Judge Chen's bailiff is an older black woman named Harriet Hill. At precisely ten o'clock, she instructs us to stand. The judge hurries to her tall leather chair on the bench and nods to Skipper, and then to me. Her hair is pulled back tightly. She calls for order. The courtroom becomes silent. "Any last-minute issues?" she asks.
"No, Your Honor," Skipper and I say almost in unison.
"Good." She's trying to set a businesslike tone. "Let's get started."
To the great chagrin of the media, we will spend the first few days, and perhaps weeks, of the trial picking a jury. Like most trial lawyers, I believe cases are won or lost during jury selection. Unfortunately, picking a jury is the most important and least scientific part of the entire enterprise. Jury consultants get paid hundreds of thousands of dollars to identify personality traits and biases gleaned from juror questionnaires that may not have been answered honestly. Some jury consultants claim they can help you pick a sympathetic jury just by watching the body language of the potential jurors. At the end of the day, you go with hunches and gut instincts as much as demographics.
Picking a jury is more difficult than it used to be. In June of 1991, California voters passed Proposition 115, which gave judges, rather than the prosecutors and defense attorneys, the authority to question prospective jurors during the voir dire. Before Prop. 115, jury selection in a capital case could take months. With the judges asking the questions, the process tends to go much more quickly. Lawyers can still give the judge a list of questions we want asked—which the judge is free to ignore. Although Judge Chen has promised to give us some leeway, she reminds us that she'll be asking the questions.
Skipper has hired one of the jury consultants from the Simpson trial, who's appeared on CNN from time to time. My jury consultant, Barbara Childs, has been on Ted Koppel's show. I suspect the battle of the consultants will end up about even.
The best thing about jury selection is that it tends to bore the media to tears. The judge asks the same questions of a large group of people for days on end. Occasionally, the lawyers get to stand up and make a speech to try to have a juror excused. After a few preliminaries, Judge Chen tells Harriet Hill to bring in the first panel of potential jurors.
Thursday, March 19. Three days later, we're still at it. The first-day media blitz has died down. Although the local TV stations are still sending reporters to monitor the proceedings, we've been relegated to the third page of the Chronicle and the fourth story in the local news broadcasts. We get a little more play on CNN every night. Everybody will be back once we've picked the jury.
We must select twelve jurors and six alternates. So far, we've managed to select nine jurors. I'm having a tougher time than Skipper. He's looking for people who hate lawyers. That includes about 99 percent of the population. Skipper wants people who have had a bad experience with the legal system, who might take out their hostility on Joel. I'm trying to avoid anybody who's ever been arrested, divorced or sued. That doesn't leave much. I like his odds better.
According to my consultant, I should try to fill the jury with women, because they're more open-minded. On the other hand, they tend to turn quickly in cases where a woman is a victim, especially if the accused is a man. So much for statistics.
By three o'clock on Thursday, we've picked our twelve jurors and six alternates. Judge Chen has kept the process moving. We've finished sooner than I would have predicted.
The jury is a mixed bag. Eight women and four men. Two of the women are Asian, one black. One man is Asian, another Hispanic. Seven are married and three have been divorced. Two are lawyers. The black woman is a supervisor for the phone company. I have a hunch she'll be one of the leaders. I tried to get her excused because she was divorced. Judge Chen ruled against me. There are two homemakers, a retired Muni bus driver, a data-entry clerk, a hotel clerk and an accountant. How they'll react is anybody's guess.
After the last juror is seated, Judge Chen looks at her watch and turns to Skipper. "I trust you'll be ready to begin your opening statement tomorrow?"
"Absolutely, Your Honor."
Back at the office the same evening, Barbara Childs congratulates me for picking a terrific jury. Her words ring hollow. What else would she say? After she leaves, I get a more realistic view from Rosie and Mort.
"Could be worse," Mort says.
Rosie agrees with him. "We've done the best we could," she says. "It's a crapshoot."
