Dead Peasants (24 page)

77

Thirty minutes before the jury arrived the clerk handed copies of the jury cards to each side. The jury cards provided some basic information: Name, age, address, occupation, race, sex, marital status, religion, number of children, length of residence in Tarrant County, prior jury service, involvement in other lawsuits.

Jack made sure that J.D. and Colby had a highlighter and directed them to mark anything they considered pertinent about a prospective juror. When the jury panel filed in, Jack studied each of them intently as they walked down the middle aisle. He was looking at how they dressed, whether they carried the morning paper or a book to read, whether they had any physical deformity, anything that might give him one additional clue as to what was going on in their minds. He was pleased to see that there were a several African Americans in the panel. Of course, he wanted them on the jury. Once they were seated, the bailiff advised the judge.

“Good morning, ladies and gentlemen,” McDowell said. “Thank you for being here this morning. Our judicial system wouldn’t work without public-spirited folks like yourselves. This is the case of June Davis v. Allison Southwest. It’s a case about the proceeds from an insurance policy. Mr. Bryant, you may proceed.”

Jack started to get up, but was interrupted by the judge. “I almost forgot. Mr. Jack Bryant represents Ms. Davis. His son, J.D. Bryant, is his paralegal. Some of you may recognize Mr. J.D. Bryant because he plays football for TCU.”

Most of the men and several of the women looked at J.D. and nodded their heads.

“He’s got a minor hamstring injury and will miss this week’s game, but should be back for the second game of the season. That’s all you need to know about him. Proceed, Mr. Bryant.”

Jack got to his feet, cane in hand and stood before the jury. “Ladies and gentlemen, I represent June Davis. She’s a widow. Her husband died in an accident while he was out fishing near his house up in Denton. After Ms. Davis buried her husband, she received a letter from the Post Office, enclosing a check made out to Allison Southwest for $400,000. We intend to prove that money rightfully should have been hers and have filed this lawsuit to recover that amount along with treble damages, punitive damages and attorneys fees. There’s more, but I’m only allowed to give you a short summary at this time.

“The judge has already introduced J.D. Now let me ask who knows or has heard of Dwayne Allison, the owner of Allison Southwest?”

Thirty hands were raised.

“Among you folks who raised your hands, how many of you feel that your knowledge of Mr. Allison will cause you to start off this case leaning toward his side of the case or putting more weight on what he has to say?”

Several hands were raised.

Jack looked at his jury list. “Juror number 34, Mr. Brown, you have those kinds of feelings?”

“Yes, sir. I’m a Shriner, and Mr. Allison was Potentate of our temple a few years back. He’s a fine man.”

Allison beamed and Leyton noted the comment. Jack planned to challenge him for cause.

“Now, is there anyone here whose employer has taken out a life insurance policy on your life without your knowledge?”

Juror number 4 on the front row replied, “How would we know if our employer didn’t tell us?”

Jack grinned a little sheepishly, knowing he had made his point. “Actually, you wouldn’t unless, maybe after you left the employment, your employer offered you the opportunity to continue the policy, or maybe the information leaked out by mistake.”

The jurors looked confused and wondered where this was all leading. Jack knew that he could go no further, but wanted to plant just a small seed in their minds about the issue to come.

Jack inquired about jurors who had worked for car dealers, those who had been parties to lawsuits, those who had purchased a car from an Allison dealership, those who had life insurance, and a new category of questions that came with the recession, those who were out of work. After an hour and a half the judge told him his time was up. He thanked the jury panel for their time and sat down.

Leyton rose to take his place. He explained that Allison Southwest had taken out a life insurance policy on Mr. Davis early in his employment and had paid all the premiums on it. Before he could get beyond that, Juror number 16, a black man, asked, “What did Mr. Davis do?”

When Leyton replied he was a porter and tried to move on to his next question, the juror interrupted. “Don’t make any sense for him to take out a life insurance policy on a porter. Did he take out these policies on his other employees, too?”

Leyton looked at Judge McDowell. “Ladies and Gentlemen, we’re here to decide issues on this one insurance policy, not others. Please move on, Mr. Leyton.”

Several of the jurors shook their heads as though they disagreed with the judge. Jack suppressed a grin and noted their numbers.

Leyton elicited favorable comments about Dwayne Allison from many of the jurors. He accomplished his goal of letting the jury panel know that Allison was a public-minded citizen and a civic benefactor. His last question dealt with prospective jurors who had a problem with a car dealer. About half the jury panel raised their hands. He had to take the time to discuss each of their problems to decide whether to attempt to strike them or take a calculated risk to leave them on the jury. Then his time was up.

