As the judge would remind us, no one has a right to a perfect jury any more than you have a right to a perfect trial. There is no such thing. You have a right to a reasonably fair jury and a reasonably fair trial. That’s as good as it gets.
This preliminary process, streamlined though it was, still took the rest of the morning. After lunch, the judge started on a series of questions that were much more direct. Since the prosecution sought the death penalty, he had to make sure the jurors were “death qualified,” meaning they were willing to impose the death penalty if they felt the evidence merited it. No one flat-out admitted they would never impose the death penalty, but five of the panelists were sufficiently squishy on the subject to be replaced by Thrillkill. Which meant new prospective jurors had to be called from the pool of “venirepersons,” and then the questioning began again, the new panelists being asked the same questions we’d heard all morning.
By four in the afternoon, I could tell the judge’s interest, not to mention his patience, was waning, but we neared the end. I wouldn’t take anyone else off without a good reason, and none presented itself. I asked for a brief recess so I could consult with Christina, to see if she’d noticed anything I missed.
“I’m not crazy about the guy on the far-left end of the back row,” she whispered.
“The football coach?”
“Right. I didn’t like the way he said ‘Persians.’”
“Of course, Oz isn’t Persian.”
“No, but he hangs with them. I think the coach is holding something back.”
“Everyone is holding something back.”
“He keeps sneaking glances at Oz. With an odd expression.”
“He’s probably trying to figure out how such a WASP-looking guy has an Arab surname.”
“They’re all wondering about that. This is something more. He’s curious and . . . irritated. Or offended. Or . . . something.”
“Like maybe he thinks Oz is some kind of traitor?”
“At any rate, he’s going to be particularly susceptible to the garbage Thrillkill will try to shove down their throats.”
“Okay, he’s gone.” Oz didn’t object. He was strategically placed between the two of us, so we both had ample opportunity to smile at him, clap him on the shoulders, and offer him Life Savers, standard defense attorney tricks to show the jury that the defendant’s lawyers like their client (or, at the least, aren’t afraid of him). “Anyone who concerns you, Oz?”
He didn’t hesitate. “Lady in the middle of the first row. The checker at Crest.”
“You think she doesn’t like you?”
He shrugged. “Looks like a hard-ass to me.”
She did have a stern demeanor. But in my experience, sometimes the sternest jurors, particularly older women, could be the most insistent that the prosecutors actually meet their burden of proof, rather than voting to convict because the defendant is “probably guilty.” “That could be good for us.”
“Nah. She’s a punisher. I can tell. I’ve dated younger versions. Insecure and mean. Feel superior if they can point out the faults of others. Did you see how she nodded with approval when the guy sitting beside her talked about his nephew getting two years for possessing a joint?”
In fact, I hadn’t, but Christina had. “Law and order freak?” I asked her.
“Or believes the world is losing its standards of decency and we have to be rigorous or civilization will collapse,” she replied. “Which is usually another way of justifying meanness.”
“Okay. Another juror to remove.”
When I did, I could see the judge was not pleased. But I hadn’t exhausted my peremptories, so he kept his thoughts to himself and called two more people into the box. Neither presented any problems. By five, it was all over.
The jury was assembled. The trial could now begin. God help us all. And Oz in particular.
31
Before the trial resumed the next day, I told Oz to brace himself for what he would hear during Thrillkill’s opening statement. In truth, I didn’t know what the man would say, but I doubted that Oz would enjoy listening to it. In opening statement, the attorney is supposed to preview the evidence that will be produced later. The attorney is not supposed to argue. But lawyers love to argue, so this is like telling a dog not to sniff butts.
The prosecutor always gets the first shot. Thrillkill rose, stood squarely before the jury, calmly and confidently, with no notes, no exhibits, just him and them. I admired his lack of artifice and professionalism. He was an excellent speaker but not overbearing, and in the courtroom, that was best. Jurors tended to dislike lawyers—or witnesses—they felt were putting on a show. They wanted to be observers, flies on the wall, objective witnesses.
“First of all,” Thrillkill said, “I want to thank you for your service. I know you have real lives, jobs and families, and errands and other things you could be doing right now. I thank you for fulfilling your civic obligations and playing this vital role in the enforcement of our laws and the maintenance of order in these troubled times.”
Thrillkill was already arguing. The first bit wasn’t relevant;. That was just sucking up. But the rest of it promoted the idea that this prosecution, and a guilty verdict, were essential to staving off anarchy, fighting back the barbarians at the gate. People are so easily manipulated. The subconscious makes our most important decisions.
“It’s a particular pleasure,” Thrillkill continued, “to see people willing to stand up here in Oklahoma City. This city has seen great troubles over the years, everything from cattle rustlers to terrorists, but we’ve always come through it with our chins up and our strength intact. This is a fine city, and our citizens are among the—”
“This isn’t relevant,” the judge interrupted. “Get to the case.”
My eyes widened. That didn’t happen often. Your conduct typically had to be egregious to draw an objection during opening. To have the judge voluntarily cut you off meant he found this a monumental waste of time, he was in a seriously bad mood, or he just didn’t like the cut of Thrillkill’s jib. I hoped for the latter.
