A Time for Mercy

42

By 1:30 the jurors were back in their seats, seventy-six in all now that the last three hardships had been quietly informed by a bailiff that they were free to go. Once the pool was in place, the doors opened to the public and a crowd swarmed in. Several reporters rushed to the front row on the left side behind the defense. The Kofer family and friends filed in, after having spent hours loitering in the humid hallway. Dozens of others jockeyed for seats. Harry Rex sat near the back, as far away from the Kofers as possible. Lucien eased into a middle row to observe the pool. There was rustling and creaking from above as the balcony opened up and spectators found their places in folding chairs.

Carla found a seat near the front, not far from Jake. She had taken Josie and Kiera to Finley’s office where they would spend the afternoon, waiting. If Dyer wanted to talk to Kiera, she was a phone call away.

When the lawyers were in place, Judge Noose reappeared and settled himself at the bench. He frowned around the room to make sure all was in order, then pulled his mike closer. “I see we have a number of spectators who’ve joined us in the gallery. Welcome. We will maintain order and decorum throughout these proceedings and anyone who becomes disruptive will be taken away.”

There had not been a disruptive squeak before the warning.

He looked at a bailiff and said, “Bring in the defendant.”

A door by the jury box opened and a deputy walked out, with Drew behind him, free of cuffs and shackles. At first he seemed overwhelmed by the size of the room, and the crowd, and so many people staring at him; then he looked down and watched the floor as he was led to the defense table. He sat in a chair between Jake and Miss Libby, with Portia behind them by the bar.

Noose cleared his throat and began, “Now, for the next few hours we will attempt to select a jury, twelve jurors and two alternates. This will not be that exciting and there will be no live testimony until tomorrow, assuming we have a jury chosen by then. This is a criminal case from Ford County. It’s styled The State of Mississippi v. Drew Allen Gamble. Mr. Gamble, would you please stand and face the jury pool.”

Jake said this would happen. Drew stood, turned and faced the courtroom with a serious face, no smile at all, then nodded and sat down. Jake leaned over and whispered, “I like that coat and tie.”

Drew nodded but was afraid to smile.

Noose continued, “We will not dwell on the facts at this time, but I will read to you a quick summary of the indictment, the formal charge against the defendant. It reads: ‘That on March 25, 1990, in Ford County, Mississippi, the defendant, one Drew Allen Gamble, age sixteen, did willfully and deliberately and with full criminal intent, shoot and kill the deceased, Stuart Lee Kofer, an officer of the law. Pursuant to section 97-3-19 of the Mississippi Code, the murder of an officer of the law, whether on duty or not, is a capital offense, punishable by death.’ Therefore, ladies and gentlemen, this is a capital case, and the State is seeking the death penalty.”

Apparently, Noose had squeezed the county for even more money, for a new PA system. His words were clear and loud, and “death penalty” rattled around the ceiling for a few seconds, then landed hard on the jurors.

Noose introduced the lawyers and rambled on a bit too long about each. Humorless and dull by nature, he was trying mightily to show some personality and make everyone feel right at home in his courtroom. It was a noble effort, but tension was high, there was work to be done, so everyone wanted to get on with it.

He explained to the courtroom that the selection process would be done in phases. Initially, he would examine the panel, and many of his questions were required by law. He urged the prospects to be forthcoming, not afraid to speak up, not afraid to let everyone know what was on their minds. Only by an honest and open give-and-take could they hope to find a fair and impartial jury. He then launched into a series of inquiries designed not so much to provoke discussion as to put people to sleep. Many of them were about jury service and qualifications, and Noose lost territory already gained. Age, physical limits, medications, doctors’ orders, dietary restrictions, addictions. After half an hour of this, Noose had managed not only to not raise a single hand, but he was boring them to death.

As the jurors watched and listened to the judge, the lawyers studied the jurors. On the front row there were nine whites and one black woman, May Taggart. On the second row there were seven white women, including Della Fancher at number fifteen, and three black men. Four blacks in the first twenty, not a bad percentage, and Jake asked himself for the hundredth time if he was correct in his assumption that blacks would be more sympathetic. Lucien thought so because a white cop was involved. Harry Rex had his doubts because the crime was white on white and race was not a factor. Jake had argued that in Mississippi race was always a factor. Looking at the faces, he still preferred younger female jurors of any color. And, he was assuming that Lowell Dyer wanted older white men.

