Compelling Evidence

by Steve Martini

  I find he is skilled in his questioning, polished in his approach. He uses his noble bearing not to overwhelm the jury but to folks it to death.

  There is an art to voir dire, different from the examination of witnesses, and Duane Nelson excels in it.

  The adroit question to a juror, unlike direct examination, which often seeks a “yes” or “no” reply, is open-ended, designed to elicit conversation, a narrative from the veniremen, during which the lawyer can search out subtle prejudices. He works on his first juror, Mark Felding, in his thirties, a draftsman for a local architectural firm.

  “Tell me about your family, Mr. Felding.

  “Tell me, did you attend college?

  “Tell me a little about the subjects you studied.”

  Like the spider to the fly—“tell me,” “tell me,” “tell me.”

  Nelson is schooled. He keys in on the big-ticket items. Studies have shown that more than in any other place—the family, school, church, or social organizations—overt prejudice is fostered most in the work place.

  “Tell us a little about your line of work,” he says. “Tell us about your fellow workers. Are many of them women? Are any of your supervisors women?”

  He looks for signs, the latent sneer, overt patronage, resentment at being under some occupational high heel, promising signs, things that might, in the due course of trial, lead to a little unknowing and repressed revenge.

  Felding waves it off, normal, well adjusted by all accounts, “red-blooded,” perhaps himself a skirt chaser—good for our side.

  Nelson works his way through three more jurors in an hour and turns them over to me again.

  I return to Felding, lay light on him, some follow-up questions to put a face on it after Nelson’s examination. I’m throwing him a few big marshmallows.

  “Can you judge this case fairly?

  “Can you put everything out of your mind but the evidence?”

  Questions requiring nothing more than a cursory “yes” or “no.” I try to pump up a little suspicion, a projection to Nelson that this man is not all I would hope for.

  I move on to witness number four, Mary Blanchard, twenty-seven, a secretary with a small electronics company.

  The danger of women—married and, worse, divorced—is that Talia will be viewed as the mythical “Other Woman,” a female capable of stealing their husbands away if given the opportunity. In the age-old battle of the distaff set, a man is the prize that goes to the victor, and Talia has displayed an astonishing ability to win in this war. She will be perceived as a threat in the competition for men. The prudent defense lawyer will avoid, like the plague, people on the jury who feel threatened by the defendant. To admit too many women to the jury is to run the risk of turning the trial into a silent and psychic cat fight.

  “Tell me, Ms. Blanchard, about your family,” I say.

  Three children, a dog, divorced. I shudder and move on to happier subjects. In an hour I have worked my way through three more jurors.

  I turn them over to Nelson and he starts with Blanchard, then moves to Susan Hoskins, a housewife, married to the pastor of a church. He moves more swiftly now. By three in the afternoon we have worked our way through the first panel of jurors, and Acosta asks us to pass upon them for cause.

  “Peremptories, gentlemen?”

  I look at Nelson and nod, giving him the first shot.

  He pauses for a moment back at the counsel table and looks at his paper with the little grids. Then like lightning from a dark cloud: “The people would thank and excuse juror number one, Your Honor, Mr. Felding.”

  “You’re excused, Mr. Felding.”

  Zap, like that, and Felding is gone. The others are looking about, avoiding eye contact with this undesirable as he leaves, wondering what it was he had said that caused Nelson to reach back and make him an instant outcast.

  I return the favor. Mary Blanchard and Susan Hoskins are history, replaced by a man and a woman. Attrition will out, we will end up with a little male domination on this jury. Nelson comes back, and three more are gone. My turn, and I take out another four. By the time we are finished the jury box is looking decimated.

  As a theory they call it the “alpha factor.” In recent years I’ve become one of its adherents.

  Psychologists and those who work with them have isolated individual characteristics that cause some persons to establish dominance over others, territorial imperatives that give them influence. This human authority quotient is set by a number of factors. Age, gender, financial history, education, social status, mastery of the spoken tongue, and the number of people one supervises on the job—all of these and more are keys, indicative of the fact that the person may possess the alpha factor.

