I load up with a few leading questions.
“I suppose,” I say, “that you share a lot of work experiences with your husband, that he tells you about arrests that he makes, about appearances in court or court-martials?”
“Yes,” she says.
“I suppose, if you were to see a young, good-looking police officer, maybe in uniform, appearing here in this trial, you might tend to think about your husband?”
“I might,” she says.
Acosta’s head is rolling slowly on his shoulders, like he’s on the ropes, close to a decision.
“And if that same police officer were to testify, you might have pleasant thoughts of your husband?”
She shrugs and says, “Maybe.”
“Your Honor-”
“All right, Mr. Madriani, you don’t have to put ’em in bed together.” Acosta shuffles a few papers on his desk. “We’re at that point anyway,” he says, “to pass upon cause for this panel. Any nominees, Mr. Madriani?”
“Mrs. Jackson,” I say.
“Mrs. Jackson, you’re excused,” he says, “for cause.”
She gives me a dirty look as she pulls out of the box.
Nelson and I pass on the rest for cause. We are getting close.
Jackson’s seat is quickly filled, by another woman, a housewife from down near the delta.
Nelson burns another peremptory, a young man in the front row. He was good for our side, articulate. This guy would not have to fantasize far to see Talia in his arms.
The clerk brings up one more, an old man, moving slowly. Nelson’s now down to his last peremptory. We are getting close to our jury.
I start on the old man. His age is an obvious problem, though I would not venture a guess. Nelson is immediately scanning the jury list.
“Mr. Kauffman,” I say.
He squints at me from behind Coke-bottle lenses and tilts his head, in hopes that my words may run louder downhill into his better ear. He appears to have made out his name.
Meeks is whipping through paper for Kauffman’s questionnaire at the prosecution table. When he finds it, he’s all fingers, to the block at the top, listing date of birth. There are knowing looks exchanged with Nelson, like “Maybe this guy was a drummer boy for the Confederacy.”
This presents a real problem for the prosecution, the single hung juror, a venireman who may not be up to the rigors and mental gymnastics of jury service for reasons of age. The fear here is not bias but indecision, the risk of having to try the case again, months of lost work, a small fortune in squandered tax dollars.
Nelson may look to Acosta for a little understanding on cause, but the Coconut knows older people vote. More to the point, they have time to organize for all forms of political vendetta. They come to court to watch in droves. In this county criminal sessions have replaced the soaps in terms of audience share. The little shuttle bus that stops in front of the courthouse hourly deposits an army of gray-haired citizens, all marching toward the latest drama in superior court. They are waiting outside in the hall for jury selection to end. The politic judge knows this.
“Mr. Kauffman, can you hear me?” I say.
“Oh yes, I can hear.”
“Do you know anything about this case, sir?”
“No.”
“Do you see the defendant sitting here?”
He cranes his neck a little to look, to take in all of Talia, not particularly impressed by what he sees.
“Have you ever heard of the defendant, read anything about her?”
“No.”
Sees lightning and hears thunder, I think.
“That’s all, Your Honor.” I take my seat and leave this problem to Nelson.
“Mr. Kauffman, I know that you heard the judge talk earlier about the likely duration of this trial. Do you really think you are up to the day-to-day demands of being here, listening to long hours of testimony?”
“Emm?”
“I say …” Nelson’s turning toward the table to look at Meeks. “Never mind.”
Nelson returns to the counsel table and looks at a pad where he’s jotted some notes.
“Mr. Kauffman, do you have any health problems, matters which require you to see a physician on a regular basis?”
Given his age, this is a good bet.
“Little constipation,” he says. “Gives me pills for it.”
“When’s the last time you were hospitalized, Mr. Kauffman?”
This sets the juror thinking, his eyes looking up, taking in all the perforated little panels on the ceiling. A good minute goes by while he counts on his fingers.
“Ah, ninet-e-e-e-e-n … fifty-six. No, no,” he says. “Mighta been ‘fifty-seven. Hemorrhoids.”
