Naked Justice (30 page)

Bullock looked the jurors square in the eye and began. “You know why you’re here,” he said.

He paused, allowing the words to sink in. “Personally, I wish you didn’t. It would make this business of choosing a jury much simpler. But I know you do know. You know what case this jury will hear. And you know … the importance of what we are trying to do. The importance of seeing that justice is done.”

Ben had to marvel at Bullock’s cleverness. He was not making an argument—well, not exactly, your honor—and he was not urging them to convict—well, not exactly, your honor. But close. Close enough that they couldn’t possibly miss the point.

“The defendant in this case is a man named Wallace Barrett.” He gestured toward the defendant. “Is there anyone here who does not know Mr. Barrett?”

No hands rose.

“Now, that’s a problem. We prosecutors always worry about trying celebrities. When people see a man on television or in some sporting event, they start to feel like they know him. They don’t, of course. They don’t know anything about what he’s really like. But they think they do. He’s that smiling face on the television screen in their living room. They like him. And that makes it a lot harder to convince them that he may have done something wrong.” His voice slowed and dropped an octave. “Even when the crime committed is as hideous as the one in the present case.”

Bullock strolled confidently to the opposite end of the jury box. “So I have to ask you this question. Is there anyone who feels that what they already know about Mr. Barrett—or what they think they know—would prevent them from judging the facts and evidence of this case with an open mind? Anyone? Please be honest. I won’t put you on the spot. I just want to know.”

An older woman in the back row, Marilyn McKensie, hesitantly raised her hand.

“Mrs. McKensie. You think you might have a hard time giving us a fair shake?”

She pursed her lips together, speaking slowly. “No. I’m just afraid … Well, I’ve heard so much about all the awful things he did to his family, I just don’t know if I could believe anything he or his lawyer had to say.”

A loud buzz rose from the press section. Ben jumped to his feet. “Your honor—”

Judge Hart nodded. She knew very well the prejudicial nature of the remarks the woman had just made in the earshot of every prospective juror. Remarks like that could end the trial before it had begun.

Judge Hart leaned toward the jury box. “Mrs. McKensie, you must realize that no one has proven that the defendant has done anything. He is presumed to be innocent.”

“Oh, right. But everyone knows—”

“Mrs. McKensie,” the judge continued firmly, “in this state, defendants are innocent until proven guilty. No evidence has yet been adduced against the defendant. That means that at this point in time he is innocent and you must be able to consider him as such. Do you understand?”

“Yes, I know the rules, but—”

“There are no buts. That’s the way it is.”

Mrs. McKensie licked her lips, fell back into her chair, and didn’t say anything more.

The judge addressed the jury at large. “I will admonish the jury—that is, all the prospective jurors—that they should not discuss or draw any conclusions until the evidentiary part of the trial is over, and furthermore, what conclusions you do draw should be based upon the evidence presented at trial and nothing else. Mrs. McKensie’s remarks should be disregarded in their entirety.” She turned back to Ben, a weary expression on her face. “All right, counsel?”

Ben nodded. “Thank you, your honor.” He could read what was in her eyes quite clearly; he was thinking the same thing himself. If they couldn’t get past the first voir dire question without a prejudicial incident, what hope did they have of actually completing a fair and unbiased trial?

Mrs. McKensie was excused and replaced, and Bullock continued with his questions, carefully but systematically probing the venirepersons about their jobs, their significant others, their habits and hobbies. Most of his questions did not bear a direct relationship to the case. Many followed up on seemingly trivial matters that had been mentioned in answers to the written interrogatories. Most were easily answered questions. Bullock never pressed anyone or embarrassed them.

And Ben knew why, too. He could still remember the advice Bullock had given him so many years ago. “People think the main point of voir dire is to find out about the jury,” he had said, “but they’re wrong. That’s okay if you happen to be able to read minds. But the realistic best thing you can do during voir dire is let the jury find out about you. Let them learn to like you, to trust you. If you can get that, then later in your closing argument when you tell them to convict, they will. They’ll do whatever you want. Fact is, trials are long and complicated, and the jurors have a hard time following everything. Most of their decisions are based principally on who the jurors think they can trust, not on the evidence. Once they figure out who they can trust, they do whatever that person tells them to do.”

