When we reached the bench, Ludlow turned off his microphone and leaned down to whisper. “Gentlemen, it seems to me that my options are rather limited.”
Didery and I both assumed that he was about to tell us his course of action, but instead, the judge just stared at us with searching eyes. He literally had no idea what to do.
Didery took the lead. “Well, Your Honor, as you are obviously well aware, one clear option is to rule that the juror can’t be fair. Then you can excuse him for cause.”
“Yes, yes,” the judge said, nodding. I think I saw him taking notes. “I had considered that option.” He shooed us back to the counsel table with a wave.
“Mr. Eggers, I am ruling that you cannot be fair. I am excusing you for cause,” the judge said, likely reading his notes. “Good day, sir. We’re in recess, fifteen minutes.”
I texted Eddy during the break.
—Hey there. Are you free Friday? —
—Nope! Plans with you. How’s trial?—
—Tedious jury selection. Going to need to relax on Friday—
—Perfect. I know just the thing—
Back in the courtroom, Ludlow summoned the attorneys into his chambers before the arrival of the jury. “Gentlemen, my court reporter, Arlene, is exhausted. I assume there’d be no objection to waiving the reporting of the jury selection?”
Like nearly all of Ludlow’s suggestions, it was out of the question. In misdemeanor trials, jury selection was often not transcribed. However, in homicide trials, errors made in jury selection were occasionally the basis for an appeal. Waiving the reporting of the proceeding would be malpractice.
“I’m sorry, Your Honor. I can’t agree to that.”
“Joe,” Didery chimed in, “I certainly would agree to it and I think the judge’s suggestion is a good one, wouldn’t you agree?”
I wanted to throttle the pissant jerk. Didery knew full well I couldn’t agree to the waiver. Until now, we’d managed Ludlow’s ineptitude in a joint effort but now he was seeking to benefit from it. I filed it away.
“Okay, Mr. Turner, I can’t make you agree but I had hoped we could be reasonable,” he said, getting up and disappearing into his private bathroom.
I checked my phone before court began and saw a text from Chuck.
—Guess who got picked up last night?—
—Are you kidding? He didn’t make it one night?—
—For once, Oakland’s finest helped us out—
After another grand call to order, it was Didery’s turn to question the jury.
Whereas the prosecutor was a poor interpersonal communicator, in front of a jury, his nervous ticks and fidgets dissolved, leaving a confident and assertive speaker. Even his nasal tone wasn’t as off-putting, lending to his professorial affect. His questions to the jury were right out of the D.A. handbook. First, he focused on lowering the jurors’ expectations of the upcoming evidence as well as the burden of proof.
“Mr. Alison, do you watch the show Forensic Team on television?”
“I’ve seen it before, yes.”
“And how about you, Ms. Jennings,” he asked, addressing a kindergarten teacher of twenty years, “are you familiar with the show?”
“Actually, I was a big fan, but its last season was three or four years ago.”
“Wow, I need to update my material,” quipped the prosecutor to laughter throughout the courtroom. Who was this breezy charmer, and what has he done with jittery Didery?
“My point is, ladies and gentlemen, in the real world, we can’t obtain DNA off the head of a pin or trace a dust particle on the defendant’s shoe to a crime scene. Does that make sense?” My mind went to the shell casings. Was it possible he had neglected to test them?
Jittery continued, smooth as silk. “Mr. Hernandez, you’re a scientist, correct.”
“Essentially, yes.”
“Although the standard of proof is high, my burden is not to prove the case to a scientific certainty. As a person who deals in absolutes are you okay with that?”
“Yes, I would hope I could adapt to the law and decide accordingly.”
“Ms. Overton, there is a jury instruction that tells you that you may rely on one witness to prove any fact. That means that if one witness tells you that Mr. Moore committed this crime, the law says it’s okay to base your verdict on that witness.”
I hated this line of questioning, as it tended to distort the law. Some judges would have explained to the jury that the rule was still subject to the beyond a reasonable doubt standard of proof. I looked at Ludlow who, at the moment, offered the proceedings a vacant stare. There was a better chance of him sprouting wings and flying to the ceiling.
