Objection! (9 page)

In 1987, during my first bank-robbery case,
State v. Jones
, I found out just how wrong I was. It was a very difficult case to prove, because the defendant had been heavily disguised at the robbery. He wore a wig, mustache, beard, hat, and sunglasses. He’d even had a “break-away suit” that was basted lightly up the back so he could tear it off as soon as he ducked into the alley outside after the robbery. I desperately wanted to identify him from the still photos lifted off the bank’s video camera—and even I couldn’t make the ID.

I had my jury in the box after a few days of striking and was midway through the case when my investigator burst through the swinging doors of the courtroom one morning. The doors didn’t make a sound when they opened, but I felt the rush of air when he entered the room. I was in the middle of a direct examination of a state’s witness and felt mildly irri-tated because I didn’t want anything to take the jury’s focus off the witness stand. Despite every directive I had ever issued, my investigator O B J E C T I O N !

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started trying to talk to me during questioning. I could barely contain my frustration. When I ignored him, he actually pulled on my sleeve.

When I refused to speak to him in open court, he handed me a note. It read: “The juror in the back row wearing a plaid shirt is a convicted bank robber.” Trying as best I could to look casual, I glanced at that juror, and—oh, yes, he was looking right at me. What could I do?

It was my own fault. I hadn’t asked these jurors if they’d ever been convicted of a crime, because I didn’t want to offend them. I’d also assumed that because the jurors were pulled from voter-registration rolls and felons can’t vote, I would never wind up with a convict on a jury panel. Man, was I ever wrong.

Since I’d never asked the right question, the juror had never lied, and I knew I had no grounds for complaining. The defense certainly didn’t ask. They’d be thrilled to know he was there! I analyzed the situation overnight. I liked the man. I had originally wanted him on the jury.

I got a good feeling from him during voir dire. The following morning, I went with my instinct. I argued directly to that juror during closing arguments, pointing out all the things the defendant had done wrong that resulted in his capture. For instance, the bank robbery note that reads:

“Don’t touch the alram. This is a robbey.” (Translation: Don’t touch the alarm. This is a robbery.) In addition to being a bank robber, Calvin Jones was also a very bad speller. That helped me immensely when I had him perform a writing comparison. He reversed letters in practically every word—the same way he did in the robbery note. The jury loved it.

I was lucky. The jury returned a guilty verdict. As the jurors filed out of the box to leave the courtroom, my bank robber juror stopped and our eyes met and he reached out his right hand to me. He quietly said,

“Thank you.” I will never forget him or what he taught me. Even though I had made the tactical error of not asking the jurors the tough questions on voir dire, he saved me. He also taught me this—rap sheets don’t always reflect a man’s character. To remember that, I keep the bank robbery note,

“Don’t touch the alram. This is a robbey,” framed over my desk today.

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The worst jury I ever got was in an aggravated-assault and armed-robbery case,
State v. Wilson
. In the 1988 trial, I tried the defendant for armed robbery and ended up getting a conviction on lesser charges. I made several mistakes in this case, but I blame not getting the verdict I wanted on my own error in jury selection. The victim was a stripper who was dressed in a cheerleader’s outfit when she left a bar at four in the morning. For the trial, I made sure she looked prim and proper and actually had her mention what church she belonged to. I never made that mistake again. The jury could see straight through the “church lady.” They could spot a stripper a mile away. That was one mistake I made during the trial—but it wasn’t the biggest.

During jury selection, I noticed the behavior of one woman when the pool took the general juror oath. She stood stiffly with her hands by her sides and refused to raise her right one to swear on anything. She was the only person out of nearly one hundred who wouldn’t raise her hand in solemn promise to uphold her duty. In my inexperience, it didn’t send up a red flag like it should have.

At the time, I was still green enough that I would ask ridiculous questions during jury selection, like “What do you do in your spare time? What books do you read? What magazines do you like?” She was telling me loud and clear that she was trouble, but I was too blind to see it.

“What do you do in your spare time?”

“What do you mean by that?”

“Well, do you like to read, do you like to dance?”

She stiffened up at the mere suggestion she’d like to dance. “I don’t dance.” That struck me as odd, being the Macon Cotillion swing champion for my age category.

“You don’t dance?”

“No.”

“Oh, okay.”

And I kept going. I had a woman who refused to dance, who wouldn’t raise her hand and take the oath, and I put her on the jury. It O B J E C T I O N !

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turned out her religion disallowed her from passing judgment in any way on another person. Under any circumstance—even at a jury trial!

It’s a miracle I got a guilty verdict at all! And I thought the stripper was my problem! No way . . . it was the church lady!

I should have known. She struck me wrong and I should have gone with my gut. But I had plotted out strategically how I’d use my ten strikes, all the way back to Juror Number 50. If I had used the strike up front—she was one of the first twelve—I would have had to change my strategy. I saw the defense loading up the jury with defense-oriented jurors, so I had to strike carefully. Plus, I very rarely struck anybody off the jury. It always took a lot for me to strike anyone, if I did, and even then, I was profusely apologetic about the whole thing.

In this case, as I recall, we did open strikes, where you strike out loud in front of the jury. How that works is, you stand up and speak directly to that person, saying, “The state respectfully excuses the lady juror. Thank you,” and you throw the person off. Everybody is seeing you reject people, which in my mind is not a good thing. So I accepted her onto the jury. While many jurors want to be rejected so they can go back to their homes and offices, there are those jurors who not only want to be on the jury but take the rejection as a personal slight.

There are also silent strikes, when lawyers write their decisions on a piece of paper. The state strikes, then the defense, and then they both take each strike decision up to the judge’s bench. That way the panel never knows who’s striking whom, just the lawyers and judge. Preemp-tory strikes are allowed—for instance, if someone is a cop or is acquainted with or related to a witness or a party in the case or one of the lawyers.