And Bullock was a master at earning jurors’ trust. Ben knew that by the time Bullock was done, the jurors would have nothing but respect for the assistant district attorney. Ben would have to be just as good, and to have better evidence, if he expected to win them over.

As he watched Bullock examine the jury, Ben made two distinct observations, both disturbing. First, he noticed that the jury seemed uncommonly cooperative, even eager. Jurors were usually indifferent as to whether they were chosen. These people, however, seemed to want to be chosen. Ben supposed that was only natural. It was a big trial; it was something you could tell your grandchildren about.

The other thing Ben noticed was the serious, probing, nonhyperbolic nature of the questions Bullock was asking. The prosecutor seemed to want a smart jury.

Now that was a frightening thought.

Ben’s opportunity to examine the jurors did not arrive until mid-afternoon. He straightened his tie, put on his most earnest expression, approached the jury box and introduced himself.

“All we are interested in is fairness,” Ben told them, and he hoped they believed it. “As I’m sure you’ve gathered from Mr. Bullock’s remarks, the charges against my client, Wallace Barrett, are very serious, so we want him to have the most fair hearing possible.”

He glanced back at Barrett and smiled. “That’s why I’ll be asking you these questions. Please don’t feel like I’m trying to pry into your personal life. I’m not. I’m just trying to learn as much as possible so that we can choose the fairest jury possible.”

With that, Ben launched into a harmless series of questions designed to elicit the most obvious kinds of bias. Do you know the mayor personally? Did you ever work for him or his staff? Were you involved in the mayoral campaign? Ben knew the answers would be no, but he needed something safe and nonconfrontational to get the ball rolling.

The next level of scrutiny was considerably more complicated. Normally Ben would begin by asking if anyone knew the defendant. The problem here was everyone knew the defendant. Everyone had seen him on television. Everyone had voted for or against him. And everyone knew what he was accused of doing.

“I know you all know who Mr. Barrett is. You’ve already told Mr. Bullock about that. But are there any of you who have some personal or private information that might affect your deliberations?”

A middle-aged man on the second row raised his hand.

“Mr. Torres,” Ben asked, “do you think you might have some preconceptions or ideas that might affect your serving on this jury?”

“I do,” the man said firmly. “I don’t like what he done. Not one bit.”

Ben proceeded cautiously. “You must realize, sir, that we are gathered here to determine what, if anything, he has done.”

“I ain’t talkin’ about no murder. I’m talkin’ about that pension plan for sanitation workers.”

Ben did a double take. “That what?”

“The pension plan. He cut back the pension plan. Said he had to cut the sales tax. Fools like me that’s worked for the city for twenty years, we were depending on that money.”

“Sir, you must realize that that is not what this trial is about.”

“I know that. I ain’t no fool. Jus’ the same, I’m gonna have a hard time forgettin’ that he’s the man who screwed up my retirement. I bet a lot of other folks feel the same way.”

Ben took a deep breath. This was a wrinkle he had not anticipated. Barrett had told Ben he tried to get raises for city employees; he hadn’t said anything about cutting the pension plan. At least four of the jurors worked for the city in one capacity or another, as well as two of the jurors’ spouses. “Sir, this trial is being convened to consider whether Mr. Barrett has committed a crime. It is not a referendum on his political positions.”

“That may be, Mr. Defense Attorney,” Torres snapped back. “But I still don’t have my pension plan.”

Ben glanced back at Barrett. He was tugging his left earlobe, their prearranged signal for “get this man off the jury!” Unfortunately, Torres had said nothing that would absolutely indicate that he was unable to evaluate innocence or guilt and thus would mandate dismissal for cause. Ben would have to wait and use one of his preemptories.

“Is there anyone else who feels that their political differences might make it difficult to consider the accusations against Mr. Barrett fairly?”