She's right. All the studies and all the empirical research go straight out the window when you're in a courtroom picking a jury. It's a feeling you never get used to. Your client's life is in the hands of twelve strangers. You never know if you've picked twelve Mother Teresas or twelve Jack the Rippers.
"Which ones did you like the best?" I ask.
Mort clutches his cigar. "You should get a pretty good shake from the two lawyers. I think the accountant will be okay." He shrugs. "Tough to tell with the rest of them."
Rosie adds, "I think the Asian women and the Hispanic man will be conscientious."
"Anybody you didn't like?"
They look at each other. "I wasn't happy with the phone company supervisor," Rosie replies. "She looks like she has a chip on her shoulder."
Mort puts his cigar in his mouth. "I wasn't crazy about her, either," he says.
At eleven-thirty that night, I'm at home watching the legal analysts on CNN dissect our jury. As always, the panel of eight "experts" sits in two rows of bleacher seats on one side of the studio, fielding questions from the strident woman with the bad hair and the wormy guy with the bad glasses. Their program looks like a pregame show for a football game. You know you've made the big time when your trial has its own graphics and theme song. The voice of James Earl Jones intones that we're watching coverage of "Special Circumstances: The Law Firm Murder Trial."
After voting 6–2 in favor of Skipper's jury-selection acumen, the people in the bleachers turn to the TV monitor in the middle of the studio and begin a heated discussion with a jury consultant from the Menendez case, who seems to have a television studio in her home. The camera pans back. It looks very odd to see the two hosts and the eight panelists talking to the woman's head.
"Mr. Gates clearly got the better of the jury-selection process," says the disembodied head. "Asians are good prosecution jurors. They like order. On the other hand, the Hispanic man has probably had trouble with the law. I'm sure he'll be sympathetic to the defense."
It's frightening to observe how these people think. She should know better. It was revealed in the voir dire that the Hispanic man is a senior vice president at Chevron and lives in the most expensive corner of the ritzy Seacliff neighborhood. He's a big contributor to the Republican party.
"The black woman," she continues, "will almost certainly favor the defense. I'm sure she's had friends or relatives hassled by the cops. She's probably going to give the defendant a pretty fair shake."
I'm not so sure. The woman's husband is a cop. If the disembodied head had been paying attention during the voir dire, she would have known this.
The female host interrupts her. "Don't you think the jurors will be predisposed against Mr. Friedman because he's a lawyer?"
The consultant smiles. "Absolutely. That's the big wild card. Most people think lawyers get away with murder every day." Raucous laughter. They take another vote before they go to commercial. This time it's unanimous. The jury is clearly going to be on Skipper's side.
I flip to CNBC. Marcia Clark is lecturing on the strength of Skipper's case. I turn off the TV and run through my opening statement one more time.
Friday morning arrives with a driving rainstorm. The mini-cams are lined up on Bryant and umbrellas blanket the front steps of the Hall. We push our way through the crowd and march up to the courtroom. Reporters surround Skipper outside the door. We have barely enough time to take off our raincoats when Harriet Hill instructs us to rise. Judge Chen walks briskly to her chair. She asks Harriet Hill to bring in the jury. She greets them warmly a
nd says they'll have the privilege of hearing opening statements today. Without another word, she turns to Skipper. "You may begin your opening statement, Mr. Gates."
He stands and buttons the jacket of his navy suit. He walks slowly but forcefully to the lectern, and places a stack of notecards just below the small light. He doesn't look at them. The courtroom is silent. It's like the moment at the symphony when the conductor raises his baton. He nods to the judge and turns to the jury. He scans their faces. "May it please the court," he begins, "my name is Prentice Gates. I am the district attorney for the city and county of San Francisco. We are here today to address a serious matter. A matter of life and death."
The jurors shift uncomfortably. The phone company supervisor's eyes meet Skipper's. Judge Chen watches intently. I focus on the jury. Joel swallows.
Skipper leaves the lectern and walks slowly toward the jury. They size each other up. He takes his gold pen from his breast pocket and points toward enlarged color photos of Bob and Diana, which sit on an easel placed in front of the jury box. "We are here today because of these two people. Robert Holmes and Diana Kennedy. I knew both of them. They were colleagues of mine. They were my friends."
