Each side had twenty preremptory challenges, where they could dismiss a prospective juror with no reason given. Hardy and Fowler had decided to use a diagram of the twelve jury seats in the pool, and to cross out those they wanted to challenge. With their legal pad in front of and between them this was a relatively subtle approach, chosen so they wouldn’t have to confer and risk antagonizing the jurors who remained. People didn’t like to feel they were being judged, even if they weren’t challenged personally.
The jurors were sworn in, and Chomorro started talking to them, or rather reading to them. “Andrew Bryan Fowler has been charged with murder in the first degree in an indictment returned by the grand jury for the State of California.”
Fowler, Hardy noticed, did not hang his head or show any outward signs of guilt or embarrassment while the indictment—again—was read in full.
Judges addressing juries, or prospective jurors, could be friendly and avuncular or tight and businesslike. Hardy thought Chomorro—relatively new to the process— struck a tone of studied affability. It was as though an effort to appear friendly to jurors had appeared on the job description. If he kept it up, it might be good for Andy, whose breezy geniality was, Hardy felt, genuine.
“I’m going to ask a series of questions to all of you.” He addressed himself both to the panel of twelve on the courtroom side of the rail and to the sixty or so other prospective jurors waiting in the gallery. “If you answer yes to any of them I ask those of you up here”—he gestured to the jury box—“to raise your hand. Those of you in the gallery pool, please listen carefully, and if you are called up here and would have answered yes to any of these questions, inform us immediately.”
Among the questions Hardy had submitted for Chomorro to ask, the most important was the most obvious: based on anything they had read or seen in the media, had any of the prospective jurors already formed an opinion about the innocence or guilt of the defendant?
Chomorro did ask that question, a fairly routine one he would have asked anyway. There was a lot of looking around, but no one put his hand up. Chomorro didn’t let it go. “Let me rephrase that, or ask a related question. And you prospective jurors in the gallery, you may raise your hands directly here. How many of you have read about this case, or know about it from television or the radio?”
There was a scattered show of hands, eight in the jury box. Hardy swiveled to look back at the gallery. There were about ten more. In the two months he’d spent preparing for trial most of his “creative” ideas had gone out the window. If a change of venue would have a better chance of getting Andy a fair trial he would have gone for it. But he’d hired a consultant who had taken a poll and discovered that only between twenty-three and thirty percent of adults in San Francisco had ever heard of this case. At first it had shocked him. He knew people read less and less, were too busy for most current events, but still . . .
“Do any of you whose hands are up feel you know the issues in this case?” A few hands went down.
“You’re going to be hearing evidence that may or may not corroborate what you think you already know. Would any of those remaining have any problem accepting those new arguments or evidence?” This was getting weaker than what Hardy had hoped for. Only four people, and none in the jury box, had their hands up. “All right, then, I think we can proceed.”
Chomorro then began the general winnowing process. Did anyone in the panel know the defendant? Had anyone known the victim? The prosecutor or defense attorney? Chomorro read the list of proposed witnesses and asked if anyone knew any of them.
The tedious procedure continued. Were any of the panel themselves or any members of their families peace officers or lawyers? Ditto, victims of violent crime? What about nonviolent crime? Had anyone been arrested?
Five of the twenty jurors raised their hands during this period of questioning, a large percentage. Chomorro followed up individually with each one and ended by dismissing all five. Five new prospective jurors took their seats.
When the general questions had finished, Chomorro began taking the panel one at a time. This was where, before June of ’91, Hardy could have narrowed things down considerably, but now he was at the mercy of Chomorro’s questions.
Seat number one was a heavyset woman of about forty. She gave her name as Monica Sellers. She had been married for seventeen years to the same man and had three children. For the past three years—after the children were old enough—she’d been employed as a part-time bookkeeper for a temp agency that worked out of the Mission district. Before that she’d been a housewife.
“Now, Mrs. Sellers—by the way, do you prefer Mrs. or Ms.?”
