A Gambler's Jury

by Victor Methos

  He tapped his fingers against the chair. “I’ve . . . I don’t know. You start doing things, and it gets easy and then you don’t stop. I gave in a little here and a little there, and before I knew it I was doing . . . this.”

  “So quit.”

  He shook his head and stared off into space. “Five years away from my pension, so no, I won’t be doing that.”

  “You gonna be happy spending that pension knowing you put an innocent disabled kid in prison?”

  “Who said he’s innocent? Even if Zamora is a snitch and set this whole thing up, your client did everything willingly.”

  “Jasper, if you do this, you will never forgive yourself.”

  He looked away and tapped the chair again. “I think you should leave, Danielle.”

  “Talk to Sandy. She’ll listen to you. Don’t put that kid on trial for this.”

  He led me out of the house and then stood on his porch a short while as I headed to my Jeep. I sat in the driver’s seat and looked back at him. I could almost see the struggle going on inside him. I almost felt bad for the guy. Almost.

  I started the car and drove to my office to draft a new motion.

  44

  I wished I could’ve driven Teddy to court the next morning. On the way over, we would have gone through a few questions and I would’ve practiced cross-examining him. Sandy, if she were smart, would try to paint him as both more intelligent than he let on, and angrier.

  At the courthouse, I saw potential jurors and cops, prosecutors and judges, piling in. I always felt alone on the day of a trial: me against a machine that was set up to crush me. A trial was a battle, originating in trial by combat between nobles. Eventually, the nobles got sick of killing each other and hired people to fight in their stead. The ancestors of the modern trial lawyer were mercenaries. I took a deep breath and went inside.

  Sandy and Double D were seated at the prosecution table, beside Detective Steed. The prosecution got to have their lead detective as a case manager, who got to remain in the courtroom through the entire trial—even though it could clearly sway his testimony. I had no such luxury or witnesses. I tried to clear my head and calm myself. Trials had never bothered me before. I could walk in and wing it on a moment’s notice and not even elevate my heart rate. But right now my palms were sweaty, and my heart was trying to break out of my chest.

  I looked over to the prosecution table to see if Sandy felt anything, but she just stared straight ahead and didn’t speak to anyone. The woman might’ve been a robot.

  “All rise,” the bailiff said. “Second District Court is now in session, the Honorable Mia Roscombe presiding.”

  We got to our feet. Roscombe sat down and let out a quiet burp as he booted his computer. He glanced over at me and then to the prosecutors and said, “Both parties ready?”

  “We are, Judge,” Sandy said without rising.

  “Yes,” I said.

  “Then we’ll bring out the defendant.”

  “I did have one thing,” I said. “May I approach?”

  “You may.”

  Sandy and I went to the judge’s side. I flopped my Brady motion onto his bench, and he picked it up and scanned it. It was only a page and a half, as I stated that I would need an evidentiary hearing to further develop the issues.

  I handed a second copy to Sandy, who read it much more carefully.

  “Your Honor,” she said, without taking her eyes off the document, “this is clearly a substantive motion and the rules are plain: they must be filed at least seven days before trial. I’m not prepared to argue this today.”

  “There’s an exception,” I said. “It must be raised seven days before trial if practicable. I only found out about this yesterday. I’m as prepared to argue it as she is. I think the appropriate thing to do would be to either have the hearing right now, since the only two witnesses I’ll be cross-examining are Detective Steed and Mr. Zamora, who are both here. Or we could continue the trial and set a hearing date. I would only agree to that if my client could be released, though. He can’t stay in there.”

  “I would object to both,” Sandy said. “I think the motion should be ignored due to untimeliness, and Mr. Thorne’s subsequent counsel should seek an appeal based on ineffective assistance of counsel since Ms. Rollins didn’t do an effective investigation to discover this before today.”

  “You gave Zamora a deal so he wouldn’t want to talk to me. How the hell was I supposed to find out he’s a snitch?”

