Max wants to know if any of them have ever been sued. A standard question but not a great one. This is, after all, a criminal matter, not a civil one. Out of the ninety-two, about fifteen admit to being sued at some point in their past. I’ll bet there are at least another fifteen who are not admitting it. This is, after all, America. What honest citizen has never been sued? Max seems thrilled with this response, as if he’s really found fertile dirt to dig in. He asks if their experiences within the court system would in any way affect their ability to deliberate in this case.
Naw, Max. Everybody loves to get sued. And we do so without the slightest resentment toward the system. But he flails away with follow-up questions that go nowhere.
For nothing but spite, I stand and say, “Your Honor, could you remind Mr. Mancini that this is a criminal case, not a civil one?”
“I know that!” Max growls at me and we exchange nasty looks. “I know what I’m doing.”
“Move along, Mr. Mancini,” Her Honor says. “And please keep your seat, Mr. Rudd.”
Max fights his anger and lets it pass. Changing gears, he wades into a sensitive matter. Has anyone in your immediate family ever been convicted of a violent crime? He apologizes for intruding into such a private matter, but he has no choice. Please forgive him. From the rear, juror number eighty-one slowly raises a hand.
Mrs. Emma Huffinghouse. White, age fifty-six, a freight company dispatcher. Her twenty-seven-year-old son is serving twelve years for a drug-fueled home invasion. As soon as Max sees her hand he throws up his and pleads, “I don’t want the details, please. I know this is a very private matter and very hurtful, I’m sure. My question is this: Was your experience with the criminal justice system satisfactory or unsatisfactory?”
Seriously, Max? We’re not filling out a survey for consumer satisfaction.
Mrs. Huffinghouse stands slowly and says, “I think my son was treated fairly by the system.”
Max almost leaps over the bar to run hug her. Bless you, dear, bless you. What an endorsement for the forces of good! Too bad, Max, she’s useless. We won’t get close to number eighty-one.
Juror number forty-seven raises his hand, stands, says his brother spent time in jail for aggravated assault, and, unlike Mrs. Huffinghouse, he, Mark Wattburg, was not favorably impressed with the criminal process.
But Max thanks him profusely anyway. Anybody else? No more hands. There are three others, and I suppose I know it but Max doesn’t. This confirms that my research is better than his. It also alerts me to the fact that these three are not altogether forthcoming.
Max moves on as the morning drags. He steps into another delicate minefield, that of victimhood. Have any of you been the victim of a violent crime? You, your family members, close friends? Several hands go up and Max does a nice job of eliciting information that’s useful, for a change.
At noon, Her Honor, no doubt exhausted by two hours on the bench and probably craving apple slices, announces a ninety-minute break. Tadeo wants to stay in the courtroom for lunch. I make a pleasant request to his handler, who agrees, to our surprise. Partner hustles down the street to a deli and returns with sandwiches and chips.
As we eat, we talk softly, keeping our voices low so the deputies and bailiffs cannot hear us. There is no one else in the courtroom. The gravity of the setting and surroundings has settled in and Tadeo has lost some of his cockiness. He’s absorbed the unforgiving stares from those who might be called upon to judge him. He no longer believes that they are his peers. Softly, he says, “I get the feeling they don’t like me.”
Such a perceptive young man.
12.
Max finishes up around three and hands off to me. By now, I know more than enough about these people and I’m ready for the selection. However, this is my first chance to speak directly to the pool, and it’s an opportunity to lay the groundwork for what every lawyer hopes will become some level of trust. I watched their faces and I know many of them found Max to be obsequious, even a bit goofy. I have an abundance of flaws and bad habits, but fawning is not part of my act. I don’t thank them for being there—they were summoned, they have no choice. I don’t pretend that we’re doing something great and they’re a part of it. I don’t brag on our judicial system.
Instead, I talk in broad terms about the presumption of innocence. I urge them to ask themselves if they haven’t already decided that my client is guilty of something or else he wouldn’t be here. Don’t raise your hand, just nod along with me if you think he’s guilty. It’s human nature. It’s the way our society and culture work these days. There’s a crime, an arrest, we see the suspect on television, and we’re relieved that the police have caught their man. Presto, just like that. Crime solved. Guilty party in custody. These days we never, never stop and say, “Wait, he’s presumed to be innocent and he’s entitled to a fair trial.” We rush to judgment.
“Questions, Mr. Rudd?” Go Slow squawks into her microphone.
I ignore her, point to Tadeo, and ask if they can truthfully say that, at this moment, they believe he’s completely innocent.
Of course, there is no response because no prospective juror will ever say she’s made up her mind already.
I move on to the burden of proof and discuss it until Max has had enough. He stands, arms open wide in complete frustration, and says, “Your Honor, he’s not quizzing the panel. He’s giving a law school lecture.”
“Agreed. Either ask your questions or sit down, Mr. Rudd,” Go Slow says, rather rudely.
“Thank you,” I reply like the smart-ass I really am. I look at the first three rows and say, “Tadeo doesn’t have to testify, doesn’t have to call any witnesses. Why? Because the burden of proving him guilty lies with the prosecution. Now, let’s say he doesn’t take the stand. Will that matter to you? Will you tend to think he’s hiding something?”
I use this all the time and rarely get a response. Today, though, juror number seventeen wants to say something. Bobby Morris, age thirty-six, white, a stonemason. He raises his hand and I nod at him. He says, “If I’m on the jury, then I think he should testify. I want to hear from the defendant.”
“Thank you, Mr. Morris,” I reply warmly. “Anybody else?” With the ice broken, several others raise their hands and I gently ask follow-up questions. As I had hoped, it becomes a discussion as more and more lose their inhibitions. I’m easy to talk to, a nice guy, a straight shooter with a sense of humor.
When I’m finished, Her Honor informs us we will pick the jury before we go home and gives us fifteen minutes to look at our notes.
13.
The e-mail from Judith reads, “Starcher is still upset. You are such a pathetic father. See you in court.”
I’m tempted to fire something back, but why bother? Partner and I are driving away from the courthouse. It’s dark, after 7:00 p.m., and it’s been a hard day. We stop at a bar for a beer and a sandwich.
Nine whites, one black, one Hispanic, one Vietnamese. With their names and faces so fresh I have to talk about them. Partner, as always, listens dutifully with little comment. He has been in the courtroom for most of the past two days and he likes the jury.
I stop at two beers, though I really want several more. At nine o’clock, Partner drops me off at an Arby’s, and I fiddle with a soft drink for fifteen minutes waiting on Nate. He finally arrives, orders some onion rings, apologizes for being tardy. “How’s the trial going?” he asks.