Thrillkill cleared his throat and proceeded as if nothing had happened. “This case is important, serious, and will demand your complete attention. But I cannot say that it’s complex. In many respects, it’s quite simple. The victim, as you may have already guessed from the questioning you received, is Khalid Nazir, a CIA agent who worked to root out terrorist threats before they happened. The evidence will show that the man who killed him was the defendant, Omar al-Jabbar.” He gestured in Oz’s direction, as if the jury couldn’t figure out which one he was for themselves.
“The evidence will show that this man was detained by federal authorities on a previous occasion due to his involvement with a known terrorist group. The evidence will show that he bore a grudge against Agent Nazir and had sworn revenge. The evidence will show that he was at the scene of the crime and was arrested, only moments after the murder occurred, with the murder weapon in his possession. And when a man who has sworn revenge is found at the scene of the crime with the smoking gun, common sense should prevail.”
Thrillkill inched a few steps closer, leaning gently against the rail separating him from the jury. “There will be other evidence, conclusive evidence, more than is probably necessary. I want you to reach your verdict without any lingering doubts. You will learn what kind of person the defendant is, his . . . habits and . . . proclivities, his fondness for explosives, and the . . . horrifying ways he spent his time and made his money. Motive, means, and opportunity all prove that he committed this brutal crime as the latest and most lethal cog in an ongoing series of crimes against humanity and the Unites States of America.”
Oz and I exchanged a quick glance. Horrifying way he spent his time and made his money? I’d been over everything the prosecution had sent me repeatedly. I hadn’t seen anything I’d call horrifying. I hadn’t seen much indication that Oz ever made much money, either.
I made a note to as
k Oz as soon as I got a chance.
“The defense may attempt to confuse the matter, but you’re too smart for that. By the end of the trial, you’ll find you have more than enough evidence to find the defendant guilty beyond a reasonable doubt. And then I will ask you to impose the ultimate sanction, the death penalty. This was a hate crime against a federal intelligence officer. This was a politically motivated crime, a terrorist act. And we cannot let that go unpunished. To the contrary, we must strike back with all possible vigor if we hope to keep this nation secure. We want our loved ones to be safe. We must inform everyone who would resort to violence that the United States will find them and punish them as they deserve. Thank you.”
A little more jingoistic than I’d expected, but basically a sturdy opening statement. I knew I was nothing like the orator Thrillkill was and hated having to follow his act. I probably should’ve asked Christina to give the opening, but it was too late now. I had to push myself to my feet and do the best job I could with what I had.
“Ladies and gentlemen of the jury.” A little old-fashioned, but I couldn’t help myself. My mother taught me to use good manners. I also needed to break the grim mood Thrillkill set, a heaviness that could only incline the jurors to reach a guilty verdict. At the same time, I couldn’t be seen as trivializing such a serious crime. Like everything else a defense lawyer has to do in the courtroom, it was a tightrope act.
“Have any of you been to the state fair?” I paused, even though no one was likely to answer aloud. “I’ll bet some of you have. The fairgrounds are only about ten miles from here, and every year the same traveling show comes back to town. Some may prefer the rickety rides, or some may prefer the livestock shows. When I was a little boy, I preferred the midway.”
I was relieved that the judge didn’t cut me off. He probably had a hunch where this was going. This charming anecdote was, of course, totally concocted. Although I’d pleaded, my father never took Julia or me to the fair. He was always working, and he thought the fair was a lower-class waste of time. “Moron heaven,” he called it.
I continued my opening. “Perhaps I shouldn’t admit it, but I was always intrigued by the carnies and the freak show. A bearded lady? A snake woman? What could these abominations possibly be? The most intriguing to me, because I loved horses, was the World’s Smallest Horse. You couldn’t see it unless you paid your five-dollar fare and walked up a platform, but judging from the small box up there, that horse must be tiny indeed. Lilliputian. At that time, five dollars was a fortune. With five dollars I could buy thirty-two comic books or twenty paperbacks or the new Partridge Family LP. But one time, curiosity got the best of me. I laid down my hard-earned fiver for a peek.”
I paused, ventured a small smile, made eye contact, and proceeded. “You know what? It was a Shetland pony. Small, yes, but hardly freakish. The box had a trick bottom that you couldn’t see from the outside. Only the head rose up into that little box. The rest of the horse was underneath. It was all an illusion. Smoke and mirrors.”
I glanced down thoughtfully. “At this point, you’re probably wondering why I’m telling you this story. It’s because I learned two powerful lessons that day. The first? Things are not always what they seem. And the second?” I cast a quick glance back toward Thrillkill. “A good carnival barker can convince gullible people of almost anything.”
Oh, I would pay for that one. Thrillkill would be angry for weeks. But I hoped I’d started the jury thinking.
