And yet, despite all his readiness, Jaywalker still couldn't shake that feeling of apprehension that had at tached itself to him early one morning in September and had clung to him ever since, like a stubborn fog that refused to lift.
He was ready, but he was afraid.
11
BOARD GAMES
"All rise! Part Sixteen of the Supreme Court, in and for the County of the Bronx, is now in session, the Honorable Max Davidoff presiding. Please be seated."
Jaywalker scanned the rows of prospective jurors that filled the courtroom and immediately knew they were in trouble.
Today the Bronx is what whites refer to as a "minority borough," with blacks and Latinos comprising nearly ninety percent of its population. If that description betrays a certain amount of ethnocentricity, at the same time it fairly characterizes the borough. Its schools are minority; its stores are minority; its churches are minority; its play grounds are minority; its politicians are minority. Every thing about it, in fact, is minority.
But it wasn't always so.
Beautiful parks once dotted the Bronx, with names like Pelham Bay, Bedford and Van Cortlandt. Graceful shade trees, manicured lawns and spotless sidewalks were every where. The Grand Concourse, the broad boulevard that passes directly in front of the courthouse and provides its address, was once second only to Manhattan's ParkAvenue in terms of the prestige it carried and the rent it commanded.
But all that changed.
By the late 1960s and early 1970s, the Bronx had become a borough in transition, with its older Jewish, Irish, Italian and Polish residents pulling up and heading to Westchester, Queens, Long Island and New Jersey. In their place, younger blacks and Puerto Ricans began mov ing in in large numbers, soon to be followed by Colom bians, Cubans, Jamaicans, Haitians and Dominicans. The phrase white flight was on everyone's lips.
The transformation wasn't an easy one. Unemployment soared, welfare rolls swelled, and crime statistics skyrock eted. Front doors, once left unlocked, now sprouted pad locks and chains. Window glass gave way to plywood. And streets that had been safe at night became dangerous by day. The whites who could, responded by fleeing in in creasing numbers; those who couldn't, ventured out of their apartments warily, returned quickly and triple-locked themselves in. By the winter of 1980, as Darren Kingston's case came up for trial, the new immigrants outnumbered the old guard they'd replaced.
Jaywalker would have had no complaint if the jury panel had reflected the changing demographic of the bor ough. As difficult as it might be, he felt he would have a reasonable chance of convincing a racially mixed jury to keep an open mind in the trial of a black man born to West Indian parents and accused of raping two white women.
He wasn't going to get that chance.
At the time, jury panels in Bronx County were drawn exclusively from voter registration rolls. The whites who'd dug in and remained had lived in the borough for years, often generations. They'd emigrated from Europe, seeking not only economic opportunity but also, in many cases, po litical and religious freedom, as well. They'd lived through a world war, understood the Holocaust and watched the westward march of Communism. They prized their new found democracy. And they voted.
The newcomers lacked that history. They typically had less education, lower literacy rates and less familiarity with the English language. They'd come not to escape op pression but to find jobs. Voting was nice, but it would be something their children would do one day, or their grand children.
As a result, of the fifty prospective jurors summoned to Part 16 on the morning of February 21, 1980, five were black and none was Hispanic. And perhaps it was only Jay walker's imagination working overtime, but the remain ing forty-five seemed barely able to hide the palpable fear of a threatened species.
"The People of the State of New York versus Darren Kingston," announced the clerk.
"The People are ready for trial," said Jacob Pope, in a loud and clear voice.
"Is the defendant ready?"
"The defendant is ready," Jaywalker answered. Then he asked to approach the bench. There, in the presence of Justice Davidoff, Pope and the court stenographer, but out of the jury's earshot, he voiced his objection to the dis proportionately small number of minority jurors and re quested a new panel.
"There are only five blacks," he pointed out, "and not a single Hispanic, as far as I can tell. Combined, that's pre cisely ten percent of the total, in a county that's eightythree percent minority."
Nobody picked up on the oxymoron, or the fact that Jaywalker had made up the statistic on the spur of the moment. He'd learned that if you were specific enough with numbers, people tended to defer to you and accept them at face value.
Justice Davidoff peered over his reading glasses at the jurors. "I count twelve blacks," he said.
"That's because you're counting the defendant's family," Jaywalker told him.
It didn't matter. His objection was overruled and his request for a new panel denied. It was, as they say, an in auspicious beginning.
Jury selection began slowly. Before its completion, it would take two full days. Twelve prospective jurors, whose names had been drawn at random from the panel of fifty, filled the jury box. Pope got to address them first, and his questions sought personal information: their em ployment, marital status, family makeup, geographical background and education. He seemed intent on finding jurors with daughters, Jaywalker noticed. His manner was businesslike and efficient. No surprise there.
When Jaywalker's turn came, he spent little time ex ploring the jurors' backgrounds. Instead, he used the time allotted him to tell them, as early on as he could, the most troublesome things about the case they were about to hear.
