by Marcia Clark
So if my engineer had come up later in the draw, after the defense had used most of their peremptories, there was at least a chance they’d have to accept him over someone who looked even worse—like a retired cop. But now, with all twenty challenges at their disposal, they wouldn’t hesitate to boot him.
“Counsel, while they’re being seated, I’ve prepared a full randomized list of the jurors for you,” the judge said. “Jimmy, would you mind handing these out?”
The randomized list was computer-generated, showing the order in which all jurors would be called up to the box. Back in the old days, the clerks used a Bingo cage and drew name cards out one by one. Nowadays, with jury pools of two and three hundred, a computer took all the names with their associated numbers and created a randomized list that showed the order in which they’d be called.
I quickly reviewed the list and flipped through some of the questionnaires to see what we were getting in this first batch and what was coming up in the next groups. What I saw put a lump the size of a grapefruit in my stomach. All of our best jurors, my “fives,” were in the first batch. This meant the defense would have enough peremptory challenges to get rid of all of them. I’d be able to save up my peremptories by “passing” and accepting the jury, but the minute the next batches were called, I’d have to start using them—most of them were “ones” and “twos”—our worst. And the next batch after that…I pulled out the questionnaires and looked at the grades…just as bad. I looked through the last batch. They were better, a few “threes” and “fours,” but it wouldn’t matter—we’d never get to them. I’d run out of challenges and be forced to accept the jury before they could get called.
It’s well known that the case is won or lost in jury selection. What’s less well known is that something as simple as jurors’ placement on a randomized list can mean you’ll never get a shot at the ones you need. Luck of the draw plays a much bigger role in our system of justice than anyone cares to know.
While the judge read some of the basic instructions that explained their duties as jurors, Declan and I exchanged notes about which jurors had to go.
Declan thought we had to bounce the black single mother of two whose brother was in prison for armed robbery and whose father had been murdered in a drive-by shooting. Next up was a librarian who’d never married or had children and so wasn’t our ideal profile—we preferred women with children—but she was relatively intelligent and well read. It wasn’t worth wasting a peremptory on her, and I’d bet the defense wouldn’t either. An older black man would normally have been my ideal juror. Conservative, articulate, and strong minded. But he’d said he was no fan of “this younger generation” and their “questionable values.” I had two kids who’d schemed to extort a million dollars. Not a love match.
Judge Osterman had said that he’d do most of the questioning and give each side half an hour for the first round, then ten minutes for each successive round. He started by running each juror through the standard list of questions that was posted on a bulletin board near the jury box: marital status, children, employment and spouse or significant other’s employment, prior contacts with law enforcement or the judicial system, any past or current situation that might affect their ability to be fair, and so on. Some of them had been covered in the questionnaire, so the questioning went quickly.
I watched as each juror answered, and made notes on tone of voice, attitude, and body language. “And now, I’m going to let the lawyers ask you some questions,” the judge said. “People?”
I smiled in what I hoped was a disarming way and thanked them for being there, as though they’d had a choice in the matter. I asked them about the prosecution’s problem points. Motive: We didn’t have to prove it. What did they think about that rule? If they believed the evidence proved someone was guilty but they didn’t understand why that person did it, could they still convict? I watched carefully as they answered. Only one seemed to be uncomfortable with the rule. A young mom, and the only obvious Ian-lover in the batch, who was addicted to the E! channel. It figured.
Then I asked, “If you heard that the victims had staged a phony kidnapping, would that make you believe the victims got what they deserved?” It wasn’t something any juror would want to admit to thinking, and it certainly wasn’t a legal reason to acquit Powers, but it was the kind of emotional issue that could make jurors look for a reason to acquit—biases that no one wants to own up to even privately, let alone out loud. The only way to handle hidden bias is to pull it out into the open. That way, there’s at least a chance someone in the jury room will remind the others that we talked about this in voir dire.
I got everyone to say they agreed that it would be wrong to ignore evidence of guilt just because the victims did something they didn’t approve of and—as I frankly admitted to the jurors—that the victims shouldn’t have done.