  It’s a dangerous game, dealing in authoritarian personalities, and not one that most defense attorneys take to naturally. The trick is to find that dominant spirit who will favor your theory of the case, take pity on your client or otherwise buy into your evidentiary bag of goodies. Pick wrong and this godlike figure in the jury room may lead the pack to hang your client.

  I thought I had him this morning. Sixty, silver-gray hair, articulate as the devil in his den, retired, professor emeritus at a small private college. A sociologist’s dream boat. Nine yards of touchyfeely in a package that looked like Maurice Chevalier. He came on strong, a humanist of the first order. Without his saying it, I could tell that to this man, human violence, even the ability to murder, was a character flaw to be counseled, cured, and quickly forgiven.

  Nelson turned him into instant dog meat—cannon fodder. I could have spit when he wasted this guy with a peremptory.

  Now we are getting thin. Challenges for cause are becoming more critical, but difficult to get. To Acosta, partiality, the specter of prejudice, is a thing of the past, a ghost that hangs its coat somewhere other than in his courtroom.

  *

  Five days into voir dire and we have empaneled nine jurors, six men and three women. The other three plus two alternates will take most of this day. We’re growing weary, doing this jury like an aerial dog fight, strafing the box, dealing out casualties, and taking more from this “target-rich environment,” as they say. The marble-mouths in the Pentagon would say they are “getting attrited.” The jury, the nine who have been here the longest, are beginning to look like the walking wounded.

  I’m matching Nelson peremptory for peremptory. We each have two left in our respective quivers, and I’m beginning to wonder if I will have to go back to the well, to remind Acosta of his earlier pledge, a few more if we need them, for fairness’ sake.

  “Mrs. Jackson”—I dip my wing and dive; another run—“tell me a little about yourself; what do you do occupationally?”

  The questionnaire that came with the jury list says “school administrator.” I want to see how many variations she can play on this theme, to draw her out.

  “I’m an administrator, with the school district,” she says. Short and clipped, and not too creative, like the lady’s following a script.

  “I know,” I say, “but what do you do?”

  “Budget oversight.” It is clear that Mrs. Jackson is not paid by the word. I might say this, even get a few laughs. But I have learned that jokes at the expense of an individual juror do not play well to the rest of the panel. Among people who moments before were strangers, the threat of probing and personal questions from a lawyer forms a fast fraternal bond.

  Mrs. Jackson sits glaring at me from the box.

  “I see you’re married. Can you tell us a little about your family?”

  “We have three children. My husband’s in security,” she says.

  I raise an eyebrow. “What type of security?”

  “Military police,” she says.

  I turn and look up at Acosta. His eyes are rolling in his head.

  “Mrs. Jackson,” says the judge, “didn’t you hear me ask whether you or any member of your family was involved in law enforcement?” This is part of Acosta’s general
spiel.

  She looks at the judge with a blank stare. “Yes.”

  “Well, you didn’t tell us your husband was in the military police. That is rather important.”

  “I thought you meant real law enforcement,” she says.

  There’s a little laughter from the audience.

  The judge is shaking his head. “Go on, Mr. Madriani.”

  I give the Coconut a look, like “Thanks for all your help.”

  “Does your husband make arrests in his line of work?”

  “On the base,” she says.

  “Does he testify in court?”

  “Military court-martials.” She pauses for a moment, straining in the box to think. This lady’s not going to get caught twice. “One time in federal court,” she admits.

  “Do you understand, Mrs. Jackson, that much of the testimony which will be provided by the state in this case will come from sworn law enforcement officers?”

  She nods.

  “You have to speak audibly so the reporter can hear you,” I tell her.

  “Yes, I understand about the police testifying.”

  “How reliable do you believe a police officer’s testimony is, Mrs. Jackson?”

  “Good,” she says. Like the Bible lettered in gold, I think.

