Probable Cause g-2

by Grif Stockley

  “What day is it?” I ask, knowing my own voice sounds like a computer recording. I have to give more than this, but I don’t think I’m going to be able to.

  “Wednesday morning at ten,” Rainey says, her voice a little brighter.

  “Have you heard of a surgeon named Alf Brownlee? Connie swears by him.”

  There is no way the trial will last until then. Wednesday morning is free, but there is no way in hell I’m going to be there.

  “Yeah,” I say.

  “He’s supposed to be superb.” Of course, he couldn’t save Rosa, but he gave it the old college try.

  “Why didn’t you write down some of the things she told you?” I sound like the world’s greatest asshole, but I can’t stop.

  “I don’t know,” Rainey says, beginning to cry for only the second time since I have know her (the first was when she broke up with me at a point in the relationship when I was about to propose to her). “I guess I was in shock.”

  She is waiting for me to say I will be there with her, but that’s not going to happen. I just can’t do it.

  “I’ve got to be in court Wednesday,” I lie. She has a lot of social-worker friends at the state hospital. They’ll know what to say to her.

  “Maybe Edna can go with you.”

  There is silence at the other end. Finally, I think I can hear her sigh.

  “Maybe she can.”

  “I’m sorry for you, Rainey,” I say. I’m sorry, all right.

  But I just can’t do it.

  A couple of minutes later I hang up, but working on the case is now out of the question. I stare at the mass of paper in front of me, but all I can think of is the nightmare of Rosa’s last year. Was it as bad as I remember? I get up to pour myself a glass of water. Yes and no, I think. Afterward, I began to think of it as paying for all the good times we had had together A bill coming due much sooner than we expected. I would have preferred to pay as we went instead of having a big balloon payment that we couldn’t quite make at the end.

  At the very end, Rosa saw her death as a release a part of God’s Grace. Maybe she was right, and I am wrong, but I do not want to repeat the class. I knock on Sarah’s door. “Come in,” she says primly, as if she is living in her own apartment. I go in and feel the sense of dismay that always accompanies me when I see her room: clothes, books, tapes, magazines, Coke cans, candy wrappers, and other debris litter the floor. How can she stand it? Seated cross-legged on her unmade bed with her European history book between her knees, she is not happy to see the old man.

  I blurt, “Rainey may have breast cancer!”

  “What?” she gasps, the thick book snapping shut as her legs jerk together.

  I nod, “Her gynecologist has referred her to a surgeon.”

  Unable to stand the pain on my child’s face, I let my eyes go out of focus and look at the dozens of pictures of her friends she has mounted on a board behind her.

  “Oh no!” Sarah cries, her tears released as suddenly as tap water.

  I wade through the junk on the floor and sit on her bed and put my arm around her.

  “She’s going to the same surgeon as your mother did.”

  Against my shoulder, Sarah shakes her head.

  “It’s not fair!”

  I close my eyes, wishing that fairness had something to do with life. But maybe I shouldn’t.

  “No, it’s not,” I agree, tasting salt in my own mouth.

  “Is Rainey by herself tonight?” Sarah asks, clearing her throat.

  Her face against my shoulder feels as warm as a heating pad.

  “I guess so.”

  “You can’t let her stay by herself tonight. Go on over there. I’ll be fine,” she says, drawing back from me so she can look me in the eye.

  Sarah’s mascara is smeared, and I wipe her left cheek with my knuckle. How can I tell her that I don’t even have the guts to go to the doctor’s office with Rainey?

  “I’m not going to leave you alone tonight,” I say.

  Sarah wipes her eyes on her bedspread, making me wonder when she last washed her sheets.

  “I’ll be fine.”

  Brave words, but I know if I leave her alone, she won’t sleep five minutes. She’s not as old or strong as she thinks she is. Besides, she loves Rainey… probably as much as I do.

  We compromise. I tell her that I will go over to Rainey’s and try to persuade her to come spend the night with us.

  “I

  can sleep on the couch,” I say, never having done so. After a fight with Rosa one night, I spent five minutes on it sighing as loud as I could before she came and got me.

