by Noel Obiora
“This might take all week. Expect to be bored,” Kenneth said.
“The jurors themselves can hardly stand it. After they’re selected, we’ll give our opening statements. The DA goes first, then we go. These opening statements will be like a roadmap to the jury for how we will show them what really happened the day the victim was killed. If the trial starts feeling unbearable, just remember that you’re not alone. Most people in a murder trial wish the cup would pass from them. Myself included,” Cassandra said. Kenneth nodded ruefully. Cassandra asked if Sister Ramatu and Jo had any questions, but they could only shake their heads. Jo looked grief-stricken already, but her mother managed a smile.
Trucks with satellite receptors blocked spaces in the parking lot and on Main, Temple, and Broadway Streets. Most were always there for the O. J. Simpson trial, but their attention that morning was on Paul Jackson’s case. As Kenneth and Cassandra got to court with Sister Ramatu and Jo, the crews swung into action. One cameraman rose, pulling a man with a microphone along, the entire group rushed after them with camera shutters clattering. Kenneth and Cassandra declined interviews and pushed through the small crowd while Kenneth held firmly to Sister Ramatu’s hand and Cassandra to Jo’s. Two of the students from Cassandra’s trial advocacy class wheeled boxes of case files after them.
Amy was already in the courtroom.
She wore a conservative black skirt suit, and a wine-red silk blouse. In place of her usual pearl necklace was a thin but intricate looking gold chain with a crucifix. Kate Peck and Officer Gonzalez sat with her. Behind them, a slightly graying white woman in a black dress with brown hair and a stoic gaze, whom Kenneth concluded was Goldie Silberberg’s mother. Looking at Helen Silberberg for the first time, bowed and probably aged by grief, Kenneth saw in her demeanor and poise a striking resemblance to Nancy. She made the loss palpable and inescapable, which was exactly the effect that Amy’s office wanted her to have on jurors.
Paul’s father, Mallam Jackson, sat with Omar Jones, and to Kenneth’s surprise, Reverend Brown. Kenneth froze on seeing him. Reverend Brown stood up and waved. Kenneth returned the wave and left everything to go to him. From where she stood by her table, Amy turned around to watch Kenneth meet his father. Father and son embraced, and Amy returned her attention to her table, noticing that many of the eyes in the courtroom were on her. Kenneth felt he was about to cry and held on longer to let the emotion pass. Reverend Brown could not let the emotion pass so easily. His eyes filled with tears. As Kenneth walked away, he could see Amy had her eyes fixed on them and searched for Nancy who was looking as well.
At the counsel table, Cassandra told him Mr. Omar had given a lengthy speech about the DA’s persecution of Paul Jackson outside the courthouse, asserting that there was barely enough evidence to justify a search warrant if Paul had been a Caucasian defendant. Mallam Jackson had said it was clear to anyone with half a brain that the prosecutor was racially motivated. At the back of the courtroom, Big sat sweating, and behind the front row Jo and Sister Ramatu.
“We’re expecting a lot of people in the courtroom from Mr. Jackson’s family,” Amy had told Helen. “The man in the back with the colorful skull cap is Paul’s father, and the men behind him are from his congregation of Black Muslims. Don’t bother with them if they seem to be looking at you.” Helen Silberberg, kept her chin up but did not look around the room. On the far side of the same bench, behind the defense team, sat Nancy Brown and Anthony Rayburn as guests of Kenneth and Cassandra. The two law students sat in chairs behind Cassandra and Kenneth, as did Amy’s paralegals behind Amy.
•••
Judge Barney strode into the courtroom looking bored and irritable but spoke more politely than his wife. Kenneth had not expected the intense disappointment he felt just to see the name “Barney” again on the presiding judge’s bench. The selection of judges for criminal trials in Los Angeles County was supposed to be random, but any process that appointed a man to preside over his wife’s supposed agitator could not be trusted, he thought.