“The prosecutor has given you a preview of some of the facts of this case, but only some, and those were chosen selectively to give you what I consider to be a misleading picture of what happened. He mentioned that my client, Omar—his friends call him Oz—was detained by the CIA. But the evidence will show that Oz was detained for twenty-one days, interrogated extensively and cruelly, subjected to what many would call torture—but he was never charged with any crime. The evidence will show Oz was released because the government did not have and never had any evidence that he’d committed a crime. And here they are back again, with only slightly more evidence than they had the first time around.”
Now I had the jury’s interest. I had to make sure I didn’t lose it. Momentum was everything.
“Yes, Mr. Nazir worked for the CIA, but the evidence will show that he had previously worked for the Iraqi military’s Republican Guard as a brutal interrogator who tortured and murdered many American soldiers. After Desert Storm, Nazir switched sides and defected to America. He had a list of enemies as long as Santa Claus’s list of naughty children.”
I continued in the same vein. “Yes, Oz was at the scene of Mr. Nazir’s death, but the evidence will show that more than four hundred other people were there, and if anyone saw who shot Nazir, they have yet to come forward. The evidence will show that Oz was singled out almost immediately, attacked and arrested under keenly suspicious circumstances that suggest that he may in fact have been targeted from the outset.”
I stepped closer, giving the jurors my most earnest expression. “I do not ask you to believe anything just because I say it. Don’t rely on words you hear from lawyers. Pay attention to the evidence. At the end of the trial, I am confident you will find the prosecution has no proof rising to the level of ‘beyond a reasonable doubt.’ Furthermore, after we’ve presented our case, I believe you will be convinced that Oz did not commit this crime”—I paused dramatically, signaling them that something important was coming—“and furthermore, you’ll have a pretty good idea who did.”
There it was, out on the table. SODDIT. If the jury remembered nothing else, they would remember that promise. I would have to deliver a suspect. Unfortunately, at this juncture, I hadn’t a clue who that might be. “Thank you for your attention.”
I took my seat. The judge leaned forward, checking his watch. “Very good. Let’s begin. “Mr. Thrillkill, you may call your first witness.”
32
Sometimes prosecutors like to lead with a zinger. A powerful or surprising witness to widen the jurors’ eyes, convince them of guilt, and make them think the trial is going to be a good deal more exciting than it will probably turn out to be. But not this time. Thrillkill went with the tried-and-true slow-burn approach, leading with a series of witnesses who were arguably necessary but none too exciting.
His first witness was Officer Marlon Parkland, a three-year member of the OKC PD, who was on duty at the capitol building on the fateful day. There was nothing exceptional or remarkable about his background or experience, and Thrillkill ran through both quickly. He was a short man and a little stout, with an expression that suggested he took himself very seriously. Or at any rate, that he did today.
“Did anything unusual occur that day?” Thrillkill asked the officer. He couldn’t lead the witness, but his tone was so innocuous it bordered on the absurd.
“A shot rang out during the press conference. From my position in the rear, I saw Agent Nazir’s head jerk violently backward. Then he crumpled to the platform.”
“What happened next?”
“The crowd reacted. Panic. Screams. Chaos. Everyone ran one way or the other, colliding and crushing. Mass confusion. I did my best to sort things out, but there were too many people for me to make much impact.”
“Did anything in particular catch your attention?”
“Yes. I saw some kind of scuffle taking place on the east side of the plaza. Two men engaged in an altercation. I moved toward them with the intent of breaking it up.”
So what my witness described as one man tackling another, this witness described as an altercation. And yet I didn’t doubt the officer was telling what he thought to be the truth. It was all a matter of perspective.
“What happened?”
“Before I got there, one of the men fell to the ground, the other on top of him. Soon two others had stumbled on top of them. This created an obstacle, and there were so many people moving so quickly that there was significant danger. So I rushed in to intervene.”
“Do you know who any of these people you’ve described were?”
“I never got a good look at the others. But the first man on the ground was the defendant. Omar al-Jabbar.”
I saw some of the jurors nodding.
“What did you do when you arrived?”
“First, I established a perimeter, for his own safety. Once I had a chance to focus, I noticed that the defendant held a handgun in his right hand.”
“How did you react?”
“I drew my own weapon and ordered the suspect to drop his.”
“Did he comply?”
“No. I reached down and took the gun from him.”
“And then?”
“By that time, two other officers had arrived. With their help, we hoisted the defendant to his feet and cuffed him.”
“Was the defendant cooperative?”
“Not at all.”
“Did he say anything?”
“He called us fascists. Said we had no right to arrest him. And he spoke quite a bit in a language I didn’t understand. Sounded foreign. Middle Eastern or something.”
“Objection,” I said quietly. “The witness said he didn’t understand it, so he can’t identify the language.”
The judge nodded. “Sustained.”
“Thank you, Officer,” Thrillkill said. “No more questions.”
This was a classic example of a witness who might be better not to cross at all. Little good could come of it. He was, after all, just doing his job. But I could see Thrillkill elicited the man’s testimony the same way he made speeches, selectively choosing what he wanted to emerge and omitting what he didn’t. I indulged myself in the notion that I might be able to make a point or two on cross.
Justice Returns (Ben Kincaid series Book 19) Page 17