The social worker from Berkeley frowned. “That doesn’t seem right.”
“Will you promise to follow the law even if you don’t agree with it.”
“Uh, yes. If that’s the law, I will follow it.”
Didery’s questions continued after lunch and well into the afternoon session.
“Will everyone promise me that if I prove that Darnell Moore killed Cleveland Barlow beyond a reasonable doubt, you will return a verdict of guilty?”
The jury nodded in unison, and Didery sat down, having ended with an expression of absolute confidence in his case.
“Good afternoon,” I began, addressing the prospective jurors after the afternoon break. “My name is Joseph Turner and I represent Darnell Moore.” I briefly rested a hand on Darnell’s shoulder. “Ms. Jennings, I sensed some concern from you about the rule that you could rely on the testimony of one witness to prove a fact, including the fact that Darnell Moore committed murder?”
“Yes, it just doesn’t seem right that one witness could prove the entire case.”
“You are correct to be skeptical. The way the jury instruction was presented to you by Mr. Didery was somewhat misleading.”
Jittery was not pleased. “Objection, your Honor.”
“Mr. Turner, what are you getting at?” asked the judge, probably actually curious about the law himself.
“I was about to say that His Honor will instruct the jury that all of the instructions should be considered together.”
The judge nodded his approval, no doubt because I had referred to him as ‘His Honor’. “Continue, Mr. Turner.”
“One very important instruction is that in order to find Darnell Moore guilty, you must find that he committed the crime beyond a reasonable doubt. It is the highest standard of proof we have in the law. So while the rule cited by Mr. Didery says that it is theoretically possible to prove the case with one witness, in order to rise to the level of beyond a reasonable doubt, that witness would have to be extremely persuasive.
“For example, imagine a nun with twenty-twenty eyesight is robbed in broad daylight by her neighbor whom she has known for fifteen years. If her testimony is the only evidence of the crime, then Mr. Didery’s rule states that there is no rule that says you need more than one witness. Does that make sense, Ms. Jennings?”
“Yes, I feel much better about it now.”
I addressed the jurors as a group. “If you’re driving through your town’s main street and you see a man in handcuffs next to a police car, do you wonder what he must have done, or do you wonder if he is guilty of anything?
“Mr. Choi, how about you?” I asked the middle-aged insurance executive.
“Well…” He paused, grinning sheepishly. “I’m afraid I’d wonder what he did.”
“Yes, and that is a perfectly natural reaction. But as you can imagine that mindset is the polar opposite of how we operate here in Court. Rather than assume that Mr. Moore has committed the offense, he is presumed innocent. Right now, Mr. Moore is as innocent as anyone else in the courtroom.
“Mr. Edson, you look skeptical.”
“Yeah,” the beefy construction worker said. “It just seems like since we’ve gotten all the way to this point, there must be some pretty strong evidence against him.”
“That’s a good poi
nt, sir. Mr. Moore’s name wasn’t drawn out of a hat. But you said, ‘we’ve gotten all the way to this point.’ The reason that we’ve gotten all the way to trial is because Darnell Moore has been accused and he has said, ‘No, I’m innocent.’ At every stage, he has denied the charges and demanded his trial.”
I concluded the inquiry with questions about how they go about deciding if a witness is being truthful. Suggestions ranged from the consistency of the testimony to body language. My implied message to the jury was that I wanted the truth to win out. Also, I was subtly hoping to overemphasize the importance of Bedrossian’s testimony, the weakness in the prosecution’s case.
Ludlow called a halt to the proceedings at four-forty-five p.m. “Ladies and gentlemen, we have concluded the inquiry of prospective jurors. We will finish the jury selection tomorrow and then begin the trial itself.”
I wanted to gently remind the judge of my motion to suppress the gun, but he was off the bench well before the last juror filed out. However laughable, the prospect of Dudlow’s tiny brain trying to wrap itself around an actual legal issue, he was still going to have to try sometime.