  Roscombe watched me to see what I did. I may have shown a glimmer of hope that he would either have the hearing or let Teddy out. I got the feeling he enjoyed seeing that the way a child enjoys seeing an ant climb onto his foot, the ant unaware he’s about to be crushed.

  “I agree. The motion is untimely. Back up and let’s put it on the record.”

  “They hid evidence, Judge. It’s untimely because they lied to me in clear violation of every rule of discovery ever written. It’s their fault, not mine, and I think the proper remedy is to let my client out and give us all a chance to prepare.”

  “I disagree.”

  I chuckled. “You would disagree with that.”

  Oh shit.

  “It appears,” he said quietly, “that you would like to spend more time in my cell.” He looked at Sandy and then back to me. “Now step back while we bring the defendant and the jury panel out. Your motion is denied due to untimeliness.”

  I went back to the defense table. A bailiff came out of a side door, with Teddy in front of him. Teddy waved to me and smiled. He wore the clothes I had brought him, slacks and a shirt and tie. He was sat down next to me with his handcuffs still on. “No cuffs,” I said.

  The bailiff hesitated, then removed the cuffs. Teddy immediately began tugging at his tie, unable to make himself comfortable.

  “Let me,” I said.

  I loosened the knot so it wasn’t touching his throat, and he seemed to calm.

  “Hi Danielle.”

  Despite where I was and what I was doing, I couldn’t help but smile at him. “How are you, buddy?”

  “I watched TV last night, Danielle. Um, Spider-Man. They let me watch Spider-Man. Have you seen Spider-Man?”

  “Haven’t seen it. Was it good?”

  “It was really good. I like it because he can jump far, see. He can jump far and fly.”

  The bailiff said, “All rise for the jury.”

  I stood and helped Teddy to his feet. Nearly thirty potential jurors walked in. I scanned their faces, hoping to be able to tell something about them from nothing more than a glance. Every lawyer did the same thing when a jury first walked in. Of course, we couldn’t tell anything. Jury consultant firms, charging a thousand bucks an hour, had elaborate algorithms and statisticians working the data to try to predict which way a juror would find on a case, and they were wrong a little over 50 percent of the time. They picked slightly worse than random selection. Humans are just too complex to predict how we feel at any particular moment.

  “Please be seated,” Roscombe said.

  His entire demeanor had changed. His face, usually looking like a wrinkled statue, had softened. He even grinned, or at least tried to as he began reading his stock instructions and introductions to the jury panel. The entire process of jury selection would be quick. Roscombe was known for allowing the lawyers to question the jury panel for fifteen minutes each, not a minute more for either lawyer.

  “Will the lawyers please introduce themselves?” Roscombe asked in a voice kinder than I’d ever heard him use.

  Sandy rose. “My name is Sandy Tiles and this is Jasper Diamond. We represent the state of Utah in this case. Our witnesses are Detective Bo Steed, Mr. Salvador Zamora, Kevin Simmons, Clint Andrews, Freddy Willmore, and Dr. Harold Coltrane with the Utah State Crime Lab.” Roscombe would be asking if any of the jury knew any of the witnesses, so they were introduced whether they were present or not.

  I stood and faced the panel. A few of them glanced at Teddy. I could
tell what they were thinking: Just because Teddy sat in that seat, their hindbrains assumed he was guilty. Oh, they would try to fight that idea as well as they could; people hated to think they couldn’t be impartial. But the subliminal suggestion of guilt was always planted the moment the jury saw the defendant behind that table.

  “I’m Danielle Rollins, and this is Teddy Thorne.”

  Teddy waved to them, and I saw several looks of confusion. I wanted to grab them by their collars and scream: This kid is innocent, and you have no fucking idea what the government is doing to your rights! But that wasn’t allowed. Instead, I just said, “I’m helping Teddy today.”

  No one on the panel knew any of the attorneys or witnesses. We then went into the mechanics of trial, when the jury would be getting breaks, that they were not supposed to talk about the case while outside of the jury deliberation room, and a thousand other things that judges thought were somehow necessary for a person to think clearly.

