Courtroom 302 (47 page)

Pearlstein wishes juries had some say regarding what happens to a defendant after she or he is convicted. “If we could have sent her somewhere where she’d get five years of intensive psychiatric help, we would have done that.”

He says that when Locallo came into the jury room after the trial to thank the jurors, the jurors told the judge they wished he wouldn’t just punish McGee but would find help for her. Locallo offered the jurors some reassurance, according to Pearlstein: he said he’d be giving McGee the minimum, which meant she’d probably be sent to a minimum-security prison, where there likely would be programs to help her. “All of us felt good about that,” Pearlstein says.
In reality, McGee would be assigned to maximum security, as are all inmates with sentences of sixteen years or more. (“I wasn’t aware of the rules,” Locallo says.)

Pearlstein says the jurors all wondered why McGee told François “God bless you” and kissed him before she killed him. They assumed there was more to the story than they learned of in court. Pearlstein says the trial taught him that in a courtroom, “there’s three sides to every story: your side, my side, and what really happened.”

SIXTEEN

Prejudice

IN THE DINGY JURY ROOM
of Courtroom 500, Locallo and the lawyers are interviewing potential jurors for the Frank Caruso trial. It’s an afternoon in early September, and the trial is finally about to begin. As in April—the last time the trial was supposed to start—it’s been assigned to a larger courtroom because of the expected crowd.

In the courtroom this morning Locallo, sporting a fresh haircut, introduced Caruso to the venire, the panel of potential jurors, and asked anyone who’d heard of the case to stand. Just about everyone did. Laughter erupted, and the judge grinned. Locallo asked a few preliminary questions of the venire, then began calling prospective jurors one at a time to the jury room, where they sit in an armchair with torn upholstery and answer more questions.

Several acknowledge a bias against Caruso from the media coverage of the case. These candidates are excused by Locallo “for cause.” So are the couple of people whose bias runs in the opposite direction. (“I find that a lot of the young blacks walk around very comfortable in the white neighborhoods, whereas the young whites wouldn’t do it in the black neighborhoods,” a white man says.) Some other members of the venire who show no clear prejudices get booted by the lawyers.

Locallo is hoping the trial will be a picture of color-blind justice. So it’s lucky that most of the jury-picking is being done in this back room, because as usual the process is anything but color-blind. Both sides have seven peremptory challenges—they can strike seven prospective jurors without citing a reason. At 26th Street, as in many urban criminal courtrooms, the unspoken reason is often race. Lawyers tend to believe that
jurors are more likely to sympathize with a defendant of the same race, and they use their strikes accordingly.

In 1986 the U.S. Supreme Court acted to curtail racial use of peremptories with its ruling in
Batson v. Kentucky. Batson
requires a lawyer accused by the other side of a racial strike to give the judge a race-neutral reason for dismissing the juror. Justice Thurgood Marshall, while concurring in the
Batson
decision, predicted that lawyers would simply concoct phony justifications for their racial strikes. The way to eliminate racial jury-picking, Marshall said, was to eliminate peremptory challenges. (
Great Britain did so in 1988, and jury selection there has since become a more efficient process. But American trial lawyers tend to oppose such a reduction in their power.)

Justice Marshall’s forecast has proven accurate. Since
Batson
, legal scholars and reviewing court judges have chastised prosecutors in particular for the flimsy excuses they often give for striking blacks. In a 1996 ruling, Illinois appellate justice Alan Greiman lamented the “
charade” that jury selection has become. Pointing to the multitude of excuses prosecutors offer for excluding black jurors—too young, too old, unemployed, overeducated, hair unkempt, demeanor bothersome—Justice Greiman wondered facetiously whether new prosecutors were given a manual entitled
Twenty Time-Tested Race-Neutral Explanations
for excusing African American jurors.

With a white defendant and black victims, the Caruso case has things upside down. Prosecutors Robert Berlin and Ellen Mandeltort don’t find any of the black prospects too young or too old or to have unacceptable hair or demeanor. They use all seven of their strikes against whites.

