by Wick Downing
“Your Honor,” Mr. Applewhite said, his face the color of dry ice, “I deeply resent that accusation and demand an apology! What Mr. Hope accuses me of is outrageous! His motion names one Juan Lucero as a witness who can testify that he and the defendant actually worked for Mr. Able on December twenty-third, but that Mr. Able managed—quite conveniently, I might add—to get both men drunk. The implication is that Mr. Able then framed this theft on the defendant! I can honestly represent to you that I have no idea who Mr. Lucero is or whether he’s been deported or not. The name means absolutely nothing to me. I have asked Mr. Able who the man was, and Mr. Able doesn’t know either. He assured me he’d never heard of the man!”
“Let me get this straight,” Judge Merrill said. “The motion is to continue the case until Juan Lucero, who has been deported, comes back into the United States and can testify for the defense. The prosecution denies all knowledge of the situation. Is that right, Reggie?”
“Yes, sir. Exactly.”
Grandfather frowned in thought. “You talked to Mr. Able about him?” he asked the prosecutor. “Mind telling me what Mr. Able said?”
Mr. Applewhite spoke slowly, through his teeth. “He said he had no idea who Juan Lucero was, that he’d never heard of the man.”
“You don’t say.” Grandfather thought some more. “I’ll withdraw the motion.”
Something was happening that I couldn’t see. I’d sweated blood over the stupid motion, and just like that, he’d pulled it off the table! “You withdraw it?” Judge Merrill asked, then shrugged his shoulders. “All right, the motion is withdrawn. Anything else, gentlemen, before we start?”
“Your Honor, my motion for contempt,” Mr. Applewhite said angrily. “This has been a waste of your time, and of mine. I urge you to hold Mr. Hope in contempt of court!”
Grandfather had a funny little smile on his face as he spoke to the judge. “When this case is over, Judge Merrill, if you think I wasted the Court’s valuable time, I’ll just turn myself in at the jail and make it easy for you.”
“Can’t do better than that, Reggie,” the judge said. “I’ll reserve my ruling, then. Let’s get this show on the road.” He started to get up.
“There is something else we need to talk about, Judge,” Grandfather said. “Photographs were taken by the police of the interior of my client’s truck, but the prosecution won’t give us copies. There’s a clear failure to give us discovery, and the case should be dismissed.”
“This is an oral motion to dismiss, Mr. Hope?”
“It is, sir.”
“You’re a little late with it, aren’t you?”
“We just found out about it,” Grandfather said.
“If it please the Court, the defense could and should have made their demand for the photos long ago,” Mr. Applewhite said. “They are referred to in the police reports, which they’ve had for months. Yet Miss Hope waited until last week to ask about them, at which time I informed her they’d been lost. I don’t have them either. The case should be tried as if they didn’t exist.”
“Judge, they could be exculpatory,” Grandfather said. “Photos were taken. The defense has the right to see them.”
“I’m certainly not inclined to dismiss the case over this,” Judge Merrill said. “How badly do you need them?”
“Hard to say without seeing them.” Grandfather frowned. “Why doesn’t the prosecutor just continue the case long enough to find them? We won’t object to a continuance.”
“And the speedy-trial rule, Mr. Hope?” Mr. Applewhite asked. “Will you waive your client’s right to a speedy trial?”
Judge Merrill picked up the file and looked at it. “If this case isn’t tried before June twenty-sixth, it’ll be in violation of the speedy-trial rule.” As he spoke, I noticed a look of disdain on the judge’s face that I’d have to tell Grandfather about. “Mr. Hope, that’s the oldest trick in the book. Are you teaching your granddaughter all the tricks?”
“Of course,” he said. “You just never know what might work.”
The judge laughed. “Your motion to dismiss is denied. Let’s go to work.”
Everyone but the judge filed back into the courtroom and sat down. The court reporter squatted behind his machine in the middle of the room, and the clerk stationed herself at her small desk near the door to the judge’s chambers. The bailiff, a small, thin black man with gray hair, stood at attention at his table near the gate that led into the pit, like a guard in his brown uniform. “All rise!” he called out.