Judge Barney acknowledged that his wife was the commissioner who presided over a prior proceeding in this case and mentioned that either side had the statutory opportunity to object to his appointment, but that he had not been made aware of any such objection. Kenneth did not make the connection to Commissioner Camila at the time and would not have objected anyway. Judge confirmed that the parties had exchanged exhibits and witness lists, the prosecution witnesses were standing by and could make it on time when called, and both sides were ready to address outstanding evidentiary issues.
“I suppose you have all reviewed this courtroom’s standing rules for trials,” Judge Barney said. Though Amy and Kenneth confirmed that they had reviewed the memorandum, Judge Barney went over it again: Routines on the presentation of evidence, making speaking objections, when to approach him in hearings, otherwise known as “approaching the bench,” when to approach the witnesses, and what times the trial would resume and recess each day.
“Do we have jurors ready?” he asked his clerk.
“They’re waiting in the jury room, your Honor,” the clerk said.
“Send them up and remind them to wait outside the courtroom until they’re called,” Judge Barney instructed.
“I have reviewed the transcripts of the request that was made to Judge Pollazo on the letter written by the defendant, or perhaps I should say purportedly written by the defendant, and I intend to rule on those upon conclusion of jury selection, provided both parties agree that the court may open the letter and review it on-camera. Both Amy and Kenneth stated that they agreed.
Judge Barney sifted through the pile of files to the side of his bench and pulled a thick red folder from it. “We will start with the People’s motions in limine.” These were motions Amy filed, seeking to exclude evidence that might be damaging for her case.
Amy stood up and argued for the exclusion of all evidence depicting any kind of sexual activity at the scene of the crime. Each item of evidence was a separate motion to exclude, from the bed sheet to used condoms and other sexual paraphernalia found in the bedroom where Goldie was killed—nine motions in all. Amy first argued that each item was irrelevant because the People did not claim that sex was a motive and the activities obviously took place before the crime. Then she argued that even if the items were relevant, the evidence would show Goldie in such bad light that they amounted to trying the victim, not the accused. As Kenneth listened and watched Amy make the argument, he could see Helen Silberberg wipe her eyes. Sitting directly behind Amy, Helen bent forward, her elbows digging into her knees and her eyes on her feet.
Kenneth was convinced that Amy’s motion would not prevail, until he saw Judge Barney nodding his head. When Amy finished, Cassandra stood up and responded that the defense might well wish to explore the notion that the sexual activity had something to do with the crime. Tests of the semen showed that they were not Paul Jackson’s. A different person at the scene might have committed the crime. Judge Barney reminded Cassandra again that a victim’s prior sexual history was disfavored in the law.
“In the trial of a sex crime, your Honor. But, as the People have just indicated, they do not view this as a sex crime,” Cassandra said, in more animated fashion than was common with her.
“I will not have the victim tried in this courtroom,” Judge Barney said. Cassandra remained silent and sat down. Judge Barney continued, “I’m inclined to disallow the evidence, but we will have to take up the issue when it arises. Counsel for the defense must advise the court outside of the jury’s hearing before any attempt is made to introduce any of this evidence. The motions are denied without prejudice.”
“The next motion I have is for the defense,” the judge said. “This seeks to exclude a letter apparently sent from the defendant’s business to the victim, but was posted after the victim had died. Does counsel wish to be heard?”
“Yes, your Honor,”
Kenneth said standing up. “This letter constitutes out of court statements obviously intended to mean what they say. Therefore, it is hearsay. Further, as the court noted, it was sent after the victim was already dead, as such it is a post-arrest statement by a defendant who has maintained his Fifth Amendment right not to testify in this proceeding—so far. The letter is hearsay, they are likely prejudicial, the letter is not even relevant to any element of this case because it did not factor into the People’s decision to arrest Mr. Jackson.”