  Sandy went up to the lectern and silently flipped through her five pages of questions before she began on number one. How many of them had ever been arrested for possession of illegal narcotics? How many had general criminal histories or had family members who had criminal histories, and how many had used narcotics and blah-blah-blah. In my experience, no one was going to be honest to a roomful of strangers about Uncle Billy’s meth habit.

  She grilled the jury for the full fifteen minutes, glancing back once at Roscombe to ensure she had his full attention when she asked, “Can you convict a person and uphold your oath under the law even if you feel sorry for them?” Sneaky sneaky.

  It was my turn. I handed Teddy the iPad I’d brought for him. I didn’t stand at the lectern but went up close to the jury. I stared at them. They stared at me. An uncomfortable silence passed before I asked my first question: “Do you or anyone in your families have anything against the mentally disabled?”

  I didn’t care much about the question, because someone who hated the disabled wouldn’t be honest about it. I just wanted to get into their minds that Teddy couldn’t be held to the same standard as everyone else.

  “Could you really be impartial, knowing my client is mentally disabled? Do any of you view a mental disability in a light that would make it hard to judge the innocence of my client? Do any of you have family members who suffer from disabilities and are not able to think on the level of an average person?”

  I must’ve said “mentally disabled” in every sentence for fifteen minutes. No one answered yes to any of my questions, so there was no need to explore their answers further.

  When I was done, I thanked the jury and sat down. I got little information from them, but that wasn’t terribly important. I couldn’t possibly guess how they would find even if I spent a year asking them questions. I just hoped I had planted in their heads that Teddy needed to be held to a different standard than people who were not mentally disabled.

  After the questioning of the jury panel, the judge went over another half hour of instructions, and then we took a break. I turned to Teddy, who was smiling at the iPad, and saw the bailiff make a motion toward it.

  “It’s gotta go,” the bailiff said.

  “If you want him calm and quiet, he needs it,” I said.

  “We can make him calm and quiet.”

  I stared at the bailiff for a second and then reached across and lowered the iPad. “You have to concentrate on what’s going on, buddy. They won’t let you have the iPad.”

  “But I wanna play games, Dani.”

  “I know. Just for the trial, though. I’ll get you your own iPad afterward, and you can play as much as you want.” I looked at the bailiff again, who was smirking now. “I have to go to the bathroom, Teddy. Do you need to go?”

  “No. Um . . . no.”

  “Okay, if you need to go, just tell me.”

  I walked into the bathroom and vomited into a toilet.

  45

  After a ten-minute break, Roscombe droned on and on about procedure and rulings and how sometimes the lawyers would have to discuss something out of the earshot of the jury and that they shouldn’t take it personally. Usually, whatever was withheld from the jury was the information they most needed to know.

  The jury selection for a felony trial allowed four preemptory challenges, meaning the defense and prosecution each got to strike four potential jurors. I didn’t have much to go on, so I struck the people who were staring at Teddy as though they didn’t like him. The prosecution really aimed for anyone who might be in danger of actually weighing the evidence and making a fair ruling.

  No black jurors, no liberals, no one who read anything but the local papers.

  When it was over, we had our eight jurors: three women and five men, all white, all blue-collar. All small-town folks who probably only saw black people on television. One of them was wearing a sweatshirt with a deer in crosshairs.

  Across the courtroom by the bailiffs hung a small poster of a dog sitting on a stand and a jury of cats judging him with the caption, “Does this seem like a jury of his peers? Make sure the process is fair.”

  It almost made me laugh.

  “It is now time for opening statements,” the judge said. “The attorneys will each have an opportunity to address you. Please bear in mind that what the attorneys say is not evidence, and only meant to inform you of their theory of the case. Mrs. Tiles?”

  Sandy rose, moving like a robot, keeping her limbs unnaturally close to her body. She stood at the lectern and read a prepared statement.

  “The evidence in this case is clear as day. Mr. Thorne is a troubled young man, but a young man who decided the best way to earn money was to sell cocaine.”