On the third row there was one black, Mr. Rodney Cote, at number twenty-seven.

As Noose plodded on, Jake occasionally glanced at the spectators. His lovely wife was by far the most attractive person in the room. Harry Rex, in a plaid shirt, sat low in the back. For a second, his eyes met those of Cecil Kofer, who couldn’t help himself and offered a smirk behind his scraggly red beard. As if to say, “I kicked your ass once and I’d love to do it again.” Jake shook it off and returned to his notes.

When His Honor finished with the required questions, he shuffled papers and readjusted his posture. “Now, the deceased, the victim in this case, was a county deputy named Stuart Kofer, age thirty-three at the time of his death. He was born in Ford County and still has family there. Did any of you know him?”

No volunteers.

“Do any of you know anyone in his family?”

A hand went up on the fourth row. Finally, after an hour, a response from the pool. Number thirty-eight was Mr. Kenny Banahand.

“Yes sir, please stand, give us your name, and explain your relationship with the family.”

Banahand stood slowly, somewhat embarrassed, and said, “Well, Judge, I don’t really know the family, but my son once worked with Barry Kofer at the distribution plant near Karaway.” Jake looked at Barry, who was seated next to his mother.

“Thank you, Mr. Banahand. Did you ever meet Barry Kofer?”

“No sir.”

“Thank you. Please be seated. Anyone else?”

“Okay. Now, you’ve already been introduced to the defendant, Mr. Drew Allen Gamble. Has anyone ever met him?”

Of course not. The trip from the jail was Drew’s first excursion into Van Buren County.

“His mother is Josie Gamble and his sister is Kiera. Anyone ever met them?”

No one.

Noose waited for a moment, then continued. “There are four lawyers involved in this trial and you’ve already met them. I’ll start with Mr. Jake Brigance. Has anyone ever met him?”

No volunteers. Jake had memorized the list and knew the sad truth that his struggling practice and meager reputation had not stretched far beyond Ford County. There was a chance that a few in the pool might recognize his name from the Hailey trial, but the question was: Had they ever met Jake? No they had not. That trial had been five years ago.

“Have you or anyone in your immediate family ever been involved in a case in which Mr. Brigance was one of the lawyers?”

No hands. Rodney Cote sat motionless, even stoic, with no expression whatsoever. If quizzed later, he could claim that the word “immediate” confused him. Gwen Hailey, Carl Lee’s wife, was a distant cousin, one of many Rodney didn’t consider to be “immediate.” He looked directly at Jake and their eyes met.

Noose moved on to Libby Provine, a Scottish woman from D.C. who had first traveled to their county that very morning. Not surprisingly, no one in the pool had ever heard of her.

Lowell Dyer was an elected official who lived in Gretna, up in Tyler County. Noose was saying, “Now, I’m sure many of you folks met Mr. Dyer when he was campaigning here three years ago, probably at a rally or a barbecue. He received sixty percent of the vote in this county, but let’s assume for right now he got most of your votes.”

“A hundred percent, Judge,” Lowell said with perfect timing and everyone laughed. Humor was desperately needed.

“Let’s go with a hundred percent. Now, the question is not whether you’ve met Mr. Dyer, but do you know him personally, in some way?”

Mrs. Gayle Oswalt, number forty-six, stood and said proudly, “My daughter and his wife were sorority sisters at Mississippi State. We’ve known Lowell for many years.”

“Okay. Would the fact that you know him well influence your ability to remain fair and impartial?”

“I don’t know, Judge. I’m not sure.”

“Do you think you’d tend to believe him over Mr. Brigance?”

“Well, don’t know about that, but I’d believe anything Lowell said.”

“Thank you, Mrs. Oswalt.”

Over her name Jake scratched, “PC.” Peremptory challenge.

Dyer’s assistant, D. R. Musgrove, was a career prosecutor from Polk County and proved to be unknown that far from home.

“Mr. Dyer, you may examine the pool,” Noose announced and tried to relax in his chair. