going to tell you in her own words what she did the evening of her husband's death—and what she didn't do.
Now, I suspect that you may end up not liking Sa mara very much. She's done some things in her life that she's not particularly proud of. For example, she's slept around. She's accepted gifts, including money, in exchange for sex. She's gotten by on her looks. In fact, she'll tell you she married Barry Tannenbaum, in large part, for his money. After marrying him, she didn't live with him very long. And she cheated on him. What's more, unlike you and most of your fel low jurors, she hasn't worked for a number of years. She's what we sometimes call a gold digger.
But do you understand, Mrs. O'Sullivan, that this trial isn't about whether you end up liking Samara or not? That this trial is about one thing, and one thing only? That at the end of the day, this trial is about whether or not the prosecution, which contin ues to have the only burden of proof, even when Sa mara takes the stand and tells her story, can meet and exceed that burden of proof ? And that that burden re quires them to convince every last one of you that Sa mara is guilty of murder, and convince you of it beyond all reasonable doubt?
Mrs. O'Sullivan assured Jaywalker that she understood all that and could follow the judge's instructions. Jaywalker wasn't fooled for a minute. No red-faced, two-hundred pound Irish-American housewife, the mother of eight children and the wife of a former cop now working as an armed security officer at a bank, could be counted on to give Samara Tannenbaum the time of day, let alone a fair trial. But it didn't matter. The important thing was that Jay walker had effectively taken away Tom Burke's crossexamination of Samara. And he'd so lowered the jurors' expectations of her that no matter how she came across, she couldn't possibly seem as bad as he'd painted her.
He thanked the jurors and sat down.
The term jury selection is something of a misnomer. The lawyers don't really get to select the jurors they want. The process might better be called jury rejection, or jury deselection. The way it works is that jurors with admitted or identifiable biases get challenged for cause, or upon the consent of the opposing lawyers. There's no preset limit as to the number who can be removed in that way.
Once challenges for cause or consent have been made and ruled upon, the lawyers take turns exercising their pe remptory challenges, of which they have a limited number. That number increases along with the severity of the charges, as defined by the maximum sentence allowable under the law. Thus, in a lowly petit larceny case, each lawyer is allotted only three peremptory challenges. In a robbery or burglary trial, the number rises either to ten or fifteen, depending upon the degree of the crime charged. Only in murder cases and other class A felonies do the lawyers get the full complement of twenty peremptory challenges.
Unlike challenges for cause, peremptory challenges may be exercised for any reason, or for no particular reason at all, so long as they're not motivated by a demonstrable attempt to exclude members of any particular race or other legally recognized minority.
Burke, as the prosecutor, had to go first. With two of the prospective jurors in the box having been removed for cause, he now used five of his peremptory challenges. Jaywalker, reviewing his notes, had concerns about almost all of the re maining eleven. But he also had a finite number of chal lenges, and he didn't want to fall seriously into a hole. That would give Burke too much of a hand in shaping the jury.
Some jurisdictions allow the jurors, once all have been selected, to vote on who becomes their foreperson, or spokesman. Others draw lots, or leave it to the judge to decide. In New York, the rule is simple: the first juror to be called, selected and sworn in automatically becomes the foreperson. Knowing this, Jaywalker now used his first two peremptory challenges on jurors who, unless challenged, would have fit the bill. That left a barely acceptable, though certainly not truly desirable, cabdriver as the foreman. Men
, Jaywalker had decided some time ago, even if they might be inclined to identify more closely with Barry Tan nenbaum, would at least react positively to Samara's looks. Women, unless they themselves had just climbed out of the pages of a Victoria's Secret catalog, could hardly be expected to.
The Tenth Case Page 14