She laughed nervously. “Oh Mrs., definitely. I’m Mrs. Sellers.”
“All right Mrs. Sellers, let me ask you this question, then. And would the rest of the panel please pay attention? I will be instructing you in certain matters of law, and one of the words you’re going to hear a lot in the next few weeks is going to be ‘evidence.’ There are two basic kinds of evidence—direct evidence, for example, when an eyewitness sees something and swears to it. If you believe that witness, then his or her statement would be direct evidence. Circumstantial evidence might be, for example, a fingerprint—”
Hardy jumped up. “Objection, Your Honor.”
Chomorro, interrupted in his monologue, frowned from the bench. “Objection to what, Mr. Hardy? I was about to say that a fingerprint on an object can be circumstantial evidence that the object has been touched by the person who had left fingerprints on it. Do you mean to object to that?”
“No, Your Honor. Sorry.” He sat down, and Fowler whispered that he ought to reel it in a little if he didn’t want the jury to start turning against him.
Chomorro turned back to the panel. “The classic analogy related to direct versus circumstantial evidence is something we call the cherry-pie analogy.” Chomorro appeared a bit embarrassed by the homespun nature of his words. “If you walk into your kitchen and see your child eating cherry pie, then you have direct evidence that he was eating the pie. If, on the other hand, you come in and see a half-empty pie plate and your child’s face and clothes covered with cherry pie filling, then you have circumstantial evidence that he’s eaten the pie. I need hardly add that both types of evidence can be pretty convincing.”
The jury nodded appreciatively, and Chomorro, more relaxed at the positive reaction, continued. “Let’s take another example, since this evidence is central to what a trial is all about. How about lipstick on a cigarette, which can also be evidence? Mr. Smith sees Mrs. Jones smoking a certain type of cigarette and leaving a certain colored lipstick stain. Then let’s say he walks to another room in her house and sees a similar cigarette butt lying in an ashtray in another room. That second cigarette butt is circumstantial evidence that Mrs. Jones has been in that room. She may have been in that room, but it is not a fact proved by direct evidence. I trust that’s clear.”
“This is good,” Fowler whispered. Hardy nodded, agreeing, and glanced at Pullios. Her mouth was set tightly. She looked straight ahead.
“However,” Chomorro went on, “that said, if I tell you as a matter of law that an abundance of circumstantial evidence, under certain conditions, can be sufficient to establish guilt beyond a reasonable doubt, would you have a problem with that?”
Mrs. Sellers looked thoughtful. “No, I don’t think so.”
Pullios looked to be suppressing a smile. Hardy put an “X” through seat number one (he didn’t want to run through his challenges, but there was no option here) as Chomorro nodded to Mrs. Sellers. “Would any of you have a problem?”
First one, then two other prospective jurors, wanted some clarification. Chomorro took them one at a time, getting names, marital status, occupations—beginning to fill in the blanks. They were all men, two in their fifties, one, a black man of about thirty. Finally they all agreed they could accept Chomorro’s instructions although there might have to be a lot of circumstantial evidence.
&n
bsp; Which brought Chomorro to a pedantic discussion of quality versus quantity of evidence. A small amount of direct evidence might outweigh an abundance of circumstantial evidence, or vice versa.
Seat number two was Shane Pollett, cabinetmaker, a relic of the sixties with graying long hair and a tie-dyed T-shirt, a medium-length beard, an expression of amused tolerance. He was forty-four years old, in his second marriage, second family, three young kids. Two already grown up.
Hardy was beginning to understand Chomorro’s technique. He would move quickly through the panel, asking a technical question or making a legal point or two to each member, opening it up to the rest. If his goal was to keep things moving along, it would work. For Hardy’s purposes, it wasn’t nearly enough.
“Mr. Pollett, let me ask you this.”
“Sure,” Pollett said.
Clearly, the informality, irreverence, rankled Chomorro, but he forced a smile. “If the state didn’t have someone come in and say, ‘This happened, I saw it,’ would you accept that there’d be another way they could prove something happened? To use my example?”