Ben detected a few tiny movements, but no hands rose. But of course not. He had asked the question wrong, had asked them to draw the conclusion.

“Well, is there anyone in the jury who particularly dislikes a political decision my client has made?”

Six hands shot into the air. Add that to the six jurors connected to city employees, and Ben realized he was going to be discussing this subject for a good long time.

Two hours later, Ben decided that he had learned all he could possibly know, and far more than he had wanted to know. The truth was, his client was a celebrity, and whether anyone cared to admit it or not, celebrities were treated differently in this country, including in the justice system. The idea that he could select a panel of jurors who would not bring any preconceived notions to the trial was laughable.

The next topic on Ben’s agenda was even more delicate than the previous one. Racism. The problem here was that no one was going to admit to being a racist, not even the Grand Dragon of the Ku Klux Klan. Ben knew—he’d tried it before. If he was going to make any headway, he was going to have to try a subtler approach.

“As you’re all aware, my client is a black man. As I gaze out in the jury box, though, I see that only two of you are black, and one Hispanic. Is this a problem?”

Ben knew he wasn’t going to get an answer to a question like that. He just wanted to put the topic on the table and let them think about it.

“Don’t get the wrong idea. I’m not accusing anybody of anything. But I know very well, from the work I’ve done on previous cases, that some people harbor less than charitable feelings about members of other races. Maybe you had a bad experience when you were young. Maybe your parents told you things that you accepted without questioning. It doesn’t matter how it happens, but sometimes it does happen. It’s nothing we like to admit. But it’s there.”

There was a long pause. Ben walked to the opposite end of the jury box. “I’m not going to put anyone on the spot. I’m not going to try to trick you into confessing your sins in public. I’m just going to do this. I’m going to ask you all to close your eyes.”

Out the corner of his eye, Ben saw Bullock twitch and half rise to his feet. Then he stopped. Ben could imagine the thoughts racing through his head. Yes, this was certainly irregular. But what exactly would your objection be? Bullock settled back into his chair.

Ben returned his attention to the jury box. “All right, all eyes closed? Fine. Now I want anyone who thinks they may have some biases or prejudices that might prevent them from being absolutely fair in this trial to raise their hand. No one will know. Just raise your hand. I won’t identify you. I will see that you’re removed from the jury, but I won’t say why. You’ll just be one of many who end up not serving. Okay? Look deep into your heart. Be honest with me. Be honest with yourself. If you can’t be a fair and impartial juror, raise your hand. Please.”

Ben waited a full ten seconds. No one raised a hand. Well, it was a nice try.

And then, to his astonishment, a hand inched into the air. Mrs. Applebee, an older woman in the middle row, slowly hoisted her hand.

“All right,” Ben said, “all hands down. And you may open your eyes. Thank you for your cooperation.”

After that, Ben ran through a myriad of questions on a myriad of topics, trying to learn more about the jurors, trying to unearth random bits of information that might be more telling than anything he could discover through direct questioning.

The responses he got were straightforward, reflective, and occasionally surprising. Christina jotted down some of the highlights:

“Criminals have too many rights. What about the victims?”

“I like to unwind at night with a frozen margarita,
The New York Times
crossword puzzle, and Regis and Kathie Lee. I tape the show every day. I love that man.”

“I just don’t understand people today. Sex, sex, sex—it seems like that’s all anyone cares about. Personally, I don’t see what the big fuss is.”

“Corporations control America. Everyone’s just in it for a buck.”

“Did you ever wonder—when you’re smelling a flower, is it smelling you?”

“I believe that key personnel in our government have been abducted and replaced by alien beings.”

“My brother-in-law Harold was the second gunman on the grassy knoll.”

“Counsel, do you mind if I ask where you got that tie?”

“I can’t stand lawyers. Nothing personal.”

After voir dire was finally completed, Ben huddled in a side room with his client, Christina, and of course, Harold Sacks, the juror consultant.

“All right,” Ben said, “let’s start with the foregone conclusions. Mrs. McKensie is removed, preferably to another county. Torres obviously can’t stand you, Wallace.”