Ben could only marvel. She was an extremely effective speaker and advocate. She was already subtly pitching her case, already urging them toward conviction-and she hadn’t even mentioned the case at hand. This common practice was, of course, entirely inappropriate. But she had given Ben nothing to object to.
Granny maintained an earnest but grave expression on her face. “I probably won’t be revealing any secrets when I tell you that the case this jury will be asked to hear is a murder case, a capital murder case. The prosecution will be asking the jury to impose the maximum sentence. And that’s why I have to ask the following questions.”
Ben raised an eyebrow. Usually, prosecutors saved till last the unpleasant business of making sure the jury was death-competent-that is, able to deliver the death penalty if the evidence supports it. Apparently, Granny wanted no wimps on this jury. Given the fervor with which she went after it, Ben got the impression she wanted twelve venirepersons willing to push the plunger in the lethal syringe themselves.
“Is there anyone here who thinks they might not be able to vote for the death penalty? Even assuming the evidence proved guilt beyond a reasonable doubt? Anyone at all. Please, look deep into your hearts and try to be honest about this. Better that we find out now than that you find out later when you’re in the deliberation room.”
At first no one responded. Then, like bashful schoolchildren, three of the jurors raised their hands. A quick glance passed from Granny to Judge Pickens. Pickens thanked them for their time and excused them from the jury. Three replacement jurors were called.
Granny continued hammering on the death penalty for at least another forty minutes. Then she explored other possible grounds for jurors to be excused for cause-people who didn’t believe in trials on religious grounds, people who had been previously convicted in criminal trials, and so on and so on. What she talked about almost not at all, Ben noted, was the enormous amount of local pretrial publicity and the possible bias it might cause. It wasn’t hard to guess why Granny omitted this topic. Apparently she felt any pretrial publicity could only be to her benefit.
Ben also noticed that, regardless of what questions Granny asked, the jury seemed attentive, responsive, and quick to answer. Almost as if they wanted to help her. As if they liked her.
Granny was building a positive rapport with the jury. They were learning to trust her. When all was said and done, that was the most important thing a lawyer could do in voir dire. And Granny was doing it, effectively and effortlessly. Like a pro.
Which was bad news for Ben. And George Zakin.
Ben didn’t get his chance at the jury until well into the afternoon. Granny worked them for over five hours, through the lunch break. More than a little excessive, by Ben’s standards, but of course, in some jurisdictions, voir dire in a capital murder case went on for days. He decided to count his blessings.
Nonetheless, five hours was five hours, and by the time Ben got them, they were sick and tired of being questioned. That, too, Ben realized, might well be part of Granny’s strategy. These people came to court to hear a murder case, and they wanted to get started, not monkey around with more lawyer questions. Ben would have to tread a treacherous tightrope-doing his duty to his client by asking the questions that had to be asked without turning the jurors against him.
Granny had already covered most of the directly relevant questions. Which was just as well. Ben had learned from experience that he actually gained more from questions that didn’t appear to have any obvious connection to the case at hand, questions that just allowed him to learn about the jurors themselves. So he tossed out a few softballs for starters, asking them about their hobbies, their children, their cars. The jurors were politely tolerant, but Ben knew that wouldn’t last forever.
Ben quizzed an elderly man, one Conrad Sweeney. He was wearing suspenders with a bolo tie. His craggy face seemed set in a perpetual grimace.
“Mr. Sweeney,” Ben asked, “what do you do now that you’re retired?”
“Damn little,” Sweeney grunted.
“You must do something to pass the time.”
“Mostly I sit around and watch everyone else go to work.”
“Is there anything else?”
“Nope. Nothing else.”
“You’re sure?”
Sweeney began to look annoyed. “Damn right I’m sure. I should know, shouldn’t I?”
“There must be something you like to do in your spare time.”
“Well,” Sweeney said, “I like to smoke marijuana.”
Ben blinked. “What?”
“Oh yeah. I like to smoke me a few reefers, then go out and ride my Harley. Mostly I cruise McKinley, check out the hookers, keep my eyes peeled for something sweet. You know how it is.”
“You’re kidding.”
“Yeah,” Sweeney said, “I am, actually. Had you going, though, didn’t I?”
The courtroom exploded with laughter. Ben felt his face burning. This was just great. He was barely getting started, and he’d already been made an object of ridicule by a sixty-seven-year-old juror.
Ben turned toward the bench, hoping Judge Pickens would bring the courtroom back to order and admonish Sweeney to cut out the high jinks. Unfortunately, Pickens was too busy guffawing himself.
No matter what he did, Ben realized, he would be the outsider. Everyone else in the courtroom belonged in Magic Valley; he didn’t. Ben had heard stories about lawyers being “hometowned” when they left the big city to try cases in rural districts. He just hoped he wasn’t about to experience it firsthand.
Ben tried a different approach. “Mr. Sweeney, have you ever been called to a jury before?”
Sweeney shook his head. “Not once in sixty-seven years. Guess my luck finally ran out.”
That one got an appreciative chuckle from some of the other jurors.