  “It wouldn’t horrify me,” Sarah says dryly, “if she slept with you.”

  I stand up. I guess it wouldn’t. Sarah probably thinks Rainey and I have slept together before when she has spent the night with a friend. It doesn’t seem the right time to admit otherwise.

  In ten minutes I am standing at Rainey’s door. When I see her face, I’m glad I have a daughter who is a better person than her father. Whether Rainey spends the night or not, I will be there for her Wednesday.

  22

  The county’s largest courtroom has been set aside for the trial, and it is packed until Judge Tamower announces that in her court prospective jury members in capital murder cases are interviewed in chambers by the judge and lawyers to determine bias. As Judge Tamower, her hands as expressive and lively as a symphony conductor’s, apologizes for the limited parking around the courthouse, I notice that she has had her hair done for the trial. Her usual mass of blond curls, a slightly lighter color today, sits higher than ever on her intelligent head. All is vanity, and why not? We all want to look good for the TV cameras that are parked outside the door. When the elevator doors popped open this morning, the first face I saw was that of Kim Keogh, who, unless I wholly imagined it, winked as if to say that if my fly is unzipped, the cameras will not lie.

  I think of Kim, and the picture of Rainey, lying in my bed asleep this morning when I went in to get my clothes, forms an overlay in my mind through which I am still filtering all other thoughts. Yet why should I have been surprised that she would accept my offer to spend the night? The fear etched in her voice when she first called and then gratitude imprinted on her face when she came to the door needed no explanation. Like a eunuch who is uncertain what his job entails, I offered to sleep fully clothed in my bed with her, but perhaps out of deference to Sarah, she asked me to sleep on the couch. No matter. Her face asleep on my pillow when I came in to get my clothes made up for all the sex I’ve never had and may never have with her.

  I glance back at Morris, who is seated in the first row behind the defense table. I wish I were defending him instead of his brother. Dressed in the same suit he wore yesterday, which is now rumpled, Morris would at least be some help.

  Beside me, Andy, natty as ever in a gray suit and dark tie, seems determined to do some jail time. But after wrestling with it since five o’clock this morning, I have decided his attitude that he is responsible for Pam’s death may play well with the jury, given what I intend to do. He will be furious with me, but I’m not campaigning for his vote.

  I catch the eye of my Mississippi expert witness and nod, my heart beginning to sink. If there was ever a witness whose testimony looked bought, Kent Goza has to be right around the top of the list. If the jury can get past his looks, maybe he will do us some good, because the guy is intelligent. Over the telephone Goza sounds authoritative, but in person his words slide out the side of his mouth as if he is trying to give you a deal on some choice Florida swampland. On Dr. Goza a perfectly respectable brown polyester suit looks like the by-product of a chemical used to make plastic explosives.

  We should have demanded that the guy send a video of himself, but after five long-distance conversations with him, it never occurred to me that he would come off looking like a door-to-door salesman of child pornography. When a doubt did cross my mind, I dismissed it. How weird could an educated white profes
sional from neighboring Mississippi be?

  Well, now I know the answer. Still, this greasy-haired, wormy anorexic from the Magnolia State is convincing about the efficacy of shock in stopping self-abusive behavior in retarded children. Maybe, as Clan suggested yesterday after he had seen him in the men’s room, I should ask the jury to put bags over their heads when he testifies.

  It is Olivia who is attracting all the attention. As she waits at the back of the courtroom with her real estate lawyer, heads seem to swivel 180 degrees as the crowd strains to get a look at her. Now cut off from my view at the defense counsel table, I have had a good look at her. It is not as if Olivia is trying to hide from the attention. Wearing a red dress whose color might be more appropriate for Valentine’s Day, she seems amazingly at ease. For all I understand her, she is smiling because she thinks this case may be great for business. By focusing on what is in the human heart and mind, the criminal law seeks to measure what it can never truly know: the intent of the accused at a particular moment in time. We pay a king’s ransom daily to highly trained specialists to understand precisely our motivations in this country. The problem is that “intent,” “heart,” and “mind” are philosophical constructs that for thousands of years have plagued far wiser humans than are gathered in this courtroom today. Science may evolve to the point where future historians will giggle hysterically while they examine judicial artifacts of this period. Given the limitations of our criminal justice system, if Olivia were my client, I would advise her to keep her mouth shut the rest of her life, no matter how innocent she claimed to be. Innocent, of course, she is not. Less than twenty-four hours ago she was lying to my face that she and Andy had not seen each other in weeks. My message to her last night via Karen that if she truly cares about Andy (I do not trust her to tell the truth) she will invoke the Fifth Amendment and not testify seems doomed to be ignored.

