As soon as Richard departed, the prospective jury panel of local citizens of various shapes, sizes, and colors filed into the courtroom and took their seats in the reserved rows. And it was then that Scott got a better look at John Harrison. He looked different from the way he appeared the previous Tuesday. Scott pulled out a file that contained his mug shot when he was booked into the Chatham County jail. The different look was striking. Could he really have changed that much?
Judge Desano began his preliminary instructions to the prospective jurors, which were brief. As soon as he finished, Scott tapped Daniel lightly on the side to get his attention.
“Daniel, there’s a problem,” Scott whispered. “We need to speak with the judge.”
“About what?”
“I’m not sure,” Scott said. “But let’s find out.” Scott then rose and faced Judge Desano.
“Your Honor, may we approach the bench?”
The judge motioned them forward, and Scott and Daniel began to walk to the bench. Gordon followed. Nolan remained seated. Soon the three were standing directly in front of Judge Desano. Gordon turned and saw that Nolan had not followed and motioned him to join them. He appeared surprised—after all, he was only to “be present in the courtroom and stay out of the way.”
“Your Honor,” Scott began, just loud enough to be heard by the judge and the other counsel, “I have reason to believe that since our session last Tuesday, the defendant has taken action to change his appearance. I believe there has been evidence tampering. The evidence the prosecution will be presenting is eyewitness identification. The defendant’s appearance is the evidence, and any deliberate modification of the evidence would be a criminal act and should not be sanctioned by this court.” Scott wasn’t entirely sure of his facts or the law, and he wasn’t sure what would or should be done if he was correct, but he said it with authority. He paused and waited, not knowing what else he should say on the subject. He thought Gordon would speak, but he didn’t. Judge Desano rose slightly out of his chair and looked carefully at the defendant, who was still seated at the defense table alone.
“Yes, I agree, Mr. Marino. There has been a change of appearance of the defendant. What explanation can you give the court, Mr. Gordon?”
Gordon turned and looked at the defendant. He cocked his head to one side. He appeared to be studying his client’s appearance, trying to see just what Scott and the judge had seen.
“Well, Your Honor, I can assure you that the gentleman seated there is the same one who was seated there last week, my client, John Harrison.”
“I don’t want any BS, Mr. Gordon. Your client has been in custody of the sheriff, so I’m not concerned that you brought in a ringer. Did you really think that was my question? My question is what do you know of your client’s change of appearance, and don’t even try to suggest that you don’t see any change of appearance.”
Gordon shifted his weight from side to side a couple times and then opened a file he was carrying and flipped through a few pages as if he were searching for the answer. But he didn’t immediately respond.
“Do you need a pacemaker for your brain, Mr. Gordon? My question is not difficult. I expect an answer.”
“Your Honor, I have a sensitive client, who has lost a bit of hair. Early balding apparently runs in his family. Being aware that he would constantly be in the public eye for this trial, he requested that we provide him with a hair piece to cover his baldness. That’s all it is. It certainly is not a deliberate tampering with the evidence, as Mr. Marino suggested.”
“So you went out, bought, and delivered a hairpiece to your client in jail. Is that what you are saying?”
“Not me, but a member of my team.”
“I see. Your team. The district attorney can deal with your team and the issue of evidence tampering when this trial is over. But for now the trial will continue, sans hair piece.”
Judge Desano motioned one of the bailiffs to the bench. “Now listen up, all of you. This bailiff, and the custodial bailiff, are going to escort the defendant out of this courtroom to the nearest holding room and ensure that the hair piece presently on his head is removed, tagged, and returned to the custody of the clerk of this court. If the district attorney wants it, Mr. Marino or Mr. Mackay can come get it. If not, I’ll make sure it’s eventually returned to you, Mr. Gordon.” The judge fixed his eyes on Gordon’s partially bald head. “It appears you may find some legitimate use for it.”
