Compelling Evidence (30 page)

he says. There's a little impatience in his voice. Honor, the people move to quash the subpoena issued 44. , 1@@; MR: for trust records from the Potter, Skarpellos law _LM is on a fishing expedition," says Nelson.

"These irrelevant to any issue bearing on this case." looks to me. "I've wondered about that myself," he 4, about it, counsel?" ,.,"3Mk'j Prepared to make an offer of proof, Your Honor."

"Oe 4, 0 4 "Op 258 STWE MARTINI zl This is a little demonstration, an explanation of how 1771 ments bear on Talia's defense, to satisfy the court on the ‐1@ relevance. 0.11 "Just tell me," he says. Acosta doesn't want to take to pull the court reporter into chambers or clear the tisikitrm' an argument on the record. I will insist if I lose. t

"Your

Honor, we have reason to believe, based on testimony of a witness we will produce during this trial client trust account in question will reveal serious liiw‐& trust deficiencies that are the direct result of

;4soi=W‐7@ Nelson looks at me in wonderment, like

"So what?"

"We believe that these trust deficiencies are directly the motive for the death of Ben Potter and bear 4=7@ client's innocence," I say.

Nelson's looking at Meeks, who makes a palpable 4", his shoulders‐it's a mystery to him. $1 I've carefully measured my argument. As few i4vr @V

possible. Acosta looks to Nelson, who stands silent. "Motion denied," he says. "I'll allow the &vt‐ W‐ 174W.Wr@' Then he looks at me, more severe this time. subject to a showing of relevance at a later time, by 11162 1

IL he says.

Z "Understood, Your Honor."

"Good. Then let's get a jury."

I look at Nelson, who's making a face at Meeks. 6 at Potter, Skarpellos will be busy this night. So Will gathering excerpts of these records for Nelson's have already called my own and told them to get need a rapid turnaround on an audit. Aill Acosta's back on the bench, business settled in ‐0 In this county we use the jury selection process six‐pack," three rows of six, in the jury box. "We'll have die first eighteen," says Acosta. The clerk calls the first eighteen names from the 111 sheep at the shearing, they file up from the audience ‐41`4 jury box. The rest, another 282 souls, sit and watch, 71 in store for themselves. Eleven women and seven oil;,` chairs. The demographics are already cutting There is a proclivity for older females, retired IT and telephone company workers on juries in this : lwy of each. These people have seen too much of the inside of courtrooms for MY liking. Utilities, it seems, love to do their civic thing, sending their people in droves, paying them their full plary while on jury duty. A conspiracy, I think, on the part of %g business to whittle down civil judgments;, these people spill over and show up too often on the criminal side now that I am doing the defense. At best, even with the most scientific of approaches and tools, it selection of a jury under our system is a crapshoot of the most random variety. I have read and studied every method, from the 71 "WPIWA. tort sharks with their theories of body language and 7111NI paramessages, to the corporate gurus who do their voir 11,‐, while some shrink whispers psychic sweet nothings in their In the final analysis, the passing upon any prospective juror down to your lawyer's gut. Factors that make any single juror desirable on one level, with to one aspect of your case, can make him the enemy on or4‐ These are the psychodynamics of human bias multiplied MO‐4 kin The unforeseen twists that are common to too many trican, in one bad day, turn the best jury into a hanging mob. n, A full quarter of the good citizens called for jury duty in this h at the courthouse already harboring the belief , Mig s ow up fro Moo Ms. defendants wouldn't be there unless they were guilty, 71. 1 on penalty of death these jurors would never admit this in 71 court. V‐P, ‐ and I know there are definite parameters to our jury .k case. Most women are likely to hang a scarlet letter Talia's neck. They will never condone her infidelity, or e of convenience that was her marriage. males, on the other hand, can empathize, not with but with her lovers. They can fantasize about themselves .,Mw woman, and in so doing forgive her for her indiscretions. younger the better, I think. The minds of youth are not yet by convention. MY wildest dreams I have mused on the perfect jury for I rtllf@ 7 Inn‐m‐ 111 V‐7. @‐‐‐7a panel of young, single males, twelve fraternity jocks Prurient hormones. Wi., jl@

IL'A". begin, Harry is endlessly turning his pencil, sliding it his fingers, eraser to point and back again on the table. ,r@l!