“You’re sure?” says Nelson.
“Oh yeah, hemorrhoids, real painful,” says Kauffman.
There’s laughter in the audience.
“No, I mean the year.”
“Oh yeah, about then.”
Nelson goes back to his little pad on the table, shaking his head.
“Do you live with anyone, sir?”
“What’s that got to do with anything?”
“Mr. Kauffman, please, just answer the question.” Acosta gives him a little chiding and a benign smile.
“Pioneer Home for Seniors,” he says. This is the bed-and-board high rise in the center of the city, one stop short of a convalescent hospital, for those who need cooking but aren’t quite ready for confinement.
“Sir, do you really think you’re up to coming here every day, maybe for weeks, possibly months, to listen to detailed testimony, from doctors, police officers, witnesses …”
As Nelson speaks Kauffman’s eyes begin to sparkle, a refreshed interest lights his face. Nelson’s describing more excitement than this man has seen in a decade.
“Sure,” he says. “I can do that.”
“It’s serious work, Mr. Kauffman. Hard work.” Nelson is stern, trying to quell this little rebellion of enthusiasm.
“I can do it,” he says. “I know I can.” There’s life in his voice, like with this kind of amusement to fill his days he could make it through the next century.
“You know,” says Nelson, folksy charm dripping through, “they used to excuse good senior citizens like yourself from jury service. The law figured that people over seventy worked hard, contributed their share to society, and now it was the turn of others to work. That these good people,” he gestures toward Kauffman, “deserved a rest, to relax in their later years.”
Kauffman’s look is the expressive equivalent of spit. He’s not buying Nelson’s geriatric populism.
“They used to feed Christians to the lions,” he says. “That don’t make it right.”
There’s laughter in the courtroom, a little applause from three older women in the back row. This is not going well. Nelson retreats to his table, conferring with Meeks. If they get him for cause, they have to consider at what cost, the alienation of other jurors on the panel.
“That’s all, Your Honor.” Nelson takes his seat.
Acosta looks at me.
“Mr. Madriani, for cause?”
“This juror is acceptable to me, Your Honor.” I look at Kauffman and smile. I would wave, but other jurors might think it improper. It’s a calculated risk, the assumption Nelson can’t live with Kauffman.
“Mr. Nelson?”
“Your Honor, we would move that Mr. Kauffman be excused for cause.”
“Not that I’ve heard,” says Acosta.
“Your Honor, it’s obvious that this trial is likely to go on for weeks. It’s going to be extremely rigorous.”
“And I hope you’re up to it, Mr. Nelson.”
There’s more laughter from the audience.
“Fine, Your Honor.” Nelson’s not interested in being the butt of political pandering. He takes his seat.
The judge looks at me again. “Peremptories?”
“No, Your Honor.”
“Mr. Nelson.”
N
elson’s in conference with Meeks. It seems they do not agree. Finally he tears himself away.
“Your Honor, the people would like to thank Mr. Kauffman and excuse him.”
“Mr. Kauffman, you’re excused.”
The panel is staring at Nelson like some tyrannical first mate who has just tossed the oldest and most infirm from the lifeboat.
Kauffman’s looking around like he’s not sure what this means. Another juror whispers in his good ear.
“Do I have to leave, judge?”
“Yes, Mr. Kauffman, I think so. Maybe you could help him out.” Acosta’s prodding his bailiff for a little help. The marshal and two men on the panel get him around the railing and point him toward the door.
Kauffman’s seat is quickly filled, a tall man, well proportioned, in a buff cardigan and tan slacks.
Kauffman’s still moving, shuffling like flotsam and jetsam toward the door, while other jurors talk to him from aisle seats in the audience, patting him on the arm, a folk hero.
I’m on my feet at the jury railing, starting on the cardigan sweater.
“Sir,” I say, “you’ll have to excuse me, but I don’t have the jury list. Could you give me your name?”
