by Ray Flynt
Brad heard soft clicking and turned to see the court reporter recording the judge’s words.
“Your response is on the record,” the judge added.
He’d give them the short version. If they wanted to know more they’d ask.
“Thank you, Your Honor,” Brad said. “Fifteen years ago, my mother and sister were kidnapped. My dad received a ransom demand, and had arranged to meet that demand when we learned that their bodies had been found in Fairmount Park. My mother’s throat had been slashed, and Lucy’s neck broken. My sister had been raped before she was killed. The medical examiner reported that both of them had been tortured with cigarette burns.”
Brad managed to maintain his composure.
“Were the killers brought to justice?” Whitaker asked.
“Yes. I worked with the police to find the killers. They were arrested, tried and convicted. One of the men died in prison, and the other was executed at Rockview just a few years ago.”
Although all prospective jurors went by a number in the selection process, the details of his case were unique enough for Montgomery County that everyone in judge’s chambers—with the possible exception of the young assistant prosecutor—could connect the dots and attach his name to the story. For those not around when the crime occurred, the local press revisited all the details when Frank Wilkie was executed.
“We’re sorry for your loss,” Whitaker said. “Based on your personal experiences, would you be able to maintain an open mind and render a fair verdict if you are selected as a juror in this case?”
“Yes.”
The judge appeared ready to speak just as Brad added, “You’ll see that I answered yes to the question about working in law enforcement. After their deaths, I became a private detective to help find justice for others.”
Whitaker glanced around the room. “Does counsel have any questions for prospective juror number four?”
Diane Cunningham, the senior prosecutor, said, “You indicated that you knew Detective Cordes and Tamarai Sharma from the Coroner’s office. Was that in the context of your professional work?”
“Yes. I met John Cordes about six years ago, and spoke with Ms. Sharma on a case I had a year or two ago.”
The judge turned to Shane Asher, who asked matter-of-factly, “In your experience as a private detective, how have you handled situations when you’ve discovered that the police have made a mistake?”
Brad looked at Asher and smiled. He’d asked a clever question, planting the notion that police make mistakes. Was he signaling his line of defense? “When that happens,” Brad began, “I bring the issue to the attention of the police, asking that they revisit their assumptions. But I’ve seldom intervened in an active police investigation. Most of the clients who come to us for assistance ask me to take a look at a case that’s either already been adjudicated or remains unsolved. For example, a woman who felt that her husband had been wrongly convicted of embezzlement, or a case I had recently where I was able to provide peace of mind to a woman whose son’s death had been ruled a suicide.”
“And in those instances when you’ve brought an error to the attention of the police, did they express their gratitude?”
Brad laughed, and Asher smiled. “Most people don’t appreciate having their mistakes pointed out to them, but I have seen grudging appreciation from the police after the fact.”
“That’s all I have, Your Honor,” Asher said.
“Very well.” To Brad, Whitaker said, “Thank you. You can take a break, and rejoin us in the courtroom at 11:10 a.m.”
Court didn’t resume until 11:30 a.m. As he looked around, Brad didn’t see any of the others who’d been escorted to chambers during the break. Had they all been sent home, except for him?
The judge announced that, due to the extended recess, he planned to work until 1 p.m. before a lunch break. “Our next item of business,” the judge said, “is those who have requested to be excused due to hardship.” Whitaker punched the word hardship, and Brad expected they would soon hear a reminder about difficulty versus inconvenience. “Prospective juror number one, please have a seat in the witness box.”
Over the next ninety minutes Brad lost track of all the excuses he heard. The man seated next to Brad, who’d been looking to get excused since earlier that morning, reported that he was scheduled for re-deployment to Afghanistan on December 1st and wanted to be able to spend his remaining leave with his family. Other good reasons included the sole caregiver for her invalid mother, and the man residing in a remote part of the county who had no vehicle. It felt like the first few took a grilling—perhaps to discourage others from pressing their cases—but then the pace quickened.
Whitaker called juror number thirty-two to the stand. No response. Irritated, the judge threatened to dispatch Sheriff’s deputies to locate the person. But other jurors pointed at a man sleeping in the third row. The judge ordered tipstaff to wake the snoring man, and when he finally made his way to the witness stand, his excuse was that he suffered from narcolepsy. The judge muttered, “I hope you didn’t drive yourself here,” and sent him back to the jury marshalling room.
By lunch, Brad counted fewer than twenty juror prospects remaining and began recalculating the odds that he might be selected as a juror or an alternate.
4
Brad stopped by the cloakroom at the lunch break to retrieve his phone. He wanted to touch base with Sharon.
“Where are you?” Sharon croaked, when she’d answered her phone.
“Your cold doesn’t sound any better,” Brad said. “I’m still at the courthouse.”
She sniffled, followed by, “Please tell me you’re not on a jury.”
“I’m not.” He heard her sigh. “This is a murder trial and they’re taking their time with the process. Looks like I won’t get home before late this afternoon. Did you talk with Nick?” Brad asked, shifting the conversation to the Martin Tetlow case.
