I met with Cecil in the hallway and did as I was supposed to do. “The prosecutor wants to set an example. Seeking three months in jail and probably a stay-away order, prohibiting you from all downtown parks.”
“Three months and then I’m supposed to disappear?” Cecil shook his head. “Where they think I’m going to go?”
I responded half joking. “They’re hoping that you go away, like to Kansas City or Chicago. That’s what I think. Probably buy you a bus ticket if you want.”
“Well that ain’t gonna happen.” Cecil looked down at the floor, shaking his head. “Don’t want to go to jail for that long, neither.”
“I know you don’t.” I put my hand on his shoulder. “But it’s our word against the cop’s, and I don’t think those are good odds.”
“You telling me to plead guilty to something that I didn’t do?” Cecil looked at me, disappointed. “I’ll plead guilty to something that I did do. Done it before. Do it in a heartbeat. But I ain’t saying I did something that I know isn’t true.”
“I understand. Only telling you the odds and the consequences. That’s what lawyers do.”
Cecil looked up at me. “What about my video?”
“What about it?”
“What about it?” Cecil said, mimicking me. His mood had shifted. He was angry now, and the noise brought a deputy into the hall to make sure everything was OK.
I nodded toward the deputy to assure him that the situation was under control, then lowered my voice to Cecil. “I asked for it through discovery, and the prosecutor says that it doesn’t exist.”
“They lyin’.”
“Don’t know,” I said. “But I can’t make them give us something that they claim doesn’t exist.”
“Well try harder.”
Judge Polansky came back onto the bench, still annoyed that he may actually have to preside over a trial. “OK.” He looked at me. “Have the parties reached a resolution?”
I shook my head. “No, Your Honor. My client has decided that he would like to exercise his right to go to trial.”
The judge looked at Cynthia Curtis. “And you have your witnesses subpoenaed?”
“I do.”
Judge Polansky nodded and then gestured for his law clerk to make the phone call down to the jury room in the courthouse basement. “Then we’ll bring the panel up, select a jury, and start taking testimony this afternoon.”
Both Curtis and I agreed, trying to be respectful.
Then the judge asked, “Anything else we need to put on the record before we get started?”
I hesitated, but then decided that I didn’t have much choice. “I do have one thing, Your Honor.”
Judge Polansky smirked. “You do?”
“Yes.” I looked over at Cecil and then proceeded. It wasn’t necessary, but I wanted Cecil to know that he had been heard, in the hope that he’d be calmer in front of the jury if he knew that I had tried. “We made a discovery request for a video that my client believes is in the possession of the Saint Louis Police Department.”
One of Judge Polansky’s eyebrows raised. “Video?”
“Yes,” I said. “I think this case would resolve if we had the video. I requested it through discovery and my client, separately, requested it through Missouri’s Freedom of Information Act, but we haven’t gotten it.”
Cynthia Curtis stepped forward. “That’s because it doesn’t exist, Your Honor. I asked for it as well. The police have no knowledge of it, and it’s not referenced in any police report.”
“But there are cameras recording all the activities in that park,” I said. “To the extent that the arresting police officer lost the video or never got it as part of his investigation, then I would like permission to question that officer about this critical piece of evidence.”
“Your Honor.” Curtis raised her voice. “As you know, a defendant cannot impeach a witness with evidence that doesn’t exist. There is no video.”
Judge Polansky sighed. “Everybody calm down.” He looked at me. I could tell he was thinking, Really? All this about a misdemeanor? Then he sighed and issued his ruling. “The prosecutor is correct. Absent something more than what you’ve told me, I can’t allow you to ask such questions.” He looked at Cynthia Curtis. “She’s an officer of the court”—he looked back at me—“as are you, and she has a duty of candor to this tribunal. If she says that the video doesn’t exist, then we have to accept that and move on.”
CHAPTER FORTY
It took the rest of the morning to select the twelve jurors.
In a murder or a felony assault, jury selection may take a week or more. In a high-profile medical malpractice or civil class action, a company may hire consultants or psychologists to craft the perfect questions to find the jury that is most sympathetic to their case.
Here, jury selection took about an hour and a half. There weren’t any fancy questionnaires or trick questions. The prosecutor and I weren’t getting paid by the hour. We just needed to get it done.
That meant we were focused on trying to get rid of three types of people: racists, vigilantes, and the anxious. The reasons to rid ourselves of racists and vigilantes were self-explanatory and straightforward. Anxious people were a little more complex. Usually their anxiety stems from the financial hardship that serving on a jury would cause by missing work or having to pay for childcare. Anxious people have a tendency to disrupt jury deliberations or, worse, go to the bathroom in the middle of trial and never come back.
Nobody wanted a mistrial.
Judge Polansky warmly thanked the remaining individuals who were finally selected to serve on the jury. Their numbers had dropped from a total pool of twenty to seven, six jurors and one alternate. “We are now going to break for lunch. The trial will begin in one hour. I need you all to be back in the jury deliberation room so that there are no delays. My clerk will have posted signs indicating where you should go.”
