by Adam Mitzner
“Thank you,” I said, as if I had received an honor rather than a tongue-lashing. “Put simply, in the Batson case, the United States Supreme Court held that, even though peremptory challenges can be made without cause, they cannot be racially motivated. In this case—”
“That’s enough, Mr. Sorensen.”
I had more to say, but Judge Pielmeier had already heard enough. More than enough, I’m sure she would have said.
Seeing it was her turn, Kaplan rose to respond, but Judge Pielmeier gestured that she should resume her seat. “Ms. Kaplan, there’s no need for you even to waste your breath on this one.”
Then, turning back to me with anger still all over her face, Judge Pielmeier continued, “This is the ruling of the court. Defendant’s Batson challenge is denied and deemed frivolous. I have, off the record, explained to Mr. Sorensen that this type of conduct will not be tolerated in my courtroom. But more than that, no one is more opposed to racial profiling than me. I have written opinions on the subject and testified before Congress about it. It does a disservice to allege racial profiling without any basis, which is precisely what this court believes the defendant’s counsel has done. I understand that lawyers are duty bound to zealously advocate for their clients, but I do not believe that extends to a blatant attempt to contaminate what counsel believes to be a demographically unfavorable jury pool by yelling ‘Racism!’ when there’s absolutely no evidence to support such a serious charge. To erase any doubt that Ms. Kaplan acted in anything but a completely appropriate manner, I would have struck those jurors, too. Let the record therefore show that it was with serious reservations that I dismissed the first jury pool and the one already-seated juror, but I did so because continuing with a possibly tainted jury pool was not in the best interests of justice. I’m going to give the prosecution back their two peremptories, and I’m taking two peremptory challenges away from the defense as punishment. So the prosecution has their six back, and Mr. Sorensen and Ms. Harrington, you are now down to seven, and I’ll keep chopping away at that if I have to. Now . . . we’re going to bring in a new pool, and we’re definitely going to seat a jury today. Does everyone understand?”
“Yes, Your Honor,” Kaplan and I said in unison.
“I know you understand, Ms. Kaplan,” Judge Pielmeier said, “but I’m not sure that Mr. Sorensen does. So, Mr. Sorensen: let me be absolutely clear. This is when I might tell you that the next time you pull a stunt like that, I’m going to hold you in contempt, but that would suggest there might be a next time. Rather, I want you to understand, in no uncertain terms, that there will not be a next time. Is that clear, sir?”
“Yes, Your Honor,” I said, trying hard not to show even the hint of a smile.
And wouldn’t you know, the next jury pool turned out to be as good for us as the previous pool had been bad. Even with our side having two fewer peremptory challenges, the jury that was seated was better than we could have hoped for. Seven of the twelve were African-American men under forty. Among the other five, there wasn’t a single white male over fifty.
We actually had a shot now.
38
I knew Nina disapproved.
She didn’t say anything about it during the walk back to my apartment after court, beyond a cryptic comment that I “must be pleased with our jury,” but I could tell by her body language that she was unnerved by my conduct.
We ordered in Chinese food for dinner. One thing we had agreed upon was that we shouldn’t be seen in restaurants during the trial. A photo of Nina and me smiling or canoodling over glasses of wine would undo our effort to portray ourselves as single-minded in our devotion to Legally Dead’s innocence.
After a bite of steamed vegetable dumplings, Nina finally made reference to the elephant in the room.
“Just so I’m clear, Dan . . . is this one of those ‘we’re going to do whatever it takes to win’ kind of things? Or was today a onetime detour from the world of ethics?”
“We didn’t have a chance with that jury pool, Nina.”
She frowned at me. “That’s not an answer, and you know it. Besides, Kaplan now has as bad a jury for her as we originally had for us. Do you think she’s got no chance? Did you hear her yelling ‘racism’?”
“Her client doesn’t have a constitutional right to a trial by a jury of its peers. Our client does.”
She put down her chopsticks. It looked like she was debating with herself whether to let the issue go or take another stab at it.
Apparently she decided to give it one more try.
“It scared me a little bit. Seeing you that way.”
The sentiment surprised me. I had anticipated her saying that she was disappointed in me, claiming that I should have more faith in myself or the legal system than to feel like I needed to put my thumb on the scale.
But scared?
“I don’t understand,” I said.
“I’m worried that this case has made you desperate. You know, it isn’t lost on me that our client—who may end up spending the rest of his life in prison—seems to be at peace with that, so long as he’s true to himself. I worry sometimes that . . . well, that that’s not the case for you. That you won’t be at peace with yourself if we lose, and that’s making you betray who you are.”
I dismissed the suggestion out with a shake of my head and a smile.
“No, that’s not right,” I said. “Believe me. I’ll be fine, win or lose.”
But even as I said this, I knew Nina was right. Although I had told myself repeatedly that L.D. could be found guilty, and I could go on to lead a very happy life, with Nina at my side, for some reason, I couldn’t see it unfolding that way. The lesson I took away from Darrius Macy was that I’d been punished for my role in allowing a rapist to go free. To undo that required more than L.D. being found not guilty. He had to be truly innocent and he had to be acquitted.