Then I went through the standard discussion of reasonable doubt and circumstantial evidence. Everyone nodded as though they understood. I knew many of them didn’t. That’s why I always end the discussion with a hypothetical to illustrate the concepts in simpler terms. “You understand reasonable doubt is a doubt founded in reason. Not just something you might imagine.” I turned to the librarian. “For example, Juror Number One-oh-eight, see that baseball on the bailiff’s desk?”
The librarian glanced over at his desk and quietly answered, “Yes.”
“If you saw the bailiff throw that baseball at Tricia’s desk and heard glass breaking, and then you walked over and saw that the vase on her desk was broken, you’d know beyond a reasonable doubt that Jimmy had broken it, wouldn’t you?”
“Well…if that’s the only thing on her desk that was broken…yes.”
“Exactly right. Now, it’s possible that in the very same moment Jimmy threw the ball, Tricia’s vase fell apart on its own, or that Tricia had taken out a hammer and smashed the vase herself, but would that be reasonable?”
The librarian blinked a few times. “Well…no, it wouldn’t. At least, not in my opinion.”
“So would you agree that in my example, there is no reasonable doubt that Jimmy broke the vase when he threw the baseball at Tricia’s desk?”
“Yes.”
I watched the others with quick glances during this exchange to see how they reacted. The older black man was looking impatient, and gave me a “duh, no shit” look. The young mother who was an Ian groupie looked perplexed—another great reason to bounce her. But the black single mother was watching me with a little smile on her face. She got it. The electronic engineer was sitting back in his chair with the forbearing look of one who’d been through the drill. Most of the others seemed interested. Like I said, a great group. It’d break my heart when the defense gave them the boot. The best I could do at this point was ask them lots of questions so I could use their answers to teach the rest of the jurors in the pool.
I turned to the young rocker with the semi-Mohawk; from his questionnaire I knew he was a stocker at Ralph’s Grocery Store. I didn’t intend to waste a peremptory challenge on him, but I didn’t figure him to be a great pick for our side. After all, we were “The Man.” But when I asked him if, knowing that Hayley and Brian had staged the kidnapping, he’d be unable to convict, he half snorted and said, “You kidding? No. Smoke him.”
I had to swallow to keep from laughing out loud. Terry, of course, wasn’t finding this so funny. Bye-bye, rock star. He wasn’t the only good surprise: most of the others turned out to be even better than I’d expected too.
And when the defense got done, not a single one of them would remain. By the time I’d finished my questioning, I was more depressed than before.
“Defense, you may question the jury.”
Terry came out swinging—and showed me exactly what I was up against. With her very first question, I found out that even my best batch of jurors was vulnerable to the defense party line.
“Juror Number Seventy-four, do you believe that sometimes innocent people can be framed?”
/> The juror, a divorced father of three employed by the Department of Water and Power who looked like a beer-drinking football fan, responded, “Uh…sure.”
“And have you heard of cases where innocent men served as much as thirty years in prison before the courts agreed that they’d been wrongly convicted?”
He nodded seriously. “Yeah.”
I noticed she conveniently forgot to mention that those men had been freed by DNA evidence—our strongest proof of guilt in this case. I’d make sure to point that out when I stood up again.
Terry stretched the question out to the rest of the panel, and every single one of them said they’d seen such cases in the news.
“How many of you have heard about the Rampart Division of LAPD planting drugs and lying to justify arrests?”
I looked at Judge Osterman to gauge whether he’d sustain an objection. He glanced at me but looked back at Terry—a sign I shouldn’t waste my breath. I sat tight and did my best to look serene.
About six of the jurors raised their hands, and I heard rustling behind me that said many in the audience would’ve raised theirs too.
“Would you agree that the Rampart Division’s actions are an example of a conspiracy?”
The jurors answered in unison, “Yes.”