The annoyance that Judge Polansky had exhibited all morning with me and Cecil was gone. He had made a shift, playing a new role for the jurors. It was now his job to be a kind and benevolent leader. Judge Polansky looked at the remaining jurors with the pride of a father, then his expression turned serious again.
“In the meantime, you are not to speak to one another about this case, the defendant, the lawyers, or the court. If a family member or friend asks you about this case, you may say that you are now serving on a jury, but you cannot talk about any details. Even saying that you are serving on a criminal jury may elicit a comment or further questions that could result in prejudicing you toward either the prosecution or the defense. It is best to avoid these conversations, as well as any television, newspapers, or Internet.”
Judge Polansky took a deep breath, checked the clock, and added, “Finally, no Facebook, Twitter, Instagram, Tumblr, or any other social media.” A few of the jurors giggled, and Judge Polanksy shot them a look of concern. “Seriously, you’d be amazed at the number of trials that have to be redone because a juror is live-tweeting the proceedings. It’s insane. It’s stupid, but it happens, and I feel like I have to tell you not to do it on the record.”
Judge Polansky stood. “We will now rise as the jurors exit the room, and then this court will stand in recess until one o’clock.”
The prosecutor, Cecil Bates, and I stood. We watched the jury leave the room. Then Cecil turned to me. His anger and bluster were gone. Seeing an actual jury did that to people. The courtroom was theater, and the formalities developed over hundreds of years had the ability to weigh down any person. I’d seen it many times. A juror or defendant would come in with an attitude, or joking about this or that. Then the veneer washed away, and they started to see the genius of the process, however flawed the process might be.
“I’m thinking it’ll be OK now.” Cecil nodded in agreement with his own observation. “Still know the odds, though. Ain’t dumb.”
I put my hand on Cecil’s back. “We’ll do our best.”
“Can you ca
ll abouts the video request?” He asked it with the contriteness of a child, and I couldn’t refuse. I’d follow up even though I knew the video was never going to be provided in time. The bureaucrats that ran the city were not in a hurry to help anybody.
“I’ll give it another shot.” Then I opened my wallet and took out a ten-dollar bill. It was against the rules of professional responsibility to give a client money, but I didn’t care. “Take it.”
Cecil hesitated, staring at the money. “I can’t, Mr. Glass.”
“You need to eat something.” I reached out, took Cecil’s hand, and placed the ten-dollar bill into his palm. “It’ll help you feel better to get some lunch.”
Cecil looked down at his hand and nodded. “No booze.” It was a command directed at himself, not a promise to me.
I patted him on the back. “Definitely no booze.”
We walked out of the courtroom together. No further words. Silence. He went left to the stairs, and I went right to a cluster of small conference rooms.
It was going to be a working lunch. I needed to prepare my opening statement as well as keep up with my practice. I had received three texts that morning, all of them from Emma. She had more appointments scheduled with, and phone calls to, potential clients. She’d also scheduled an interview with the young witness who might’ve seen his brother get into a van on the night that his brother disappeared, which I needed to confirm.
Then there was the search for Sammy’s school. I had decided that we’d continue to visit schools for another week, maybe two, and then it was going to be time to make a decision. She couldn’t stay at home forever.
The Judge had called to tell me that there were two school open houses. He also thought I might be interested in attending a fund-raiser for the Children’s Defense League. He’d found the invitation when he was going through his mail.
Judge Danny Bryce was the keynote speaker.
CHAPTER FORTY-ONE
After lunch, I saw Cecil in the hallway outside the courtroom. He looked at me. “Any luck with the video?”
Shaking my head, I leaned closer so nobody could hear. “Afraid not, but we’ll keep working at it.” We walked back into the courtroom together and took our places. A few minutes later the bailiff rapped the gavel and ordered us to rise; then Judge Polansky came into the courtroom.
The judge waved us back down. “Please be seated.” He sat, then said to his court reporter, “Off the record.” Then back at us: “Don’t suppose that either of you were able to reach an agreement over the lunch hour.”
Cynthia Curtis stood, looked at me, and then looked back at the judge. “No, Your Honor. Since this is a misdemeanor, there really isn’t much room to negotiate.”
“Fine.” The judge rolled his eyes. “A man can hope, can’t he?” He turned back to his court reporter and told her that we were going back on the record. “Before we begin with opening statements, any objections or issues that we need to get on the record?”
Curtis and I responded with the same answer at the same time. “No, Your Honor.”
“Then away we go.”
The prosecutor’s opening argument wasn’t anything special. It didn’t need to be. The case was simple: My client was in a public park. A Saint Louis police officer saw him holding and drinking a bottle of alcohol. The end.
When Curtis finished, I stood and walked toward the jury. I introduced myself once again. “My name is Justin Glass, and I represent Cecil Bates in this matter.” I walked to the edge of the jury box, making eye contact with each juror before I went forward with the rest of my opening. “But what the prosecutor just told you is merely their side of the story.” I pointed at Judge Polansky. “You see, the judge will very clearly instruct you to keep an open mind and wait until the end of all the testimony and the receipt of all the evidence before making a decision.”