This meant, when you parsed through it all, that Nina was right. There would be no peace for me if we lost.
• • •
Later that evening, as I worked on my opening statement, Nina appeared to be working just as hard on distracting me from working on my opening statement. I was hunched over my laptop while Nina was kissing my ear.
“Are you already bored with me, Dan? Is that where this relationship is going?”
“So you don’t subscribe to the rule adhered to by football players—no sex the night before the big game?”
“I’ve dated more than my fair share of football players, and most of them claimed to have had the best games of their career after having sex with me. So, you may want to keep that in mind.”
She said this with laughter, but I had little doubt it was true. I also knew that, like with most issues pertaining to Nina, I was going to give in.
Afterward, we both dozed off. When I awoke about an hour later, Nina was breathing softly beside me. I decided to let her sleep, and turned back to the opening. I wasn’t working long before she was awake.
“Hey. Come back to bed,” she cooed.
“Soon. I need to do a little more work.”
“How’s it coming along?”
“Okay, but I’m struggling with that age-old debate about our SODDI guy. Do we go after Brooks in the opening or hold fire?”
“You know my view,” she said with a yawn. “It’s just too risky.”
Nina was sitting up in bed. She held the top sheet over her breasts, like they do in the movies, a bit of modesty that seemed out of character for her.
“I’m just worried that we’ll lose some of the jury from the get-go,” I said. “Once that happens, you never get them back. They’re expecting us to argue that L.D. didn’t do it, which means that someone else did, and so they’re just going to glaze over when I make that point. What they’re not expecting is for us to identify the murderer. If we name Brooks, then they’ll be attentive for the whole trial, waiting for evidence linking to him.”
“That’s the problem, though, isn’t it?” she said, smoo
thing her hair. “We don’t have that evidence. You may be right that if we pin our whole case on proving that Brooks did it, the jury won’t jump to the conclusion that L.D. is guilty during the opening. But so what? When our case is over and we haven’t proved that Brooks did it—or offered much even to suggest that he did—the jury is going to feel bait-and-switched. Besides, even if you’re right about needing to give the jury another person to blame, it doesn’t mean that you have to give them a specific someone else in the opening. If you feel we need to go that way, leave the SODDI guy nameless. So, you’ll say, ‘Ladies and gentlemen of the jury, Roxanne had another lover and he’s the real killer.’ ”
And if her logic weren’t enough to persuade me, she let the top sheet drop, exposing her perfect, full breasts.
“Now you’re playing unfair,” I said.
“All’s fair,” she replied coyly. “Now, hear me out on this. You have to remember, we have no idea where Matt Brooks was the night of the murder. I bet his wife alibis him, whether he was with her or not. And if we go after Brooks in opening, we give Kaplan time to see if Brooks’s prints match the ones left at Roxanne’s house, and maybe she’ll even have her expert do the match on the pubic hair.”
I shook my head in disagreement. “If we put L.D. on, Kaplan will call Brooks in her rebuttal case. And if she needs time to run tests on the pubic hairs, do you think Judge Pielmeier won’t give it to her?”
Nina shrugged. “That’s a good argument for keeping L.D. off the stand. But it’s not a reason for going after Brooks in the opening.”
I was still thinking about how that would play out, and whether it was even possible to convince L.D. not to testify, when Nina got out of bed. Still naked, she walked over to me, not the least bit self-conscious. When she knelt beside me to kiss the back of my neck, I could feel the softness of her breast along my back.
Her hand started at my chest, but in no time it was beneath the elastic on my pajama bottoms. For a moment I wasn’t sure if this was because she’d convinced me with regard to our trial strategy, or if she thought I needed a little more encouragement.
Either way, it was enough for me to forget anything about the opening.
39
The next day, we all waited forty minutes before Judge Pielmeier took the bench. She welcomed the gallery back, and then called for the guards to bring in the defendant. That’s what she always called L.D.—the defendant.
L.D. entered wearing the same exact suit, shirt, and tie as the day before. Nina leaned over to me. “Let’s remember to bring him a new tie tomorrow.”
After L.D. took his seat, and the guards took theirs behind us, Judge Pielmeier called for the jury. To a person, they looked dead tired. Yesterday was exciting, the whole waiting-to-be-selected thing, but now, even before the trial had begun, they looked no different from anybody else at the start of a workweek.
When the jury was ready, Judge Pielmeier went through the standard pretrial speeches. First she explained that L.D. was innocent until proven guilty, offering a circular explanation of reasonable doubt.
“It doesn’t mean ‘no doubt,’ ” she said, “but it also doesn’t require that you be certain of the defendant’s guilt. The standard is that if you have doubts that are reasonable as to whether the defendant is guilty, you must vote not guilty.”
After that, she instructed the jurors that they should consider as evidence only what the witnesses said. “Now, these lawyers, they’re smart and they know all the tricks, but not one of them knows anything about this case except what other people have told them. And guess what, that’s what you’ll know, too, after the evidence. So my instruction to you is this: listen to the lawyers, but understand that what they tell you should only be used as a road map showing the evidence that is about to come up. And like any road map, it should only serve as a guide. Don’t let it overrule your eyes and ears and good judgment. If one of the lawyers tells you something is true, but none of the evidence supports that conclusion, then you should not believe it, any more than you should keep going on a road that you can see out your windshield is a dead end. Which is a long way of saying, ladies and gentlemen of the jury, trust your own judgment.”