“Sure, why not?”
Hardy leaned over and whispered to Fowler. “Why do I like this guy?”
Fowler shrugged. “Wrong answer for us but the right tone. Gives one pause. Keep your eyes open.”
Jane brought sandwiches into the room they’d been assigned on the second floor of the Hall. It was a little after one o’clock on the first day, and seven jurors were already empaneled—Chomorro wanted a jury in two days, max, and by God, they were going to have one.
“How are we doing?” she asked.
“Knocking ’em dead,” her father answered brightly. He pulled a submarine and a soda from the bag Jane had brought in. “No chips?”
Jane smacked her forehead. “Sorry. I forgot the chips.”
Hardy pulled the bag toward him. He realized the banter was in the “brave-front” department, but his patience was worn thin. “Let’s chat some more about chips, chips are real important right now.” He started unwrapping his own sandwich. “Okay, I’ve got it four to three, slightly toward us.”
“Is there anybody you hate?” Jane asked, her face serious.
“Anybody I hate, I challenge, but there’s damn little to go on.”
“I know,” Fowler said, “to call this a voir dire is a little misleading. I don’t think Leo knows that much what he’s doing.”
“What’s he leaving out?” Jane asked.
“It’s not so much that,” Fowler said.
Hardy spoke up. “He’s not getting anybody to open up. Who are these people? What do they think about? What movies do they like? Hobbies? Anything? When he gets done we’re not going to know anybody better than we do now. You look at what they’re wearing, if they got a nice face, if they don’t stare at us like they hate your father, that’s about it. That and his so-called explanations of law.”
“He does favor the leading question,” Fowler admitted. “But he’s a politician, what do you expect?”
“He’s what I expect, all right, but I’m let down on so many other expectations, why couldn’t we get lucky here? He’s going awful light on the burden of proof, don’t you think?”
“Well, we knew that going in.”
Hardy chewed a moment. “There must be a rebuttal to consciousness of guilt.”
“Not that I know of,” Fowler said. “You can’t prove a negative.”
“If he’d only make a nod toward due process. I gave him twenty questions on the investigation, the indictment, the grand-jury process, all of that.”
“What was that?” Jane asked.
“Jesus, everything,” Hardy said. “Everything these people should know and probably won’t—that an indictment is essentially a minimum showing of cause for trial, that no defense people can be present during the grand-jury proceedings, that basically it’s the prosecutor’s ball-game.These prospective jurors out there are intimidated enough. Then you tell them that another jury, a grand jury no less, thinks your father killed Owen Nash, what are they supposed to think?” Hardy turned to his client. “He’s got to bring up some of that. Put it in our context.”
Fowler shook his head. “He won’t, you can bet on it. He’s telling us it’s not relevant.” Fowler smiled grimly. “What a judge thinks has a way of making it into the courtroom. Believe me, I know. Your due-process argument might make the appeal, but you’re going to have to get clever and lucky to get it introduced here.”
Jane tapped her bottle of soda on the table a few times. “Gosh, you guys are heartening to talk to,” she said.
Chomorro finished his questioning and asked if either side would like to exercise a challenge. Hardy decidedly did not want to dismiss the first person interviewed—it would not enamor him to the jury—but since Mrs. Sellers had come down so strongly for believing in the accumulation of circumstantial evidence, he had no choice. He could tell it both surprised and hurt her, as if she’d failed a test. He looked at the eleven faces to his left, most of them fixed solemnly on Mrs. Sellers as she walked back through the swinging door that separated the gallery from the courtroom. The clerk called a name to fill the vacancy.