“How about notice, counsel?” Judge Barney asked. Kenneth looked at the judge as though to ask whether the argument he just made had lost already. Ironically, the judge continued in response to Kenneth’s unasked question. “Assuming I disagree with you on Fifth Amendment, which by the way is a testimonial right that should not bar the admission of a document—not coerced into the record, as far as I know. How about motive, notice, and other exceptions to the hearsay rule?” Still Kenneth was slow to respond. Judge Barney continued again. “Or for that matter assume I agree with you, how about motive?”
“Your Honor, to determine those exceptions to the hearsay rule, we would have to open the letter. Our motion is that not having that information without opening the letter, this letter is irrelevant to any issues in this proceeding.” Kenneth then looked at a note Cassandra had given him, but it was too complex for his immediate grasp. “We would like consideration of these issues before going further,” Kenneth concluded.
“Very well, counsel. Ms. Wilson?” Judge Barney asked.
Amy stood up slowly to deliver her well-rehearsed response.
“First, your Honor, we must concede that the letters are hearsay. They are out of court statements made by the defendant. However, counsel is wrong in his belief that the People wish to use the letters to convince the jury that what is stated in the letters is true. No, far from it; the People wish to use the letters to establish the defendant’s state of mind at the time the crime was committed, which by proximity to the date of mailing on the letter cannot be denied. And we do not have to open the letter to make that determination. It is simply a fact that the letter reflects a contemporaneous state of mind.”
“But counsel, we don’t know when this letter was written. We can’t unless we open it,” Judge Barney said.
“There is a date stamp on the envelope from which a jury is free to circumstantially infer the possible date it was written. Even if it were written one year before the mailing date, the fact that it was mailed on a date so close to the date of the killing is just as relevant as the date it may have been written. I expect counsel will be able to come right out and argue to the jurors that this document was sent after the victim was dead. The jury is intelligent enough to weigh such facts.”
“I think I’ve heard all I need to make a ruling, counsel,” Judge Barney said.
“There is something else,” Cassandra said.
“Not hearsay, self-incrimination, or undue prejudice?” Judge Barney asked.
“Not any of those, your Honor.”
“Let’s hear it then, Professor.”
“Your Honor, I believe by keeping the letter and opening it, the People trespass on the personal property of Mr. Jackson without justification. Our motion should equally be construed as an injunction against such trespass.”
“Oh, this sounds interesting,” Judge Barney quipped. “Please explain.”
“Thank you, your Honor. What is written in a private letter is the property of the writer even after the letter has been delivered to the addressee,” Cassandra began. “There is no dispute in law about this. In legal parlance, the writing in a letter is intellectual property of the author, just as a play remains the intellectual property of the playwright.”
“Can you give me a case to support this theory?” Judge Barney asked.
“Yes, but I did not come with any cases because we prepared this motion with a focus on the rules of evidence; I believe in the early nineteen hundreds the Supreme Court of the Commonwealth of Massachusetts decided the case of Mary Baker Eddy, the founder of Christian Science. In that case, the estate of Mary Baker tried to prevent publication of several private letters she wrote to someone. The Supreme Court of Massachusetts stated clearly that the writer of a letter has the right to restrain, and thus control, any use of the communication in the letter,” Cassandra explained.
Judge Barney’s countenance remained skeptical though Cassandra’s rhetoric sounded compelling.
“Do you have a California case from this century you can refer me to?” Judge Barney asked.
“Not with me here, your Honor. I did not anticipate that I would be making intellectual property arguments in a murder trial. Still, from Lord Chadwick in seventeen seventies England to Justice Story in eighteen hundreds America, the line of authority that says a letter writer owns the very content of the letter and controls its publication is unbroken. I do not believe California or any state with common law origin can rule any differently on this issue.”
“How does this then help your client?” Judge Barney asked, seemingly irritated by the lecturing tone of Cassandra’s last argument.
“Mr. Jackson has not agreed to open the letter or to its use by the court in this case,” Cassandra said.
“Well, let’s hear from the People on this subject,” the judge said.