JAYWALKER: Mr. Peterson, knowing that two young women are going to walk into this room and point out my client as the man they say raped them, and knowing that they're going to do so with all the sincerity and certainty that humans are capable of, do you think you can still give Darren Kingston a fair trial?
PETERSON: Yes, I do.
The answer, of course, was meaningless, unless it hap pened to be a "No." But by the very asking of the question, Jaywalker was attempting to defuse the worst of the pros ecution's evidence—to warn the jurors that this was a double rape case, that the victims were young, that they would point out Darren, that they would do so in good faith, and that they would do so without reservation. The effect, Jaywalker hoped, would be to deprive Pope of whatever drama he was looking to create. Beyond that, it would serve to precondition the jurors, so when the time came for the identifications, they wouldn't seem like such a big deal. Over time, Jaywalker would refine his tech niques and improve upon them. But this was 1980, and though he was already comfortable with the business of jury selection, he was still very much a work in progress.
In addition to taking the sting out of the facts of the rapes and the self-certainty of the victims, Jaywalker wanted to indoctrinate the jurors on the law, at least those areas where it helped the defense.
JAYWALKER: Mrs. Wilson, you're going to hear the judge tell you over and over again that the prosecu tion has the burden of proof here. In other words, they're the ones who have to prove this case, and they have to do it beyond a reasonable doubt. Now, is there anything about that rule that strikes you as un fair?
WILSON: No.
JAYWALKER: You understand that since it's the prosecution that's brought this case into court, it stands to reason that they have to prove it?
WILSON: Yes.
JAYWALKER: And prove it to a very strict stan dard, beyond all reasonable doubt?
WILSON: Yes.
In that seemingly innocuous exchange, Jaywalker first made it a point to depersonalize his adversary. He never used grandiose terms like "The People" or "The Govern ment." Nor did he say "Mr. Pope" or "the prosecutor." By using the less personal form of the word prosecution, he hoped to remove Pope from the equation altogether. Ac quit my client, Jaywalker was telling the jurors, and no one loses, not even that ser
ious guy over there with the mustache. He's just part of an institution. And the fact that the name of that institution happens to sound very much like persecution—well, Jaywalker would leave that little coincidence to the experts on subliminal persuasion.
The second thing he'd done was even sneakier. By placing emphasis on the word beyond the second time he'd referred to reasonable doubt, he'd managed to change the modifier immediately preceding it from "a" to "all," without drawing an objection from Pope or a rebuke from Justice Davidoff. From that point on, every time he spoke the words—and there would be literally dozens of such times—it would come out "beyond all reasonable doubt." A small thing? Sure. But to Jaywalker's way of thinking, big trials are often won by small things.
JAYWALKER: So you understand, Mrs. Fisher, that as the defense attorney, I don't have to prove any thing?
FISHER: Yes.
JAYWALKER: Or disprove anything?
FISHER: Yes, I understand.
Again, the answers meant nothing. They were an opaque set of responses from a juror who, for all Jaywalker knew, simply wanted to sit on the case and knew what she was supposed to say to make that happen. It was the questions themselves, which were really statements thinly disguised as questions, that accomplished the conditioning. Jaywalker reworded them, shuffled them, repeated them, apologized for repeating them, then repeated them again. Not only was the juror who was being questioned forced to listen to them, so were those waiting to be questioned, those who'd already been questioned, and even—back in 1980—those who'd already been selected. It was Jaywalker's hope that by being forced to listen, they might begin to think about the meaning of the phrases they were hearing. At least to the point of re alizing that it would be their job to focus on the issue of rea sonable doubt, rather than the specter of their daughters being raped by a black man.
Several jurors came right out and said they couldn't be fair to a defendant accused of rape. One or two acknowl edged other prejudices that might prevent them from being impartial. A few voiced personal reasons that would make it difficult or impossible for them to serve. All were excused on the consent of both lawyers, or by the judge for "cause." There was no limit to the number that could be so excused. With respect to "peremptory" challenges— exercised by either side against a juror who was otherwise qualified to serve—each side had fifteen.
Once Jaywalker had completed his questioning of the twelve jurors in the box, the clerk produced a board with the jurors' name cards in slots corresponding to where they were seated. The lawyers were told to indicate their peremptory challenges by turning over the card of any juror they wanted to strike. Pope was able to eliminate blacks, young people and just about anyone else he thought might be sympathetic to the defense. Back in 1980, it was accepted practice to use a juror's color as the basis for a challenge. Not that it still isn't, despite a change in the law. But these days you have to lie, and claim that it was something the particular juror said or didn't say.
Jaywalker, meanwhile, had his hands full with fright ened parents of teenaged daughters, older women who couldn't bring themselves to even look at Darren, and those who'd been attacked themselves or had a close friend or relative who had been.
