Path to Justice

by Jim Dutton

  The F-14 Tomcat Flight simulator was ever so sweet. Pato felt like he was flying the real plane. He dreamed about the Familia picking up an old jet fighter. Luis, being such an adrenaline junky, would love it once his legal entanglements were resolved.

  After the museum, Pato had time for some barbecue. Hard to imagine how a dark, run down restaurant could come up with such great barbecue. He had six, meat-laden beef ribs, with tangy sauce dripping all over. Add some barbecue beans and slaw, and Pato was ready to renounce enchiladas and tamales as his favorite dishes. He engaged in flirtatious banter with the college age waitress. Pato assumed a slight Castilian accent of a traveling Spanish businessman, who didn’t understand American football, but deeply appreciated the fairer sex. By the end of the meal, he had her number and promised to call her the next time he was in town on business. Her short cut-off jeans, and gingham blouse tied in a knot below her breasts, had spoken to him. Leaving a 40 per cent tip, Pato grazed the waitress’ hand with his lips in farewell, and glided out of the restaurant.

  When he got back to the school, Pato parked farther away. On schedule, Felicia headed towards her car, climbed in and drove away down the street. Pato followed a half block behind. Felicia didn’t seem to be in a rush and there was very little traffic. She travelled several blocks and took a right down a tree-lined residential street. Five blocks later, she turned into a driveway of a well-kept, smaller house with a front porch. Pato watched as she used her key to open the front door and walk inside. He took a few pictures of the house and her car and left.

  Jaime found himself drinking more and more. He couldn’t think about anything except how he had gotten into this nightmare—being a note courier for his cartel cousin, Luis. In a standard routine over the last month, Jaime would get a note from Jesus at the Frontera Bar, and stick it under the sink of the public restroom off the jail’s reception area before he visited Luis each Sunday. After each visit, Jaime would go back to the bathroom, and dislodge a new note that was left for him while he was visiting Luis. He would dutifully deliver the new note to Jesus. The latest note, delivered to Luis on the Sunday before Christmas, said, Dorothy has been found in Kansas. The note ended with, Let me know what type of tornado you prefer. P.

  The Sunday after Christmas, Jaime delivered a note to Jesus from Luis. I enjoy dramatic weather fronts. They leave a lasting impression on all that see it. They remind me of Fourth of July celebrations, rockets and high caliber detonations. It would be a shame if Dorothy’s house was consumed by a tornado.

  Pato read the note on Sunday evening. He needed to get moving on the logistics of taking out Dorothy and her house. He figured a 50 caliber machine gun and a rocket launcher from a Humvee would make an adequate statement.

  That same Sunday evening, Nick was fighting an urge to call Ana. His holidays hadn’t gone so well. His school of Dalmatian Mollies tropical fish were thinning out. He was down to 15 from 25 just a few weeks earlier. He wondered if the holiday malaise had gotten to them as well. He’d have to start playing more upbeat music. Too much of the mournful blues could get anyone down.

  Nick had spent Christmas morning with his kids, opening presents at the family home. It had been wonderful to be with them. Jake still had an all-encompassing exuberance when he opened his presents. The new bike Nick got for him went over big. At the same time, he was unbearably sad that his former family life seemed to be over. Judy wasn’t making any effort to reconcile. To the contrary, it seemed that she had mentally moved on. Nick didn’t feel like a part of her life anymore.

  Now, a few days after Christmas, Nick wondered if Ana would take his call. He had forgotten to get her a Chanukah card or even wish her a Happy Chanukah. Enough obsessing, he dialed her number.

  “Hello Nick. I was wondering if you’d get up the nerve to call.”

  “Ana, I’ve been thinking about this call for weeks. I know I was the one who said we can’t have a relationship outside work until this trial is over, but I need to see you, touch you.”

  “Nick, just because you’re getting horny, it doesn’t mean you can expect me to fall into your arms at your every whim. Your stay away order made sense no matter how much I disliked it. It’s easier for me not to see you until the trial is over.”

  “How about a compromise. I see you for just an hour. I grovel for 10 or 15 minutes. We can talk a little shop about the case. Then, I get to kiss you good night. That’s it. I promise.”