  However, as a subpoenaed witness, Olivia will not formally be making that decision until she is called to the witness box.

  There is no way she and Andy can keep their stories straight, and it will be Andy the jury will punish.

  Judge Tamower’s chambers (actually Judge RafFerty’s) are, by way of contrast to the courtroom, rather cramped. Potential jurors, like job applicants, come in one by one and sit at the head of a small conference table. Jill and Kerr Bowman face Andy and me. Judge Tamower, motherly (she has five-year-old twin boys) and businesslike at the same time, presides from the other side of a desk perpendicular to the table, clucking directions at her clerk, a bailiff, and the court reporter who round out our group. Andy and I have reached a compromise of sorts. He agrees with me, as he must to be logically consistent, that any potential juror exhibiting bias, racial or otherwise, should be struck by the judge for “cause,” as the law calls it, or by us using one of our peremptory challenges if we suspect bias but cannot persuade the judge of it. But he is adamant that I also question potential black jurors along with the judge and the prosecutor to determine a bias against whites or in favor of blacks simply based on race. This kind of scrupulousness, in my opinion, is unheard of, and unnecessary in an adversary system. That is the business of the prosecution and the court, not mine.

  “My client. Your Honor,” I explain drolly to the judge be fore the first jury panel member is brought before us, “takes, as no client of mine ever has before, the ideal of an impartial jury, as you shall see, very seriously.”

  Matters that are essentially trial tactics and strategy are decisions to be made by the attorney, not the client, and while ultimately a client has the theoretical right to fire his lawyer, no judge will permit a defendant to hold the court’s docket hostage to a decision by the accused to fire his attorney in the middle of a trial. Still, I see no harm in humoring Andy’s obsessions at this point. Perhaps he will score some points with Judge Tamower, a liberal, who may be persuaded to see Andy for the unique piece of work he is. At any rate, Andy will be furious with me before this trial is over, if all goes according to plan.

  When I ask a young black accountant about Andy’s age whom I would love to have on the jury if he would be any more likely to be sympathetic to Andy because of his race, I get an expected negative reply. Who wants to admit to any bias at all? We’re all one big, happy family. Sure. Though Mr. Bert Williams doesn’t know it, I want him very much.

  Actually, it was a safe question, since Jill has worked this area to death, hoping to find a justifiable excuse to strike him. The U.S. Supreme Court has generally hacked away at the rights of criminal defendants for the last twenty-odd years, but it will no longer let a prosecutor get away with striking a black juror just on the mere assumption that the juror will be biased. If Jill tries to use one of her peremptory challenges to strike this guy, who, like Andy, lives in an integrated part of Blackwell County, she knows I will challenge her and put her to the test of offering a racially neutral explanation of her decision. Of course, if he were to admit to racial bias, he would not be allowed to serve, but this guy, whose breezy manner suggests he might swing a little if he got some pot or alcohol in him, says he likes everybody and everything. I doubt it, but since when has saying you’re an optimist been against the law?

  It is the matter of interracial love and sex that naturally consumes the most time.

  “Are you opposed to whites and African-Americans being involved romantically?” I ask a forty-six-year-old white mother of three who is temporarily at home raising her children.

  Mrs. Hyslip, a red-haired woman who could be Rainey’s sister except for her large, rubbery lips, gives Andy an embarrassed glance and says, “Well, I’m from a small town, and that son of thing was frowned on when I was growing up.”

