“You saw the jury, right, Alex?”
“Yes, why?”
“Well, what did you think?”
“More women than I like for this kind of case, but you told me that your panel was uneven.”
“I swear, Alex, it was a sea of women in that jury pool. There was nothing I could do about it.”
Stop whining, Phil. “What’s the problem?”
“Everything was going fine ‘til the end of the day. It was so cold in Part 82 that the jurors asked the judge to turn up the heat, just before the first cop on the scene took the stand. An hour later, it was so overheated that we were all sweating. Juror number three stood up, right in front of everybody, gave out a big ’ ‘scuse me,’ and pulled off her sweatshirt.
“What’s she got underneath? A T-shirt the size of a billboard, spread around her 44D chest, emblazoned with big fuchsia letters:FREE MIKE TYSON. ”
It was hard to stifle my laugh, but Marisa and Catherine were ahead of me.
“It’s not funny, guys, really. Tyson was tried in, what, ‘91? That means this woman hasn’t bought a lousy T-shirt in more than half a dozen years and had no choice but to wear this one, or else she sincerely believes in her cause. And if that’s the case, I think we’re screwed.”
“What did the judge say?” Marisa asked.
“Well, nothing. We just kind of exchanged glances, but-”
“You mean you didn’t ask her to examine the juror in chambers? Get your ass up there immediately, Phil. I heard the part of your voir dire when you questioned them about whether they believed the nature of the relationship between the parties made this a ‘personal matter’ and not a crime. You got all the right answers.
“You’re in front of a really good judge for issues like these. Tell her you want a sidebar and that you’d like her to ask number three some questions before you get under way today.”
“Don’t you thinkI should be the one to ask them?”
“No way. We’ll give them to you now, and you write them out for the judge. The last thing you want the juror to think is thatyou’re singling her out to pick on her. If she survives this challenge and stays in the box, let her believe it was the judge who didn’t like her taste in casual wear, not you. We don’t want her taking it out on your case.”
Catherine offered to go up and give Phil a hand with his application so I could get on with what I had to do.
Laura buzzed me on the intercom. “Mo just called while you were dealing with Phil. Count her in. She’s already feeling achy and dizzy, just from talking to Mercer.”
I picked up a legal pad, checked my watch, and told Laura that I was on my way to the grand jury rooms on the ninth floor to officially begin the investigation into Gemma Dogen’s death. New York County seated eight grand juries a day to hear the scores of cases that required their decisions every month. Four of them convened at 10A.M. No felony could proceed to trial in New York State without the action of the grand jury.
But before I even had to worry about how and when we would be able to identify a suspect to indict for the crime, I had a more pressing need to be before the twenty-three people who constituted the grand jury. It is only through their power that a prosecutor has the legal authority to issue subpoenas to request evidence in a criminal investigation. Although more than half of the states in this country have abolished the system in recent years, it remains very much in place in the State of New York. No D.A. here has the power to demand the production of documents or the presence of witnesses in his or her office. Police reports and pathologist’s findings would be forwarded to me with a couple of phone calls. But medical records, telephone logs, security guard sign-in sheets, and the other paper links to potential evidence in a case like Dogen’s all had to be obtained with the permission of the grand jury.
Most citizens have no reason to know the purpose or function of this body, called “grand” to distinguish it from the “petit” jury of twelve that sits on criminal cases. Derived from British common-law practice, it was created to serve as a rein on prosecutors whose investigations were politically motivated or unjustified. And its rules are entirely different from those of the trial jury. It is a secret proceeding, to which no members of the public can gain admission; the defendant is entitled to testify, although he rarely does; the defense has no right to call witnesses; and those that the prosecution calls are not cross-examined. The duty of the grand jurors, after listening to the state’s evidence, is to vote a true bill of indictment when enough evidence exists to warrant a trial.
The waiting room was full of assistant district attorneys and their witnesses. The former were mostly bright-eyed and eager, busily picking up their caseloads of human misery on the first step toward a preparation for trial. It is what young lawyers came to offices like Battaglia’s to do, and they were generally happiest when juggling a lot of balls in the air at any one time. I watched them write out their charges in triplicate on forms that would be submitted by the warden to the member of each jury who had been designated to serve as the foreman. They stood shoulder to shoulder at an oversized counter in the front of the room as they worked against each other and the clock, to seek indictments on their cases.
Witnesses were a more somber accumulation-people who had been mugged or stabbed, relieved of their wallets or their cars, conned by strangers or kin, and who were anxious about both their victimization and their anticipated hours of frustration dealing with the court system.
Only two of my dozen colleagues scowled openly when I walked past them to the warden, who controlled the sequence of cases that were presented during the session. My presence in the waiting room, and my new assignment to a high-profile case, meant that I had come up to ask to be taken out of order and jumped over the line of grand larcenies and drug busts whose crews had been assembled for more than an hour.
“Relax, Gene. I’ll only be a minute. No witnesses. I’ve just got to open the investigation so we can start serving some subpoenas. I won’t hold you up.”
“Debbie’s got a five-year-old in her office down the hall. Father’s girlfriend scalded her with boiling water when she wouldn’t stop crying. She’s really a mess-”
“That goes first, obviously. I’ll just slip in after she’s finished.”
When the warden gave the signal that the jurors had a quorum, I phoned Debbie’s extension and suggested she bring the child down to testify. The badly scarred kid, her hair missing and her skull scorched on the left side of her head, clutched the hand of the prosecutor as she walked the gauntlet of lawyers, cops, and civilians. They paused together at the heavy wooden doorway of the jury room as Debbie looked the child in the eye to reassure her and ask if she were ready.
An affirmative nod was the reply and the door opened for Debbie to lead her by hand to the witness chair in the front of the room. The court stenographer brought up the rear. I had done it hundreds of times over the last decade-with women, men, adolescents, and children. I had seen the mouths of the twenty-three jurors drop open in gapes of horror, repelled by the damage one human being had inflicted on another. I recognized the traditional importance of the body and respected its power. But in addition, I understood how a manipulative district attorney could use the inherent imbalance of the process to his or her own end, so I also credited the more modern maxim that most prosecutors could indict a ham sandwich if they chose to do so.
The child was out after six minutes, having told her tale. Her father testified next, followed by the two police officers who had responded to the scene and made the arrest. A clean presentation-bare-bones, as we teach it-just the essential elements of the criminal act laid out by the assistant district attorney for the jurors. No need to try the case to them, as there is neither judge nor defense attorney nor defendant himself in attendance.