By 4:25 they had empaneled a jury and two alternates. There were seven men and five women, four blacks—two men and two women—and, despite Hardy’s initial misgivings, one Oriental—a fifty-five-year-old bespectacled Vietnamese shopkeeper named Nguyen Minh Ro. Fowler had crossed him off of their schematic almost as soon as he’d started talking, but then Ro, not perfectly understanding the laws of his new country, had asked the very question that Hardy had wanted to get in—just how was it that Mr. Fowler was to be considered innocent when the grand jury had already said he was guilty? Hardy could have kissed the man. He still might have dismissed him, but there was something in his body language toward Chomorro as the indictment process sunk in that looked promising for the defense. Surprisingly, Pullios didn’t challenge, and he was in.
They could break it down demographically any number of ways—seven men, five women; seven whites, five nonwhites. They did have a fortunate break with their hope for scientific/engineering types—three of the jury worked to some degree with computers. Additionally, one middle-aged black woman, Mercedes Taylor, was an architect.
There were no secretaries. They had kept Pollett, the cabinetmaker. Three computer jocks, an architect, two salesmen, one housewife, two small-business people (including Ro), a construction person and a high-school teacher.
Chomorro had put on reading glasses as the day progressed, his affability fading along, apparently, with his eyesight. By the time he began questioning the alternates at four o’clock, he was as clipped as a drill sergeant, asking them if they’d heard anything in the questioning and instructions to the other jurors that they felt ought to disqualify them. No? Okay, then. He finished them both in under twenty minutes.
49
“I don’t blame her. Why should she want to help you?”
The “she” Peter Struler was referring to was May Shinn. He sat on his “Molly’s” desk, facing her in her chair, his legs on either side of her. Pullios had pushed herself back nearly to the wall and looked up at him.
“I thought the letter made that very clear,” she said. “She’s got about a half dozen civil suits going. Freeman knows her civil jury will more likely pay off on an upstanding citizen who helped the authorities solve the murder of which she was wrongly accused. Besides, all the witnesses will be cops and D.A.s. We could do her some good. She might be suing us but it’s the City that pays off.”
Struler shook his head. “I’d just bring her in.”
“On what?”
Straight-faced, Struler replied, “How about a DWO, something like that?”
Pullios knew her law, and she’d never heard of a DWO. “Okay, I’ll bite. What’s a DWO?”
Struler grinned. “You know, Driving While Oriental. Gets ’em every time.”
There was no training this guy. “Is it just me,
or do I get the feeling your political correctness is slipping again?”
“Who gives,” he said, enunciating clearly, “a big steaming pile of shit?” He put his feet up on the chair’s arms. Outside the window behind Molly it was pitch black, though it wasn’t far into the dinner hour. Her door was closed. “So hit her with a subpoena.”
“I know, but the minute I do that, she goes on the official witness list.”
“Yeah, well excuse me, but aren’t those the rules?”
She graced him with a “get-serious” expression, and he asked if Hardy had interviewed her.
“She said he hadn’t.”
“So why’d she talk to you?”
Pullios smiled. “I asked Freeman to clear it for me to apologize personally for what I’d put her through.”
Struler shook his head in admiration. “You are a cruel and terrible woman.”
“Thank you, sir. It got her to talk to me about Fowler and the gun, but she said she wouldn’t be a witness against him.”
“Hey, she’s not married to him. It’s not like she has a choice.”
“I want to keep her on my side as long as I can, though. The nice letter, all that.”
“You need what she’s got?”
Pullios nodded. “It’s absolutely essential.”
“Okay,” Struler said, “here’s what I suggest you do. Wait until the last possible moment so there’s no notice to Hardy, then send somebody out—some D.A. investigator like my own self—and slap her with a submeister.”
“What’s that?”
Struler shook his head. “Come on, Molls,” he said, “get hip. Saturday Night Live? Submeister, sub-a-rama, Mr. Sub, subster.” At her continued blank stare, he finally relented. “You lawyers ought to get out more, I swear to God. A subpoena, Molly. Hit her with a subpoena.”
Hardy plugged in the Christmas lights he’d strung up around his front porch over the weekend. Rebecca, walking now, clapped her hands, stopping to point and yelling what sounded like “why why why” at the top of her lungs. Hardy picked her up and held her closer to them.
Hard Evidence Page 39