My phone buzzed on the way out of the courthouse.
“Hi, Eddy,” I said, fixing my earbuds into place for the walk to the office.
“Did you get a jury yet?”
“No. In addition to being a bundle of nerves, turns out Didery is also long-winded. It was interminable.”
“So maybe you should try thinking of me instead?”
“Oh, trust me I have been.”
“Yeah? Bikini and whip again?”
“Yes, standing atop Machu Pichu in stilettos.”
“How professional of me.”
“I thought so, too. And it caused a few embarrassing moments when I had to stand and address the jury, so dress appropriately next time.”
“I’ll try,” she said, laughing. “Getting on the train. Bye, Turner.”
Entering the lobby of our office, I was greeted by the stoic figure of Elijah Jakes, sitting motionless, one hand resting on top of the curved silver handle of a black onyx cane. My introduction was met with silence, but he shook my hand firmly and followed me into the modest conference room I shared with Andy. He leaned heavily on the cane as he went, limping on his left foot. Chuck was already there. It was a good policy to have a third party observe witness interviews on the off chance the witness said something helpful and denied it later.
“Mr. Jakes, you must have quite a collection of canes. I noticed your carved cane the last time I saw you.”
“Thank you for noticing,” he answered in a gravelly voice. “My favorite one is a hollowed-out carved walking stick. Holds two ounces of liquor. Hidden screw cap on top. Another one I got turns into a sword. But I don’t suppose you want to talk about my canes, now do you?”
“Sir, I would be interested in knowing whether you saw the shooting.”
Jakes looked down at the table briefly, rubbing his black, wizened face with a bony hand.
“Look here,” he said, his eyes fixed on mine. “I don’t have any intention of saying anything that would help out the young thug you represent or any of his kind.”
I knew it was useless, but I had to try. “Mr. Jakes, if you could just—”
“Let me tell you something, Mr. Turner,” he said earnestly. “Gang members just like your client have ruined our neighborhood. And if your client didn’t do this shooting, then he’d do another one, taking someone else’s life from them. Now the cops are finally gonna get one of them off the street, and you’re asking me to help him?”
“You know,” he continued, “I opened the E&J back in seventy-five. Back then, it was a damn fine neighborhood. Don’t get me wrong, it was still Oakland. You had to watch yourself in a dark alley. But it was a fine place to live.” He paused, looking at the table for a memory.
“We used to open after church on Sundays. Families would come to the store. Kids would come and get ice cream. We’d sit and visit with each other on the porch. Usually had a ballgame on the radio. Now…” He shook his head, his raspy voice gone dry.
After he’d gone, Chuck and I sat in my office, sipping beers from the office fridge.
“You can’t put him on the stand, Joe. I believe him when he said he’ll never help us.”
“Yeah, but that would leave Jesse Wendell as our only witness.” I shuddered at that prospect. “Even if Jakes describes the number of shootings in the neighborhood, maybe it can show that literally every member of the Iceboyz is a potential suspect.” Chuck let my words hang in the air, withering away on their own. “I know. I’m reaching.” I sighed, draining my beer before heading out.
“Speaking of the eye-witness Jesse Wendell. Can you believe that scrawny, skittish little guy killed someone?”
“Yeah, hard to believe.”
On the walk home, a number I didn’t recognize appeared in my phone.
“This is Joe.”
“Hi, Mr. Turner. I spoke to your assistant yesterday. I’m the law student at Cal, looking for an unpaid internship?”
“Oh, yes. I meant to get back to you. It’s not a great time for me. I’m in trial and it would take some time for me to show you the ropes. Maybe try back in a month or so?”
“Actually, I know you’re in trial, Mr. Turner.” He paused before continuing. “I think I could be of some help to you.”
Now I was confused. The trial hadn’t gotten any press since Darnell’s arrest. Who was this guy? “Really?”
“Yeah. I’m Damon Wendell. Jesse’s brother.”
