Mrs. Skaggs’s lips twitched, her eyes flickered. She didn’t respond.
“The juror will answer the question,” Judge Hawkins intoned.
“I—I—“ Mrs. Skaggs lowered her face. “I don’t think I could. No.”
“Thank you very much for your candor,” Bullock said. He was being very, warm now, very friendly. And why not? He had what he needed.
Judge Hawkins excused Mrs. Skaggs and called another juror to take her place.
Ben cast a reassuring smile in Leeman’s direction, leaned back in his chair, and tried to make himself comfortable. If the first hour was any indication, they were going to be here for a good long while.
44
BULLOCK CONTINUED HIS EXACTING line of death-penalty questioning with each and every member of the jury panel. The Supreme Court said he had a right to a panel of twelve jurors who were willing to deliver the death verdict, and he wasn’t going to sit down till he had one. Of course, this made it all the more likely that the jury would be predisposed to render the death penalty, but there was nothing Ben could do about that. That was the law.
Bullock’s questioning went on for hours. Ultimately, he removed five more jurors, who were immediately replaced. About one-thirty in the afternoon, Bullock called it quits. It had been a long haul, although pitifully short compared with other death-penalty jury selections, which sometimes went on for weeks.
Judge Hawkins motioned for Ben to begin his questioning.
“Your honor, I wonder if it might not be best if we took a lunch break now. The jury’s been sitting for over four hours. They must be starving.” Always be the jurors’ friend, Ben reminded himself. Can’t hurt.
Hawkins glanced at his watch. “No, let’s proceed. We’ll break after your questioning.”
Ben frowned. “Your honor, I think the jurors’ attention will be—”
“I said proceed, counsel.”
“But your honor—”
“I said, proceed. If you’re so concerned about the jurors’ well-being, don’t waste a lot of time.”
So that was it. The judge was going to hold lunch in limbo as long as Ben asked questions. Every minute Ben went on, the jurors would be reminded that they were hungry, and restless, and it was all Ben’s fault. It seemed the hanging judge was already doing his bit to squelch the defense.
Ben squared his shoulders and approached the jury box. He started with Mr. Franklin, a gruff, sturdy-looking man in his mid-forties. Ben suspected that Franklin was an ultraconservative, lock-’em-up-and-throw-away-the-key type, but jurors rarely admitted that on direct questioning. There were other ways, however.
“Mr. Franklin, I recall you said earlier that you were, to use your own words, a strong lifelong believer in the death penalty. Correct?”
Franklin ran a finger under the waist of his blue jeans. “You got that right.”
“Is that an opinion you share with any of your friends?’
Franklin eyed him suspiciously. “Which friends?”
“Well … are you a member of any organizations?”
“I go to church every Sunday, if that’s what you mean.”
It wasn’t, but it was interesting just the same. “Are you by any chance a member of the ACLU?”
Franklin snorted. “You gotta be kiddin’.”
“How about the NRA?’
“Since I got my very first gun.”
“I see. And when was that?”
“My daddy gave it to me the day I turned fourteen. A real pretty little Winchester.”
Ben nodded. “And can you explain why you believe the death penalty is a good idea?”
“Objection,” Bullock said. “This is not relevant. Mr. Kincaid is inquiring into the man’s personal political beliefs.”
“On the contrary,” Ben said, “I’m inquiring into the man’s beliefs about the death penalty—the same thing Mr. Bullock has questioned them about for the better part of the day.”
Judge Hawkins waved his hand with a distracted air. “I’ll allow it.” It was the easiest alternative.
“Well,” Mr. Franklin answered, “I always thought the general idea behind capital punishment was to set an example. You know, scare them straight.”
“You understand that would be an improper reason to render a death sentence, don’t you?”
Franklin frowned. “I … don’t quite follow.”
“Your decision has to be based on the evidence. The facts of this case. The deterrent effect your verdict might have on third parties is irrelevant.”
“Well, I don’t think it is.”