I jumped up, but Grandfather had trouble pushing away from the table, so I bent down to help him. “I don’t need your help, young lady!” he whispered loudly. “All these people will think I’m decrepit!” I heard some tittering behind me and wished a hole would open in the floor and swallow me, but no such luck.
Judge Merrill came in with his robe on, climbed the steps to the bench, and sat down. “Be seated,” the bailiff said.
“Good morning, everyone,” the judge said as he looked around the room. “Mr. Hope, I don’t see your client. Is he here?”
“Yes, sir,” Grandfather said, “over there with his wife and children. Mr. Alvarez?” he announced loudly as he struggled to his feet. “Come up here, sir.”
Mr. Alvarez rose like a gladiator in a fight for his life, squeezed his wife’s hand, and walked through the gate into the pit. I got up and placed a chair between Grandfather and me. “Gracias,” Mr. Alvarez said.
Grandfather appeared satisfied about the way all the things he couldn’t see were going. Mr. Applewhite looked at the judge as if he wanted help, but all the judge did was shake his head and smile at the old man. “You may announce the case, Mr. Applewhite,” he said.
The prosecutor marched to the lectern like a knight in shining armor. “This is the People of the State of Colorado versus Manuel Alvarez,” he said, pointing an accusing finger at Manuel. “The People of Colorado have charged Mr. Alvarez, the defendant, with the crime of theft”—and he emphasized the words defendant, crime, and theft—“in that on December twenty-third, 1972, in the City and County of Denver, he did knowingly and unlawfully take a power drill, a power saw, and an extension cord with the combined value of fifty dollars or more but less than five hundred dollars, from Glenn Able.”
Grandfather found Mr. Alvarez’s hand and patted it to show his sympathy. “The defendant has pleaded not guilty,” Mr. Applewhite said.
“Are both sides ready to proceed?” Judge Merrill asked.
“The People are ready,” Mr. Applewhite said.
“Yes,” Grandfather muttered.
Mr. Alvarez looked sick enough to throw up. It would kill him if we lost and he had to take his family back to Mexico. A horrible feeling of dread and responsibility pounded in my stomach and brain.
When Grandfather said he wanted me to feel what I couldn’t see, was that what he meant?
Chapter Sixteen
THE CLERK CALLED OUT THE NAMES of six people and had them sit in the jury box, where they would be “examined” for bias and prejudice. It’s called voir dire, which means “speak the truth” in French, and it’s kind of like the first act of a play. The prosecution gets to ask questions first, then the defense, and after that each lawyer can excuse jurors who they think won’t be on their side. But before the lawyers start asking questions, they usually put on a little show. It’s their only chance to talk directly to the jurors, and they make the most of it.
“You may proceed,” Judge Merrill said to the prosecutor.
“Thank you, Your Honor,” Mr. Applewhite said. He stood behind the lectern like the master of ceremonies at the Oscar awards, introducing his witnesses to the jurors as though they were movie stars. The first nominee he presented was Glenn Able. “Will you please stand, sir?” Mr. Applewhite asked, and a man sitting in the back of the courtroom got up. “This is Mr. Glenn Able, who owns an office building in town, on South Bannock Street. He will be a principal witness for the People in this case. Do any of you know h
im?”
None of the jurors did. He asked them more questions about Mr. Able, trying to get them to smile, I thought—but it was hard to hear with Grandfather whispering in my ear, “What does Able look like?”
“Bald-headed,” I whispered back. “Older than Mom, thick glasses on a red nose, looks like a businessman in a coat and tie.”
“Do you like him? Tell me what you feel.”
“He’s not a nice man. He’s a big act.”
The next nominee the prosecutor introduced was Mrs. Able, who stood up and smiled and nodded at everyone too. Mr. Applewhite went through the same routine with her. “I don’t feel anything,” I whispered. “She’s a big blank to me.”
Mr. Applewhite presented Officer Mike Bosse next, as if the policeman was the star in a movie about a courageous cop. “He’s seen it all,” I whispered. “He knows what to do.”