One of the rejected whites is Ronald Pedelty, a high school physics teacher. He says he’d base his verdict on what’s presented by both sides in the courtroom. He says physics has taught him to value “objective reasoning based on the evidence.” When Berlin and Mandeltort move to strike him, Caruso’s lawyers make a
Batson
challenge. Locallo asks the prosecutors for a race-neutral reason for excluding Pedelty. Mandeltort notes that Pedelty “indicated that he would use objective reasoning.” Besides that apparently troubling fact, Pedelty’s demeanor was “not satisfactory to the state,” she adds vaguely. Locallo finds these to be valid reasons for the state to strike Pedelty.

Meanwhile Caruso’s lawyer, Ed Genson, uses six of his seven strikes against blacks. When the prosecutors charge Genson with violating
Batson
, Genson insists the strikes aren’t due specifically to race. A jury poll he commissioned advised him against selecting jurors who are mothers or who are elderly, and this explains most of his peremptories, he tells Locallo.

Genson admits to me later that he didn’t just want younger jurors and non-mothers. He wanted as many white men as he could get. He believed white men were “less likely to be swayed by things they shouldn’t be swayed by.”

Locallo perfunctorily does his duty under
Batson
, asking one side for race-neutral reasons when the other complains of a racial strike and immediately accepting whatever justification is offered. The judge says later he realizes the reasons cited may be contrived. “But I don’t think it’s my prerogative to say, ‘You’ve given a race-neutral reason; I think it’s full of shit.’ ” Besides, jury selection is tedious enough, and these
Batson
challenges only bog it down more. On the afternoon of the second day of the process, with two more jurors and two alternates yet to pick, Locallo closes the final
Batson
discussion in nearly one breath, with the court reporter straining to keep up: “Pursuant to
Batson versus Kentucky
and its progeny the court is required to see if the reasons are race-related or race-neutral and I’ve considered each of the reasons given by both the state and also defense and I’ve found race-neutral reasons for the exclusion of those individuals.… It’s now one-twenty-five. Do we want to break for lunch and come back?”

After two days and consideration of sixty-two jurors, the Caruso panel is finalized. Both the state and the defense have reason to feel pleased with their efforts. The prosecutors have held the number of white males to three. There are five minorities on the jury, but the defense has managed to limit the number of blacks to two; the other minority jurors are two Hispanics and one Pakistani American. Both of the black jurors are women. As so often happens here,
not a single black male has won a spot.

THE GALLERY BENCHES
are jammed, and standing spectators line the side and rear walls, as prosecutor Robert Berlin steps to the lectern the next morning, the tenth of September. Sketch artists and reporters are bent over their pads and notebooks. Except for one group of African Americans squeezed in two rows, which includes relatives of Lenard Clark and the other victim, Clevan Nicholson, the gallery is mainly a sea of white faces. At the defense table, Caruso is drowning in a navy sport coat. If the intent is to suggest vulnerability, it’s offset by the five lawyers sitting with him.

Berlin tells the jury about two thirteen-year-old project kids who decided to take a bike ride after school on a warm early spring afternoon. They rode into Bridgeport because Lenard’s bike needed air, and he could get it for free at the gas stations in that neighborhood, Berlin says, whereas the gas stations near the project charged a quarter. On their return trip, when they were meandering down a Bridgeport side street with a Hispanic teen they’d met along the way, Berlin says, Lenard and Clevan were attacked by Caruso. After Caruso knocked both of them off their bikes, Clevan managed
to flee, but Lenard was chased down by Caruso and two buddies, tackled to the street, and stomped. Maybe they’d have killed him if a neighbor hadn’t interrupted the beating and threatened to call the police, Berlin says. Lenard spent a week in a hospital and five weeks in a rehab institute, where he had to relearn how to brush his teeth, dress, bathe, and feed himself. He has no memory of the attack and thus won’t testify.

Berlin, thirty-six, is tall and clean-cut, with a narrow face and thinning hair. He’d originally been paired on this case with one of the few veteran African Americans in his office, but that prosecutor left in May for another job, and Mandeltort, thirty-seven, had been picked to replace her. Berlin and Mandeltort, thirteen-year veterans of their office, are both products of Chicago’s wealthy north-shore suburbs.