I could stand up now and object because he's supposed to stick to the facts in his opening. On the other hand, it's considered bad form to interrupt. I stay quiet.
"We are here today because of that man sitting over there." He points at Joel. "We will show you evidence that the defendant knowingly and willfully, with malice aforethought, killed Diana Kennedy and Robert Holmes."
McNulty has coached him well. Skipper is always going to refer to Joel as "the defendant." It's easier for the jury to convict a nameless "defendant." I remind myself to refer to Joel by name.
Skipper spends twenty minutes expressing his outrage and disappointment that a member of the legal profession and his former colleague would have taken the lives of two respected attorneys. Joel stares straight ahead. Skipper holds up his right index finger melodramatically and says, "I want you to remember these two pictures. Bob Holmes and Diana Kennedy can't speak for themselves. We can't undo the pain suffered by their families. But we can bring their killer to justice. We have to speak for them."
I stand slowly. "Excuse me, Your Honor," I say. "Would you please remind Mr. Gates that opening statements should stick to the evidence? There will be time at the end for closing arguments."
She looks at Skipper. "Mr. Gates," she says, "please keep to the facts."
"Yes, Your Honor," he replies. He turns back to the jury. "Ladies and gentlemen," he continues, "we're going to show you incontrovertible evidence that places the defendant at the scene of the crime." He goes on to describe the physical evidence for about forty minutes. The jurors sit quietly. He's finding his rhythm. "In addition," he says, "we will present evidence that the defendant was having an affair with Diana Kennedy." Murmuring in the back of the courtroom. I glance at Naomi. Our eyes meet. "When the relationship soured and the defendant found out that Ms. Kennedy was romantically involved with Mr. Holmes, he became enraged.
"The defendant was also angry at Mr. Holmes because the defendant was passed up for election to the partnership at the Simpson and Gates law firm." He clears his throat. "Imagine. He killed another human being because he didn't make partner." Rabbi Friedman looks down. Joel remains stoic.
"Finally," Skipper says, "I realize there are many people who aren't particularly enamored of members of the legal profession." A couple of jurors nod. "But," he continues, "I want to make something clear to you. The legal profession is not on trial here. The defendant is. It's my job to show you enough evidence to give you the tools that you need to convict. I will give you those tools.
"You'll be hearing today from Mr. Daley, who is the defendant's attorney. It's his job to try to confuse you. It's his job to try to put doubts in your mind. I'm saying this not as an indictment or criticism of Mr. Daley. It's just the way our system works."
That's not entirely true. He is, in fact, saying it as an indictment and a criticism of me.
"I ask you to use your common sense." He points to the pictures of Bob and Diana. "Above all, I want you to keep these pictures in mind. I need your help to find justice for Bob and Diana."
He makes eye contact with each of them. He walks past the easel and looks at the pictures of Bob and Diana. He unbuttons his jacket and sits down.
Judge Chen turns to me. "Mr. Daley, will you be making an opening statement today?" We have the option of deferring our opening statement until after the prosecution has completed its case. If I wait, I can tailor my opening to address issues raised in Skipper's case. On the other hand, it may be several weeks before the jury hears me say anything of substance. We've agreed that if Skipper opens strong, I'll make our opening today. I glance at Rosie and Mort. They both nod.
"Your Honor," I say, "we'll be giving our opening statement today."
I stand up and button my jacket. I walk toward them and look each one in the eye, one at a time. I move almost to the edge of the jury box. I like to start close to them. In a quiet, conversational tone, I begin by saying, "My name is Michael Daley. I represent Joel Friedman, who has been unjustly accused of a terrible crime he didn't commit."
Skipper could leap up right now and demand that I stick to the evidence. Fortunately, McNulty's told him to stay in his chair. I'm going to take advantage of it while I can.