“Would you be pleased if you were chosen to serve on this jury?”
“Well, I’d be more pleased if it paid better.”
“Is being on this jury something you want to do?”
“Oh, I suppose if I’m called, I’ll do my duty and all that.”
“But is it something you want to do?”
“I don’t know. How much longer do you think you’re going to be asking these fool questions?”
Another explosion of laughter, even louder than before. Ben tried to get a grip on himself. He was playing straight man for a would-be comedian-not an ideal situation. He decided it was best to move on.
He shifted his attention to Marjorie Preston, a middle-aged woman with big hair and a print dress, both of which looked as if they might have come from the June Cleaver style book. She worked part-time as a checkout clerk at Canfield’s Grocery. “Mrs. Preston, can you tell me about your job?”
Her expression didn’t seem to change as she spoke. “Oh, it’s very boring.”
Ben smiled. “As boring as this voir dire?”
“Oh, heavens no. Not that boring.”
Well, he asked for that one, Ben thought, as once again he bathed in the laughter of the assemblage. “Mrs. Preston, do you understand that many witnesses will be called to the stand in the course of this trial?”
“I suppose it’s inevitable,” she sighed.
“Do you understand why witnesses are called before the jury?”
“So we can hear what they say and try to dope out whether they’re telling the truth.”
“Do you think you’ll be able to do that, Mrs. Preston?”
Her chin rose. “I’ve seen a liar or two in my time, if that’s what you mean.”
“Do you think it’s important to tell the truth?”
“I certainly do. You know where liars go.” She extended her thumb and pointed downward.
Ben didn’t even need to glance at Christina for this one. This lady was definitely off the jury.
He switched to the next man in line, Ken Whately, a farmer who lived about thirty miles outside Magic Valley. He was wearing scruffy blue jeans and cowbo
y boots. Ben assumed he checked his ten-gallon hat at the door.
Ben asked him a few preliminary questions about his farm. For once, the juror seemed not only cooperative, but garrulous. He took Ben through the whole planting season, crop by crop. He described all his machinery, down to the last tractor. He quoted the buy and sell prices for every harvest for the last five years.
“I can see you take your farming very seriously,” Ben said, the first time the man came up for air. “Are you going to be able to concentrate on this trial or will your mind be out in the field?”
Whately frowned. “It’s too hot for my mind to be out in the field.”
“Right.” Ben scanned the list Christina had given him of must address questions. Perhaps it was time he peeled one off the top. Whately might not be the ideal juror, but he was the best Ben had gotten so far.
The first was a delicate subject, one he preferred not to raise in voir dire. But since he wasn’t sure yet whether he would put Zak on the stand, it needed to be covered. “Mr. Whately, you’re familiar with the Fifth Amendment, aren’t you?
Whately appeared a bit uncertain. “That’s … one of those amendments to the Constitution. Isn’t it?”
“Right. You’ve probably heard about people taking the Fifth?”
“Oh.” His face brightened a bit. “That’s what crooks say when they don’t want to talk.”
Ben tilted his head to one side. “Not exactly. It’s important that you as jurors realize that everyone has a right to avoid self-incrimination. No one can be forced to testify against himself. And no one can infer anything good or bad from a party’s decision not to testify.”
Whately nodded slowly. “I guess that’s right.”
“So let me ask you a question. What would you think if the trial was over and the defendant had not taken the stand?”
“I would assume his lawyer had a damn good reason for not letting him testify.”
There was a sprinkling of chuckles. “Well, you see, sir, that’s what we can’t permit. As the judge will instruct you later in this trial, the jury is not permitted to draw any conclusion from the fact that the defendant has not testified. Not good or bad. Do you understand?”
“I … guess so.
“And do you think you can do it?”
“I’ll give it my best.”
“I’m sorry, Mr. Whately, but that isn’t good enough. The judge will require you to answer that you can, or he will have you removed. We must have a jury that will honor the law. And that means that no inference can be drawn from a defendant’s failure to testify. Can you go along with that?”
“I guess-I mean, yes. Sure.”
“Thank you. Is there anyone else in the jury who thinks they might have a problem with this?”
No one raised his or her hand, but Ben knew that didn’t mean much. He would have to ask each of them individually. No matter how long it took.
After he finished quizzing the jurors about the Fifth Amendment, Ben launched into the phase of his voir dire routine he knew by heart-because he got to deliver it every time. The discussion of the burden of proof.
This was a delicate subject. As a defense attorney, he wanted to impress upon the jurors what a stiff standard it was and how seriously it must be taken. At the same time, he wasn’t allowed to define or explain what beyond a reasonable doubt actually meant. Any attempt to do so would be grounds for an immediate mistrial.
“In order to find the defendant guilty,” Ben summed up, “you must find that, based upon the evidence presented at trial and nothing else, he is guilty beyond a reasonable doubt. Do you think you understand that, Ms. Taylor?”
Angel Taylor, a twenty-something blonde in the front row, nodded. “I think I’ve got the general idea.”
“Will you be able to honor this standard?”
