False Testimony (7 page)

“She also told us she’d decide this case on the evidence presented, nothing else.” Judge Gould stands and gathers his papers. We’re done in here, it seems.

Harry and Geraldine both start in again, but the judge heads for the door. “If you feel that strongly,” he says to both of them, “use a peremptory.”

Nobody’s happy. Geraldine storms out behind Judge Gould, Clarence in her wake. Harry gives my shoulder a little squeeze as he passes, his expression grim. Each side will be allowed just three peremptories at the conclusion of voir dire, three opportunities to oust a juror for no stated reason. No lawyer wants to waste a peremptory on a candidate who should be bounced for cause.

The judge is already on the bench by the time Harry and I reach our table. “Mrs. Meyers,” he says, donning his glasses, “you are excused. Please report to the clerk’s office for further instructions.”

She stands and leaves the jury box, heads for the center aisle.

“And Mrs. Meyers…”

She stops and turns, looks up at Judge Gould. “Thank you,” he says. She nods and continues her retreat.

“Mr. Harmon and Mrs. Rowlands,” the judge says, “you may return to your seats in the gallery.”

They both look somewhat surprised as they leave the box and head for the benches. I don’t blame them. Impartiality is a slippery concept. And jury selection is a far cry from an exact science.

Dottie Bearse stands behind her desk, holding what looks like a small fishbowl. She draws consecutive slips of paper from it, reading a name from each, and one by one, fourteen potential jurors file into the box. Harry takes three blank sheets of legal-size paper from his file and hands two of them to me. Holliston looks hostile when I pass one to him with a pen. “It gets hard to keep them all straight after a while,” I explain to him. “You might want to jot down their names and seat numbers.”

His stare suggests I just asked him to draft a doctoral thesis in quantum physics. I turn away from him and face Dottie, who’s delivering copies of the selected jurors’ questionnaires to both tables. I divide my sheet into fourteen squares, each with a seat number, and fill in their names, ages, and occupations as the judge asks them all the boilerplate questions.
Does anyone work for law enforcement or have a relative or close friend who does? Has anyone been the victim of a violent crime? Does anyone know someone who has been?

A couple of jurors are excused on the basis of their answers and Dottie pulls two more slips from her fishbowl. Robert Eastman and Alex Doane, both in their midfifties and wearing suits, fill the vacant seats. An investment banker and a nursing home administrator, both are dressed for work, hoping their time spent here today will be short, no doubt. Yes, they heard the questions asked of the others. No, neither of them has anything significant to report.

Judge Gould moves on to the legal standards jurors are expected to honor—the presumption of innocence, the burden of proof, the unanimous verdict. He asks if any of them will have difficulty accepting those parameters. Not a single hand goes up this time. Every last one of them plans to play by the rules. At this stage in the proceedings, most jurors believe they will.

The judge keeps Geraldine and Harry on a short leash as they ask their follow-up questions. In the end, neither of them has a valid challenge for cause as far as I can see, but Geraldine gets to her feet and announces she does. She always says she does. She can’t help herself. “Number eight, Your Honor, for cause.”

Juror number eight is a twenty-seven-year-old lobsterman from Hyannis. He told us in response to Geraldine’s questions that his view of the Catholic Church in general is grim, the result of too many years spent in repressive parochial schools. He also said that view wouldn’t affect his judgment in this case one whit. Geraldine doesn’t have a leg to stand on here. Even she knows that, I think.

Judge Gould apparently thinks likewise. He smiles at her. “Not going to happen, Ms. Schilling.”

She shakes her blond head at the injustice of it all and then exercises her first peremptory. The lobsterman takes his leave and his replacement answers all the preliminary questions. It’s our turn now. “Mr. Madigan?” the judge says.

Harry leans forward on the table and arches his eyebrows at Holliston. It’s routine to solicit opinions from criminal defendants during voir dire. And this particular defendant certainly seems to have some. He takes the pen I gave him earlier, reaches over to my diagram of the jury box, and draws a big
X
through the Margaret Murphy square. She’s a fourth-grade teacher, an ex-nun.

“Are you sure?” Harry asks. “She’s had some difficulties of her own with the Catholic Church, remember.”

Holliston reaches in front of me again and draws another
X
on top of the first one. He’s sure.

Harry excuses Margaret Murphy and she looks a little bit hurt as she leaves the box. Dottie pulls another slip from the fishbowl and we repeat the litany with Ms. Murphy’s replacement. Geraldine exercises her second peremptory, dismissing a middle-aged woman from Wellfleet who confessed to a lifelong belief that Catholicism, with all its martyrs and miracles, is nothing more than myth. A tall, slender black man replaces her, a native of Haiti, according to his questionnaire.