  “You drive a hard bargain. You know how much I like to see a grown man grovel. Just an hour. See you in twenty minutes.”

  In record time, Nick was ringing Ana’s doorbell. She was wearing a black dress, with white pearls encircling her neck. The pearls glistened against the backdrop of her olive skin. “You haven’t assumed the appropriate groveling posture. I believe it’s on your knees.”

  Nick dropped to his knees. “I have no shame. For the countless miseries I have put you through, I deserve to be lashed and wear a hair shirt over the open welts. You can have my kingdom if you will forgive me. To be completely honest and in the interest of full disclosure, that consists of only a dwindling population of tropical fish, a beat up old vehicle, and a top flight stereo system. Can that possibly be enough to regain your favor, my princess?”

  “No, but it’s a good start. If you had a hot motorcycle to throw in, that might have been enough. Rise my tarnished knight. I don’t want to take you to the emergency room for putting too much weight on your knees.”

  “Your compassion overwhelms me.” Nick rose and gave her a kiss on the cheek.

  “Be careful Nick, you’re going to use up your one kiss. I’m holding you to that. I’ll get you a glass of port. That seems like a safe aperitif and shouldn’t lead us to any trouble.” They sipped port and watched the fire Ana had lit. She used real logs in her living room’s fireplace. Nick tried to turn the conversation to their personal lives, but Ana would have none of it. “There’s plenty of time for that when the trial is over. I’ll be waiting.”

  So, Nick told her about his game plan for the trial. He was going to start with the Yaak Montana guys and then move on to Felicia. He was worried that Felicia would get skittish again, like at the grand jury, and refuse to testify. “Ana, are you still able to go to Topeka a couple of days before we need her to testify and make sure she comes? You have the best rapport with her. She owes you and Pepe her life.”

  “Sure, I’ve always wanted to see Topeka in early January. I know how important she is. I’ll go. However, your hour is up. Thank you for coming over.”

  Nick bent over her. He put his right arm around her shoulder in an enveloping embrace. He stared into her eyes. A hint of a smile crossed his face. He lifted Ana’s chin slightly with his left hand, and gave her a light, but lingering kiss on her lips. “Goodnight Ana. I adore you.” Ana tried to murmur a response. He put a finger to her lips. “Shush. I know there’s nothing to say now. I’ll let myself out.”

  CHAPTER TWENTY-NINE

  “Nothing like sitting around on a Sunday, talking about prospective jurors,” said Nick.

  Josh responded, “No other place I’d rather be. I know a secretary at defense attorney Lipman’s firm. She just happened to mention that they’ve hired a juror consultant to help with picking a jury. The defense team will put on a mock defense before the 12 ‘average’ citizens they brought in.”

  “Good for them. Let them waste their time going through a mock trial and listening to some academic expound on who’d be the perfect juror. There are some rules of thumb, but nothing is etched in stone. When it’s time to go with a juror or to kick him or her, an attorney’s gut controls. I don’t go out of my way to pick accountants or engineers. They have a tendency to want every “t” crossed and “i” dotted in the prosecutor’s case. I also shy away from teachers. They often have too much empathy for the underdog. But also, I’ve had good jurors from all those professions. What do you think about age and gende
r for this trial?”

  “Well, Nick, I haven’t done nearly as many trials as you have, but I do have some thoughts on it. I’d stay away from youth. Some of the young women may be swayed by Luis’ good looks. And who knows what younger males think about drug dealing. I’d be concerned about jurors discounting a drug case if this was solely about marijuana, but with the black tar heroin and violent assault thrown in, I’m not worried.”

  “I agree. But I expect you to charm any young women on the panel we may end up with. I’ll take care of the middle-aged women. I’d like to have a couple of intellectually sharp people on the panel who can help ferret out the money laundering counts. What about race Josh?”

  “We’re going to have to be careful with that.”

  The Supreme Court made it clear in Batson v. Kentucky and Miller-el v. Dretke, as well as other cases, that a prosecutor who excuses a juror on the basis of race violates the defendant’s right to be tried by an impartial jury and the right to equal protection of the law under the Fourteenth Amendment.