Berlin’s aggrieved expression and tone suggest a simmering outrage as he tells the jury of Caruso’s vow “to beat the fuck out of these motherfuckers” when he spotted Lenard and Clevan from his Jeep, and of his complaint to a friend in the Jeep that “niggers think they can just come into our neighborhood and walk around, but we can’t go into theirs and walk around.” He lets the jury know that one witness is missing, another dead. He steps toward the defense table and points repeatedly at Caruso, whose eyes remain fixed on the edge of the oak table in front of him.

Berlin was vacationing in Puerto Rico when Lenard was assaulted. He was thrilled to learn upon his return of his assignment to the case. “Ninety-nine percent of the cases we do are not in the news,” he’s said. “It’s nice once in a while to be noticed for the work you do.” When he saw the intensive-care photos of Lenard, with his face battered and a tube up his nose, his reaction was mixed. On a personal level, he was repulsed and angered, but as a prosecutor, he realized how helpful the photos would be.

Now he concludes his opening statement by standing directly in front of the jury box and holding up before-and-after photos of Lenard. The first photo shows a bright-eyed youngster with a wide, toothy grin, the second a hospital patient with eyes clamped shut and the tube in his nose. “Ladies and gentlemen, this was Lenard Clark before he went into Bridgeport on March 21, 1997,” Berlin says. “And this is what happened to Lenard Clark because he and Clevan Nicholson made an error in judgment to save twenty-five cents. That’s what happened to Lenard Clark when he went into Bridgeport and ran into this defendant and his buddies.” The jurors are riveted on the second photo, so Berlin pauses. The courtroom’s silence is broken by the sniffle of one juror, a white woman. Two other white women in the box swipe at their eyes.

After Berlin sits down, Ed Genson hobbles to the lectern, where he climbs onto a tall wooden chair brought here from his office. The high
perch gives him a clear view of the jurors, and the jurors of him. It leaves his feet dangling childlike above the gray carpet. The beating of Lenard is indefensible, he says, but Caruso didn’t do it. He’s trying to prevent another horrible crime—the conviction of an innocent man. “We will not strut, we will not walk around and point,” he says disdainfully. “I’m in no position to strut anymore anyway. Don’t fall for that. Indignation, anger, does not show guilt. We have to decide who committed this act. If the state wants to substitute accusations for reason, fine. And if they want to substitute anger for facts, fine. We will not join in. We are not going to accuse.” His job isn’t to accuse, of course; it is to deny—which he does, over and over. Frank Caruso is innocent. He didn’t punch Lenard or Clevan. He didn’t chase down Lenard and kick him. He never used those racial slurs. He is falsely accused. At the state’s table, Mandeltort is summarizing Genson’s remarks in a blue hardback ledger. When she takes notes during a case, now and then she adds a comment in a margin, an idea perhaps for closing argument. Now she writes in the margin, “He can say it ten times, he can say it a hundred times, it does not change the evidence, it does not change the facts.”

Genson is above accusing—except to tell the jury that the police rigged a lineup, and ignored evidence, and let the real culprits off the hook, in order to get the quick solution demanded from them by the mayor and the police chief.

He says that everyone, the defense included, wants sympathy and justice for Lenard. But “I ask for sympathy and justice for someone who was charged with a crime he did not commit.”

“How dare he compare their plights,” Mandeltort writes in her ledger.

Genson reminds the jury that Caruso is presumed innocent. “It’s like a one-run lead in a baseball game,” he says. Maybe he’s less confident than when he defended Caruso’s father fifteen years ago; then he told the jury it was like a four-run lead. Mandeltort is not impressed with the analogy in any event. “The game’s over,” she writes.

CLEVAN NICHOLSON
is dwarfed by the witness stand. He’s short, even for a fourteen-year-old, slightly plump, and dark-complected, with hair trimmed to the scalp. He’s wearing a bright yellow-and-black-checked shirt. Mandeltort, who’s doing the questioning, usually knows what her witnesses will say, but this time she’s not sure. Clevan has told her he’ll identify Caruso as the person who attacked him and Lenard. But the murder of Mike Cutler and the disappearance of Richard DeSantis have left the prosecutors uneasy about their remaining witnesses. Mandeltort has worried that someone might have threatened Clevan or somehow persuaded
him not to finger Caruso. Of the state’s witnesses, Mandeltort has told Berlin, “This is one of those cases where you really don’t know until you hear it coming out of their mouths.”