The Runaway Jury (6 page)

“You were on a civil jury a few years back, I believe,” Rohr said warmly.

“Yes,” she said, clearing her throat and trying to be loud.

“What kind of case was it?” he asked, though he knew virtually every detail—seven years ago, this very courtroom, different judge, zero for the plaintiff. The file had been copied weeks ago. Rohr had even talked to the plaintiff’s lawyer, a friend of his. He started with this question and this juror because it was an easy warm-up, a soft pitch to show the others how painless it was to raise one’s hand and discuss matters.

“A car wreck case,” she said.

“Where was the trial?” he asked sincerely.

“Right here.”

“Oh, in this courtroom.” He sounded quite surprised, but the defense lawyers knew he was faking.

“Did the jury reach a verdict in that case?”

“Yes.”

“And what was that verdict?”

“We didn’t give him anything.”

“Him being the plaintiff?”

“Yes. We didn’t think he was really hurt.”

“I see. Was this jury service a pleasant experience for you?”

She thought a moment, then, “It was okay. Lot of wasted time, though, you know, when the lawyers were wrangling about this or that.”

A big smile. “Yes, we tend to do that. Nothing about that case would influence your ability to hear this one?”

“No, don’t think so.”

“Thank you, Mrs. Millwood.” Her husband was once an accountant for a small county hospital that was forced to close after being nailed in a medical malpractice case. Large verdicts were something she secretly loathed, and for good reason. Jonathan Kotlack, the plaintiff’s lawyer in charge of final jury selection, had long since removed her name from consideration.

However, around the table not ten feet from Kotlack, the defense lawyers regarded her highly. JoAnn Millwood would be a prize catch.

Rohr asked the same questions of the other veterans of jury service, and things quickly became monotonous. He then tackled the thorny issue of tort reform, and asked a string of rambling questions about the rights of victims, and frivolous lawsuits, and the price of insurance. A few of his questions were wrapped around mini-arguments, but he stayed out of trouble. It was almost lunchtime, and the panel had lost interest for a while. Judge Harkin
recessed for an hour, and the deputies cleared the courtroom.

The lawyers remained though. Box lunches containing soggy little sandwiches and red apples were passed out by Gloria Lane and her staff. This was to be a working lunch. Pending motions of a dozen varieties needed resolution, and His Honor was ready for argument. Coffee and iced tea were poured.

THE USE of questionnaires greatly facilitated the selection of the jury. While Rohr asked questions inside the courtroom, dozens of people elsewhere examined the written answers and marked names off their lists. One man’s sister had died of lung cancer. Seven others had close friends or family members with serious health problems, all of which they attributed to smoking. At least half the panel either smoked now or had been regular smokers in the past. Most of those smoking admitted their desire to quit.

The data were analyzed, then put in computers, and by mid-afternoon of the second day the printouts were being passed around and edited. After Judge Harkin recessed at four-thirty on Tuesday, he again cleared the courtroom and conducted proceedings on the record. For almost three hours, the written answers were discussed and debated, and in the end thirty-one additional names were removed from consideration. Gloria Lane was instructed to immediately phone these newest deletions and tell them the good news.

Harkin was determined to complete jury selection on Wednesday. Opening statements were scheduled
for Thursday morning. He had even hinted at some Saturday work.

At eight o’clock Tuesday night he heard one last motion, a quickie, and sent the lawyers home. The lawyers for Pynex met Fitch at the offices of Whitney & Cable & White, where another delicious feast of cold sandwiches and greasy chips awaited them. Fitch wanted to work, and while the weary lawyers slowly filled their paper plates, two paralegals distributed copies of the latest handwriting analyses. Eat quickly, Fitch demanded, as if the food could be savored. The panel was down to 111, and the picking would start tomorrow.