“That’s the law.”
“Well, then it’s a stupid law.” A few of the other jurors joined him in a chuckle.
Ben tried to smile. Didn’t want the jury to think he was a stiff. But he had to keep working on Franklin, too. He had to get him off the jury before he convicted Leeman just to “send a message” to criminals everywhere. “Mr. Franklin, can you assure me that you’ll render your verdict solely on the basis of the evidence presented in this courtroom?”
“I’ll do my best.”
“But can you guarantee that you won’t be influenced by your desire to deter future murderers?”
“Well, I can’t be altogether sure—”
“You have to be sure, sir. Can you reach a verdict without giving any thought to the effect the verdict might have on persons other than the defendant?”
There was a long pause, but eventually he answered. “Well, if that’s what the law says I have to do, that’s what I’ll do.”
Needless to say, this was not the answer Ben wanted to hear. He didn’t believe for a moment that Franklin could decide the case without prejudice. He did believe that the man wanted to stay on the jury—probably so he could send the defendant up the river.
Ben gave it one more try. “Are you saying that you’re sure you can decide this case solely on the basis of the evidence presented in this courtroom?”
“If that’s what the judge tells me to do, then that’s what I’ll do.”
That was it, then. Franklin gave him no concrete grounds for removal for cause. If Ben wanted to get rid of him, he’d have to use one of his precious peremptories.
Ben proceeded to question each member of the panel. In addition to following up on the death-penalty issue, he tried as gently as possible to expose any possible bigotry or prejudice that might come Leeman’s way because he was black. It was an almost impossible mission. He couldn’t ask the tough questions without risking offending some of the jurors, and he absolutely positively could not risk offending some of the jurors.
The last man Ben questioned was Harvey Prescott, an accountant, the youngest man on the jury. He was even younger than Ben, about twenty-eight.
“Mr. Prescott, you also indicated that you believed in the death penalty, is that correct?”
“It is.”
There was the tiniest hesitation in his voice, just as there had been when Bullock questioned him on the same subject. There was something he hadn’t said yet; some detail they hadn’t yet uncovered.
“You seem unsure.”
“No—I’m sure. The death penalty is a good thing. A necessary evil.”
“And you believe you could hear the evidence with an open mind and be fair about your deliberations?”
“Oh yes. Yes, definitely.”
Hmmm. Ben gave it another try. “You don’t think you would be hesitant to condemn a man to death by lethal injection?”
“No, not at all. I consider that the most humane way to execute a convicted murderer.”
Keep digging, Ben told himself. “And you believe that executions are necessary?”
“Oh, yes.” Prescott hesitated a moment, then added, “And they save the taxpayers a lot of money.”
Aha! “Can you explain what you mean by that, Mr. Prescott?”
“Isn’t it obvious? When I worked for the government, I frequently examined the state’s books. Incarcerating a man for life costs the taxpaye
r a fortune. Execution saves a lot of bucks.”
“Actually,” Ben said, “studies have shown that because of appeals and all the related legal activity, incarceration is significantly cheaper than death sentences.”
“Objection!” Bullock said instantly, as Ben had known he would. The judge sustained, but it was too late—the information was already out.
“I’ll rephrase my question,” Ben said. “Mr. Prescott, I’m sure you realize that any sentence must be based on the evidence presented, not a desire to make the state more fiscally sound.”
“Well, I like to keep an eye on the dollars and cents—”
“Mr. Prescott, can you assure me that you’ll make your determination solely on the basis of the evidence presented in the courtroom?”
Prescott folded his arms across his chest. He was practically sulking. “If I have to.”
Ben turned slowly. “Your honor—”
“He answered in the affirmative,” Hawkins said, cutting Ben off. In other words, I’m not doing you any favors, counsel for the defense. “Anything else, Mr. Kincaid?”
