by Paul Levine
“I’m the one who tried to protect her.”
“From what?”
“If you cared more about her, you’d know what she was mixed up in.”
“So tell me. Look, I cared for Pam. A lot. I thought she was trustworthy and it turned out I was wrong.”
He snickered. “You thought she was your girlfriend, too. You didn’t know she was banging Eddie Novak, did you?”
“Not until yesterday.”
He smiled with pleasure, enjoying my pain. “Novak used to come over to her place nearly every Sunday night.”
“So I’ve been told.”
Crowder looked at me as if trying to decide whether to go on. There’s a natural instinct that makes people want to show how much they know. Part of Crowder didn’t want to help me, but part of him wanted to demonstrate just how smart he was. I waited a moment, listening to The Black Keys singing Lonely Boy.
“Then there was the last Sunday night,” he said, “the week before Pam was killed.”
“Yeah?”
He paused again, as if not knowing whether to keep going. After a moment, Crowder said, “Novak came over to her condo about 11 p.m. Parked his Maserati in a handicapped space, like always, then rang her from the security phone at the front door.” He allowed himself a little smile. “But she wouldn’t buzz him in.”
“And you know this because…?”
“I was sitting in my truck across the street.” He shrugged. “I do it sometime. I don’t bother her. Anyway, I could tell from his body language Pam had shot him down. Novak slammed the phone down, stomped back to his Maserati, and peeled rubber getting out of there.”
I thought back to that Sunday night. I’d spent the evening with nephew Kip. We were bowling at the old lanes on Bird Road, west of the Palmetto Expressway.
“Maybe Pam had another man in her condo that night,” I suggested.
“My first thought, exactly. That’s why I went inside.”
“You have a key?”
“I know the pass code. I went up to the penthouse, jimmied the door to the roof, then climbed down three floors to Pam’s balcony.”
Nice image. I pictured Crowder doing the same thing at the Fontainebleau, swinging balcony-to-balcony, like an overgrown monkey, finally coming through one of our sliding doors.
“Okay, so now you’re a peeper,” I said. “What did you see?”
“Pam was in her study, sitting at a desk with her back to the window. Black negligee with red trim. You know the one?”
“That’s it? She was sitting at a computer working, and she didn’t let Novak come upstairs?”
“That ain’t it. After about an hour…”
“An hour! You watched her all that time?”
“Yeah, I got a lot of patience, man. She picked up the phone and dialed.”
“I don’t suppose you know who.”
Another pause.
“The sliding door was cracked open and I could hear through the screen.”
“Yeah?”
“She called Novak. Said ‘get your ass back over here you son-of-a-bitch. We gotta talk.’”
That didn’t sound like Pam to me. But then, I was still learning all these different sides to the woman.
“Did he come back?”
“That’s all I’m saying. You’re on your own with the rest.”
I’m an old hand at dealing with reluctant witnesses and wasn’t giving up that easily. “Did you ever see Pam again?”
Silence.
I was doing the math. Six nights after Crowder turned peeper, Pam and I went to dinner, and before daybreak, she would be dead.
“C’mon, Crowder. Help me find out what happened.”
“I didn’t see her, but I talked to her.” So much for his pledge of silence.
“When?”
More thought time, Crowder wrinkling his broad brow. “Okay, I told the cops so I might as well tell you. “When you were having dinner on South Beach, she called me.”
So she had made a call after we started arguing. Doc Charlie Riggs had been right about that phony trip to the rest room. But why did Pam call the guy who’d been stalking her?
“What did she say?” I asked.
“You ain’t gonna like it.”
“Jeez, Crowder. Just tell me. Tell me the same thing you told the cops. They’ll have to disclose it in discovery.”
“All right, pal. You asked for it. Pam said she was scared.”
“Of what? The escargot?”
“Of you, man.”
“Bullshit.”
“It’s the truth. She said, ‘Mitch, I’m freaking out. I caught Jake dipping into client funds, and I think he might kill me.’”
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA - SPRING TERM 2013
STATE OF FLORIDA
vs.
JACOB LASSITER
MURDER FIRST DEGREE
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:
The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Miami-Dade, upon their oaths, present that on or about the 9th day of June 2013, within the County of Miami-Dade, State of Florida, JACOB LASSITER did unlawfully and feloniously kill a human being, to wit: PAMELA BAYLINS, from a premeditated design to effect the death of the person killed by strangling the said PAMELA BAYLINS, in violation of Section 782.04(1)(a(1), Florida Statutes, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.
Five months later…
15
De-Selecting the Jury
I was scared. Didn’t sleep last night. Tossed my cookies – coffee and oatmeal – this morning. Now, sitting at the defense table, I could feel rivulets of sweat running down my back, and yet I was chilled in the meat-locker air conditioning.