Holliston stiffens at once. He grabs my diagram and draws an
X
through the newest candidate’s box even before he sits down.

“Maybe we should let him answer a question first,” I suggest.

Our client’s stony expression tells me he can’t imagine why I would propose such a thing. He pushes my diagram, with its new
X,
across the table toward Harry. Harry sighs and closes his eyes, but says nothing. He’s not obligated to follow Holliston’s instructions, of course. But as a practical matter, most criminal defense lawyers honor their clients’ wishes when it comes to jury selection. We’re choosing the decision-makers, after all. And it’s the client who will live with the decision they reach.

Judge Gould walks through the preliminaries with the tall Haitian and then Harry dismisses him. Just like that. Without a single follow-up question. The dismissed juror doesn’t react at all, but the judge does. He sees what’s going on here and he’s appalled, but there’s not a damned thing he can do about it.

The ball is back in Geraldine’s court. She stands but doesn’t say anything, looking down at her table and tapping the eraser end of a pencil against her own hand-drawn diagram of the jury box. The third peremptory is always a difficult call. Pass on it and you give up an opportunity to improve your panel, to get rid of one more candidate who doesn’t feel quite right. Exercise it and you may get stuck with a far worse juror from the gallery.

“Number two,” she says at last. “The Commonwealth respectfully excuses juror number two.”

I’m surprised. Juror number two is a sixty-year-old carpenter from Dennis who told us he views the Catholic Church’s insistence that its priests remain celibate as “abnormal.” Otherwise, though, he has no feelings about the church one way or the other. If I were in Geraldine’s shoes—and I was for many years—I’d keep him. I wouldn’t run the risk of ending up with someone more opinionated in his place.

The carpenter exits and Dottie pulls yet another slip from the dwindling supply in her glass bowl. “Cora Rowlands,” she announces. Geraldine actually groans.

Harry and I twist in our seats to watch the newest candidate approach from the back row. Geraldine turns completely around, her back to the judge, to do the same. No doubt she’s hoping to see a female Rowlands
other
than the woman we heard from in chambers. Too bad for Geraldine.

Cora nods to each of us as she walks between our tables and then crosses the front of the room to the box, settling in the second seat, front row. The jury box seats are narrower than the chairs in chambers; her pocketbook doesn’t fit between the armrests. She sets it on the floor at her feet and purses her lips, unhappy with the accommodations.

“Your Honor,” Geraldine intones, “the Commonwealth renews its motion to dismiss this juror for cause, based on the content of her comments in chambers.”

Geraldine doesn’t have a prayer. I can’t blame her for trying, though, for attempting to undo the damage she did when she used that last peremptory. We’ve all been there, most of us more than once.

Judge Gould shakes his head. “I’ve already ruled on that, Counsel. And the ruling stands.”

Cora Rowlands looks from the judge to Geraldine, hands clasped on her lap, shoulders erect. Her expression says:
So there
.

Geraldine pretends she doesn’t notice. I know her, though; she does. She remains on her feet, looking like she has more to say on the matter, even when Judge Gould moves on. He runs quickly through the preliminaries with Cora and then turns his attention to Harry. “Mr. Madigan, anything further?”

Holliston takes his pen and reaches over to my diagram again. He draws an
X
through the number-one box and another through number seven—opposite ends of the front row—Anthony Laurino and Maria Marzetti. Maria is the woman Holliston identified as a
cat-lick
as soon as he arrived this morning.

“We don’t get two more,” I tell him. “We get one. Three total.”

He looks at me and his eyebrows fuse. He’s certain I’m lying, it seems, cheating him out of a fair shake.

“Pick one,” I say. “Believe it or not, the Rules of Criminal Procedure aren’t going to change in the next five minutes, not even for you.”

“Hold on,” Harry tells both of us. “This is a mistake. We’ve got a decent panel right now. Why take a chance on making it worse?”

He’s right, of course, but Holliston doesn’t think so. He takes his pen and darkens the
X
over juror number one. Anthony Laurino must go. It seems an Italian male is even more objectionable than an Italian female. I’ve no idea what rationale is at work here. But I do know our exercise of peremptories bears a frightening resemblance to ethnic cleansing.

Even so, Harry seems prepared to let our client call the shots. These men and women will determine Derrick Holliston’s fate, after all. Harry shakes his head and leans close to me. “Are we forgetting anyone?” he whispers. “I’d hate like hell to leave a left-handed Latvian in the room.” He stands and perfunctorily bounces Anthony Laurino.