“Yes.” Ben asked a series of questions designed to subtly expose any racial bias. As he soon learned, no one was a member of the NAACP, but no one was a member of the KKK either. No one had a SAY NO TO HATE bumper sticker. None of them had seen Malcolm X. One woman had seen Boyz N the Hood, but only because her girlfriend told her she thought it was a musical. Several of them had read Ellison’s Invisible, Man in school, since it was written by an Oklahoma author, but most felt it was no longer relevant to today’s society. Ben nodded his head politely. If only it were true.
Ben questioned extensively, but obtained no obvious expressions of racial prejudice. All he got were suspicions, specters. He ran over a few more key points and dropped several reminders that the defendant was innocent until proven guilty beyond a reasonable doubt. There was no point in pushing it any further. He had already learned everything he was ever going to know about these people.
Now the guessing game began. Armed with nothing but stereotypes, answers to indirect questions, and superficial impressions, Ben had to make several potentially life-and-death determinations.
Such was the science of jury selection.
Judge Hawkins called a short recess. After consulting with Christina, Ben went back into the judge’s chamber with Bullock. As predicted, Bullock removed both black jurors, claiming that their lower-income status might prejudice them in favor of the defendant. Yeah, right. Ben had little choice but to remove Mr. Franklin and Mr. Prescott. On Christina’s recommendation, he also removed a handyman who sat to the right of Franklin. Ben would normally be inclined to retain a blue-collar, hardworking man, but Christina said he gave her “bad vibes.” She also thought the man had laughed a bit too heartily at Franklin’s little joke.
Good enough for Ben. He took the man off the jury.
Ben had more peremptories, but had no real grounds for exercising them. Five removals left a jury of twelve, plus several alternates.
Hawkins brought counsel and the jury, what was left of it, back into the courtroom and reconvened the proceedings.
“Very well,” Hawkins said, again glancing at his watch. “We’ll take a lunch break”—at least he didn’t add finally—“and we’ll reconvene in one hour for opening statements. And counsel, please be brief. No longer than half an hour, or the bailiff will ask you to step down. After all, it’s been a long day.”
45
WHEN THE COURT RECONVENED after lunch, Bullock jumped to his feet and strode confidently to the jury box, like Babe Ruth approaching the plate. Strong, commanding, self-assured. He leaned across the railing that separated the attorneys from the jury, getting closer to them than Ben would’ve thought possible, much less desirable.
Bullock made eye contact with each of the jurors in turn. His head was nodding subtly, and his smile bore the mark of one who knew the truth and was confident they would believe him. In his own way, Bullock was enlisting their support, engaging their confidence, before he had spoken a word.
“No tricks,” Bullock said, and then nothing. He let his words resonate and linger till the courtroom was once again awash in silence. A skillful ploy. In a matter of moments the stultifying banality of jury selection was washed away. They were mesmerized, eagerly anticipating his next word.
“No tricks,” Bullock repeated. “Well, not from me, anyway. I don’t need them, and I wouldn’t use them if I did. Now the gentleman on the other side”—he jerked his head in Ben’s direction—“that’s another matter. I’ve seen him resort to all sorts of shenanigans. He’ll make you laugh, he’ll make you cry. He’ll play on your emotions, your sympathy. He’ll break the rules. He’ll do whatever it takes to accomplish his goal. Which is to thwart justice, and put his man back on the streets.”
“Objection!” With great trepidation, Ben violated one of the traditional courtesies of trial practice: no objections during opening statement. But this was too much—this wasn’t a preview of the evidence; it was a personal attack.
“Your honor, this is not relevant, and furthermore, it’s grossly prejudicial.”
The judge nodded. “Sustained.”
Bullock smiled. He leaned even closer to the jury and whispered. “See?”
That underhanded son of a—In a matter of moments, Bullock had set the stage, casting Ben as the shyster trickster, someone who obviously was trying to hide the truth—because he objected to Bullock’s improper tactics. This put Ben in an impossible position. If he made future objections, the jury would suspect he was trying to pull some underhanded trick. If he didn’t object, Bullock would walk all over him. And Leeman.
“Here’s what happened,” Bullock continued. “No embroidering, no huffing or puffing, no dramatic flourishes. Just the facts.” He paused again, then lowered his voice. “Ten years ago, on a hot August night, a female immigrant named Maria Alvarez was killed in the caddyshack at the Utica Greens Country Club. ‘How was she killed?’ you may ask. With a golf club. And how could a golf club become a deadly weapon?”
Bullock held them in suspense for a protracted moment. “Someone brought it down on her head, at least once, maybe several times. The last blow broke the club in two. Then the assailant took the broken shaft”—he leaned in closer, acting it out—“and rammed it through her throat.”
He pivoted and walked away from the jury while continuing to talk. “Shoved it clean through her neck. Came out the other side. Pinned her against the wall.” He rubbed his hands together as if washing them clean. “Needless to say, she died.”
He placed one hand on the defendant’s table and leaned in to face Leeman Hayes. He was forcing the jury to look at the defendant as they listened to the description of this grisly event. Forcing them to make a connection between the defendant and the crime.
“There’s no dispute about anything you’ve heard so far. They’re all facts, all a matter of record. There’s actually only one question remaining unanswered: Who killed her?”
He walked around the far end of the defendant’s table, doing a little dance around Leeman. “The prosecution has a good deal of evidence that will help you answer that question. Frankly, I’ve been prosecuting for years, and this is the strongest case I’ve ever seen.”
“Obj—” No. Ben clamped his lips together and sat back down. This personal testimonial about the weight of the evidence was grossly improper, but he feared the prejudice created by another objection would be the greater evil.
“A police officer found Leeman Hayes, the defendant, at the scene of the crime, not long after the woman was killed. The defendant was a caddy at the country club. You might think it perfectly natural for a caddy to be at the caddyshack—until I tell you that the murder took place after midnight on a Tuesday morning. None of the other caddies were there at that time of night. Only the defendant.”
An ironic half smile played upon his lips. “You know, normally when I talk about the defendant having blood on his hands,
I’m speaking metaphorically. Not this time. This time it’s the literal truth. When Leeman Hayes was apprehended, he had blood on his hands. Caked under his fingernails. Smeared on his face. And the forensic testimony in this courtroom will verify that it was the blood of Maria Alvarez.
“ ‘What other evidence is there?’ you might ask, as if any more was really required. Well, the golf bag from which the murder weapon was taken was found in the defendant’s locker; it had been stolen that day from the club pro shop. In that locker we also found jewelry belonging to the murdered woman. But the best evidence of all, I would have to say”—he held them near breathless in anticipation—“is the defendant’s confession.”
Several of the jurors’ heads rose. They looked back at Leeman, and this time their expressions were more exacting, more suspicious. A confession, after all, changed everything.
“Objection!” Ben rose to his feet. He couldn’t let this one go by, no matter what prejudice might arise. “I object to counsel’s characterization of the wordless videotape reenactment as a confession. That is a question of fact to be determined by the jury—”
“The prosecutor is permitted to describe the evidence he will present, isn’t he?” Judge Hawkins frowned. “They haven’t changed the rules while I was eating lunch, have they?”
The jury tittered.
“Your honor, opening statement is not supposed to be argumentative. He’s prejudicing the jury’s interpretation of the evidence before they’ve even had an opportunity to see it!”
“Objection is overruled. Please continue, Mr. Prosecutor. And I instruct the bailiff to add five minutes to the prosecutor’s time to compensate for this outburst.”
Gritting his teeth, Ben retook his seat.
“Now, as some of you may have guessed from the questions I asked earlier,” Bullock continued, “Leeman Hayes is considered to suffer from some mental retardation.” He jerked his thumb back at Ben. “At least, that’s what the defense’s paid witnesses will say. Our docs say he’s capable of distinguishing right from wrong. It is true that his language skills are not very advanced. But as you will see, he confessed nonetheless, and his confession was recorded on videotape.”
Cruel Justice Page 25