One way of looking at jury selection is to think of it as a fairly intriguing board game. There are two players, a game board, and a deck of playing cards spread out on it. Taking turns, the players have to jointly build a hand con taining a dozen cards, plus a few extras. Only the players aren't working together; they're opponents. One of them wants the hand to end up with as many high cards in it as possible—kings, queens, jacks, tens and so forth. The other wants the same hand to have nothing but twos, threes and fours. Each player is allotted fifteen moves, which he can use up quickly, spread out over the course of the game, or hoard for later. Each knows it's important to keep track of his opponent's moves as well as his own, because neither wants to be outmaneuvered at the end.
The idea is simple enough, to get rid of those cards you don't want and pass when it comes to ones you like or will at least settle for. Meanwhile, your opponent is doing the same. Part of the strategy therefore lies in figuring out which cards he's likely to get rid of, lest you waste one of your moves on any of those. An example of advanced strategy would be making it look like you're going to get rid of a par ticular card you secretly like, in the hope that your opponent will fall for the ruse and fail to get rid of it himself.
Sounds simple enough, no?
And it would be, but for one minor detail. Instead of being arranged on the board face up, with their numerical values showing, the cards are spread out facedown. The king of spades looks no different from the two of clubs. So in order to calculate the true value of any given card, you're going to have to take the word of a total stranger, a stranger who may be telling you the truth, may not even know the card's value, or may know it but is lying through his or her teeth and simply telling you what you want to hear, because he or she wants you to pick that card.
So you're pretty much left to guess, assuring yourself as you do so that if the process isn't exactly science, it's cer tainly art. Or that if it isn't actually art and is only guesswork, at least it's informed guesswork. And finally, that even if it isn't informed at all and is actually totally blind, well, when it comes right down to it, you're a pretty good guesser.
But jurors weren't cards. They were human beings, with all humanity's attendant foibles and frailties. And the jurors that Pope and Jaywalker would settle on would hold Darren Kingston's life in their hands. They would have the power to walk him out the courtroom door, a free man, his nightmare behind him. In as long as it takes to speak two words, they could restore his entire world: his marriage, his job, his good name, his dignity.
Or they could send him to state prison for the next half of a century.
So if it was nothing but guesswork, let the guessing begin, thought Jaywalker. To him, guessing was a concoc tion of relying upon stereotypes, playing hunches, employ ing a bit of magical thinking, looking people in the eye, flirting with the women, using sports analogies with the men, making judgments on the scantiest bits of informa tion and hoping for the best. Over the twenty-some years to follow, his questioning of prospective jurors would evolve, but his selection process would pretty much remain the same. If ever you should happen to come across a lawyer who professes to have truly figured it all out—with or without the assistance of high-priced jury selection "experts"—save your money and run like the wind.
Darren Kingston's jury was finally picked on the end of the second day, a Friday. It had taken five rounds, over the course of which twenty-four prospective jurors were peremptorily challenged—fourteen by Jaywalker and ten by Pope. Of the twelve who remained and were sworn in along with two alternates, seven were women, five men. The oldest was sixty-eight, the youngest thirty-nine. The average age was fifty-one. There were eleven whites and one black, a retired New York State parole officer. On a scale of 1 to 10, with 10 being Jaywalker's dream jury and 1 being his worst nightmare, he rated it about a minus 5.
The evidence hadn't even begun yet, but already Darren was in deep trouble.
12
DISCREPANCIES
Monday, February 25th
The jurors were brought into the courtroom and for the first time arranged in what would become their permanent seats for the remainder of the trial. Their numbers had already shrunk from the previous Friday. One of the alter nates had called in sick earlier in the morning. The trial would proceed without her.
Justice Davidoff addressed the remainder of the jurors for about ten minutes, outlining their role in the trial, as well as his, giving them a few general instructions and ex plaining some basic principles of law. Boilerplate stuff, lawyers call it. Then he called upon Jacob Pope to make his opening statement.
Pope spoke for an even shorter time than the judge had, and it, too, was standard stuff. He made the usual obser vation that it was his duty to open on behalf of "the People," a phrase he would
use as persistently as Jay walker would avoid it. He compared his opening to the table of contents of a book, something every prosecutor feels compelled to do. The trial itself he likened to a jigsaw puzzle, with various pieces contributed by different wit nesses. At the end, there might be a piece missing here or there. But, he assured them, there would be more than enough for them to recognize the true picture that emerged. Next, Pope read the indictment, at least those counts that hadn't been severed out, word for word. He told the jurors that they would be hearing the testimony of Eleanor Cerami and Joanne Kenarden, as well as that of other witnesses. Then he thanked the jurors and sat down.
Unlike the prosecution, the defense, with no burden to prove or disprove anything, has no obligation to open. Jaywalker's Legal Aid training had taught him to remain silent, or, as one of his more colorful female colleagues was fond of saying, to "waive my opening in front of the jury." The thinking was, don't commit yourself to a par ticular line of defense before you have to, and never tell the jury you're going to prove anything, lest you fail to deliver on your promise.
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