“Thank you, your Honor,” Cassandra said and sat down. Kenneth was relieved that the issue had not been lost. All the while, Paul Jackson remained stoic and quiet and kept his eyes on the judge, but when Cassandra sat down again, he squeezed Cassandra’s hand gently under the table, and Cassandra squeezed his back.
“Clearly,” Amy began, “the recipient of a letter has the right to open the sealed envelope containing the letter and inspect the contents as does the estate of that recipient if she becomes deceased. We submit your Honor,” Amy sat down. Cassandra quickly stood up again, but Judge Barney was also quick to stop Cassandra.
“I’ve heard enough, counsel. When you get my ruling, both of you can continue this argument in the court of appeals if you wish.”
“We will need this on the record to continue the argument on appeal,” Cassandra persisted.
“You have thirty seconds counsel—literally.”
“The date stamp on the letter shows that Goldie Silberberg was already dead by the time the post office took delivery of the letter. Dead women can’t receive letters and pass them on to their estate.”
“Thank you, counsel,” Judge Barney said angrily. “That just takes us from intellectual property law to contract law and the mailbox rule, isn’t that right, counsel?”
“We will also submit at this time,” Cassandra said and sat down.
“I will take the matter under submission. However, in the interim the defense may assume that their motion is denied without prejudice if the matter is not disposed before the conclusion of the People’s case in chief. It is so ordered.”
Judge Barney went through other motions before he asked both sides if there were other things they would like to discuss before the potential jurors came into the courtroom. Amy and Kenneth confirmed there was nothing further, and Judge Barney directed the clerk to call the jurors into the courtroom. One side of the court’s seating area was cleared for the prospective jurors to sit during their selection.
Judge Barney took the jurors oath, read a few instructions to them, and recessed for the morning.
33
Full House
Jury selection took the rest of the day. Omar Jones was in rare form throughout. Judge Barney asked all the potential jurors a few biographical questions and directed the first twelve of them to take the seats in two rows of six against the wall between the witness stand and the defense counsel table. He referred to these special seats as the “jury box or stand.”
Amy and Omar took turns questioning the jurors in the stand. After each round of questi
oning by both sides, each side was offered the chance to eliminate a potential juror for whatever reason the attorneys may wish. Kenneth left the counsel table to Omar and Cassandra during this voir dire but would rejoin them when Omar wanted to huddle. Omar Jones’s theatrics seemed to please Paul’s family.
Omar struck one juror based simply on where she lived, which was known to be a conservative community. The consultant had identified particular cities and suggested striking jurors on this basis. Amy struck a potential juror for having a brother who worked as a defense attorney in New York City, a possible indication of familial philosophy. These challenges went back and forth between the prosecution and the defense. Every time a potential juror was excused from the jury panel, a new panel member took the place of the excused juror in the jury stand and answered many of the questions the excused juror had been asked all over again.
The district attorney’s office had held a mock trial in Orange County, using key evidence in the case and a retired judge whose style most resembled what they expected at trial, and barely got a conviction against the mock defendant. When they asked the mock jurors why they were reluctant to convict the man, their panel cautioned that some of them were resistant because of the evidence that linked Goldie to illicit sexual activity. This was primarily why Amy wrote a motion for each item found in the bedroom, hoping that if she failed to exclude one, she could still succeed in excluding others.
By lunchtime, three jurors were seated, a Mr. Rossiter, Mr. Hooper, and Mr. Gale. Anthony called Mr. Rossiter, a Latin American man from a gang-ridden area of Los Angeles, a disaster, but considered the other two favorably.
“He sounded very well-rehearsed. I think he saw the TV crews outside and said all the right things to get on the television jury. I don’t trust him.” The student interns agreed with Anthony. “The African American man, Mr. Hooper, on the other hand, I’m surprised the DA kept him. I don’t care which branch of the Republican party they got him from, his mind isn’t made up and you could win him. But stay away from the African American women among the potential jurors. Those you have to worry about because of your facts.”