Part belongs to the court. case and performs a any of the veniremen in particular. This is general stuff, designed to ‐&TEMMMEM' of our questions..

i He spends a good deal of time on hardship. "This Lit to be a long trial; if there are reasons why any of you 1,' have difficulty serving over an extended period, this Is ir'li to tell me."

.;?,@ Three hands go up like rockets, women with small %0f, two of them are juggling kids and a job.

f Acosta shoots them all down. "These are not MTM7 announces. "You have a civic duty. Jury duty is a This from a judge with a live‐in maid.

Acosta's sivi. MT show, to set the tone for others in the audience, a ee**their excuses had better be good. As a practical matter, flush with peremptories, it is likely that few if any of 14@ survive to make the final cut. He moves on to other subjects: Do they know the Do they know any of the attorneys? Have they read *A of the case?

One woman raises her hand. "And what have you read, madam?"

"The papers," she says. "I think we've all read the papers. What in U=

"Where it said she was guilty." The old la.4.. y is hand close to her breast, pointing with her finger a Jtmw1 at Talia, as if she's not sure whether this pretty defendant. "I must have missed that story," says Acosta. "',"V appear?"

4111 "I can't say as I remember." The lame cop‐out of 4", ious to go home. "I see. And you believe that this would interfere ability to objectively judge the evidence in this *ii

"I don't kn ‐ " she says. "I

can't be sure." ow, "I would encourage you to put it out of your Acosta.

"Your Honor." I'm on my feet, looking, down at a .42 with little grids, a name in each, corresponding to the box. Harry and I have made these from the jury numbers assigned to each juror. "I move that k7i M, 4

dismissed for cause."

"Mr. Madriani, if we do this for every witness %1@' about the case we'll end up funneling the entire U611 : county through this courtroom and we'll never find twelve."

"your Honor, the juror says she isn't

confident of her ability tojudge the evidence objectively."

He humors me on this point, but makes clear that I should not @iew this as any precedent. He will judge the jurors, for cause, on their individual responses.' I tell him I understand. ‐‐Very well. Mrs.

Douglas, you're dismissed." one down, I think. She files out and passes her replacement on the way. Harold i..Lit , takes her chair. He is fifty, five, looking seventy, in a string TIM, rv frat brother, but perhaps still capable of fantasies. I look at sitting impassively, glowing in the chair next to me. Yes, I Mr. Parry can dream. It is after lunch, edging on toward mid‐afternoon, before Acosta these preliminaries and turns the jury over to the playwork through the jurors, give and take; me first, then CITM he is skilled in his questioning, polished in his approach i his noble bearing not to overwhelm the jury but to folks 4 1 is an art to voir dife, different from the examination of I and Duane Nelson excels ‐in it. j@ 8 ‐ question to a juror, unlike direct examination, which seeks a "yes" or "no" reply, is open‐ended, designed to ;MM8%k, a narrative from the veniremen, during which can search out subtle prejudices. He works on his Mark Felding, in his thirties, a draftsman for a local MI, firm. :_Illiri@ about your family, Mr.

Felding. me, did you attend college? me a little about the subjects you studied." spider to the fly‐‐‐‐"tell me,"

"tell me,"

"tell me." I)i is schooled'he keys in on the big‐ticket items. Studies that more than in any other place‐the family, school, or social organizations‐‐overt prejudice is fostered most place. little about your line of work," he says. "Tell us about workers. Are many of them women?

Are any of your K women?" for signs, the latent sneer, overt patronage, resentment '50 at being under some occupational high heel, promising.

things that might, in the due course of trial, lead to ur'owing and repressed revenge. Felding waves it off, normal, well adjusted by all

"red‐blooded:' Perhaps himself a skirt chaser‐good for o Nelson works his way through three more jurors in an turns them over to me again. I return to Felding, lay light on him, some follow‐up q to put a face on it after Nelson's examination. I'm throwi a few big marshmallows. "Can you judge this case fairly? "Can you put everything out of your mind but the evi Questions requiring nothing more than a cursory "yes" I try to pump up a little suspicion, a projection to Nelson man is not all I would hope for. I move on to witness number four, Mary Blanchard, seven, a secretary with a small electronics company. The danger of women‐married and, worse, divorc Talia will be viewed as the mythical

"Other Woman," a capable of stealing their husbands away if given the op In the age‐old battle of the distaff set, a man is the prize to the victor, and Talia has displayed an astonishing abilityin this war. She will be perceived as a threat in the co for men. The prudent defense lawyer will avoid, like the people on the jury who feel threatened by the defendant. T too many women to the jury is to run the risk of turning into a silent and psychic cat fight. "Tell me, Mg. Blanchard, about your family," I say. Three children, a dog, divorced. I shudder and mov happier subjects. In an hour I have worked my way throu more jurors. net I turn them over to Nelson and he starts with Bta c moves to Susan Hoskins, a housewife, married to the p church. He moves mote swiftly now. By three in the we have worked our way through the first panel of J Acosta asks us to pass upon them for cause. "Peremptories, gentlemen?"