  “Would you tend to think it’s more believable than testimony offered by, say, a plumber?”

  “Not if they’re talking about fixing a sink,” she says.

  There are a few chuckles from the panel and the audience. I laugh along with them, like some cheap MC.

  “Would you believe your husband, Mrs. Jackson?”

  “Depends what he told me.” More laughter from the audience. She’s loosening up now, a regular sit-down comic.

  “Would you tend to think that the testimony of a police officer is more believable, say, than testimony from a secretary?”

  “I’d have to hear the testimony.”

  I look at Acosta. There’s a tight little grin on his face, like “No help here.”

  I load up with a few leading questions.

  “I suppose,” I say, “that you share a lot of work experiences with your husband, that he tells you about arrests that he makes, about appearances in court or court-martials?”

  “Yes,” she says.

  “I suppose, if you were to see a young, good-looking police officer, maybe in uniform, appearing here in this trial, you might tend to think about your husband?”

  “I might,” she says.

  Acosta’s head is rolling slowly on his shoulders, like he’s on the ropes, close to a decision.

  “And if that same police officer were to testify, you might have pleasant thoughts of your husband?”

  She shrugs and says, “Maybe.”

  “Your Honor—”

  “All right, Mr. Madriani, you don’t have to put ’em in bed together.” Acosta shuffles a few papers on his desk. “We’re at that point anyway,” he says, “to pass upon cause for this panel. Any nominees, Mr. Madriani?”

  “Mrs. Jackson,” I say.

  “Mrs. Jackson, you’re excused,” he says, “for cause.”

  She gives me a dirty look as she pulls out of the box.

  Nelson and I pass on the rest for cause. We are getting close.

  Jackson’s seat is quickly filled, by another woman, a housewife from down near the delta.

  Nelson burns another peremptory, a young man in the front row. He was good for our side, articulate. This guy would not have to fantasize far to see Talia in his arms.

  The clerk brings up one more, an old man, moving slowly. Nelson’s now down to his last peremptory. We are getting close to our jury.

  I start on the old man. His age is an obvious problem, though I would not venture a guess. Nelson is immediately scanning the jury list.

  “Mr. Kauffman,” I say.

  He squints at me from behind Coke-bottle lenses and tilts his head, in hopes that my words may run louder downhill into his better ear. He appears to have made out his name.

  Meeks is whipping through paper for Kauffman’s questionnaire at the prosecution table. When he finds it, he’s all fingers, to the block at the top, listing date of birth. There are knowing looks exchanged with Nelson, like “Maybe this guy was a drummer boy for the Confederacy.”

  This presents a real problem for the prosecution, the single hung juror, a venireman who may not be up to the rigors and mental gymnastics of jury service for reasons of age. The fear here is not bias but indecision, the risk of having to try the case again, months of lost work, a small fortune in squandered tax dollars.

  Nelson may look to Acosta for a little understanding on cause, but the Coconut knows older people vote. More to the point, they have time to organize for all forms of political vendetta. They come to court to watch in droves. In this county criminal sessions have replaced the soaps in terms of audience share. The little shuttle bus that stops in front of the courthouse hourly deposits an army of gray-haired citizens, all marching toward the latest drama in superior court. They are waiting outside in the hall for jury selection to end. The politic judge knows this.

  “Mr. Kauffman, can you hear me?” I say.

  “Oh yes, I can hear.”

  “Do you know anything about this case, sir?”

  “No.”

  “Do you see the defendant sitting here?”

  He cranes his neck a little to look, to take in all of Talia, not particularly impressed by what he sees.

  “Have you ever heard of the defendant, read anything about her?”

  “No.”

  Sees lightning and hears thunder, I think.

  “That’s all, Your Honor.” I take my seat and leave this problem to Nelson.

  “Mr. Kauffman, I know that you heard the judge talk earlier about the likely duration of this trial. Do you really think you are up to the day-to-day demands of being here, listening to long hours of testimony?”