The jurors nodded in unison, which was enough for Judge Pielmeier to get down to business. “Ms. Kaplan,” the judge said, “we’re ready to hear your opening statement.”
Kaplan walked in front of the jury, introduced herself as “Assistant District Attorney Lisa Kaplan, representing the people of the state of New York,” and then walked back to counsel table and sat down. She waited long enough to build some suspense, but not so long as to allow anyone’s mind to wander. Then she pressed a button on the laptop beside her.
L.D.’s voice blared through the courtroom’s speakers:
Gonna stop you when you sing,
gonna give it til you scream;
don’t like what you said,
gonna go A-Rod on your head.
Then the music came to a dead halt.
All eyes were on Kaplan, and she milked it but good. She didn’t move, remaining in her seat for about ten seconds, and then, still without saying a word, walked in front of the jury as deliberately as she had before.
Once she was facing them again, she repeated the lines, somehow managing to make them sound even more frightening than when L.D. rapped them.
“Gonna stop you when you sing,
gonna give it til you scream;
don’t like what you said,
gonna go A-Rod on your head.
“This isn’t a confession,” Kaplan said. “Confessions come after the crime. This, ladies and gentlemen of the jury, was a threat—a threat of murder, made by the defendant”—she pointed at L.D., just like they teach you on the first day of ADA school—“Nelson Patterson, aka Legally Dead. Then, when he didn’t like what Roxanne said, Legally Dead made good on that threat by brutally bashing in Roxanne’s beautiful face. In other words, he went A-Rod on her head.”
Kaplan told the jury there were some things about which there could be no doubt, so much so that not even the defense—and then she pointed at me—would claim otherwise. Among these indisputable facts, Kaplan included that Roxanne and L.D. were lovers, that L.D. had written a song in which he bragged about beating to death a singer with a baseball bat, and that Roxanne was a singer who was murdered by being beaten to death with a baseball bat.
“These facts,” she said, “leave no doubt that Legally Dead murdered Roxanne. No doubt.”
Then she played the audio again, to emphasize her point.
Gonna stop you when you sing,
gonna give it til you scream;
don’t like what you said,
gonna go A-Rod on your head.
I figured that was going to be her closing flurry, but as Kaplan made her way back to the counsel table, John Something-or-Other, the bald guy second-seating her, handed her a baseball bat.
“Objection!” I shouted, mindful of Judge Pielmeier’s admonition not to say more than one word.
“Overruled,” she replied without even asking me to state the grounds.
Kaplan then showed me how formidable an adversary she would be. Picking up on the fact that the jury undoubtedly didn’t follow what had just occurred, she put herself in the role of their friend.
“Ladies and gentlemen, Mr. Sorensen objected because, as our witnesses will explain to you later, the murder weapon in this case has not been found. Legally Dead was way too clever to leave behind something that would link him to this crime. But you’ll hear that Roxanne was given a baseball bat as a gift when she sang our national anthem at the first game of the World Series, a bat signed by the players on both teams. Roxanne kept that bat in her bedroom, and it was there on the last day of her life. And you’ll hear that when the police arrived after her death, it was gone, and it has never been found. And, of course, the song clearly threatens a brutal beating with a baseball bat. But, ladies and gentlemen, at the end of the day, it matters very little what wea
pon killed her. Certainly it didn’t matter to Roxanne. No, what matters, what you must always remember when you’re hearing evidence, is that the last moments of Roxanne’s life involved her being violently struck by a powerful object until her body could no longer withstand the blows.”
She walked over to the jury box, holding the bat in her hand. I knew what she was going to do and my mind raced through the possible objections I could make. None seemed to apply and my quick calculation was that by saying anything, I’d only make things worse.
“Just imagine,” Kaplan continued, now only inches away from the jury foreperson, “what that must have been like for Roxanne. There she was, alone in her bedroom with the man she had been intimate with, and he stood over her holding a baseball bat.” Kaplan raised the bat over her head, and as she did, each juror’s eyes pointed toward the bat. “And then Roxanne saw that weapon come crashing down on her,” and with that Kaplan struck the wooden rail hard enough to make the jurors jump back.
Pure theatrics, but my God, was it effective.
• • •
“Let’s start with the name,” I said when it was my turn.
Once Nina and I had decided not to come clean about L.D.’s birth name, we’d still had to figure out what we were going to call him. We were fairly confident that the prosecution would call him Legally Dead, unless they could pin some other, more offensive, moniker on him. I gave some thought to asking Judge Pielmeier to require the prosecution to refer to him as Mr. Patterson, a tactic often used in mob cases when the defense doesn’t want the defendant referred to as Johnny the Rat or Jimmy the Axe, but I ultimately concluded that the jury would find it disingenuous to portray L.D. as someone different from the man they’d read so much about in the news. I also doubted that Judge Pielmeier would rule in our favor.