He then turned to counsel. “As soon as you return to your tables, we are going to select our jury. But while you are up here, I might as well brief you on my plans for this trial. I want to finish jury selection today. Do you think you can do it, Mr. Gordon?”
“I’m not sure, Your Honor. I’ll surely try.”
“You do that. And you, Mr. Mackay?”
“I would hope so. I haven’t had time to prepare any questions. I don’t even know the jury profile that I should be looking for, so I expect my voir dire to be quite limited.”
“That’s fine, Mr. Mackay. I expect Mr. Gordon’s questions to be quite limited also, because when I get finished with my voir dire, there’s unlikely to be anything left to ask. I want you to be aware of my voir dire procedure. I will voir dire the entire panel and will follow up with questions to individual jurors based on responses. Counsel will only be permitted to ask appropriate questions that I have omitted. There rarely are any, and if I covered it, don’t you try to add to it. I will cut you off, and it can be embarrassing. Understand?”
There was a simultaneous “Yes, Your Honor,” and Judge Desano continued. “All we’ll be doing today is selecting the jury, and I want it finished early, so those who are selected can go home and make preparation for being sequestered for the rest of the week at an undisclosed downtown hotel. They will be instructed to bring clothes, medicine, and personal items for four days. I have rarely sequestered a jury in a non-capital case, but this one, because of the extensive media coverage, requires it. We will start voir dire as soon as the defendant returns from his ‘haircut.’”
The bailiffs brought the defendant back into the courtroom, and immediately Judge Desano began his voir dire: occupation, family, education, prior jury service, ever a defendant, ever a witness—the list of questions was extensive. He was still at it when the court recessed for lunch.
Daniel and Scott made a quick trip to the courthouse snack bar, picked up sandwiches, and took the elevator up to Daniel’s office. Daniel was anxious to compare notes with Scott about the jury.
“I think the judge is about finished with his voir dire—at least I hope so,” Daniel said. “I don’t know how long Gordon plans to be up there, but I don’t have any additional questioning. Who do you have on your strike list?”
“Well, there’s number seven, that guy with the tattoos up his arms and around his neck. Creepy. And number fourteen—I don’t like his laughing and whispering to jurors on both sides. Number twenty-two is dumber than a rock. Did you hear what she said when the judge asked her if she had ever been sued? She said, ‘I don’t think so. I would have probably heard about it.’ She’s gotta go.”
“Maybe she was just trying to be funny,” said Daniel.
“Then that’s another reason she has to go.”
“Those are all peremptory challenges. Any ‘for cause’?”
“None left that I see,” said Scott. “Desano has already excused all those that I think deserved a challenge for cause. I’m pretty satisfied with the jury. No college sociology majors—that’s a relief. But if you still have a peremptory left, get rid of number twenty-three. He parts his hair down the middle like Gordon. They may be soul brothers.”
Richard Evans entered the room. “I just spoke with Josh Johnson. He’s still a ‘go.’ I’ll meet him at the airport tomorrow and bring him straight to the courthouse.”
“Good,” said Scott. “I want to use him as the last witness in the afternoon, after the investigating officers and forensic witnesses. Until he testif
ies, we won’t have Harrison connected to the robbery. We need to do that before the jury leaves the courtroom for the hotel.”
Scott reached into his briefcase, took out some papers, and handed them to Richard. “Here are the questions I’ll be asking Josh when he testifies. Go over these with him. Write down his answers. I don’t want any surprises.”
“Richard, we were just going over the jury strike possibilities,” said Daniel. “This panel is overloaded with females. We are probably going to have a majority. You’ve been involved in as many trials as anyone in the office. Women on the jury—good or bad?”
“It usually makes no difference, but in this case, bad. Very bad.”
Daniel looked surprised. “Why?”
“Well, he’s a handsome guy. Young, bright-eyed, intelligent looking, and the judge is going to instruct a couple of times about him being innocent until proven guilty. The young females will want to marry him, and the old ones will want to mother him. You think they are going to convict him?”