"Joel Friedman is an honest, hardworking man with a wonderful wife and two young children. His life has been turned upside down because he happened to be at the office doing his job on the night two people died. Imagine what it must be like when the police come to your house and arrest you in front of your wife, your parents and your children for two murders you didn't commit. What do you tell your wife? What do you tell your parents?" I pause. "What do you tell your kids?
"That's why we're here. Mr. Gates is absolutely right that this is a very serious matter. It isn't the slightest exaggeration to say it is a matter of life and death. I need your help. I need you to sort out what happened. I need you to sift through the evidence so we can figure out the truth—together. In our system, Mr. Gates is required to prove his case beyond a reasonable doubt. That's a tough standard." I pause. "After you hear the evidence you're going to come to a simple conclusion. He can't do it."
I get the hint of agreement from the accountant.
"You'll hear Joel was in the office that night. You'll find out he phoned Diana Kennedy and asked her to return to the office. You'll hear he left an angry voice-mail message for Bob Holmes. All of these things are true." I describe the fingerprints on the gun. I argue that they got there when Joel unloaded the gun. I claim they can't prove he pulled the trigger.
"Mr. Gates is going to introduce circumstantial evidence to show that Joel Friedman and Diana Kennedy were having an affair. He's going to claim that she broke up with him and initiated a romantic relationship with Mr. Holmes. There was, in fact, no such affair between Joel Friedman and Diana Kennedy. It didn't happen."
I spend thirty minutes trying to cast doubt on every piece of evidence, liberally using the words "shaky," "contrived" and "convoluted." I think the jury is with me. I glance at Rosie, who blinks twice. It's my signal to wrap up. "Ladies and gentlemen," I say, "I realize Mr. Gates has suggested to you that my job is to obfuscate and confuse you. Let's be realistic. We all saw the Simpson trial. We all know that there are lawyers who will do just about anything to get their client off." I move closer to them. "I want you to understand something. I'm not that kind of lawyer. I will not lie to you. I will not attempt to confuse you. And I will not, under any circumstances, try to mislead you."
Actually, I'd try to obfuscate and confuse them in a New York minute if I thought it would help get Joel off. "I need you to keep an open mind and review the evidence. I know there's a lot of animosity directed toward lawyers. I would ask you not to take out your feelings toward the legal profession against Joel Friedman. You don't have to look very far to fi
nd cases where justice isn't served. In this trial, I would ask you to help me try to make the system work the way it's supposed to. When we're done, I know you will agree that Joel Friedman is not guilty of these terrible crimes."
I sit down. The judge says we'll break for the weekend.
At nine o'clock the same evening, Rosie and I are watching CNN. The panel of experts in the bleachers has proclaimed Skipper the hands-down winner of opening statements. "Daley should have waited until after the prosecution's case to give his opening," says the woman with the bad hair.
"Nah," says the head of the disembodied woman on the TV screen. "Gates has too much charisma. At least Daley got to the jury before the horse was out of the barn."
The prosecutor from Texas who always wears a Stetson hat in a hot TV studio sides with Skipper. "They should have tried for a plea bargain," he drawls.
We flip to CNBC. "If I were in Daley's shoes," says Marcia Clark, "I'd be begging the prosecution for a deal."
Thanks, Marcia. Rosie shuts the TV off. "Was it that bad?" I ask her.
"You held your own. The prosecution gets to play its good cards first."
I hope she's right. It doesn't make me feel any better.
33
LAYING THE FOUNDATION
"The most important thing prosecutors learned from the Simpson trial is to keep your case short and sweet."
—NEWSCENTER 4 LEGAL ANALYST MORGAN HENDERSON. MONDAY, MARCH 23.
The sun makes a cameo appearance for a few minutes on Monday morning. By the time we reach the Hall, it's raining again. We push our way past the ever-present TV cameras.
We take our seats at the defense table. Joel asks, "Who do you think they'll call first?"
The conventional wisdom is that prosecutors build their case one piece at a time. They have to prove the defendant was there. They have to prove he had opportunity. They have to show he had contact with the murder weapon. And they have to show motive. Piece by piece. Block by block. If all the blocks don't fit, the defendant walks. It's that simple.
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