While still in his car before heading up to the courtroom, Marc took a few minutes to think over his case. He had crammed six months of trial preparation into as many weeks. The realization that the prosecution had the same amount of time was somewhat comforting. What brought him more relief was the fact that the cops had not discovered any additional evidence; at least none that he knew about.
Lost in his thoughts while gathering up his briefcase, he did not notice the man coming up the side of his car. Suddenly there were two sharp raps on his window which made him jump six inches and grab his chest. Staring down at him was the friendly, familiar face of his officemate, Barry Cline.
Marc opened the car door and as he was getting out said, “You just took five years off my life.”
“Sorry,” Barry insincerely said with a big grin. “What do you say we go upstairs and pick a jury?”
“Yeah, let’s. The sooner I get at it, the better I’ll feel,” Marc said.
“Marc, everybody goes through those first-day jitters. You’ll be fine.”
“I know, let’s go.”
They checked in with Judge Koch’s clerk who took both of them back to the judge’s chambers. On their way back, Marc asked the clerk if the prosecution had arrived. He received a negative response then asked why they were seeing the judge ex parte.
“The TV lawyers are taking another shot at getting the camera’s turned on. Judge Koch told me to bring you back as soon as you got here.”
“Good morning, gentlemen,” the judge said when they entered her chambers. As they sat down on her couch, she continued by asking, “Mr. Cline, to what do we owe the pleasure of your appearance?”
“I’m co-counsel for the defense, your Honor. I filed my appearance with your clerk,” Barry said.
For the next fifteen minutes during which Tommy Harris and Paul Ramsey arrived, the lawyers for the broadcast media made one final pitch to the judge.
“The court of appeals said no and I’ve said no. I gave you this opportunity as a courtesy but I haven’t heard anything new,” Koch said when the last of the lawyers finished. “What do you think, Mr. Kadella?”
“I think they’ve billed enough time to this…”
“I resent that!” the lead attorney said glaring at Marc.
“… the answer is still no and it’s time we started our trial.”
“I agree,” Koch replied. “Motion denied. Anything else?” she asked. The judge looked around the room and received no reply. “Good. I’ll be out in a few minutes.”
With that the small herd of highly priced corporate lawyers filed out followed by Marc, Barry and the prosecutors.
Howie and Father John were waiting for them, seated at the defense table. Marc introduced Barry to both men and reminded Howie that Barry would be helping him with the jury selection. The four of them discussed their seating arrangement and decided to have the priest at the table.
When Tommy Harris saw this he came to the defense table and said, “I’m going to object to the priest sitting at the defense table.”
“Take your best shot, Tommy,” Marc said.
During the past six weeks, Marc had come to know Tommy Harris and his assistant, Paul Ramsey. Harris was a steady, competent lawyer who wasn’t going to excite a jury but likely wouldn’t make a big mistake, either. Ramsey was a sharp, if inexperienced kid, who came from a well known Minnesota family. In fact, he was a direct descendant of Alexander Ramsey, the state’s second governor for whom Ramsey County was named. Despite that, the young prosecutor was a pleasant man and Marc liked him.
Tommy Harris, on the other hand was obviously Slocum’s boy. He never missed an opportunity to let you know of his close, personal friendship with the county attorney. As a joke, Marc had considered buying Harris a pair of knee pads and lip balm. Concern for his client prevailed and he let the thought pass, for now.
Judge Koch came out on the bench a few minutes after nine. She looked over the jam-packed gallery and spent ten minutes politely but firmly explaining court decorum to everyone. When she finished, Harris requested a bench conference.
The four lawyers went up to the bench and Harris argued that the priest’s appearance at the defense table was prejudicial. Marc argued his client was allowed spiritual comforting and Koch split the difference. She ruled Father John could not sit at the table but could use one of the chairs in front of the rail directly behind the table but only during jury selection. During the trial she would have the deputies reserve a front row seat for him behind the bar.
While the lawyer’s retreated to their seats, Marc looked at the empty chairs behind their table. Something about them bothered him and it finally occurred to him what it was. He missed having Maddy sitting there. In big cases like this, having her there was somehow a comfort and it didn’t hurt to have a beautiful woman distracting the jurors.
The prosecutors and the defense had been given a list of one hundred prospective jurors. Each name contained some basic information about that person; such as age, marital status, employment and a few minor details.
Marc and Barry, with Connie Mickelson and Chris Grafton providing occasional help, had gone over every name on the list. In addition, Sandy and the office paralegal, Jeff Modell, had conducted a thorough internet search of each of them. The two lawyers had put each name into one of three categories; yes, no and maybes. The maybes had then been further classified on a one to ten scale. One being almost a no and ten being almost a yes.
The prosecution was working with a professional team of people to provide jury selection guidance. The firm they hired consisted of sociologists, psychologists, a retired trial judge and lawyers. They believed theirs was a much more scientific method of selecting jurors. Some lawyers swore by them and some swore at them. The simple truth is every lawyer has an opinion about how to select a jury and they are all about as accurate or inaccurate as any. Virtually all of them agree you could probably take the first twelve people you meet on the street and do about as well. No one has the balls to do it.
Because this was a homicide trial, the jurors or, more accurately, the veniremen, by Minnesota court rules must be questioned and selected one at a time. Obviously, this would slow the process down significantly.
The prosecution had requested that the identities of the jurors be kept secret. This was the subject of a very heated argument between Marc and Harris. The prosecution argued that since one of the victims was the foreman of Traynor’s previous trials, the jurors were not safe from retribution. Marc countered by pointing out that to do so would have the practical effect of sending a clear signal to the jury. The jury could easily infer that the defendant was presumed guilty and must prove his innocence. Keeping their identities secret would tell the jurors they were not safe from the defendant. Fortunately, the judge agreed with Marc.
The first venireman to be brought in was a man named George Zimmer. He was a sixty-seven-year-old, retired firefighter with the Minneapolis Fire Department. Marc had him listed as a “no” for his selections. Likely a little too law and order conservative.
Judge Koch began the questioning of him to probe a bit for any obvious biases. Each prospective juror had received a questionnaire and their answers to these had been provided to both the prosecution and defense. Most of the questions the judge asked were covered in the questionnaire. She asked them anyway because reading a sterile, written document is not the same as having the live person in front of you.
Judge Koch completed the questioning then turned Zimmer over to Marc. By the rules of criminal procedure, the defense would question each juror first.
Marc wanted to use this opportunity to accomplish a couple of things. Since it was extremely unlikely anyone would admit to a blatant bias, although occasionally it did happen, Marc wanted to indoctrinate each juror in certain legal concepts.
Anyone in America with a TV set had heard the terms “beyond a reasonable doubt” and “innocent until proven guilty.” Judge Koch had gone over these concepts wi
th Mr. Zimmer but Marc took the time to make sure he understood them specifically with a slant favorable to the defendant.
More importantly, this was each lawyer’s opportunity to make a good first impression on the juror. After all, if this pleasant, well dressed, soft spoken man believed in his client, maybe the defendant is innocent. It didn’t hurt to have a priest sitting directly behind the defendant, either. Marc did this by engaging Zimmer in a conversation getting Zimmer to talk about himself. Most people like to tell others about their lives, their families, their careers and Marc was becoming quite adept at conveying to a jury that he genuinely cared about what they have to say. Marc’s original mentor, Mickey O’Herlihy, liked to say, “If you can fake sincerity, you’re half way to an acquittal.”
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.
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