  Double D lifted the gym bag again and stacked the cocaine on the prosecution table so the jury could see.

  Sandy continued. “Mr. Thorne was contacted by his next-door neighbor, Kevin Simmons, about playing video games with two other boys you will hear from today, Clint Andrews and Fredrick Willmore. The boys informed Mr. Thorne that they were going to another friend’s house and that he was welcome to come along. Mr. Thorne informed them that he would like to, but that he needed a ride to Richardson first. Mr. Simmons thought this unusual but had an affinity for the boy and agreed.”

  Affinity? I thought. There is no way half the jury knew what “affinity” meant. I wondered if Sandy borrowed parts of an opening statement she found on Google.

  “Mr. Thorne brought with him a blue gym bag, that gym bag right here on the table, and would not inform the boys why he had to travel to Richardson—not until they arrived there. Mr. Thorne directed the boys to the home of Salvador Zamora, a confidential informant working with the narcotics task force. Mr. Simmons will tell you today that he didn’t feel comfortable allowing Mr. Thorne to go by himself, and followed him up to the porch. Once Mr. Zamora came to the door, he exchanged a plastic bag filled with thirty thousand dollars in cash, only about one-sixth what the cocaine was actually worth, for the gym bag with the cocaine. Unbeknownst to the boys, this deal had been set up by the Hoover County Narcotics Task Force. Mr. Zamora had been cooperating with us in finding drug suppliers in the Wasatch Front, and Mr. Thorne took the bait.”

  That was interesting. Usually, prosecutors didn’t burn CIs in court. Their identities were only released to defense attorneys with a protective order, meaning the defense attorney couldn’t reveal the name to anyone. Putting his name on public record in court meant they wouldn’t be using him as a CI anymore. Maybe this bust had earned Zamora his freedom.

  “Mr. Thorne is charged with distribution of narcotics for the selling of this cocaine. It is important for you to understand that no one forced him to commit this crime. No one put a gun to his head to sell cocaine, and the involvement of the police was minimal. Mr. Thorne chose to sell that cocaine, and he must face the consequences himself.”

  Sandy sat down. No mention of his disability. This was such a farce I could hardly stand it. Instead of a proper trial, I had been manipulated in
to a corner and forced to put the fate of my client into the hands of a jury who wouldn’t even hear about his disability other than from me, and from what they could pick up while he was on the stand.

  I looked at Roscombe, who sat patiently and waited for me. Slowly, I rose and stood in front of the jury. I looked each of them in the face. The words wouldn’t come out of my mouth. I kept picturing Teddy in prison, abused by the other inmates, alone, hurt . . . a sick, gray weight sat in my gut and I couldn’t shake it.

  “Teddy Thorne . . . When I was twelve years old, I lived with a foster family who had taken me in primarily for the monthly check they would receive. They had three children of their own and didn’t have the time or the patience to spend on me. One of the children was a girl my age who didn’t like that a new girl had come to town. Any chance she got, she would blame me for anything she did. If something broke, if she ate something that her father had been saving for later, if the dog got out and ran away . . . she would blame it on me. And her parents would take her word for it every time. No matter what I said, they never believed me, because they had already made up their minds that I wasn’t believable.

  “Teddy is here because the government has made up its mind that he isn’t believable. You’ll hear from him today, and you’ll know, you’ll know, that there is no way he committed this crime. Kevin Simmons is the one who went down there to exchange the drugs for money, and he and his two friends have stuck to the same story from the beginning, protecting each other. Zamora, to protect himself and stop being a confidential informant, blamed Teddy, too, since that became the official explanation. If you want to get your sentence lowered by informing on others, it’s pretty difficult when you say something that goes against three other witnesses. So he just went along with what everyone else was saying—that Teddy was the mastermind behind this whole thing.

  “Teddy, because of his condition, was chosen as the scapegoat. All I’m asking from you is that you please listen to him, and not make up your minds that he isn’t believable before you even hear him out.”