“Yes. I described the circumstances, and he couldn’t remember the case. Nick’s going to check their records and get back to me with the detective’s name that handled the investigation.”
“Any luck on a transcript?”
“Not yet,” Sharon said.
“Have chicken soup. I’ll touch base with you later.”
Brad stowed his phone with the cloakroom attendant, looked at his watch, and decided he’d just grab a sandwich and soda in the coffee shop on the courthouse’s lower level.
As Brad returned to the courtroom for the resumption of proceedings, the clerk consolidated the remaining panelists in numerical order on benches in the first two rows. Brad now found himself seated next to prospective juror number two—one and three were gone. Crochet Lady sat at the other end of his row, having advanced from the second row on the opposite side.
Everyone stood as the crier brought court back into session at 2 p.m.
Judge Whitaker said, “Good afternoon, ladies and gentlemen; we’re going to continue with our voir dire of prospective jurors. For those of you who paid attention to the film this morning, voir dire is from the French meaning, ‘Are we having fun yet?’”
The attorneys laughed, no doubt to stay on the judge’s good side. The absence of chuckles called into question how many jurors had focused on the film with voir dire defined as “to speak the truth.”
“I would like to remind counsel that the prosecution has one preemptory challenge remaining, while the defense has used all of its challenges,” Whitaker said. “Would juror number two please come to the witness stand?”
The man with a longshoreman’s physique lumbered to the witness box.
Diane Cunningham rose from her seat, carrying a yellow legal pad. She crossed to a wooden lectern a few feet from the witness stand. “On your jury questionnaire, you noted that you previously served on a jury that was unable to reach a decision, what we call a hung jury. Is that correct?”
“Yes.”
“Was that trial here in Montgomery County?”
“No. I was living in Allentown, Lehigh County back then… about five years ago.”
“Do you recall the nature of the jury’s split in that case?” Cunningham asked.
The man looked puzzled. “I don’t understand what you mean.”
“I apologize,” Cunningham said, sounding magnanimous. “How were they divided? For example, ten for conviction, and two for acquittal; or perhaps split evenly?”
“Oh, I see.” The man wiped his brow with his left hand. “Eleven voted not guilty, but I thought he did it.”
Cunningham gathered up her legal pad. “No more questions, Your Honor.”
The prospective juror looked eager to serve, but Brad didn’t think he stood a chance. Still, the defense had used all of its preemptory challenges.
The judge invited Shane Asher’s questions and he strode to the podium. “I’d just like to give you a chance to clarify your answer to the prosecutor’s question.” He sounded helpful. “In that previous jury on which you served, you so strongly believed the testimony presented by the police that you were convinced of the man’s guilt?”
The man’s face brightened. “Yes, that’s right,” he said, as if Asher had summed up his feelings perfectly.
“Move to dismiss for cause,” Asher said.
Cunningham stood and half-heartedly said, “We object to dismissal for cause.”
Judge Whitaker gave her a nice-try smile before consulting his notes and saying, “Panelist number two. You may return to the jury marshalling room. Thank you for your service.”
The man looked dazed as he stepped down from the witness stand and exited the courtroom using the center aisle.
“Let’s have prospective juror number four,” the judge said.
Brad side-stepped past the others in his row like a parishioner heading for the communion rail while others remain in the pew.
By the time he took his seat in the witness box, Diane Cunningham already stood at the lectern waiting to fire her questions.
“You indicated that you have been the victim of a crime. Could you describe the circumstances?”
Brad hadn’t expected that question, since he’d already been quizzed in chambers about the family tragedy that altered his life. “Yes, my office was broken into. An item very important to me was stolen, and the perpetrator tried to disguise the crime by setting fire to the office.”
“What item was stolen?” she asked.
“A Bible.”
Cunningham paused, cocked her head and asked, “Do you consider yourself a religious man?”
“I usually describe myself as spiritual rather than religious.”
“But you just said that the Bible was very important to you?”
Brad weighed his response. “Yes. It was a one-of-a-kind gift.”
Cunningham lifted a sheet from her yellow pad and glanced at the second page. “I see by your questionnaire that you work in law enforcement.”
She knows the details from our meeting in chambers. “I’m a private investigator.”
“Do you understand that jurors are prohibited from conducting their own investigation, including visiting any of the locations described in testimony—either in person or via the Internet?”
“Yes, I do.”
“No further questions.”
Whitaker glanced at the defense table. “Mr. Asher.”
The defense attorney stood, pausing to button his suit coat. He took two steps before he stopped in mid-stride—as though having had a revelation—and said, “Perhaps the District Attorney’s office is concerned that a competent private investigator would find details that the police have overlooked.”
Cunningham was back on her feet. “Objection. Argumentative.”
“Sustained. Mr. Asher,” Whitaker scolded, “please hold your closing argument until we’ve started the trial.”
“Sorry, Your Honor.”
Brad didn’t think he looked sorry.