Where the hell was she going with this police conspiracy junk? Why on earth would the cops want to frame Ian Powers? I was glad Bailey wasn’t here to listen to this; she’d be ready to pull out her gun. Bailey and I were going to have to do some more digging to try to find out whether there was some bad blood between Ian Powers and the LAPD we hadn’t heard about yet.
“Now, you all agree, I’m sure, that it’s a terrible thing for an innocent man to be convicted?” Terry asked.
Firm agreements all around, “Absolutely” and “No question” and “Of course.”
“And you’d never want to be in the position of believing evidence that’d been trumped up to frame an innocent man, would you?”
Again, there were headshakes all around and murmured verbal responses of “No” and “Never.” Only my electronic engineer seemed immune. He pressed his lips together and watched Terry with a stony expression.
Terry moved on to the more personal issues. “You all know by now that my client, Ian Powers, is a very important figure in the film and television industry, and that he’s a wealthy man.”
Nods and murmurs of “Yes” throughout the jury box.
“Juror Number Twenty-eight, are you going to hold that against him?”
That, at least, was a fair question. The juror, a slight Hispanic woman who’d worked for the California Highway Patrol as a dispatcher but was now unemployed, shook her head vigorously and frowned. “No.”
Declan had given this juror a thumbs-up, but I’d been less impressed. Civilian employees of police departments aren’t necessarily big fans of law enforcement, and the fact that she was no longer working for the CHP worried me. She’d said she left because she wanted to go back to school. I wasn’t sure I believed her. Now, watching her practically mugging for Terry, I knew this juror was trouble.
“And just to follow up with you, Juror Twenty-eight, have you ever heard of an innocent person being framed?”
Juror twenty-eight started to nod, then darted a glance at me. She cut short her nod and asked, “What do you mean by ‘framed’? That someone made him look guilty? Or put him in a situation where he’d do something wrong?”
Pretty smart question, but her body language and attitude told me she’d asked that question to curry favor with me. She wanted on this jury way too much.
Terry finished with her and moved on to more mundane subjects like reasonable doubt. I snuck a look at Wagmeister and Ian. They were huddled together as though they were old fraternity buddies—the upper-one-percent fraternity. Ian was writing copious notes to Wagmeister, who nodded as he read them and patted Ian on the back. Wagmeister seemed to have slipped into the role of second fiddle rather easily, which was surprising. He was someone who’d always seemed to enjoy the limelight. On the other hand, if Ian had decided he preferred Terry to be lead counsel and he was still paying the freight, Wagmeister had no choice but to go along or get off the case.
I turned back to the jury and firmed up my decisions about who to kick first, then wrote down those juror numbers and showed Declan. Declan raised his eyebrows at my decision to kick the former CHP dispatcher.
Finally, Terry thanked the jury and sat down.
“The first peremptory is with the People,” Judge Osterman said.
I stood. “The People would like to thank and excuse juror number twenty-eight.”
The former CHP dispatcher favored me with a dirty look on her way out of the jury box.
“Defense?”
Terry stood. “The defense would ask the court to thank and excuse juror number sixteen.”
There went my electronic engineer.
One by one, I watched the best of the pool walk out the door as the defense used one challenge after another to get rid of them. I passed as often as I dared, to save up my challenges for the coming groups, but it hardly mattered. I’d just be trading a stomachache for a headache, because they were all equally bad. And so it went that day and the next.
At mid-afternoon on Friday the judge turned to face the jury. “I know this is the least fun part of the trial for you, so for your sakes, I’m going to let you go early today and get started on your weekend.” The jurors gave him a hearty thanks, which made Judge Osterman smile. The kiss-ass.
63
On Monday, as we’d been doing all along, Declan and I ate lunch in my office. I unwrapped my vegetarian pita sandwich and salted it liberally. I know salt is bad for me. But it was a lot better than a big belt of scotch—which was what I really wanted. “I can’t believe the way all the jurors are biting whenever she throws that conspiracy hook into the water.”