Then Mr. Applewhite made sure none of the jurors knew him, or Grandfather, or even me. After that, he questioned the jurors one at a time: first about “reasonable doubt,” which could not be an imaginary or speculative doubt, but had to be a doubt based on reason; then on the “presumption of innocence,” which he said was like a legal figment of the imagination; and finally on “credibility of witness.” Even though he asked questions, he did it in a way that told the jurors what the answers were. “It’s a performance,” I whispered to Grandfather. “An old movie before talkies. Boo. Hiss.” Grandfather kind of smothered a smile, and I knew we were communicating.
Then Mr. Applewhite made each member of the panel promise him that they would follow the law, and be fair and impartial to both sides of the case. When he asked that question to the last juror, Grandfather dumped a load of tobacco juice into the spittoon.
“Of course, this is not a spitting contest,” Mr. Applewhite said, smiling at the old man like a good sport. “If it were, the People would not have a chance. Sympathy has no place in this case either. For example, the defendant has his family here.” He gestured at them. “But his wife and children are not evidence in this case. Will each of you promise me you will be guided only by the evidence, and not by feelings of sympathy you may have for the defendant?”
Starting all the way back with the first one, he made each of the jurors promise him that. Then he folded his notes and bowed to the whole panel. “Thank you,” he said to his audience. “I appreciate your honesty. Pass for cause, Your Honor.” He sat down.
It took me a minute to remember what “pass for cause” meant. There were two kinds of challenges: “for cause” and “peremptory.” If there was a legal reason to excuse a juror, like it was against their religion to convict, then the judge would excuse the juror “for cause.” By “pass for cause,” Mr. Applewhite meant he wouldn’t challenge any of the jurors in the box for a legal reason. We’d get to the peremptory challenges later.
“Mr. Hope, you may examine,” Judge Merrill said.
When Grandfather tried to get up, his legs got stuck under the table and he struggled to get his feet under him. He felt his way to the lectern and clutched it like a bird on a telephone wire. “Kate darlin’,” he asked me as he peered around the room, “am I faced in the right direction?”
The old fraud, I thought. But he was lovable about it, and the feeling I had from the jurors was that they loved him too. “Yes, sir.”
He nodded. “Ladies and gentlemen,” he said in a raspy old voice, “I’ve been trying cases in Denver since before that nice young prosecutor was born, and regret to say that most of what he told you just now was hogwash. He told you he wanted people on this jury who could be fair and impartial to both sides!” His voice had firmed up by then, and he snorted out a laugh. “Well, he may want jurors like that, but I don’t. I want people who agree with my side of it, and I have a deep suspicion he does too, if he’d tell you the truth.”
When Mr. Applewhite stood up, I made a note about his smile, which had thinned out. “Objection, Your Honor,” he said.
“Mr. Hope,” the judge said sternly. “Are you going to test me, or are you going to behave?”
“I certainly don’t intend to test you, Judge. I’ll behave.”
“Proceed, then.”
Grandfather leveled his sightless eyes at the jury again. “I don’t see too well,” he told them, “but I hear fine. What I’ll do is ask each of you to talk to me for a minute or so. That’ll help me to make up my mind. Let’s start with you, Miss Bissle.” He guessed where she might be sitting and looked off in that direction. “That all right with you, Missy?”
“‘Missy’!” she exclaimed. “It’s ‘Ms.’” She was very definite about it.
“Mizz Bissle then,” he said, aiming his face at her. “I’ve found out quite a bit about you already. You’re a modern young woman with spirit, who won’t automatically take the side of the prosecutor. You’ll make up your own mind about the case. Am I right?”
She looked at me and smiled. “Yes, sir. That’s right.”
“Are you from Denver, Mizz Bissle?”
“No, sir, I’m from New Jersey, but I’ve lived here ten years.”
“Do you have family here?”
“I’m married and we have two children.”
He smiled like a grandfather at that. “They’ll keep you young,” he told her. “How old are they?”
“Five and seven.”
“Well,” he said. “I certainly am taken with your voice. Would you look over at Mr. Alvarez and tell me what you see?”
