“What is it?” he says. There’s a little impatience in his voice.
“Your Honor, the people move to quash the subpoena issued by the defendant for trust records from the Potter, Skarpellos law firm. The defense is on a fishing expedition,” says Nelson. “These records are irrelevant to any issue bearing on this case.”
Acosta looks to me. “I’ve wondered about that myself,” he says. “How about it, counsel?”
“We’re fully prepared to make an offer of proof, Your Honor.” This is a little demonstration, an explanation of how these documents bear on Talia’s defense, to satisfy the court on the issue of relevance.
“Just tell me,” he says. Acosta doesn’t want to take the time to pull the court reporter into chambers or clear the courtroom for an argument on the record. I will insist if I lose.
“Your Honor, we have reason to believe, based on credible testimony of a witness we will produce during this trial, that the client trust account in question will reveal serious imbalances, trust deficiencies that are the direct result of embezzlement.”
Nelson looks at me in wonderment, like “So what?”
“We believe that these trust deficiencies are directly linked to the motive for the death of Ben Potter and bear directly on my client’s innocence,” I say.
Nelson’s looking at Meeks, who makes a palpable shrug with his shoulders-it’s a mystery to him.
I’ve carefully measured my argument. As few revelations as possible.
Acosta looks to Nelson, who stands silent.
“Motion denied,” he says. “I’ll allow the subpoena to stand.” Then he looks at me, more severe this time. “Admission will be subject to a showing of relevance at a later time, by your witness,” he says.
“Understood, Your Honor.”
“Good. Then let’s get a jury.”
I look at Nelson, who’s making a face at Meeks. The copiers at Potter, Skarpellos will be busy this night. So will Jimmy Lama, gathering excerpts of these records for Nelson’s accountants. I have already called my own and told them to get ready. I will need a rapid turnaround on an audit.
Acosta’s back on the bench, business settled in chambers.
In this county we use the jury selection process known as the “six-pack,” three rows of six, in the jury box.
“We’ll have the first eighteen,” says Acosta.
The clerk calls the first eighteen names from the jury list. Like sheep at the shearing, they file up from the audience and into the jury box. The rest, another 282 souls, sit and watch, to see what’s in store for themselves. Eleven women and seven men take their chairs. The demographics are already cutting against us.
There is a proclivity for older females, retired military types, and telephone company workers on juries in this county. I am leery of each. These people have seen too much of the inside of courtrooms for my liking. Utilities, it seems, love to do their civic thing, sending their people in droves, paying them their full salary while on jury duty. A conspiracy, I think, on the part of big business to whittle down civil judgments; these people spill over and show up too often on the criminal side now that I am doing the defense.
At best, even with the most scientific of approaches and tools, the selection of a jury under our system is a crapshoot of the most random variety. I have read and studied every method, from the high-priced tort sharks with their theories of body language and human paramessages, to the corporate gurus who do their voir dire while some shrink whispers psychic sweet nothings in their ears. In the final analysis, the passing upon any prospective juror comes down to your lawyer’s gut.
Factors that make any single juror desirable on one level, with regard to one aspect of your case, can make him the enemy on another. These are the psychodynamics of human bias multiplied by twelve. The unforeseen twists that are common to too many trials can, in one bad day, turn the best jury into a hanging mob.
A full quarter of the good citizens called for jury duty in this country show up at the courthouse already harboring the belief that criminal defendants wouldn’t be there unless they were guilty, though on penalty of death these jurors would never admit this in open court.
Harry and I know there are definite parameters to our jury in this case. Most women are likely to hang a scarlet letter about Talia’s neck. They will never condone her infidelity, or the relationship of convenience that was her marriage.
Red-blooded males, on the other hand, can empathize, not with Talia, but with her lovers. They can fantasize about themselves with this woman, and in so doing forgive her for her indiscretions. The younger the better, I think. The minds of youth are not yet warped by convention.
In my wildest dreams I have mused on the perfect jury for this case, a panel of young, single males, twelve fraternity jocks squirting prurient hormones.
As we begin, Harry is endlessly turning his pencil, sliding it through his fingers, eraser to point and back again on the table. This first part belongs to the court.
In cryptic terms Acosta summarizes the case and performs a little precursory examination, not directed to any of the veniremen in particular. This is general stuff, designed to short-circuit some of our questions.
He spends a good deal of time on hardship. “This is likely to be a long trial; if there are reasons why any of you might have difficulty serving over an extended period, this is the time to tell me.”
Three hands go up like rockets, women with small children; two of them are juggling kids and a job.
Acosta shoots them all down. “These are not hardships,” he announces. “You have a civic duty. Jury duty is a privilege.” This from a judge with a live-in maid. Acosta’s making a little show, to set the tone for others in the audience, a message that their excuses had better be good. As a practical matter, all sides flush with peremptories, it is likely that few if any of these will survive to make the final cut.
He moves on to other subjects: Do they know the defendant? Do they know any of the attorneys? Have they read extensively of the case?
One woman raises her hand.
“And what have you read, madam?”
“The papers,” she says.
“I think we’ve all read the papers. What in particular?”
“Where it said she was guilty.” The old lady is holding her hand close to her breast, pointing with her finger a little tentatively at Talia, as if she’s not sure whether this pretty woman is the defendant.
“I must have missed that story,” says Acosta. “Where did it appear?”
“I can’t say as I remember.” The lame cop-out of a juror anxious to go home.
“I see. And you believe that this would interfere with your ability to objectively judge the evidence in this case?”
“I don’t know,” she says. “I can’t be sure.”
“I would encourage you to put it out of your mind,” says Acosta.
“Your Honor.” I’m on my feet, looking down at a piece of paper with little grids, a name in each, corresponding to the jurors in the box. Harry and I have made these from the jury lists, using the numbers assigned to each juror. “I move that Mrs. Douglas be dismissed for cause.”
“Mr. Madriani, if we do this for every witness who has read about the case we’ll end up funneling the entire population of the county through this courtroom and we’ll never find twelve.”
“Your Honor, the juror says she isn’t confident of her ability to judge the evidence objectively.”
He humors me on this point, but makes clear that I should not view this as any precedent. He will judge the jurors, for cause, on their individual responses.
I tell him I understand.
“Very well. Mrs. Douglas, you’re dismissed.”
One down, I think.
She files out and passes her replacement on the way. Harold Parry takes her chair. He is fifty-five, looking seventy, in a string tie. No frat brother, but perhaps still capable of fantasies. I look at Talia, sitting impassively, glowing in the chair nex
t to me. Yes, I think, Mr. Parry can dream.
It is after lunch, edging on toward mid-afternoon, before Acosta finishes these preliminaries and turns the jury over to the players.
We work through the jurors, give and take; me first, then Nelson.
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.”
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