I look at Nelson and nod, giving him the first shot. He pauses for a moment back at the counsel table at his paper with the little grids.

Then like lightning cloud: "The people would thank and excuse juror nu Your Hotior, Mr. Felding." ‐you're excused, Mr. Felding." Zap, like that, and Felding is gone. The others are looking about, avoiding eye contact with this undesirable as he leaves, wondering what it was he had said that caused Nelson to reach back and make him an instant outcast. I return the favor. Mary Blanchard and Susan Hoskins are bistory, replaced by a man and a woman. Attrition will out, we will end up with a little male domination on this jury. Nelson comes back, and three more are gone. My turn, and I take out viodipr four. By the time we are finished the jury box is looking decimated. As a theory they call it the "alpha factor." In recent years I've become one of its adherents. psychologists and those who work with them have isolated individual characteristics that cause some persons to establish domiunce over others, territorial imperatives that give them influence. This human authority quotient is set by a number of factors. Age, gender, financial history, education, social status, mastery of the spoken tongue, and the number of people one supervises on the job‐all of these and more are keys, indicative of the fact that the person may possess the alpha factor. It's a dangerous game, dealing in authoritarian personalities, and not one that most defense attorneys take to naturally. The is to find that dominant spirit who will favor your theory the case, take pity on your client or otherwise buy into your identiary bag of goodies. Pick wrong and this godlike figure in jury room may lead die pack to hang your client. I thought I had him this morning. Sixty, silver‐gray hair, articuas the devil in his den, retired, professor emeritus at a small ate college. A sociologist's dream boat. Nine yards of touchyly in a package that looked like Maurice Chevalier. He came strong, a humanist of the first order. Without his saying it, I ld tell that to this man, human violence, even die ability to Urder, was a character flaw to be counseled, curie@ and quickly ven. Nelson turned him into instant dog meat‐‐cannon fodder, I d have spit when he wasted this guy with a peremptory. Now we are getting thin. Challenges for cause are becoming critical, but difficult to get. To Acosta, partiality, the s*ter Prejudice, is a thing of the past, a ghost that hangs its coat where other than in his courtroom. ,e Five days into voir dire and we have empaneled nine,*1ug1O men and three women. The other three plus two alternates take@ most of this day. We're growing weary, doing this it"

an aerial dog fight, strafing the box, dealing out *t*O". taking more from this "target‐rich environment," as they The marble‐mouths in the Pentagon would say they are attrited." The jury, the nine who have been here the M‐7 beginning to look like the walking wounded. I'm matching Nelson peremptory for peremptory. WT have two left in our respective quivers, and I'm 7,14‐41LILU wonder if I will have to go back to the well, to re .Ad of his earlier pledge, a few more if we need them, ness'

sake. "Mrs. Jackson'@‐‐l dip my wing and dive; another me a little about yourself‐, what do you do ‐c‐ioiii'll'i The questionnaire that came with the jury list says administrator." I want to see how many variations she on this theme, to draw her out. "I'm an administrator, with the school district," she ‐*W4k, and clipped, and not too creative, like the lady's tliflr script. "I know," I say, "but what do you do?"

A "Budget oversight." It is clear that Mrs. Jackson is not the word. I n‐tight say this, even get a few laughs. learned that jokes at the expense of an individual play well to the rest of the panel. Among people ‐NI) *11, before were strangers, the threat of probing and personal from a lawyer forms a fast fraternal bond. Mrs. Jackson sits glaring at me from the box. "I see you're married. Can you tell us a little 11 family?"

"We have three children. My husband's in security," I raise an eyebrow.

"What type of security?"

"Military police," she says. I turn and look up at Acosta. His eyes are rolling in

"Mrs. Jackson," says the judge, "didn't you MMOOTT" er you or any member of your family was involved in ment?" This is part of Acosta's general spiel. She looks at the judge with a blank stare.