Declan nodded glumly. “And whenever she talks about the innocent guys who get nailed—”
“I’ve got to keep pushing back and reminding them that those guys eventually got sprung by DNA, get ’em to say they believe in it—”
“That’ll help, but when you look at what we’ve got coming…”
That was the most painful truth of all. Our next batch of jurors included a guy who’d been busted for DUI twice and believed the cops had rigged the blood test (both times!); a woman who’d divorced her cheating husband (a former sheriff’s deputy) and was now taking him to court for unpaid child support; an older man whose daughter was unfairly busted for possession of cocaine (that really belonged to her roommate); and a university professor whose best friend had been (unjustly) accused of misappropriating funds from his accounting firm and was now facing criminal charges. And it went downhill from there. The group after that one included a woman whose son was on death row and a father whose daughter had stolen the family business right out from under him—and who passionately hated everyone under the age of seventy.
Naturally, all had claimed in their questionnaires that they could be fair.
“Let’s talk about the good ones that’re still in our clutches. We’ve got the librarian, the soccer mom from cop country—”
“Cop country?” Declan asked.
“Simi Valley. Bedroom community where lots of law enforcement live. Very good for us, and the defense might like her too, because she reads People magazine and watches Celebrity Ghost Stories, so she seems like a Hollywood groupie—”
“I watch Celebrity Ghost Stories.”
I eyed him with mock reproach.
“It’s not appointment viewing or anything, but it’s kind of interesting…”
“Anyhow, I’d guess Hollywood nonsense is a fun distraction for her, not the sun in her universe. I think she’ll ride with us. We’ve also got the single mom with the violent history—”
“You want to keep her?”
“Absolutely. She’s cool and smart and she won’t buy anyone’s garbage. And I’m betting the defens
e doesn’t get who she is, so they’ll leave her on. Trust me on this one. What about that retired schoolteacher who taught English?”
“Not sure. I get a creepy vibe from him,” Declan said.
“As in pedophile creepy?”
“I don’t know.” Declan finished his sandwich and wiped his mouth with the paper napkin. “But whatever. Do pedophiles tend to convict?”
I almost spit my soda across the room. “You’re twisted, Declan. Yet another thing I like about you.”
Back in the courtroom, the afternoon session flew. I hammered away on the virtues of DNA and did my best to find something good in what looked like a relentlessly bad batch.
By four thirty the next day, I had at least seven jurors I needed to kick and only two peremptory challenges left. This was the true heart-pounder, when I had to make the choice between the lesser of the evils. There was the owner of a paycheck advance business (the kind who prey on the poor, charging twenty percent interest for a loan against forthcoming paychecks) who openly admitted he wanted to write a book about the trial; a left-wing blogger who called me a “functionary of the male-dominated establishment” (personally, I appreciated her point of view, but legally, she had to go—and did I mention she hated cops?); and the pièce de résistance: a waiter (aka out-of-work actor) who was very familiar with the work of the genius Russell Antonovich and his partner, the “brilliant Ian Powers.” The other four were equally nightmarish.
I asked for a five-minute break to take aim at our final round of challenges and huddled with Declan in a corner of the courtroom.
“I think that guy in the back row, the one whose mom is so sick, has got to go,” Declan said. “Did you see how pissed off he was when Terry got into her spiel about the innocent men wrongly convicted? I thought he was going to come out of his seat.”
“Number eighty-nine, yeah.” An anesthesiologist had botched a routine hip replacement operation that left the prospective juror’s mother a vegetable, albeit one who’d probably get to go home, where doctors opined she’d survive for many years. Because he’d signed a binding arbitration agreement, the most he could recover was $250,000—which he probably wouldn’t get, because his mother was elderly. I had an idea that whatever he got wouldn’t come close to covering the costs of in-home care. In a word, the issue of innocent people being mowed down by the machine was very real to him. I tried to find a bright side. “He’s got a bachelor’s degree. There’s a chance our evidence could get him to see past his own life. Besides, the paycheck loan guy looks way too impressed with Powers. He doesn’t care what’s true, he just wants a book deal.”