Until the Final Verdict (16 page)

“Forget it. Get up here, and be quick about it.”

Griffith patted Mackay's shoulder and approached the bench.

Keefe whispered so that the spectators and media couldn't hear. “What the hell do you think you're doing, Griffith?”

“Making sure my client gets a fair trial.”

“What makes you think she won't?”

“I'll make that clear when I argue my motion.”

Keefe paused for several seconds. “I'll close the hearing—then hear your motion.”

“I object to excluding the media and public from a hearing on our motion,” Griffith told him.

“Then I'm going to limit you to argument on recusing Mr. McCaskill.”

“Judge . . .”

“That's my ruling, Mr. Griffith. Now, step back.”

Griffith returned to the podium. “Mr. McCaskill is so incapable of acting impartially, and has a conflict of interest of such magnitude, that it renders it not just unlikely but impossible for my client to receive a fair trial. In fact, this trial would not have been pursued except for the malicious and discriminatory design of the prosecutor.”

Keefe held his hand up, palm out. “Explain that.”

“It's simple.” Griffith pointed at McCaskill. “He wants Kathryn Mackay's job.”

“That's ridiculous,” McCaskill objected.

Keefe flashed him a dirty look. “You'll have an opportunity to respond.”

“When District Attorney Benton was murdered,” Griffith continued, “Neal McCaskill coveted the appointment to replace him. The Board of Supervisors appointed Kathryn Mackay, instead. She kept Mr. McCaskill as her Chief Deputy until his outrageous and insubordinate behavior left her no choice but to fire him.”

“Judge!”

Keefe pointed at the prosecutor. “Sit down.”

“He vowed to get Kathryn Mackay's job, whatever it took,” Griffith continued. “McCaskill lost to my client by a landslide in the next election. Then, knowing he'd never beat her fair and square, when presented with the opportunity, he indicted her for the murder of Robert Simmons.

“But, McCaskill couldn't do this all by himself, he needed an accomplice to stack the deck against Ms. Mackay. An accomplice who Ms. Mackay suspected had committed a murder himself, an accomplice who has admitted to carrying on an illicit, extramarital affair with the murder victim—an accomplice none other than Judge Reginald Keefe.”

“Approach the damn bench, Griffith!”

Spittle ran from the corners of Keefe's mouth and his face glowed red. “Goddammit, Griffith, one more word of this bullshit in my court, and you'll be in jail on a contempt charge faster than you can ask what the fuck happened.”

Griffith returned Keefe's stare. “I have DA Chief of Investigators James Fields under subpoena. He'll testify that you admitted during a polygraph examination that you had sex with Judge Tucker the day she was murdered.”

“You son of a bitch, I passed the damn poly.”

“True, and polygraph results are inadmissible in court. But your admission to Inspector Fields isn't.”

“I didn't murder Jemima.”

“Doesn't matter. By the time Fields finishes testifying, your career will be history whether you murdered her or not.”

“You know I have to deny your motion.”

“I've got to consider grounds for appeal if it comes to that.”

“Finish your motion. Now, step back, please.”

Rather than return to the podium, Griffith walked around the defense table, resumed his seat, and rested his hand on Mackay's.

“To summarize, Your Honor, the defense contends that Mr. McCaskill used and abused the power and authority of his office for the purpose of bringing an unjustified, discriminatory, and biased prosecution against my client. For those reasons, the defense moves to recuse the District Attorney from this case.”

“This Court cannot assume, on the basis of mere allegations by the defense, that the District Attorney is biased against the defendant because they previously worked together, or because Mr. McCaskill exercised his right as an American to run for public office.”

Keefe removed his glasses, leaned on his elbows, and interlaced his fingers. “On the other hand, the Court acknowledges the serious nature of the issues raised in Mr. Griffith's motion, and will remain diligent to overcome any doubt that might attach to these proceedings, concerning the defendant's right to a fair and impartial trial. Defense motion to recuse the District Attorney is denied.”

Griffith shot back. “I request a continuance until tomorrow morning to allow the defense time to decide whether to file a writ with the appellate court to stay this Court's ruling.”

Kathryn leaned toward Griffith. “You need to start selecting a jury. We both knew I was in deep shit when Keefe assigned the case to himself. If we tried to bump him, even if we succeeded, who knows who he would have assigned in his place, better the devil we know than the devil we don't. Besides, no appellate court'll overturn Keefe's ruling.”

“I just spent two hours dragging the DA through
the mud. It'll be wasted unless every potential juror in the jury pool watches it on the six-o'clock news or reads about it in tomorrow morning's newspaper.”

“Very well,” Keefe ruled. “Jury selection will commence at nine o'clock tomorrow morning.”