Dread filled me, heavy as cold mud. In this very building, I have personally witnessed acts of ignorance, intolerance, and injustice on a nearly daily basis for two decades. Today, I felt out of control and helpless, my fate to be determined by a dozen strangers of dubious intellect.
As ill-at-ease as I was, my lawyer seemed as comfortable as a queen in her castle. I always tell young defense lawyers to act as if they owned the courtroom. All others, even the judge and prosecutor, were just invited guests. At this moment, the courtroom belonged to Willow Marsh. She was on her feet, tall and elegant, in front of the jury box.
“Ladies and gentlemen, my name is Willow Marsh, and I have the great privilege of representing Jake Lassiter, the man seated here at the table.”
A great privilege, indeed.
The subtext of the opening line of Willow’s voir dire was clear. I’m an attractive, intelligent lawyer, and if I like my client, so should you yahoos in the jury box.
My counselor went on: “My client grew up just down U.S. 1 in Key Largo and was a star football player at Coral Shores High School in Islamorada. Without a scholarship, he walked on to the football team at Penn State where he eventually became a starter. Without being drafted, he signed with the Miami Dolphins as a free agent linebacker, where he was not a star, but he made the most of his abilities with hard work, dedication and perseverance.”
Thankfully, no mention of the time I recovered a fumble, got turned around and scored for the other team…the hated New York Jets.
“Surprising many people, he attended night law school and passed the bar exam…”
On my fourth try.
“As a lawyer, he applies the same hard work and discipline as he did on the football field. Above all he is an ethical lawyer.”
When the occasion calls for it, that’s true.
“Now, do any of you know Mr. Lassiter…?”
We de-selected a jury in two-and-a-half days.
That’s right. You don’t select a jury. A bunch of people show up in court – most of them unwillingly – and wi
ll be seated unless the defense or the state “de-selects” them. Willow’s task is to find jurors who can look me in the eye and promise to be the last bastion between the overpowering might of the state and the steel doors at Raiford. Jurors who damn well will presume that I am innocent as a newborn babe as I sit here today, charged with a heinous crime. If they can’t, get the hell out of the courtroom!
Voir dire is a French term meaning “to speak the truth.” Not that we’re looking for a “fair” jury. The defense wants people who distrust government in general and police officers in particular.
“Would you give more weight to the testimony of a police officer than an ordinary citizen?”
Who’s my model juror? A man who had been unjustly charged with a crime after police officers lied to get a search warrant, then broke down his door and shot his dog. Unfortunately, the state would exercise a peremptory challenge faster than you could say “respectfully excused.”
We want skeptics. We want people who are filled with doubts about a myriad of official truths so that they have no trouble finding the defendant not guilty. It’s a bit of a high-wire act. While we want people who distrust authority, we need them to give utmost respect to the judge’s instruction on reasonable doubt.
“Do you have any difficulty following the requirement of the law that the prosecution must convince you beyond a reasonable doubt that my client was in fact the person who committed this crime?”
For the record, here’s what the judge will tell the jury when all the evidence is in and both sides have rested:
“The defendant has entered a plea of not guilty. This means you must presume the defendant is innocent…”
I love the way that begins.
“The presumption stays with the defendant as to each material allegation through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt…”
Honestly, how do they ever convict anyone, especially because it takes unanimity? And yet, the conviction rate for murder trials is around 80 per cent. If you add guilty pleas to that number, it’s way higher.
“To overcome the defendant’s presumption of innocence, the state has the burden of proving the crime was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or to prove anything…”
I get goosebumps just thinking about the majesty of the legal system…when I’m sitting as the defendant.
“Whenever the words ‘reasonable doubt’ are used, you must consider the following: A reasonable doubt is not a mere doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt…”
Okay, I’m not crazy about that part of the instruction.
“On the other hand, if after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or if having a conviction, it is one which is not stable, but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.”
Simple, huh? No, it’s tricky as hell. Sometimes, I wonder how juries ever get anything right.
But back to voir dire. Willow Marsh was a cagy practitioner, skilled at getting the jurors to talk. Once she got through the boilerplate questions, she eased the prospects into talking about marriages, occupations, children, political beliefs, and what bumper stickers they have on their cars.
A juror with a “Save the Whales” sticker is probably a bit different than one whose car shouts out: “Protected by Smith & Wesson.”
During recess, two of Willow’s investigators mingled with prospective jurors in the elevators and the lobby restaurant. Not saying a word, but listening, alert to any hint of bias…for or against us.
While in the courtroom, Willow was careful not to be too chummy with Emilia Vazquez. It’s difficult to later portray the prosecutor as the voice of evil if you’re exchanging smiles at the trial’s outset. On the other hand, Willow smiled frequently and warmly at me when the jurors were in the courtroom. The idea was to reinforce the first line of her greeting: if this classy lady lawyer likes the defendant, she must believe he’s not a murderer.