I stepped away from the jury box, giving them space. “The government has the highest burden in our entire legal system—beyond a reasonable doubt—and they have the burden to prove every single element. So I ask you to listen to what they have to say, but wait and also hear the other side of the story. After the prosecution rests, we will be given an opportunity to present our witnesses as well.”
The last bit was a gamble.
I wasn’t sure if Cecil was going to testify or not. If I was being honest with myself, I hoped to keep him as far away from the witness stand as possible. We didn’t, however, have many better options.
The police officer was going to be the first and only witness for the prosecution. I checked the time, hoping that the State would not rest too early.
I wanted to talk more with Cecil about whether he truly wanted to testify in his own defense, and I also didn’t want to be the defense attorney responsible for setting a world record for the quickest conviction by a jury in the history of criminal law.
Officer Butler waddled up to the witness stand. He was squat, a little over five foot eight and about thirty pounds overweight. The combination of his stature and the bulletproof vest made him look like a blue penguin.
He raised his right hand. The judge swore Officer Butler to tell the “whole truth,” and then he squeezed into the witness chair.
“Could you state your name for the record?” Curtis picked up her pen and checked off the first question on her list.
The officer stated and spelled his name, and then Curtis went through the first four questions that every prosecutor asks a police officer in a criminal trial:
Are you a licensed peace officer in the state of Missouri?
How long have you been a licensed peace officer?
Where are you currently employed?
How long have you been in that position?
When she was done with the preliminaries, Curtis nodded. “Very good.” By her patronizing tone, it wouldn’t have surprised me if she had added “Good dog” and offered the police officer a treat.
Having checked the initial questions off her list, Curtis then opened the file. She took a moment and then asked, “Officer Butler, were you working at approximately six thirty in the evening on July 17 of this year?”
“Yes.”
“And do you recall where you were on that date and time?”
“Yes, ma’am.” Officer Butler nodded. “I was on patrol, going east on Market.”
“Can you describe what you saw?”
“I can.” Officer Butler turned to the jury and started to describe the scene. His tone was clipped. His language was concise, and he sounded a little bit like a general describing a battle. “A mall or long park runs east-west on the north side of Market. As I approached Fifteenth, a man caught my eye.”
“And then what did you do?”
“I decided to park, get out, and approach the man.”
“Why?”
“I was concerned. He was slumped over on a park bench. He looked like he was homeless, and I thought he might need medical attention.”
Cecil nearly jumped out of his seat, and I put my hand firmly on his arm. I needed to keep him calm, and I also needed to scribble down every word that the officer was saying. None of that information was in his police report.
“Did you approach?”
Officer Butler nodded. “I did.”
“And what did you see?”
“I saw a man on a park bench, possibly passed out, with an open container of malt liquor.”
“Would you recognize that man if you were to see him today?”
Officer Butler nodded. “Yes, most definitely.”
“And do you see him in the courtroom?”
“I do.” Officer Butler pointed at Cecil. “He’s the gentleman at that table, wearing a blue sweatshirt.”
“Thank you.” Curtis smiled, then turned to Judge Polansky. “Let the record reflect that the officer has identified Mr. Cecil Bates, the defendant in this matter.”
Judge Polansky nodded. “So noted.”
Then Curtis continued. “And then what happened?”
/>
“Objection.” I stood. “I believe that what occurred after this point is not relevant and will confuse the jury.”
Judge Polansky didn’t even wait for the prosecutor’s argument. “Overruled.” He looked at me with disdain. My interruption was not welcome.
Curtis encouraged the officer to continue.
“Thank you.” Officer Butler then turned to the jury. “I walked up to Mr. Bates. At that point, I knew who he was because most of the cops that work the downtown area are fully aware of Mr. Bates and his problems.”
I was on my feet. “Objection, Your Honor.” I put my hands on my hips. “The answer is nonresponsive and this officer is—”
Judge Polansky cut me off with the wave of his hand. “Stop,” he said. “Objection is sustained. The witness’s statement is struck. The jury is not to consider it. It is not evidence in this case.”
I sat back down, knowing that I had won the battle but lost the war. The objection as well as Judge Polansky’s instruction did the exact opposite of what was intended. By telling the jury that they were to disregard Officer Butler’s statement that the police force knew Cecil Bates “and his problems,” the likelihood of them remembering it doubled.
Curtis was pleased. She turned to me and smirked, then continued.
“Did you approach Mr. Bates?”
Officer Butler nodded. “I did.” He was having fun now. “I was concerned I might need to call an ambulance, so I went up to Mr. Bates and sort of nudged his shoulder to see if he was OK.”
“And then what happened?”
“He woke up and was very disoriented and agitated. He wanted to fight me.”
“Did you believe he was under the influence?”
Officer Butler nodded. “Most definitely.” I wanted to object, but I was too slow. The answer came out and I decided to let it go. No need to highlight another bad fact.
“And then what happened?”
“I called for backup and placed Mr. Bates under arrest.”
Little Boy Lost Page 16