“Well, I don’t have enough strikes to get rid of all the women. Besides, I think there’s a Supreme Court case that says I can’t strike them just because they are female. Right, Scott?”
“Right. Unless they are female sociology majors—they’re all fair game.”
• • •
Judge Desano finished questioning the jury shortly after three. Then he turned to the prosecutors for follow-up questions. Daniel said he had none. The judge then turned to the defense.
Gordon stood and said, “Thank you, Your Honor. I believe you have covered quite well most of the questions I had. If you will give me about ten minutes, I believe I can finish my questioning.”
“Ten minutes? Of course, Mr. Gordon. And I intend to hold you to it.”
“Thank you, Your Honor. Now ladies and gentlemen, you will recall that early on, Judge Desano introduced me as Max Gordon. That is my name, but many people know me by my nickname. I’m about to ask you if you have heard of my nickname, and I ask this because if you have, you may believe there is something sinister or evil about me. I want to explain how I got the nickname so you won’t hold it against me or my client.” Gordon was smiling as he was speaking and looking intensely from one juror to the next.
“That nickname is ‘Sneak.’ I’m known by many around this country as ‘Sneak’ Gordon. It grew out of my college days at Notre Dame, where I played football. Halfback. I was small, but I was fast.”
Scott knew what was coming and wanted to object, but Daniel was in charge of the jury selection, and any objections should be made by Daniel. Besides, Scott expected Judge Desano to cut off this charade in a hurry. But Judge Desano seemed to be busy on the bench writing something and said nothing. Scott scribbled, “OBJECT!!!—BS Story” on his yellow pad and passed it to Daniel.
Daniel looked at it, and nodded his head as if in agreement but said nothing. In the meantime, Gordon was proceeding with his tale.
“You’ve probably heard of our coach at the time, Ara Parseghian. A great coach. And you probably know about our long-standing rivalry with Michigan. Lose to Michigan, but win every game thereafter, and it’s still a bad year. That was about to happen in the game where I earned my nickname.”
Scott passed the pad once more to Daniel. “OBJECT!!!—BS Story.” Again, Daniel looked at it and nodded.
“We were behind by two points. Third and long on the twenty yard line. Tough Michigan line. Been beating up on us all afternoon. Two halfbacks already knocked out of the game, one with a broken leg. Coach sends me in with the play. It’s going to be a handoff to me, and I’m to run towards the center of the field to get a good position for a field goal. I look at that Michigan line. That line weighed over a ton. I weighed a hundred and fifty pounds and that’s with pads, shoes and helmet—after a slow walk in a heavy rain. Quarterback pops the ball so hard in my stomach, I almost double up. Ouch! I see stars. I’m hurting, but I’m still on my feet, running.”
Gordon pantomimed the ball hitting his stomach. He moved laterally in front of the panel, faking a stumble, smiling all the while, and keeping eye contact with the jurors. They were smiling back. Scott felt helpless; he had been warned of this. He was getting a lesson in trial lawyering and showmanship. He could understand why Gordon was such a successful trial lawyer. He had a pleasant, easy-to-listen-to Midwestern voice. But more important, he was a hell of a good storyteller.
“And I keep running. Somehow I get through that mighty Michigan line and score. I don’t remember a thing until I’m in the end zone. The game was on ABC television, and Keith Jackson was calling the game. He roars into the mike, ‘Look at that little sneak! Look at that sneak! Touchdown! Touchdown! What a little sneak!’”
Gordon continued to pantomime the whole event as he described it: running in place, using his fist as the imaginary microphone, and changing his voice to imitate the announcer. The jurors continued to smile, and eventually they were all laughing. Scott recalled Grady’s warning, that a laughing jury is not a convicting jury, and he sunk down in his seat until the show was over. He found nothing that Gordon was saying to be funny, but he would concede that the way this balding, rotund ex-jock illustrated the story as he told it was indeed hilarious.