THE MORNING belonged to Durwood Cable, or Durr as he was known up and down the Coast, a place he’d never really left in his sixty-one years. As the senior partner for Whitney & Cable & White, Sir Durr had been carefully selected by Fitch to handle the bulk of the courtroom work for Pynex. As a lawyer, then a judge, and now a lawyer again, Durr had spent most of the past thirty years looking at and speaking to juries. He found courtrooms to be relaxing places because they were stages—no phones, no foot traffic, no secretaries scurrying about—everyone with a role, everyone following a script with the lawyers as the stars. He moved and talked with great deliberation, but between steps and sentences his gray eyes missed nothing. Where his adversary, Wendall Rohr, was loud and gregarious and gaudy, Durr was buttoned up and quite starched. The obligatory dark suit, a rather bold gold tie, the standard issue white shirt, which contrasted nicely with his deeply tanned face. Durr had a passion for saltwater
fishing, and spent many hours on his boat, in the sun. The top of his head was bald, and very bronzed.

He once went six years without losing a case, then Rohr, his foe and sometime friend, popped him for two million in a three-wheeler case.

He stepped to the railing and looked seriously into the faces of 111 people. He knew where each lived and the number of children and grandchildren, if any. He crossed his arms, pinched his chin like a pensive professor, and said in a pleasantly rich voice, “My name is Durwood Cable, and I represent Pynex, an old company that’s been making cigarettes for ninety years.” There, he was not ashamed of it! He talked about Pynex for ten minutes, and did a masterful job of softening up the company, of making his client warm and fuzzy, almost likable.

Finished with that, he plunged fearlessly into the issue of choice. Whereas Rohr had dwelt on addiction, Cable spent his time on the freedom to choose. “Can we all agree that cigarettes are potentially dangerous if abused?” he asked, then watched most of the heads shake in agreement. Who could argue with this? “There, fine. Now since this is common knowledge, can we all agree that a person who smokes should know the dangers?” More nodding, no hands, yet. He studied the faces, especially the blank one belonging to Nicholas Easter, now seated on row three, eighth from the aisle. Because of the dismissals, Easter was no longer juror number fifty-six. He was now number thirty-two, and advancing with each session. His face revealed nothing but rapt attention.

“This is a very important question,” Cable said slowly, his words echoing in the stillness. With a pointed finger, he delicately jabbed at them and
said, “Is there a single person on this panel who doesn’t believe that a person who chooses to smoke should know the dangers?”

He waited, watching and tugging at the line a bit, and finally caught one. A hand was slowly raised from the fourth row. Cable smiled, took a step closer, said, “Yes, I believe you’re Mrs. Tutwiler. Please stand.” If he was truly eager to have a volunteer, his joy was short-lived. Mrs. Tutwiler was a fragile little lady of sixty, with an angry face. She stood straight, lifted her chin, and said, “I got a question for you, Mr. Cable.”

“Certainly.”

“If everybody knows cigarettes are dangerous, then why does your client keep making them?”

There were a few grins from her colleagues in the pool. All eyes were on Durwood Cable as he kept smiling, never flinching in the least. “Excellent question,” he said loudly. He was not about to answer it. “Do you think the making of all cigarettes should be banned, Mrs. Tutwiler?”

“I do.”

“Even if people want to exercise their right to choose to smoke?”

“Cigarettes are addictive, Mr. Cable, you know that.”

“Thank you, Mrs. Tutwiler.”

“The manufacturers load up the nicotine, get folks hooked, then advertise like crazy to keep selling.”

“Thank you, Mrs. Tutwiler.”

“I’m not finished,” she said loudly, clutching the pew in front of her and standing ever taller. “The manufacturers have always denied that smoking is addictive. That’s a lie, and you know it. Why don’t they say so on their labels?”

Durr’s face never changed expression. He waited patiently, then asked quite warmly, “Are you finished, Mrs. Tutwiler?” There were other things she wanted to say, but it dawned on her that perhaps this was not the place. “Yes,” she said, almost in a whisper.

“Thank you. Responses such as yours are vital to the jury selection process. Thank you very much. You may now sit down.”

She glanced around as if some of the others should stand and fight with her, but left alone, she dropped to her seat. She might as well have left the courtroom.

Cable quickly pursued less sensitive matters. He asked a lot of questions, provoked a few responses, and gave his body language experts much to chew on. He finished at noon, just in time for a quick lunch. Harkin asked the panel to return at three, but told the lawyers to eat fast and return in forty-five minutes.