After meeting the judge’s less-than-happy stare, Harry drops back into his chair, kneading his temples. The newest dismissed juror doesn’t mind a bit, though. He looks relieved, happy even, as he leaves the courtroom. Dottie draws another slip from the few left in her bowl and announces: “Gregory Harmon.” Harry plants his elbows on the table, buries his face in both hands.

Holliston stares at our final juror, in flannel shirt and work boots, as he walks to the front of the room. When Mr. Harmon settles into the number-one spot in the box, right next to Cora Rowlands, our client clicks his pen and sets it on the table. “There,” he says to no one in particular. “That’s better.”

For attorneys in the midst of trials—particularly defense attorneys in the midst of criminal trials—lunch breaks have little to do with food. Unless, of course, the attorney is Harry Madigan. We’re at the Piccadilly Deli, waiting for his mega–meatball sub with extra mozzarella and a gallon of Tabasco. We take seats at our usual spot—near the front windows—and slide today’s
Cape Cod Times
to one side of the table’s mottled red Formica surface. Harry downs a quart of chocolate milk. I sip my coffee and call the office.

The Kydd answers on the third ring. “Marty,” he says as soon as he hears my voice, “this is nuts. We need a secretary.”

He’s right; we do. The three of us have been operating without administrative help for two years now. It’s getting old.

“Well, why didn’t you say so sooner, Kydd? I’ll hire one today. Della Street, if she hasn’t retired yet.”

Harry opened our South Chatham office a couple of years ago, after spending two decades as a public defender. I joined him within weeks, having resigned from a ten-year stint with the District Attorney’s office six months earlier. We recruited Kevin Kydd—then in his second year of practice—right out from under Geraldine’s nose. She’s still sore about it—and with good reason. The Kydd’s a keeper.

“I’m not joking,” he says. “I’ve spent the entire day talking to walk-ins and fielding phone calls. I’m getting zero done here.”

I know how frustrated he is; I’ve been there. But between the substandard hourly rates paid on court appointments and the fee forfeitures we face in drug cases, the office isn’t exactly a cash cow these days. “Hang in there,” I tell him. “We’re hoping to bring an administrative person on board in the new year—part-time, at least.”

A deli worker delivers Harry’s sub to our table—a perk reserved for the regulars—and Harry grabs a second quart of chocolate milk from the cooler. He also takes a cranberry muffin from the basket on top and puts it in front of me, even though he knows better. I don’t eat lunch during trials; my stomach doesn’t allow it. He takes an enormous bite of his foot-long feast and then leans over to read while I jot down a list of the phone calls we’ve missed so far today: eight for him; a half dozen for me.

“And the Senator,” the Kydd says. “He called just before you did.”

“Kendrick?” The question isn’t necessary, of course. There aren’t many senators on my Rolodex.

“How did you know?” The Kydd oozes sincerity. I don’t get away with much in our circle.

“Lucky guess,” I tell him. “What did the good Senator want?”

“He needs to see you. He’s coming in this afternoon.”

“I won’t get back until after five. Probably closer to six.”

“I told him that,” the Kydd answers, “but he insisted. Says it’s important that he see you today.”

“Did he say why?”

“Nope. Once he found out when you’d be back here, he seemed anxious to get off the phone.”

It occurs to me that the Commonwealth’s senior senator is frequently anxious to get off the phone.

“Wish they all felt that way,” the Kydd adds. “Every other joker who calls this joint wants to tell me his life’s story.”

“Have you had lunch?”

Like Harry, the Kydd tends to get pretty cranky when he misses a meal. “Lunch?” he bellows. “I haven’t had time to pour a second cup of coffee. How the hell would I have gotten lunch?”

“Order in,” I tell him. “And put it on the tab.”

Harry and I have an open account with Cape Wok, Chatham’s only Chinese takeout. The food’s pretty good and they deliver. It’s one of our heftier monthly expenses.

“Oh, I get it,” the Kydd says. “Szechwan duck will fix everything. Throw in a little pork fried rice and I won’t
mind
spending my days in the secretarial pool.”

“Eat,” I tell him. “We’ll see you in a few hours.”

He’s still complaining when I snap my cell phone shut.

Harry swallows the last of his sandwich, drains the milk carton, and then dumps his trash in the bin. I stand to put on my coat, but his stricken expression stops me.

“What?” I ask.

“We can’t leave yet,” he says.

“We can’t?”

“No way.” He carries his empty tray to the counter, exchanges a few words with the clerk, and then hurries back to our table.

“Is there a reason?” I ask.

He unwraps my cranberry muffin, pops a third of it into his mouth, and then leans down to whisper, as if he doesn’t want the other customers to hear. “They have apple pie,” he says at last. “And it’s warm.”