Chapter Twenty-Three
After an evening at my neighbor’s house, watching baseball over too much beer and tamales, I overslept and drove to court, using the time to think about my ideal juror. That meant categorizing people based on gross generalizations and sweeping stereotypes. Liberal social workers and therapists were good. Conservative law enforcement types were bad. So said the unwritten manual of jury selection.
Since a not guilty verdict seemed impossible, the goal was a hung jury, which meant I needed strong-willed jurors who would stand up for their beliefs no matter how unpopular. Given the state of the evidence, jurors who seemed a little wacky wouldn’t hurt.
Assuming that Darnell managed to dodge the ballistics bullet, the evidence would remain strong but largely circumstantial. There was no DNA or fingerprints to deal with. That meant engineers and scientists, who are used to proving theories to an absolute certainty. Jurors with sons the age of the victim should be avoided if possible.
The gender question was a sticky wicket. On one hand, two strong women would testify for the prosecution. However, in speaking with jurors after trials, I found that female jurors were often more critical of their own gender. Race was also tricky since both the victim and the defendant were black. Also, recently I had found my most strident pro-prosecution jurors to be successful African Americans who resented gang members who gave their community a bad name.
The nature of the selection process made it impossible to select an entire jury of defense-oriented jurors. Didery had an equal say in the process and no doubt had his own agenda. While it was impossible to avoid every pro-prosecution juror, the trick was to steer clear of those confident and opinionated jurors who could persuade other jurors to convict.
I hustled into court less than a minute before the judge’s grand entrance. Shortly, the juror selection took on a gameshow feel, with the prosecution and defense taking turns excusing jurors, their replacements taking their seats in the jury box. Generally, I tended to entertain suggestions made by my clients when it came to jury selection. It was their life in the balance, after all. So far, Darnell had been quiet, save one suggestion of keeping a young college woman, which I suspected had little to do with her worthiness as a juror.
At twelve-thirty p.m., Didery and I both relented, each side satisfied with the jury’s composition. Seven men and five women would decide Darnell’s fate. After three alternates were selected, Ludlow dismissed t
he rest of the relieved venire.
“Ladies and gentlemen, we now have a jury. After lunch, report to the jury room, and we will reconvene in the courtroom with opening statements. See you at two o’clock.”
After the jury had left the courtroom, Didery addressed the judge. “Your Honor, did the Court plan to hear Mr. Turner’s motion to suppress prior to our opening statements? I would prefer to know whether or not I can mention the gun to the jury.”
Didery had a point. We were both fairly certain my motion would be denied, but even so it would be nice to know for sure before addressing the jury. It was unheard of to begin the trial prior to an in limine ruling, but Ludlow was clearly deathly afraid of such a hearing due to his ineptitude.
“We will hear the motion in due course, Mr. Didery. In due course,” repeated Ludlow, ambling off the bench.
“What the fuck does that mean?” I whispered to Didery.
The prosecutor rubbed his forehead and grimaced. “Unbelievable,” he muttered through clenched teeth.
I grabbed a hotdog and strolled to the park a block from the courthouse. Sitting on a park bench overlooking Lake Merritt, I thought about the defense of Darnell Moore. Although my confidence had been shaken lately, I still mostly believed in my client’s innocence. I asked myself why and came up with the same nebulous answer. Granted, I didn’t know him well, but I just didn’t think he was capable of murder.
So, I would argue what I believed. Without Darnell testifying, the jury would have no basis to form that opinion on their own, but that had never stopped me before. Another looming problem was the aiding and abetting theory. Even if the jury concluded that Darnell wasn’t the shooter, they could still convict him of murder for assisting in the crime as the driver.
But one problem at a time. If those shell casings were traced to Darnell’s gun, his fate would be sealed. If they were not a match, Didery would be obligated to let me know. The D.A. was annoying, but he didn’t strike me as unethical. If Didery had somehow forgotten to test them, the last thing I wanted to do was to call it to his attention. Still, I hated not knowing. As usual, I resorted to back-up.
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