The judge excused the jury and each lawyer made challenges for cause. The judge’s rulings reduced the panel to thirty-one, and he excused the lawyers to make their remaining six strikes. Jack asked to use the jury room and led his team and June to it. They had twenty minutes. Jack had tried to get all of the jurors who had a high opinion of Allison off the jury with challenges for cause, but he had not succeeded.

“We’re going to have to use most of our preemptory strikes to get rid of the rest of them. I hadn’t counted on the number of people in this town who knew Allison.”

“I think I told you to expect that some time back,” Colby said. “His public persona is a lot different from the Dwayne Allison we have come to know.”

Jack eliminated six more jurors and surveyed the rest of the list, concluding that the remaining jurors would be okay, maybe not great, but okay. When they returned to the courtroom, Jack was surprised to find that Leyton had already made his strikes, handed his list to the clerk and was seated at the counsel table, quietly talking to Allison and his associate. It only took another five minutes for Jack to find out the reason why. When the jury panel was called back in, the clerk called out the names and numbers of the final jurors.

As they took their seats in the jury box, Jack did a slow burn.
That son of a bitch,
he said to himself.
He used five of his six strikes to eliminate African Americans. Who the hell does he think he’s dealing with?

McDowell turned to the remainder of the panel. “Ladies and Gentlemen, thank you for your service.”

The judge was hurrying to excuse the remaining members of the jury panel when Jack got to his feet. “Your Honor, we need to approach the bench.”

McDowell knew what Jack was about to do. He had seen the same thing and was trying to get rid of the panel before Jack could make an objection
,
knowing that by then it would be too late.
Obviously,
Jack thought,
I still don’t have a level playing field.

“Very well, Mr. Bryant. Approach, Counsel.”

At the bench and out of the hearing of the jury, Jack said, “Your Honor, the
Batson
case, decided by the United States Supreme Court, makes it quite clear that when one party is a minority, the other side cannot strike jurors of the same race without a showing of some other basis besides race as a reason. Mr. Leyton has struck five African Americans. I’ve checked their jury cards and my notes, and there’s no basis other than race. We formally challenge.”

Leyton was now obligated to give some reason other than race for his challenges. The problem was that while Leyton was a seasoned trial lawyer, he had gotten to that stage of his career where he took very few notes and just winged it in court. He figured that his reputation and powers of persuasion could carry the day. This time he was in trouble. He really had struck those five jurors because he thought they would lean toward June Davis as a member of their own race. He fumbled through his copy of the jury cards.

“Your Honor, I struck Juror 2 because he worked as a truck driver and William Davis sometimes drove a truck to pick up and deliver parts. I struck Juror 19 because her daughter works as a maid and Ms. Davis did that at one time. I struck Juror 12 because…”

McDowell looked to the back of the courtroom and saw Hampton making notes. He had no choice in this ruling. He interrupted Leyton. “Look, Mr. Leyton, so far your explanations do not overcome a Batson challenge. Unless you’ve got better reasons for the other three, I’m going to do something I’ve rarely had to do. I could declare a mistrial and start all over, but that will waste all of our time. I’m going to excuse the jury to the hall and give you another opportunity to make your challenges. I strongly suggest that race not be used as a factor. Frankly, Mr. Leyton, I’m disappointed in you. A lawyer of your stature should know it’s going to raise red flags when you have an African American plaintiff and you strike five of her race. You have twenty minutes. I’ll be in my chambers. Bailiff, let me know when we’re ready to proceed again.”

After the jury panel was excused for the second time, Jack explained to his team what he had done and why they were delaying.

June beamed her approval. “Thank you, Mr. Bryant. I was worried when I only saw one black face in that box. I grew up in the days of separate black schools, separate water fountains, riding on the back of the bus. Some of those racist feelings die hard.”

When Jack saw Hampton motioning to him from the rail, he walked over.

“Jack, you don’t have to tell me what happened. Let me guess. I saw that Leyton struck five African Americans. You called his hand on it, didn’t you?”

“Yeah, I did. Surprisingly enough the judge went along with me. Leyton has twenty minutes to re-think his strikes.”

Hartley let out a low whistle that drew a shake of the head from the bailiff.