  Josh continued, “I’m thinking Asians as a whole would be good. Law abiding, family values. I have no problems with whites or blacks. We should pay closer attention to Hispanics considering the ethnicity of the defendants.”

  “I’m expecting most of the panel to be white. But, if we end up with minorities on the panel, I’d prefer there not be just one of any group. That person could feel isolated. It’d be best to have at least two of each group. The bottom line Josh—we want at least one, strong, pro-prosecution juror, who can sway others. An attempt to get a favorable jury is part of trial advocacy, dirty tricks aren’t.”

  “So no old school tricks. Too bad, I loved your story about the prosecutor in Oakland who tied a fishing line to the bowler that a flashy San Francisco attorney used to wear in court and gently pulled on the bowler during the defense attorney’s final argument. I can just picture the jury paying more attention to the bowler moving across counsel’s table than to the defense argument.”

  “That happened way back in the early fifties, even before Miranda warnings were required. By the way, good job getting those last minute pleas from the three money laundering defendants. Eight years apiece in prison is enough for them. Having only the top three dogs in the cartel as defendants is so much more manageable. Rona and I thank you.”

  “My pleasure Nick. I’ll see you tomorrow.”

  “You’ll be sick and tired of me Josh by the end of tomorrow. Orsini’s clerk should have copies of the prospective jurors’ written responses to questionnaires to us by three in the afternoon. Monday will be a late night—going though 100 questionnaires, twenty pages a piece, and rating each juror one through five.”

  “I know. Rona is going to make an extra copy as soon as they come in so we can each go through them, make notes, and rate the jurors. Then we can squabble and come up with a joint rating and any follow up questions we need to ask.”

  “We’ll be ready for the crap shoot jury selection process on Tuesday. Get a good night’s sleep. May be the last one for a while.”

  On Tuesday morning, Nick wound his way through the press in the hallway outside the courtroom, pulling his case boxes behind him in a luggage carrier. He ignored questions. He just waved and said, “I have to be in court.” Pepe and Josh were already inside the courtroom. They were setting up their materials on the counsel table closest to the jury box. The defense attorneys came in together a few minutes later and arranged their materials on counsel tables to the left of the prosecution’s table.

  “At exactly 9:00 a.m., Judge Orsini entered the courtroom through a door to the private hallway that led to various judges’ chambers. The attorneys started to stand. “No need to get up. Remain seated. We have some housekeeping matters to take up before the defendants come in and I allow the press vultures to enter. I have entertained a joint petition from our “friends” in the television media for these proceedings to be televised. I don’t see any way around it. I won’t allow them to film jury selection, but once the jury is sworn in, they get their one representative camera. The one television station can share the live video feed with their brethren. Any thoughts?”

  The attorneys shook their heads, no. It was a foregone conclusion, in a high profile case, that the media would get their camera.

  Judge Orsini continued, “Seeing no objection, I’ll let them have a camera and the print media can also attend after the jury is sworn in. Next, moving on to jury selection. In thirty minutes there will be 100 prospective jurors crammed into the courtroom. Some of you are aware that I prefer to question 24 jurors initially. The first 12 will be seated in the box, and as you go through your challenges of the 12 in the box, the second 12 will fill in as needed. Once 12 of the original 24 prospective jurors are excused, 12 more will be selected for questioning. We will keep up that process until we have our final 12 jurors and three alternates. The defense will get a total of 12 peremptory challenges, and the prosecution will get their standard six. Of course, in theory, you have unlimited challenges to excuse a juror for good cause. We’ll discuss each cause challenge in chambers, out of the presence of the jury. I warn you, I don’t want to go back to chambers on unsubstantiated cause challenges. If it’s evident from the questioning that there is good cause to excuse a juror, I’ll ask, is there a motion? One of you will just say, ‘motion’, and hearing no objection from an opposing party, I’ll order that juror excused for cause. You already have a twenty-page jury questionnaire that all the prospective jurors filled out yesterday. I’ll allow each defense attorney and one prosecutor to follow up on a juror’s questionnaire. Don’t strain my patience—make the questions brief and don’t use the questions to argue your case. Do I make myself clear?”