“Robert Rath,” he says.
He is bald as a cue ball, with a slender, intelligent face and delicate wrinkles of thought across the forehead.
“Can you tell us a little about yourself? What type of work you do?”
“Retired,” he says.
I’m wandering near the jury box. Harry has the list and the juror questionnaires, so I’m blind as to Rath’s background.
“What kind of work did you do?”
“Military,” he says. “I’m retired from the Air Force.”
I get bad feelings in my bones. This kind face, I think, is deceptive.
Rath’s not volunteering anything. Nelson’s pulled the questionnaire from Meeks and is looking at it. He drops the paper and lifts his gaze to the judge, round-eyed, like there’s some concern here.
“Tell us about the kind of work you did in the military, before you retired.”
“JAG,” he says.
“Excuse me?”
“I was part of the judge advocate general’s office, a military lawyer,” he says.
I turn and look at him. There’s a kind of confident, cocky expression on his face, like he knows he has coldcocked me.
“What type of legal work did you do in the military?”
“When you’re there for twenty-seven years, you do a little bit of everything,” he says. “But the last ten years I represented airmen under the uniform code of military justice. Your counterpart to the public defender,” he says. “Area defense counsel.”
He smiles at me, broad, benign, a brother in the cloth.
I glance at Nelson. He’s putting a face on it, composed, disinterested, unwilling to poison the other jurors with a burst of venom. But I know that in his gut he is churning, like the screws on the Love Boat.
I try to match his composure. But there are little yippees, jumping, erupting, crawling all over inside of me. A defense lawyer on the panel and the people out of peremptories.
Nelson’s not exactly screaming, but it’s the closest imitation I’ve seen by a lawyer at a judge in my recent memory. Acosta’s taking this in chambers, with the door closed. This time the court reporter is with us.
“You can’t allow him to sit.” This sounds like an order from Nelson. He’s pacing in front of the judge’s desk, his hands flailing the air.
“If it doesn’t violate the letter of the law, it certainly violates the spirit. The policy’s clear,” says Nelson. “The courts would never condone a lawyer exercising that kind of influence, dictating results to a jury of lay people behind closed doors. I can’t believe that you would want that.”
“It’s not what I want or what the courts want, Mr. Nelson. It’s what the law demands.”
For decades the statutes of this state had disqualified any lawyer from jury duty. Conventional wisdom held they would poison the fair-minded justice dispensed by average citizens, dominate other jurors. The organized bar went along with this, more interested in standing in front of the jury railing and being paid than sitting behind it. For forty years everyone was happy with this arrangement. Then a few years ago a lawyer-baiting legislator looking for headlines noticed these exemptions buried in the codes and cried foul. Reasoning that lawyers owed a civic duty to jury service, just like everybody else, he cowed the bar into silence, managed to suppress all rational thought on the subject, hustled his bill through the legislature, and promptly died. It was, it is said, his sole act of note in an otherwise undistinguished and brief legislative career. Lawyers on both sides of the railing have been taking his name in vain since.
I wade into the argument, trying to take some of the heat off Acosta.
“I wonder if the people would be here complaining, Your Honor, if Mr. Rath was a former prosecutor,” I say.
“No,” says Nelson, “we wouldn’t have to, you’d have already scotched him with a peremptory.”
It’s the hardest thing a lawyer has to do, argue with fundamental truth.
The prosecution has leveled an assault on the juror Rath that would shame a Roman legion, all in an effort to excuse him for cause. He has dodged each of these with the guile of a magician. Here, I think, is a retired man, younger but like Kauffman, with much time on his hands, a man whose heart pines for a return to the courtroom.
Nelson turns on Acosta and makes an impassioned plea for more peremptory challenges. Now he’s going for the soft underbelly. If the court can’t change the law to exclude Mr. Rath, it can exercise its discretion to grant the extra peremptories, he says. The ones the court talked about earlier.