The judge decided not to explain what had happened to the jury. There would be no way to do so without impugning the character of either Dwayne Allison or Ace Leyton. Only this time when the final panel was called to the jury box there were four African Americans, two Hispanics and six Anglos, a much better representation of the ethnic mix in Tarrant County. Jack nodded his satisfaction as the jurors took their place.

78

Jack rose from his table and took a position in front of the jury. He leaned slightly on his cane. “My client, June Davis, was married to Willie for fifty-three years. They were wealthy people, not in terms of dollars because they had little. Their wealth came from their love, their three children, eight grandchildren and their relationship with God through the Greater Mt. Zion Baptist Church.”

Leyton rose to object that this should be saved for closing argument, thought better of it and sat down.

“June worked off and on, cleaning houses. Willie spent the last twenty years of his work life as a porter for Allison Cadillac. He made $20,000 in his last year before his retirement. That was fifteen years ago. He was killed in a tragic accident while he was fishing near his home. June and the kids buried him and went on with their lives.”

Jack heard quiet sobbing and looked over to see June reaching in her purse for a handkerchief.

“A few months later June got a letter from the post office, enclosing a check for $400,000 in life insurance proceeds. The check was made payable to Allison Southwest.

She never knew that Allison had put a large life insurance policy on her husband or that Allison kept paying premiums for fifteen years after he retired. It was a dead peasant policy.”

Leyton leaped to his feet. “Objection, Your Honor,” he almost yelled. “He’s intentionally violating the court’s prior ruling.”

McDowell glared at Jack. “Approach.”

When both lawyers were at the bench, McDowell kept his voice low but chewed on Jack. “You have intentionally violated my ruling. You will not do that again or there will be sanctions. Understood?”

“Sorry, Your Honor. It just slipped out.”

“Return to your places.” McDowell turned to the jury. “That last comment will be stricken from the record and you will be instructed to disregard it. Proceed, Mr. Bryant.”

Jack returned to face the jury, thinking of something an old lawyer had told him years ago.
Once the cow’s peed in the milk, you can’t strain it out. No way the jury’s going to forget about dead peasants.

In the back of the room, Hampton smiled. Now that the term had been used, he had the lead for tomorrow morning’s story.

Jack decided to cut his opening short. He had made his point. “Ladies and gentlemen, I’m going to give you back some of the twenty minutes I was allocated for opening. Suffice it to say that when June learned about the life insurance policy, she asked Mr. Allison to pay the proceeds of the policy to her as his widow. He refused. We’re here because Dwayne Allison and Allison Southwest intentionally profited from the death of Willie Davis, and we expect them to pay for it.” Jack thanked the jury for their time and sat down.

Leyton rose and paced up and down in front of the jury twice, his hands in his pants pockets. “William Davis signed an employment agreement over thirty years ago. In that agreement he authorized Allison Southwest to take out insurance on his life. My client did so and paid the premiums on it for all those years. It was not an issue until he died. Now this lawyer is telling you that his client should be unjustly enriched by the proceeds from a policy that she never paid one red cent for.”

Leyton was very careful to lay the blame on the lawyer he wanted to paint as greedy, not the widow, particularly since there were now four African Americans on the jury.

“On top of that, he wants to treble the $400,000 and punish my client when he did nothing wrong. The evidence will show that Dwayne Allison and his company kept their agreement with William Davis and are entitled to the proceeds from the policy. Thank you.”

Judge McDowell looked at the clock on the back wall. “I apologize, ladies and gentlemen. I’ve worked you through your lunch hour, but I wanted to get you in the box and get opening statements done so we could keep this case moving. Let’s take an hour for lunch. Bailiff, please escort the jury to their room.”

Once the jury was gone, Colby pulled ham sandwiches from a bag in one of the boxes. “Here, I made these this morning. Can I get sodas?”

“Water’s fine,” Jack said. “Thanks for the sandwiches. How are we doing?”

“Everything looks good to me. Why did Leyton try to strike so many African Americans?”

“My guess is that it wasn’t his idea but Allison’s. Looks like Leyton’s letting Allison call some of the shots. Bad mistake, particularly for an experienced lawyer. There can only be one lead dog in a trial, and it can’t be the client. Leyton must be getting a lot of heat from Allison about something.” Jack turned to June who was quietly eating half of her sandwich. “June, you’ll be the first witness this afternoon. We have to go through all of those documents. You’ll be on the stand for the rest of the day. You okay with that?”

“I’ll be fine, Mr. Bryant. I’d just like a bottle of water up there with me. I’ve handled Mr. Leyton once. No reason I can’t do it again.”