She did. “A man. Nice looking. His coat slightly western in style. Is that what you mean?”
“Yes,” he said with approval. “Now tell me. Is he guilty or innocent?”
“I have no idea, Mr. Hope.”
Grandfather frowned slightly. “That’s a fair-minded answer and I compliment you for it, but it isn’t quite right,” he said. “You see, at this point in the trial, he’s innocent,” he told her. “He’s presumed innocent, so right now, you’d have to say that the man you see sitting next to me is innocent. Does that bother you?”
“Not in the least.” She stole another look at Mr. Alvarez, who had his head down, staring at his hands; then she glanced at his family. The unseen thing I saw and felt about her was good news for our side, I thought. She didn’t want to find him guilty of anything.
“In fact, the law says he’s presumed to be innocent, clear to the end of the trial,” Grandfather told her. “You mustn’t even consider if he’s guilty until every bit of the evidence is in and you have gone back to the jury room and started your deliberations. Until that time, under our law, he’s innocent. Will you follow the law, Mizz Bissle?” He leaned toward her in a way that told her she must speak the truth.
“Yes. I will.”
“Then you can promise me, and the judge, and even Mr. Applewhite, who said he wants jurors who will follow the law, that you will cloak Mr. Alvarez with a mande of innocence until the trial is over? That he will remain innocent, in your eyes and in your heart, until then?”
“Yes.”
“I’ll take a chance on you, Mizz Bissle,” the old man said.
He talked the same way to everyone in the jury box, remembering all their names and instantly connecting with each one. But where the prosecutor had made it sound easy to find a person guilty beyond a reasonable doubt, Grandfather made it sound very close to impossible. And where Mr. Applewhite had glossed over the presumption of innocence, Grandfather made it sound like a high wall that was hard to climb over.
Half an hour later, we had a jury; and even though it was Grandfather who had done all the work, I was totally exhausted with the mental strain of watching all the things I couldn’t see. Judge Merrill called a recess and the jurors disappeared into the jury room.
“Let’s talk a minute, Reggie,” Grandfather said in his still-friendly voice.
“If you wish,” Mr. Applewhite said, as though to humor an old man.
“Manuel, do you mind waiting in the hall so I can talk more plainly with Mr. Applewhite he
re?”
“I do not mind,” he said, walking toward his wife and children.
“Please ask your client to stay away from my witnesses,” Mr. Applewhite said.
What did he think Mr. Alvarez would do? “Very well,” Grandfather said. “Manuel, you heard and you understand?”
Manuel looked insulted but nodded his head. “Sí.”
“I’ll go out with them, Judge,” I said, “just to make sure nothing happens.”
“No, stay with me, Kate. I need your eyes.”
Except for the three of us, there was only one other person in the courtroom: a big man who sat in the back, behind a newspaper. He looked familiar, even though I couldn’t see his face. Then he lowered it enough for me to see his eyes.
It was Ron Benson. I turned my back on him.
Grandfather worked a fresh wad of tobacco in his mouth. “Did I ever tell you how come they allow me to take a spittoon into the courtroom?” he asked Mr. Applewhite.
“No, sir,” the prosecutor said, with a pained look on his face.
“I took the City to court.” He jerked his head and a stream of tobacco juice lofted out of his mouth and disappeared into the cuspidor without a trace. “When I first practiced law, in the twenties, there were ashtrays on the tables for the smokers and spittoons under them for the chewers. But that changed when the Surgeon General said smoking can kill you. And so the City passed a law banning smoking in the courtrooms, but they took away the spittoons, too!”
His beautiful old head rocked back and forth with concern over the subject, which didn’t seem that important, actually. “The government bureaucrats went too far, you see, which they’ll do if we aren’t careful about it. Smoking can kill you, as well as the others in the room who have to breathe the air that the smokers have fouled up with their habit. But chewing isn’t like that. I argued it wasn’t fair to lump the two together, just because they are both tobacco.” He laughed.
But the neatly dressed prosecutor didn’t even crack a smile. He just sat there and stared. “I assumed you wanted to talk about the case, sir,” he said, “rather than the early days.”