Another way lawyers strike a jury is to hold all their strikes until the end of the selection process, after general questions are posed to the entire panel and follow-up questions are asked to individual jurors.

In all cases, the judge decides how a jury is selected, and in some jurisdictions it’s a matter of tradition.

After I won a guilty verdict on a lesser charge in the case, I later 5 8

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discovered that my nonjudgmental juror had been the lone holdout causing a compromise verdict. I learned two lessons from these trials: One, always follow your instinct when you strike a jury, and two, if you get a bad vibe from a juror, they’re out. It shouldn’t matter if it’s a nun, a priest, or a virgin—they’re gone! In the case of the nonjudgmental juror, I ignored the all-too-obvious warning signs, and she nearly cost me a true verdict of guilty.

W H Y S E Q U E S T R A T I O N

D O E S N ’ T W O R K

Sequestration embitters a jury.
It’s just too much of a hardship—

especially in high-profile cases that go on forever. I think it’s asking too much of people. Sequestration makes jury service, already inconvenient, much more difficult. As I explained before, a lot of people try desperately to get out of jury service. They will make up out-of-town flights, doctor’s appointments, day-care problems, financial hardships, and medical emergencies if it will keep them off a jury. People’s grandmothers will die five times during a trial. Can you imagine what the lawyers are left with if the jury pool knows they’re going to be sequestered? You basically end up with a lot of jurors who don’t have jobs—which is usually what the defense wants anyway.

I generally never agree with sequestration, because it doesn’t work.

Stories have circulated that sequestered jurors in high-profile cases are resentful and get news of the trial during allowed visits from family members. One possible remedy for that problem would be to question jurors in those cases on a daily basis as to the possible tainting that may have occurred during those visits, in addition to directing them each afternoon at the close of court not to engage in such conversations.

I believe that jurors should be repeatedly instructed to guard against tainting the case in any way that could result in their removal from the jury or, even worse, a mistrial. Where there’s a will there’s a way. If ju-O B J E C T I O N !

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rors are going to ask their families about news reports on the case during visits, there’s really no way to prevent it. Either jurors are going to take their oath seriously and follow the law or they’re not.

Here’s a perfect example of why, in my view, sequestration is useless. It is not always the answer because no matter how much a judge tries, like an overprotective parent, to safeguard a jury, the world still gets in, as in the murder trial in 2000 in Las Vegas of Sandy Murphy and Rick Tabish, charged with the murder of mogul Ted Binion. One day, the jury went to lunch at a buffet and a hotel worker named Richard Sueno called out, “Not Guilty!” in a room where the jurors had gathered. That could have been grounds for a mistrial, but one wasn’t granted. (Murphy and Tabish were found guilty of the crime and sentenced to life in prison, but the verdict was ultimately reversed because of the admission of hearsay into evidence.) This makes the case that sequestering a jury is like being an overprotective parent. As much as you try to prevent it from happening, the jury is going to scrape their knees. Lawyers simply have to be prepared to deal with it—and sequestration isn’t the way. It just makes everybody angry and surly.

In the Scott Peterson trial, Judge Alfred Delucchi had the right idea. Concerned about media taint of the Peterson jury, yet not a fan of jury sequestration, Delucchi allowed the jury to come and go freely during the evidentiary phase of the trial, then sequestered them for deliberations and verdict. It worked!

W R I T E T H A T D O W N !

In many jurisdictions, jurors
are not allowed to take notes. Some judges favor it, some don’t. It’s all a function of the local rules. The thinking behind banning note taking is that the jury’s supposed to render a true verdict based on their collective memory—not on a specific set of notes.

Lawyers aren’t expected to keep track of everything without notes, so 6 0

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why should a jury? It’s very hard to take in all the evidence without them.

To be fair, on the other hand, you also have the glaring example of the doctor-lawyer released from the Scott Peterson trial. He was even voted foreperson of the jury until he departed the courthouse. We were all knocked out by his multiple degrees, but I guess the weight of the
nineteen notebooks
of notes he took during trial was just too much bag-gage for the Peterson jury. In the end, though, I think disallowing juries from taking notes is tantamount to treating them like children.

Another nonsensical courtroom practice is withholding a written copy of the law from the jury. These are the laws and the instructions by which jurors judge the facts of the case. The thinking here is extremely condescending as well. The rationale is, most jurors are not lawyers and they shouldn’t get hung up on legal definitions. Excuse me? They are the sole judge of the facts and the law of the case. I say give juries all the tools they need to do their job properly. Have you ever heard anything so ridiculous? No pen, no paper? No way.

A W O R D O N

J U R Y C O N S U L T A N T S

Jury consultants have become
a thriving cottage industry thanks to defendants with bottomless bank accounts and grandstanding defense lawyers. Jayson Williams’s defense team had jury consultants. Mark Geragos used them in Winona Ryder’s trial, the Susan McDougal case, and the Scott Peterson case. Johnnie Cochran sought their advice in the Simpson case, although Cochran could strike a jury with both eyes closed and his hands tied behind his back.

Conventional wisdom at the defense table is that two or more heads are better than one. Jury consultants hired by the state are very, very rare, because prosecutors can’t afford them. Jo-Ellan Dimitrius, who has worked on the trials of Scott Peterson and Kobe Bryant as well as O B J E C T I O N !

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on the Robert Blake case, is one of this country’s best-known jury consultants because of her work in the Simpson trial. According to
People
magazine, she charges $350 an hour for her services. The defense pays through the nose for Dimitrius and other like-minded colleagues for their “expert” opinion on who should sit in the jury box.

I’ve done battle with her on
Larry King Live
and we rarely agree.

She swore the Scott Peterson jury was pro-defense until the bitter end.