Willow assigned to me the task of judging the panel’s non-verbal communication. Crossed arms and legs and pursed lips do not make a friendly juror.
After two-and-a-half days, we had a jury. This being a murder trial, we had twelve jurors, instead of six. Our dozen consisted of seven males and five females. Three Anglos, six Hispanics, and three African Americans. Another three unfortunate souls sat as alternates.
As soon as they were sworn and got used to the rocking mechanism of their chairs, the jurors began studying me. What did they see? A big ex-jock with a propensity for anger and violence? Or an honest, law-abiding man who was clueless as to the horrific fate that had befallen his beloved? No way to know but one thing was certain: my freedom rested on the ultimate answer to those questions. I could spend the rest of my life eating bologna sandwiches and exercising in a prison yard, or I could be the wrongfully accused lawyer who would become the subject of sympathetic news accounts.
I wanted to yell at the panel: “I’m innocent! Can’t you see that?”
But I just sat there, hands folded in front of me, jaw tightly closed, and for the first time in many years, I said a prayer to that big appellate court in the sky.
16
Rational vs. Emotional Murder
In between jury selection and opening statements, I nearly fired my lawyer. Our conversation took place in front of the Justice Building, next to the 250-foot long pink marble pool festooned with fountains. The fountains have been broken and the pool dry for several years. Budget cuts, you know. It was November, and a cooling breeze from the northeast rustled used hot dog wrappers across the patio. Black vultures circled above the building, soaring in the updrafts, while lawyers in Porsches circled the parking lot below. Nah, I’m not drawing any parallels.
“Did you ever play any sexual fetish games with Pamela?” Willow had asked.
“Is that a legal question or just for your own prurient interest?”
“We need to attack premeditation. If you were playing a sex game…cutting off Pamela’s oxygen, and it got out of hand…”
She let the sentence hang there, like a pair of handcuffs dangling from a bedpost.
I waited a moment as two uniformed Miami Beach cops headed into the building. “Willow, are you talking about involuntary manslaughter?”
“It is a lesser included offense,” she said.
“Except Pamela and I weren’t playing sex games. I didn’t put the belt around her neck. We were drinking and arguing, accusing each other of theft. She swiped me across the face, and I left. Somebody else came in and killed her.”
Willow fiddled with her pen, buying time. It seemed to me that she wanted to take the conversation down a path loaded with minefields.
“We have to face the fact that the state has a strong case,” she said at last. “My job is to do anything I can to attack premeditation. You’re entitled to jury instructions on the lesser includeds. Second degree murder. Voluntary manslaughter. Involuntary manslaughter.”
Of course, I knew all that. Everyone in the country knew it from watching the George Zimmerman trial. He received a jury instruction on manslaughter as well as murder, and then got acquitted of both in the shooting of Trayvon Martin.
“Don’t want them!” I thundered. “Don’t want some compromise verdict locking me away when I didn’t do the crime.”
“If you were angry at Pamela, as you admit, and if in the course of an argument you killed her without any planning or intent…”
“I didn’t!”
“A killing in the heat of anger could be manslaughter. It’s the difference between an emotional and a rational killing.”
“Technically, yes. But I’ve s
een the state take an emotional killing and claim that the emotion is the motive that proves premeditation. They get us coming and going.”
“To sustain premeditation, the state would have to prove that your emotions didn’t interfere with your decision-making process.”
“Willow, are you listening to me? We’re just jerking off here. I didn’t kill Pamela, no matter how rational or emotional the reason might be.”
“I have a duty to run through all of this with you. You’re in a bind. If the state proves you moved the money from the trust accounts and Pamela found out, you have a rational motive for murder. If we prove Pamela stole the money, you have an emotional motive. If you found out she was cheating on you, there’s another emotional motive.”
“I get it.”
“Do you? Even if you think you know your way around the courthouse, this is different. You’re the defendant, and you can’t be objective. I can.”
“I know what happened, and you don’t.”
“So who killed Pamela?”
That stopped me for a moment.
“I don’t know,” I said.
“That’s what I thought. Look, I think you were over-charged. For first degree, there has to be time for reflection. There’s an intent to kill, some moments to think about it, and the killing itself. I don’t think they can prove a careful consideration to kill. But second degree murder is a definite possibility, probably more than 50 percent.”
“Great. Just great. If I didn’t know better, I’d say you’re setting me up for plea negotiations.”
She was silent a moment.
“Oh shit, Willow!”
She stayed as quiet as a defendant invoking the Fifth.
“C’mon, what’d they offer?”
“Plead to voluntary manslaughter. Twelve years. With gain time, you serve 10 years and two months. But if you do some good work in prison, maybe help in the law library, teach some classes, after maybe a few years, we’ll appeal to the Clemency Board to commute your sentence.”