“I believe so.”
“Do you understand everything this high standard of proof requires?”
“I believe so.”
“What do you think about it?”
She sighed. “I think you’ve about exhausted this subject. Could we move on to something else?”
Ben had to smile.
Chapter 35
Ben spent the remainder of the afternoon exploring the jurors’ ties to the logging industry and the obvious tendency that might have to predispose them against Zak, and trying to assess the impact of pretrial publicity regarding the murder. As he soon learned, there wasn’t a soul in the jury box who didn’t know something about the murder. And it didn’t take a mind reader to deduce that most of them assumed George Zakin had done it. All Ben could do was ask the jurors if they believed they were biased (none of them did, of course), and whether they thought they could be open-minded and fair (all of them did, of course). Unless someone admitted to bias, he couldn’t get them removed for cause. He would have to use his precious peremptory challenges to root out the worst of them.
He tried to delicately address the subject of conservation, of ecology and efforts to protect the old-growth forest, but he almost immediately felt such an intense chill he backed off. This was not a sympathetic audience. The less he reminded them of Zak’s environmental “extremism,” the better off he’d be. He began considering ways to reshape Zak into something less controversial, like maybe a communist or a child molester.
By the end of the day, both sides were ready to pick a jury. Ben knew up front he couldn’t eliminate everyone who ever worked for a logging company; that industry was far too pervasive in this part of the world. And it was even possible that people who had an up-close look at logging practices might be more sympathetic to Zak. So he took off the two that seemed most extreme and left the rest. He removed Mrs. Preston and Mrs. Cooper, then two other jurors he thought would be likely to convict even without evidence, much less evidence meeting any burden of proof. Granny peeled her six off as well-all, Ben judged, because they had seemed less than zealot-like in their determination to apply the death penalty. Which gave Ben a pretty good idea what she thought was most important.
Judge Pickens excused the dismissed jurors and told the lucky fourteen to be back in the courtroom at nine o’clock the next morning. And then court was in recess.
The preliminaries were over, Ben realized. Now the real work would begin.
“How do you think it went?” Ben asked Christina, after they returned to their office.
“Comme ci, comme ca,” she replied. “Of course, the jury is going to be hugely pro-logging. But you knew that was inevitable when Judge Pickens declined to grant your motion for change of venue. Still, I think you got the worst of them off.”
“We can only hope.” Ben plopped down into the chair. “I thought voir dire was grueling. I wanted to ask a million questions. And I think they wanted me to stop before I started.”
“Nonetheless, you plowed ahead and did what you needed to do.” She smiled. “I can remember when you were too embarrassed to ask individual jurors questions. And today you did it for hours. You’ve come a long way, Ben.”
“I was probably better off before. All I did was give them an opportunity to make me the butt of their jokes.”
“Not necessarily a bad thing. Everyone likes to be the class clown on occasion. You gave them a chance to do it in court. Which may endear you to them. Just a bit.”
“Sort of like … everyone loves the village idiot?”
She grinned. “Sort of. Any way you look at it, it’s a good thing.”
“Sounds great. They love Granny. They patronize me.”
“I’m not sure they do love Granny. They respect Granny, just as they would respect a Doberman or anything else that might rip out their throats with its bare teeth. She’s a femme fatale big-time, and they know it. But don’t confuse that with love.” She paused. “You’re never going to make the jury forget you’re an outsider, because you are. But you could possibly make them like you. More important, you could make them trust you.” She leaned across the desk. “And that’s the only way you’re going to
win this case.”
There was a knock at the door. “Come in,” Ben said.
After a moment’s hesitation, Sheriff Allen poked his head through the doorway.
“Oh.” Ben stood up and glanced at Christina. “I guess you two have a dinner date.”
“Actually, no,” Allen said. He tipped his hat and smiled in Christina’s direction. “Although I wish I did. The little lady told me she was off-limits till the trial ended.” He cleared his throat. “No, I came to see you, Ben.”
“Me? Why?”
Allen cleared his throat again. There seemed to be something he needed to say-something he wasn’t looking forward to saying. “Got a call on the radio from one of my deputies. Deputy Andrews.”
“A fine fellow,” Ben said. “He helped me break up a near riot.”
“Right.” A longer pause. More hesitation. “He’s found something.” Something about Allen’s expression sent a chill down Ben’s spine. “Something? Or … someone?”
Allen nodded grimly. “Tess O’Connell. What’s left of her.”
Ben joined Sheriff Allen in his Jeep for a half-hour drive into the forest. On the way, Allen showed Ben where he’d broken up the whipping incident several nights before. Their destination, though, was a good fifteen minutes beyond that.
“This is pretty well off the beaten track,” Allen explained. “It’s pure coincidence that Andrews happened on it.”
“What was he doing in the forest?”
“Oh, we try to patrol out here from time to time. Just as we do in the city.”
“Patrol for what? Jaywalking grizzly bears? Spotted owls flying under the influence?”
“More like environmental radicals blowing up expensive equipment. Sabotaging machinery.”
“You take your instructions from the logging companies?”
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