I put the knife and fork down without taking a bite. I suddenly was no longer hungry.

“Yeah,” I said. “I’m in.”

PART THREE. To Speak the Truth

Thirty-four

Everybody lies.

Cops lie. Lawyers lie. Clients lie. Even jurors lie.

There is a school of belief in criminal law that says every trial is won or lost in the choosing of the jury. I’ve never been ready to go all the way to that level but I do know that there is probably no phase in a murder trial more important than the selection of the twelve citizens who will decide your client’s fate. It is also the most complex and fleeting part of the trial, reliant on the whims of fate and luck and being able to ask the right question of the right person at the right time.

And yet we begin each trial with it.

Jury selection in the case of California v. Elliot began on schedule in Judge James P. Stanton’s courtroom at ten a.m. Thursday. The courtroom was packed, half filled with the venire – the eighty potential jurors called randomly from the jury pool on the fifth floor of the CCB – and half filled with media, courthouse professionals, well-wishers and just plain gawkers who had been able to squeeze in.

I sat at the defense table alone with my client – fulfilling his wish for a legal team of just one. Spread in front of me was an open but empty manila file, a Post-it pad and three different markers, red, blue and black. Back at the office, I had prepared the file by using a ruler to draw a grid across it. There were twelve blocks, each the size of a Post-it. Each block was for one of the twelve jurors who would be chosen to sit in judgment of Walter Elliot. Some lawyers use computers to track potential jurors. They even have software that can take information revealed during the selection process, filter it through a sociopolitical pattern-recognition program and spit out instant recommendations on whether to keep or reject a juror. I had been using the old-school grid system since I had been a baby lawyer in the Public Defender’s Office. It had always worked well for me and I wasn’t changing now. I didn’t want to use a computer’s instincts when it came to picking a jury. I wanted to use my own. A computer can’t hear how someone gives an answer. It can’t see someone’s eyes when they lie.

The way it works is that the judge has a computer-generated list from which he calls the first twelve citizens from the venire, and they take seats in the jury box. At that point each is a member of the jury. But they get to keep their seats only if they survive voir dire – the questioning of their background and views and understanding of the law. There is a process. The judge asks them a series of basic questions and then the lawyers get the chance to follow up with a more narrow focus.

Jurors can be removed from the box in one of two ways. They can be rejected for cause if they show through their answers or demeanor or even their life’s circumstances that they cannot be fair judges of credibility or hear the case with an open mind. There is no limit to the number of challenges for cause at the disposal of the attorneys. Oftentimes the judge will make a dismissal for cause before the prosecutor or defense attorney even raises an objection. I have always believed that the quickest way off a jury panel is to announce that you are convinced that all cops lie or all cops are always right. Either way, a closed mind is a challenge for cause.

The second method of removal is the preemptory challenge, of which each attorney is given a limited supply, depending on the type of case and charges. Because this trial involved charges of murder, both the prosecution and defense would have up to twenty preemptory challenges each. It is in the judicious and tactful use of these preemptories that strategy and instinct come into play. A skilled attorney can use his challenges to help sculpt the jury into a tool of the prosecution or defense. A preemptory challenge lets the attorney strike a juror for no reason other than his instinctual dislike of the individual. An exception to this would be the obvious use of preemptories to create a bias on the jury. A prosecutor who continually removed black jurors, or a defense attorney who did the same with white jurors, would quickly run afoul of the opposition as well as the judge.

The rules of voir dire are designed to remove bias and deception from the jury. The term itself comes from the French phrase “to speak the truth.” But this of course is contradictory to each side’s cause. The bottom line in any trial is that I want a biased jury. I want them biased against the state and the police. I want them predisposed to be on my side. The truth is that a fair-minded person is the last person I want on my jury. I want somebody who is already on my side or can easily be pushed there. I want twelve lemmings in the box. Jurors who will follow my lead and act as agents for the defense.

And, of course, the man sitting four feet from me in the courtroom wanted to achieve a diametrically opposite result out of jury selection. The prosecutor wanted his own lemmings and would use his challenges to sculpt the jury his way, and at my expense.

By ten fifteen the efficient Judge Stanton had looked at the printout from the computer that randomly selected the first twelve candidates and had welcomed them to the jury box by calling out code numbers issued to them in the jury-pool room on the fifth floor. There were six men and six women. We had three postal workers, two engineers, a housewife from Pomona, an out-of-work screenwriter, two high school teachers and three retirees.

We knew where they were from and what they did. But we didn’t know their names. It was an anonymous jury. During all pretrial conferences the judge had been adamant about protecting the jurors from public attention and scrutiny. He had ordered that the Court TV camera be mounted on the wall over the jury box so that the jurors would not be seen in its view of the courtroom. He had also ruled that the identities of all prospective jurors be withheld from even the lawyers and that each be referred to during voir dire by their seat number.

The process began with the judge asking each prospective juror questions about what they did for a living and the area of Los Angeles County they lived in. He then moved on to basic questions about whether they had been victims of crime, had relatives in prison or were related to any police officers or prosecutors. He asked what their knowledge of the law and court procedures was. He asked who had prior jury experience. The judge excused three for cause: a postal employee whose brother was a police officer; a retiree whose son had been the victim of a drug-related murder; and the screenwriter because although she had never worked for Archway Studios, the judge felt she might harbor ill will toward Elliot because of the contentious relationship between screenwriters and studio management in general.

A fourth prospective juror – one of the engineers – was dismissed when the judge agreed with his plea for a hardship dismissal. He was a self-employed consultant and two weeks spent in a trial were two weeks with no income other than the five bucks a day he made as a juror.

The four were quickly replaced with four more random selections from the venire. And so it went. By noon I had used two of my preemptories on the remaining postal workers and would have used a third to strike the second engineer from the panel but decided to take the lunch hour to think about it before making my next move. Meanwhile, Golantz was holding fast with a full arsenal of challenges. His strategy was obviously to let me use my strikes up and then he would come in with the final shaping of the jury.