  All counsel replied, “Yes, Your Honor.”

  “Finally, defense. If you think there are grounds for a Batson racial bias motion as to the prosecution using a peremptory challenge to excuse a minority juror, just say Batson to me and we’ll go to my chambers to discuss it. I won’t tolerate any outburst in open court about discrimination. We’re in recess until they bring the panel in.”

  The jury selection process was wearing on Nick and Josh. The second full day of it was mercifully coming to a close. There were yellow stickies all over Josh’s and Nick’s jury charts of 24. Each prospective juror had a stickie that had the key facts about the juror from the questionnaire and how they rated them. They added cryptic comments to the stickies based on the in-court questioning. Occasionally, their initial rating of a juror changed due to a juror’s answers to questioning and his or her demeanor.

  The prosecution had two peremptory challenges left and the defense had three. Nick believed there were at least eight current jurors in the box that all parties would accept— none had strong personalities nor seemed to favor either side. Each side was kicking any prospective juror who had a strong personality and hinted at leaning towards the opposition. Of the eight jurors expected to remain, four were men and four were women. No one was under 30. Four were in their sixties. There were one black, one Hispanic and six whites. No elementary teachers, but there was one male high school political science teacher, who also helped coach the school’s baseball team—he seemed down to earth. One of the eight worried Nick some. She was an accountant. But, she worked out of her house, appeared practical and no nonsense. She would definitely help with the money laundering counts. Nick hoped she wouldn’t hold him to a higher standard than guilt beyond a reasonable doubt.

  Judge Orsini talked to the attorneys after the prospective jurors were excused for the day. “I think we’re close. I want a jury and the alternates by the end of tomorrow’s session. That leaves Friday for opening statements and some introductory instructions about their general duties as jurors. On Monday, the prosecution will start calling witnesses in their case-in-chief. We already have the People’s witness list, but I want you Mr. Drummond, on Friday, to give the court and defense the
chronological list of witnesses you plan to call on Monday, Tuesday, and Wednesday. Any problem with that?”

  “No, Your Honor. However, we haven’t received a witness list from the defense yet. I realize the defense can reserve their right to call their respective clients as witnesses until the last minute, but we’re still entitled to a witness list.”

  “That seems fair. Counsel, with the exception of your individual clients, I want a prospective defense witness list from each of you by Friday. You’re excused for the day.”

  Back in the office that evening, Nick met with Ana. “Things are moving along rather quickly in court. We should have a jury by tomorrow and start with witnesses on Monday. I’m starting with the Montana witnesses and then will have Felicia testify on Tuesday. I need you to fly to Topeka on Sunday and fly her back on Monday. I’ll go over her testimony on Monday evening. By the way, you look great and I miss you. I have some knee pads in my desk drawer in case you want me to grovel again.”

  “That won’t be necessary. I have a picture of you on your knees etched in my mind, beseeching me. That will sustain me at least until I return from Kansas. You wouldn’t happen to have any ruby slippers in my size? I hate flying commercial.”

  Nick laughed. “If I had a stock of ruby slippers, I would pop into Kansas with you. Have a safe trip Dorothy. Give my best regards to Toto.”

  The court day on Thursday started with selecting and questioning another 12 prospective jurors from the audience. The opening peremptory challenge went to the defense, and they chose to excuse a retired military man sitting next to the sole black juror. The next juror to be placed in the box was black. Nick scanned his notes on the juror and didn’t like what he saw. They had rated him only a two out of five. His questionnaire indicated that a couple of relatives had served time for drug dealing. He worked as a social worker for the county. Nick knew that he’d have to set a good foundation in his questioning to bounce this juror. He also didn’t like the fact that two black jurors were seated next together. It was better to split up minority jurors to avoid a clique and to encourage all the jurors to interact with each other. Nick also noticed that the second juror left in the audience to fill an open juror seat was also black. Nick quickly scanned his notes on her and liked her. She worked as an office manager in a medical practice.