  Since Arkansas is practically devoid of urban areas, she hasn’t said much, but she is no different from any other potential juror who has been asked that question. What I would love to know but don’t dare ask is whether she could ever imagine under the right circumstances being involved with a black male. Since the judge won’t strike anyone for cause who answers affirmatively (we couldn’t have a trial within the state), I have to ask if she could be fair and impartial in her deliberations knowing that the defendant and the mother of the dead girl had talked about marriage at one point in their relationship. To their enormous credit, five whites and one black answer that question honestly, and Judge Tamower strikes them for cause, saving me my peremptory challenges.

  Mrs. Hyslip hesitates so long before answering and is so tentative before she says, “I’m pretty sure I could,” that I resolve to use one of our strikes.

  Despite a long list of other questions designed to reveal their racial prejudices (Judge Tamower lets me ask all the clubs and organizations anyone has ever joined, including any groups that espouse the superiority of one race over an other), we move much faster than any of us thought we could;

  and by eleven o’clock we have a jury composed of six white women, four white males, and two African-Americans, a man and a woman. Besides Bert Williams, Jill has failed to strike a middle-aged nurse at St. Thomas who squinted at me when the judge asked her if she knew me, but said she didn’t. I am betting she might have known Rosa and liked her and made the connection I was married to her. Still, a black woman on the jury makes me nervous. Will she, like Yettie Lindsey, punish Andy for wanting to marry a white woman? Picking a jury is little more than a crap game. I have used our peremptory challenges to keep off anybody I suspected of being a redneck. My rule of thumb, unscientific and prejudiced, is that if I had absolutely nothing else to go on and other things were equal, I struck whites who lived in the southwest part of the county. That area is considered the most racist, but I am glad I don’t have to offer a public ex planation. The Supreme Court has not as yet gone so far as to require lawyers for black defendants to offer a “racially neutral” explanation of why we choose to strike certain whites from the jury list.

  Jill’s opening statement to the jury prepares them for the sermon she will give in her closing argument: the only thing
less sacred than the bond between a child and her parents is the relationship between a child and her doctor. I am tempted to pretend I am gagging, but the jurors are instantly captivated by Jill’s manner, which is somehow preachy but effective because of her utter sincerity. As if she is in mourning, she is wearing a black dress, no jewelry, except for plain earrings barely visible underneath the shining, lustrous dark hair that is her only concession to femininity. Unlike some other female attorneys, who withdraw part of their retirement pensions to buy clothes and accessories for a big trial, Jill refuses to call attention to her striking features. Even her shoes, low-heeled black pumps, say to the jury that she is telling them a shocking story that deserves everyone’s respect and full attention. She comes from behind the podium and stands in front of the rail that runs in front of the jury box.

  Stooping slightly she reviews the evidence she will present, staying away from a possible motive until just before she sits down.

  “Mr. Page will tell you that Pam’s death was a terrible accident, but as you listen to the testimony, I want you to be thinking about what was occurring between Andrew Chap man and Olivia Le Master and what they had to gain by Pam’s death.”

  I watch the jury’s faces as they hear her describe the malpractice settlement and Yettie Lindsey’s expected testimony. It is as if the issue of race were the last thing on Jill’s mind. Andy leans over and whispers to me, “She’s really good, isn’t she?”

  Concentrating as hard as I can, I do not answer, but I want to tell him that a prosecutor doesn’t have to be great to keep a jury interested in this case. Yet this jury is hoping for the details, and they will be disappointed. There will be no description of any salacious practices that will have the spectators gasping with delight. Not for the first time I consider telling the jury that I, a small-town boy from eastern Arkansas was happily married until her death to a woman whose skin was almost as dark as that of two of its members that under the right conditions any of us might and do choose against all we’ve been taught and believed. Yet, as I study the jury, I lose courage. The risk is too great that some of the whites on the jury (maybe the blacks as well) might decide to punish me for presuming to preach a text few want to hear. It is enough that Andy is on trial; I don’t dare add to his burden. Instead I tell the jury a version some of them might be able to accept.