“And that, members of the jury, is when Max Gordon became Sneak Gordon. If any of you now believe that something evil is associated with my nickname, would you raise your hand?” He paused, smiling and looking from one juror to another, before continuing. “Let the record show no hands are raised. Do any of you, because of my nickname, ‘Sneak,’ or anything I’ve said about it, think you might hold it against....”
Judge Desano looked up, for the first time during Gordon’s sideshow, and came to life. “That’s enough of that, Mr. Gordon. In fact, it’s too much. Do you have any more questions, that is, legitimate questions?”
“No, Your Honor. I just wanted to clear that up.”
“Mr. Gordon, I think you have clearly demonstrated there was nothing to clear up. We will take a fifteen-minute recess and finish our jury selection.”
The bailiff called, “All rise,” and the judge and the jurors departed the courtroom. Scott and Daniel remained standing at their table.
“Sorry, Daniel. Grady warned me he would try that football crap and that we should cut him off as soon as he starts. I should have given you a heads up. But why didn’t you object when I sent you that yellow pad?”
“Scott, I couldn’t think of the correct grounds for objecting, and I didn’t think Desano would go for ‘Objection, Your Honor, that’s bullshit.’ What do you think?”
“I think you’re right.” They both laughed.
• • •
Jury selection was completed by four, and the jury was sworn. Judge Desano gave the jury the standard instructions on avoiding the media and told them to come prepared to stay sequestered in a downtown hotel for three or four nights.
As Scott departed the courthouse, Daniel reached out to shake his hand. “OK, Scott, the rest of the trial is yours. Desano’s orders. Let me know how I can help.”
“Thanks. I’ll let you know, but right now I’m comfortable with the rest. It’s really not a complicated trial—a few investigators who have very little to present and two eyewitnesses. Let’s go up and see what we can find out about Meg.”
They went upstairs to the DA’s office suite and were informed that Meg was still hospitalized. No one knew much about her condition, other than she would be there for a day or two.
Scott decided to go straight home. He felt enervated, and the trial had hardly gotten underway. He had heard many times that trials were as exhausting as manual labor. It was true. And tomorrow would be even more demanding. He would go through his trial notebook one more time and get to bed early.
At six, he turned on the evening news. Every channel had highlights of the Harrison case. There was a video clip of the defendant leaving the courtroom to remove his hairpiece, which was called the “Hair Affair.” There was no video or au
dio of the jury selection, not only because Judge Desano’s order prohibited any identification of a juror, but also because it had been a boring four hours. Scott watched carefully, expecting to see Gordon mugging for the cameras, but he did not appear. What he did see was an interview of a jury consultant who had been hired by the defense. Standing near the “Eternal Flame” in front of the courthouse and surrounded by TV cameras and microphones, she was explaining her role in advising the defense during jury selection. She was smiling as she talked and looking from camera to camera.
“The selection of the jury is by far the most critical and important part of a criminal trial,” she said. “Jurors sometimes come to court with the idea that prosecutors only charge guilty individuals. My job here in Savannah was to make sure that no one with such a preconceived opinion made it to the final twelve to try the case. I was pleased to play a role in the process of seeking justice for John Harrison. We are quite satisfied with this jury. It is an intelligent jury. I have no question that this jury will see that this young man is innocent and will send him home to be with his family.”
“To be with his family?” Scott mused. John Harrison had been running from his family for three years. This TV interview was the first knowledge Scott had of the defense hiring a jury consultant. He had seen this attractive lady sitting on the first row behind the defense table passing notes to Gordon. But he had assumed she was a paralegal member of his team. It had not occurred to him that she was his jury consultant, and it would have made no difference had he known. She was a legitimate adjunct to the defense team. But she also should have been subject to Judge Desano’s gag order. Scott wondered, but only briefly, if Gordon had arranged for the interview. Of course, he had.
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