At one o’clock, with the courtroom empty and locked and the lawyers crowded tightly in bunches around their tables, Jonathan Kotlack stood and informed the court that “The plaintiff will accept juror number one.” No one seemed surprised. Everyone wrote something on a printout, including His Honor, who, after a slight pause, asked, “The defense?”

“The defense will accept number one.” Not much of a surprise. Number one was Rikki Coleman, a young wife and mother of two who’d never smoked and worked as a records administrator in a hospital. Kotlack and crew rated her as a 7 out of 10 based on her written answers, her background in health care, her college degree, and her keen interest in everything
that had been said so far. The defense rated her as a 6, and would’ve passed on her but for a string of serious undesirables forthcoming further down row one.

“That was easy,” Harkin mumbled under his breath. “Moving right along. Juror number two, Raymond C. LaMonette.” Mr. LaMonette was the first strategical skirmish of jury selection. Neither side wanted him—both rated him 4.5. He smoked heavily but was desperate to quit. His written answers were thoroughly indecipherable and utterly useless. The body linguists on both sides reported that Mr. LaMonette hated all lawyers and all things related to them. He’d nearly been killed years earlier by a drunk driver. His lawsuit netted him nothing.

Under the rules of jury selection, each side was granted a number of peremptory challenges, or strikes as they were called, which could be used to ax potential jurors for no reason whatsoever. Because of the importance of this case, Judge Harkin had granted each side ten strikes, up from the customary four. Both wanted to cut LaMonette, but both needed to save their strikes for more objectionable faces.

The plaintiff was required to go first, and after a brief delay, Kotlack said, “The plaintiff will strike number two.”

“That’s peremptory challenge number one for the plaintiff,” Harkin said, making a note. A small victory for the defense. Based on a last-second decision, Durr Cable had been prepared to strike him as well.

The plaintiff used a strike on number three, the wife of a corporate executive, and also on number four. The strategic strikes continued, and practically
decimated row one. Only two jurors survived. The carnage lessened with row two, with five of the twelve surviving various challenges, two by the court itself. Seven jurors had been chosen when the selection moved to row three. Eight spots down sat the great unknown, Nicholas Easter, juror number thirty-two, who’d so far paid good attention and seemed to be somewhat palatable, though he gave both sides the jitters.

Wendall Rohr, now speaking for the plaintiff because Kotlack was deep in a hushed conference with an expert about two of the faces on row four, used a peremptory strike on number twenty-five. It was the plaintiff’s ninth strike. The last one was reserved for a much-feared and notorious Republican on the fourth row, if they got that far. The defense struck number twenty-six, burning its eighth peremptory. Jurors number twenty-seven, twenty-eight, and twenty-nine were accepted. Juror number thirty was challenged by the defense for cause, a plea for the court to excuse the juror for mutual reasons without requiring either side to exhaust a strike. Durr Cable asked the court to go off the record because he had something he wished to discuss in private. Rohr was a bit perplexed, but did not object. The court reporter stopped recording. Cable handed a thin brief to Rohr and the same to His Honor. He lowered his voice, and said, “Your Honor, we have learned, through certain sources, that juror number thirty, Bonnie Tyus, is addicted to the prescription drug Ativan. She has never been treated, never been arrested, never admitted her problem. She certainly didn’t disclose it on the questionnaires or during our little Q and A. She manages to live quietly, keep a job and a husband, though he’s her third.”

“How’d you learn this?” Harkin asked.

“Through our rather extensive investigation of all potential jurors. I assure you, Your Honor, that there has been no unauthorized contact with Mrs. Tyus.”

Fitch had found it. Her second husband had been located in Nashville, where he washed tractor-trailer rigs at an all-night truck stop. For one hundred dollars cash, he’d happily told all he could remember about his ex.

“What about it, Mr. Rohr?” asked His Honor.

Without a second’s hesitation, Rohr said, lying, “We have the same information, Your Honor.” He cast a pleasant glance at Jonathan Kotlack, who in turn glared at another lawyer who’d been in charge of the group which included Bonnie Tyus. They’d spent over a million bucks so far on jury selection, and they’d missed this crucial fact!

“Fine. Juror number thirty is excused for cause. Back on the record. Juror number thirty-one?”

“Could we have a few minutes, Your Honor?” Rohr asked.

“Yes. But be brief.”