Shane Asher moved in front of the witness box but faced the five men and six women already sitting in the jury box. “How much have you read about this case?”
“Nothing.”
Asher arched an eyebrow as he glanced back at the judge.
“You expect us to believe that a prominent private detective such as yourself has read nothing about one of the most sensationalized cases in recent memory.”
“That is the truth,” Brad said.
“Well, let me ask you where you were on Sunday, March 4th of this year?”
Brad recognized it as the day he and Beth landed in London. “I’m not sure if I could tell you where I was on every day of the year,” he said, “but I arrived in London then for a two-week vacation.”
“Were you also traveling last week as the media rehashed the case in preparation for the trial?’
“I spent last week in New York City with my fiancée.”
“I see,” Asher said, in a disbelieving tone. “Given your profession, you must be friends with quite a few police officers?”
“Yes, I am,” Brad said.
“I am, too,” Asher said.
The judge cleared his throat and looked askance at the defense attorney over the top of his reading glasses.
“If I tell you that the case against Mr. Nesbit is largely circumstantial,” Asher said, “what does that mean to you?”
“Most court cases are circumstantial, since direct evidence—like a video that shows the person committing the crime—isn’t usually available. So the police look for circumstantial evidence that leads them to believe that a particular person committed the crime.”
“Ah,” Asher sighed, having his second revelation in five minutes. “Like Lady Justice holding those scales?” He held his hands out from his body in an apparent balancing act, leaning first one way, then the other.
It was clear that Asher was using his voir dire of Brad to set up his line of defense and educate the current jurors in the process.
“Except that in a criminal case,” Brad said, “it’s not sufficient for the prosecution to have the weight of the evidence on their side; they have to establish guilt beyond a reasonable doubt.”
“But when it comes to your own detective work, you never have doubts?”
Brad thought it sounded like an accusation, but there were no objections. “I have them all the time.”
“Thank you, Your Honor,” Asher said. “Move to strike for cause.”
“What cause?” Whitaker asked.
“As a privately licensed law enforcement official, he would be prejudicial to the State’s case.”
Cunningham was on her feet, “The District Attorney’s office does not concur. This juror is acceptable to us.” That didn’t surprise Brad. Given his background, he’d be the kind of juror the prosecution would want. Everyone’s attention shifted to the judge.
Whitaker said, “Mr. Asher, I thought your line of questioning did an excellent job of demonstrating what an open-minded juror he would be. Challenge denied.”
Asher looked back at Brad, who thought he saw a telling smile. Perhaps Asher wanted him on the jury, after all.
“Very well,” Whitaker said, “jury panelist number four, you are now the twelfth juror in this case. You may take your seat in the jury box.”
Stunned at his selection, it took Brad a few seconds before he rose from his seat and stepped down from the witness box. He never imagined that as a private detective, he would be picked to serve on a jury, let alone for a murder case, given his own family history. Brad had answered truthfully in chambers when the judge had asked him if he could fairly consider the case, but he wondered how his insider’s perspective on the criminal justice system would affect his thinking. He walked the short distance in front of the wooden balustrade that separated the jurors from the rest of the courtroom and took his seat at the end of the second row.
Brad looked across the courtroom at the defendant, then up at the judge, and finally out across the remaining panelists from which four alternates would be selected, to t
he rows of spectators at the rear of the courtroom. He longed for the feeling he’d had at breakfast that this would be a short day, but now that he’d been selected as the final juror, his life for the next two weeks was at the mercy of the judicial process.
Just as he was feeling sorry for himself, David Nesbit caught his eye. Brad realized that the rest of Nesbit’s life rested in his hands and those of his fellow jurors.
5
I hung up from talking to Brad, and three seconds later Nick Argostino called back on my cell.
“Hi, Sharon. Is your boss still goofing off?” Nick began.
“Yeah, he keeps mentioning jury duty, but I’m suspicious.” I laughed.
“I only knew one cop ever got picked for a jury. Me.”
“No shit.”
“By the time that trial was over, they were sorry—most of all, the defendant.”
“What happened?”
“The man was charged with burglary, and the police had botched the investigation big time. I figure the only reason the defense put me on the jury was because they figured I’d give the guy a break due to the fucked up investigation. The attorney had cross examined me at other trials and knew I was a straight shooter. I found out the whole story after the trial, but basically a rookie detective pulled the case and hadn’t followed chain-of-custody procedures, which got a lot of relevant evidence tossed out.”
“But it sounds like you still convicted him?”
“The perp was a repeat offender, had escaped doing any real time, and the DA’s office wanted him in jail. Hold on,” Nick said. I heard the rustling of papers and another voice in the background. Nick returned to our call without missing a beat. “So they assigned an investigator to the case, who managed to dig up video from the convenience store across the street which caught the defendant leaving the scene of the crime. The defense tried to throw sand all over the evidence. But after that video played in court, it wiped out any reasonable doubt.”
“I’m hoping you have good news for me on the officer who investigated Martin Tetlow’s murder.”