“L
ADIES AND GENTLEMEN,
before today's session we swore you in and had you fill out a questionnaire. This questionnaire asked some tough questions—called ‘voir dire'—to ensure you will objectively and fairly determine the defendant's guilt under the law, in accordance with the evidence, and that you will fairly choose between the only two penalties available under the law if you find the defendant guilty of murder by poisoning: life without the possibility of parole . . . or death.”

The jurors, half male and half female, shifted nervously. Twelve regular jurors sat in the box, the six alternates in straight-backed wooden chairs in front of and below the jury box.

Judge Keefe made eye contact with each person.
“In your questionnaire you swore you hadn't formed an opinion about the death penalty that would impair your ability to be impartial. This applies equally to whether you might be personally predisposed to vote
for
or
against
the death penalty.

“I understand that since filling out your questionnaire and being selected to sit on the jury, two of you may have changed your minds. Would you please raise your hands.”

An elderly man with white hair, wearing thick bifocals and a business suit, and a woman in her early twenties, wearing a long flowered dress and Birkenstocks, raised their hands.

“Juror Number Seven, what is your name?”

“Harold Macdonald.”

“After
swearing
to be fair and impartial, why do you now believe you cannot be, Mr. Macdonald?”

He cleared his throat. “Last night I was thinking about my brother, who was murdered about thirty years ago. The man who killed him was convicted and sentenced to life in prison, but got out after only twenty years.”

“How does that mean you can't be fair in this case?”

“Life without the possibility of parole doesn't mean what it says. Besides, the Bible says, ‘an eye for an eye'—in my opinion, that's what convicted murderers deserve.”

Keefe pursed his lips and contemplated. “Are you saying it would be impossible—not just difficult, but
impossible
—for you to judge this case impartially, based on the evidence and the law?”

“Well . . .”

“That if I instructed you on the law, you would
defy
my instructions?”

“Well . . .”

“You would
intentionally
dishonor your solemn oath?”

“I could probably be fair.”

“Thank you, Mr. Macdonald, I knew you could.”

Griffith stood. “I move to dismiss Juror Seven for cause.”

“I'm satisfied Mr. Macdonald can be fair. There's no cause for dismissal.”

Griffith objected. “A juror whose views would prevent or substantially impair the performance of his duties . . .”

Keefe flipped his hand. “I know the law.”

“Judge . . .”

“I've made my ruling. I'm not going to let you stack the deck by excluding honest and impartial jurors, Mr. Griffith. Now sit down.”

When Griffith sat, Kathryn whispered, “I thought we neutralized Keefe with your threat to call Fields.”

“I thought so, too. He's more biased against you now than before I brought the motion.”

“This isn't good. Macdonald sounds like he wants to be the one who sticks the needle in my arm. Use a peremptory challenge.”

Griffith shook his head. “Can't, we're all out of peremptories.”

Keefe turned to the jury box. “Juror Number Three, what is your name?”

“Bobbie Alderson.”

“What's your problem?”

“I thought about it again last night. I guess I really don't believe in the death penalty.”

“What does
that
mean?”

Alderson locked eyes with Keefe. “It means that since filling out my questionnaire, and looking at the defendant sitting there, there's no way I could vote for death.”

“It would be impossible for you to judge this case impartially, based on the evidence?”

“That's not what I'm saying.”

“If I instructed you about the law, you would
refuse
to obey me?”

“I might, with the death penalty at stake.”

“The Court dismisses Juror Three for cause. Bailiff, seat an alternate in Ms. Alderson's place.”

Once the alternate assumed the seat in the jury box, Keefe leaned forward, interlaced his fingers, and sat silently until every juror's eyes were on him.

“Ladies and gentlemen, you just witnessed the worst kind of dishonesty imaginable—a juror who solemnly swore to be fair, then, when faced with reality, reneged.”

Keefe scowled. “If it were up to me, lying on a juror questionnaire would be punishable by jail. If there are other liars among you who swore on your questionnaires to be fair and impartial, but now intend to break that vow, speak up.”

No one moved.

“Very well, then.”

Keefe leaned back in his chair and smiled toward the jury box. “None of you is so predisposed for or against the death penalty to be precluded from
weighing the possibility of that punishment. If that's right, raise your hands.”

Every juror's hand went up.

Kathryn leaned close to Griffith. “Sounds like they're voting about where to go for pizza. We should've taken him on when he decided to voir dire the jury himself.”

“Awrit to the appellate court's a waste of time. It's his prerogative under the law.”

“He should have voir dired each juror individually.”

“Even if he did, and some gave equivocal answers to death-penalty questions, his determination about their state of mind is binding. By now they're too intimidated to give any answer except what he wants, anyway.”

Keefe looked at the defense table. “The Court is satisfied with this jury. Court is adjourned until onethirty this afternoon, when we will hear opening statements.”

Kathryn looked at her lawyer. “The bastard empaneled a hanging jury.”