  “Emm?”

  “I say …” Nelson’s turning toward the table to look at Meeks. “Never mind.”

  Nelson returns to the counsel table and looks at a pad where he’s jotted some notes.

  “Mr. Kauffman, do you have any health problems, matters which require you to see a physician on a regular basis?”

  Given his age, this is a good bet.

  “Little constipation,” he says. “Gives me pills for it.”

  “When’s the last time you were hospitalized, Mr. Kauffman?”

  This sets the juror thinking, his eyes looking up, taking in all the perforated little panels on the ceiling. A good minute goes by while he counts on his fingers.

  “Ah, ninet-e-e-e-e-n … fifty-six. No, no,” he says. “Mighta been ‘fifty-seven. Hemorrhoids.”

  “You’re sure?” says Nelson.

  “Oh yeah, hemorrhoids, real painful,” says Kauffman.

  There’s laughter in the audience.

  “No, I mean the year.”

  “Oh yeah, about then.”

  Nelson goes back to his little pad on the table, shaking his head.

  “Do you live with anyone, sir?”

  “What’s that got to do with anything?”

  “Mr. Kauffman, please, just answer the question.” Acosta gives him a little chiding and a benign smile.

  “Pioneer Home for Seniors,” he says. This is the bed-and-board high rise in the center of the city, one stop short of a convalescent hospital, for those who need cooking but aren’t quite ready for confinement.

  “Sir, do you really think you’re up to coming here every day, maybe for weeks, possibly months, to listen to detailed testimony, from doctors, police officers, witnesses …”

  As Nelson speaks Kauffman’s eyes begin to sparkle, a refreshed interest lights his face. Nelson’s describing more excitement than this man has seen in a decade.

  “Sure,” he says. “I can do that.”

  “It’s serious work, Mr. Kauffman. Hard work.” Nelson is stern, trying to quell this little rebellion of enthusias
m.

  “I can do it,” he says. “I know I can.” There’s life in his voice, like with this kind of amusement to fill his days he could make it through the next century.

  “You know,” says Nelson, folksy charm dripping through, “they used to excuse good senior citizens like yourself from jury service. The law figured that people over seventy worked hard, contributed their share to society, and now it was the turn of others to work. That these good people,” he gestures toward Kauffman, “deserved a rest, to relax in their later years.”

  Kauffman’s look is the expressive equivalent of spit. He’s not buying Nelson’s geriatric populism.

  “They used to feed Christians to the lions,” he says. “That don’t make it right.”

  There’s laughter in the courtroom, a little applause from three older women in the back row. This is not going well. Nelson retreats to his table, conferring with Meeks. If they get him for cause, they have to consider at what cost, the alienation of other jurors on the panel.

  “That’s all, Your Honor.” Nelson takes his seat.

  Acosta looks at me.

  “Mr. Madriani, for cause?”

  “This juror is acceptable to me, Your Honor.” I look at Kauffman and smile. I would wave, but other jurors might think it improper. It’s a calculated risk, the assumption Nelson can’t live with Kauffman.

  “Mr. Nelson?”

  “Your Honor, we would move that Mr. Kauffman be excused for cause.”

  “Not that I’ve heard,” says Acosta.

  “Your Honor, it’s obvious that this trial is likely to go on for weeks. It’s going to be extremely rigorous.”

  “And I hope you’re up to it, Mr. Nelson.”

  There’s more laughter from the audience.

  “Fine, Your Honor.” Nelson’s not interested in being the butt of political pandering. He takes his seat.

  The judge looks at me again. “Peremptories?”

  “No, Your Honor.”

  “Mr. Nelson.”

  Nelson’s in conference with Meeks. It seems they do not agree. Finally he tears himself away.

  “Your Honor, the people would like to thank Mr. Kauffman and excuse him.”

  “Mr. Kauffman, you’re excused.”

  The panel is staring at Nelson like some tyrannical first mate who has just tossed the oldest and most infirm from the lifeboat.