“I object. Absolutely not, Your Honor. The court’s ruling on this was clear,” I tell Acosta. “You agreed only to entertain a defense motion for additional peremptories to be given to both sides, if it was felt we could not empanel a fair jury for reasons of publicity. So far, I’m satisfied with this panel. The defense makes no such motion.”
I tell Acosta that any additional peremptories given on request of the state would be viewed as highly prejudicial against the defendant.
Acosta can hear little bells tinkling, the sounds of appeal.
“Mr. Madriani’s right,” says Acosta. “My concession for additional peremptories was only for the causes as stated and then only upon proper motion by the defendant.”
“Besides,” I say, “it’s time to finish with this jury and get on to the trial.” Expedition, getting on with it, the standing general order of every judge.
“Sure,” says Nelson. “You’d put your mother on the jury and argue I was stalling if I tried to take her off.”
“Mr. Nelson, if you have a comment make it to me.” Acosta cuts him to the quick. The argument is degenerating.
“I can’t rewrite the statutes to excuse Mr. Rath because he’s a lawyer, and you’ve exhausted your peremptories. You tell me, you think you have an argument for cause?” Acosta’s looking at Nelson, heavy eyebrows bearing down.
The answer is written in the prosecutor’s bleak expression.
“It does violence to any sense of fairness, Your Honor.” Nelson’s shaking his head, but the imperative is gone from his voice. This is a little drama now, something that Nelson can put in the bank for later withdrawal, for use in a future skirmish, to remind the court how he was kicked on this one, and where.
The judge is heading for the door, Nelson two steps behind him.
“Just like a damn lawyer. When everything else fails, fall on equity.” I say this to Nelson, up close in his ear. My part, a bit of mock grousing.
He smiles, spares a laugh at this. It’s good to see, at least at this early stage, Nelson still has a sense of humor.
“The law’s the law. You and I both have to follow it, Mr. Nelson.” Acosta’s grumbling, unaware that we’ve both pitched it in. He’s blaming the law, unhappy that he couldn�
��t end this argument with all parties loving him.
But for the moment he has my warm affection, and I have Robert Rath, my alpha factor.
CHAPTER 28
All in all, things have gone well, far better than we had any right to expect. I know that there will be darker days to come, but for the moment we revel in our good fortune.
Harry is glowing over the jury. I burned the last peremptory on an older woman, and we came away with a panel of eight men and four women. The two alternates, in case of illness, death, or disqualification, are both men.
The four women are, from appearances, all solid, stable types, people who if the strings are played right should harbor no undue bent toward Talia.
There is nothing more prone to error than forecasts of what a fickle jury may do. But at this moment, I would stake my life that within twenty minutes of the time they retire to the jury room for deliberation, Robert Rath will be anointed jury foreman. Though he tends to hang back, a Jeffersonian kind of lawyer to whom silence is golden, Rath is smart, intuitive. He has the kind of competence others can smell.
Nelson is all dapper this morning, an expensive charcoal suit and French cuffs, a pound of gold at each wrist. He will be making his opening argument to the jury today, and impressions are vital.
From here I can see him across the room, a counter-image of myself, caught up in an aura of excitement, as if bathed in the glow of spotlights. People are talking to him but he’s not hearing, busy, a little mental hyperventilation, preparing for combat.
I look over, and Harry is having a few words with Meeks. Like diplomats at a summit, they are already working out the terms of instructions for the jury. These are little printed snippets of law, tailored to our case, that will be given as guidance by the court to the jury before deliberations. Nelson and I must have some understanding of these instructions now, if we are able to bend the facts of this case, to conform our theory of the crime to the governing law.
This morning will be consumed by the judge. He will give lengthy ground rules to the jury: that they may not discuss the case with anyone; what they may see and read; the limits of their conversations among themselves. He will tell them about the case in broad terms, and the procedures to be followed by the court during the trial so there are no surprises.
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