“I object. Absolutely not, Your Honor. The court’s ruling on this was clear,” I tell Acosta. “You agreed only to entertain a defense motion for additional peremptories to be given to both sides, if it was felt we could not empanel a fair jury for reasons of publicity. So far, I’m satisfied with this panel. The defense makes no such motion.”
I tell Acosta that any additional peremptories given on request of the state would be viewed as highly prejudicial against the defendant.
Acosta can hear little bells tinkling, the sounds of appeal.
“Mr. Madriani’s right,” says Acosta. “My concession for additional peremptories was only for the causes as stated and then only upon proper motion by the defendant.”
“Besides,” I say, “it’s time to finish with this jury and get on to the trial.” Expedition, getting on with it, the standing general order of every judge.
“Sure,” says Nelson. “You’d put your mother on the jury and argue I was stalling if I tried to take her off.”
“Mr. Nelson, if you have a comment make it to me.” Acosta cuts him to the quick. The argument is degenerating.
“I can’t rewrite the statutes to excuse Mr. Rath because he’s a lawyer, and you’ve exhausted your peremptories. You tell me, you think you have an argument for cause?” Acosta’s looking at Nelson, heavy eyebrows bearing down.
The answer is written in the prosecutor’s bleak expression.
“It does violence to any sense of fairness, Your Honor.” Nelson’s shaking his head, but the imperative is gone from his voice. This is a little drama now, something that Nelson can put in the bank for later withdrawal, for use in a future skirmish, to remind the court how he was kicked on this one, and where.
The judge is heading for the door, Nelson two steps behind him.
“Just like a damn lawyer. When everything else fails, fall on equity.” I say this to Nelson, up close in his ear. My part, a bit of mock grousing.
He smiles, spares a laugh at this. It’s good to see, at least at this early stage, Nelson still has a sense of humor.
“The law’s the law. You and I both have to follow it, Mr. Nelson.” Acosta’s grumbling, unaware that we’ve both pitched it in. He’s blaming the law, unhappy that he couldn’t end this argument with all parties loving him.
But for the moment he has my warm affection, and I have Robert Rath, my alpha factor.
CHAPTER 28
All in all, things have gone well, far better than we had any right to expect. I know that there will be darker days to come, but for the moment we revel in our good fortune.
Harry is glowing over the jury. I burned the last peremptory on an older woman, and we came away with a panel of eight men and four women. The two alternates, in case of illness, death, or disqualification, are both men.
The four women are, from appearances, all solid, stable types, people who if the strings are played right should harbor no undue bent toward Talia.
There is nothing more prone to error than forecasts of what a fickle jury may do. But at this moment, I would stake my life that within twenty minutes of the time they retire to the jury room for deliberation, Robert Rath will be anointed jury foreman. Though he tends to hang back, a Jeffersonian kind of lawyer to whom silence is golden, Rath is smart, intuitive. He has the kind of competence others can smell.
Nelson is all dapper this morning, an expensive charcoal suit and French cuffs, a pound of gold at each wrist. He will be making his opening argument to the jury today, and impressions are vital.
From here I can see him across the room, a counter-image of myself, caught up in an aura of excitement, as if bathed in the glow of spotlights. People are talking to him but he’s not hearing, busy, a little mental hyperventilation, preparing for combat.
I look over, and Harry is having a few words with Meeks. Like diplomats at a summit, they are already working out the terms of instructions for the jury. These are little printed snippets of law, tailored to our case, that will be given as guidance by the court to the jury before deliberations. Nelson and I must have some understanding of these instructions now, if we are able to bend the facts of this case, to conform our theory of the crime to the governing law.
This morning will be consumed by the judge. He will give lengthy ground rules to the jury: that they may not discuss the case with anyone; what they may see and read; the limits of their conversations among themselves. He will tell them about the case in broad terms, and the procedures to be followed by the court during the trial so there are no surprises.
Harry leaves Meeks standing at the other table and comes over.
“We got a problem,” he says. “They want an instruction on aiding and abetting, a definition of an accomplice.”
This means that Nelson is trying to push the theory of a conspiracy to the jury, that he wants them to buy the scenario that Talia acted with a lover, this despite the fact that he has yet to arrest any accomplice.
“Did you say anything?”
“Not a word.”
“Good. Leave it alone. Let ’em try their case, see what evidence they’ve got.”
He nods.
This is no calculated risk. If the state fails to produce evidence of an accomplice, we will object to this instruction when it is offered to the court, argue that it assumes facts not in evidence.
Talia’s sitting at the counsel table looking lonely, a haunting emptiness in her eyes. For all of her innate comeliness, the stress of half a year under accusation and the anxiety of the first day of trial leave her with the kind of uninhabited stare one usually finds only in street people and other vagrants. Today, Talia has the appearance of a tenantless temple in search of a soul.
As if I didn’t already have enough reason for keeping her off the stand, her current mental state would be the capper. Those who do capital cases for a living call it the “death-penalty suicide.” A despondent statement by the defendant before the jury, entirely innocent, an off-hand apology for something she didn’t do, may elicit lingering inferences of guilt. Such a lowering of the guard has resulted in more than one execution in this country in recent years. I harbor concerns that Talia, in her current state, is capable of such fatalistic conduct.
I tap her on the arm.
“We’ve got a few minutes, let’s go outside.”
We get past the cameras and the commotions in the main corridor. She’s in front of me, moving down the hall, a silhouette of softness. I have read the rest of Bowman’s report on Talia, a few more secrets.
At age fourteen Talia went to live with her aunt, Carmen’s sister, in Capitol City. It seems the two sisters were as different as night from day. Luisa was a matronly woman, attractive in her own right, who had found her way out of a life of poverty and managed to marry a high school English teacher, John Pearson. The couple provided for Talia the things that had always eluded her when she lived with Carmen-love, though at a little distance, a stable home environment, and the encouragement to improve herself.
While her studies and schooling lagged and suffered from the years of neglect, with the help of her uncle Talia quickly made up lost ground. It seems that she possessed one of those minds capable of excelling on cruise control, with little effort. At graduation from high school she was near the top of her class. Her SAT scores and a good grade-point won her a scholarship to a small private college in the Bay Area.
She studied business, something that Talia perceived would give her independence and freedom in a male-dominated world. She remained distrustful of any close relationships, particularly with men. Talia had not shaken the horrors of her childhood and the memories of pawing hands. After graduating with honors, Talia returned home, to the only family she had, Luisa and John Pearson, and at the age of twenty-two decided to ditch her roots. Paying a two-dollar filing fee, she petitioned the superior court and formally shed the name of a father she had never known. She changed her name from Griggs to Pearson and in her own mind joined the world of respectability.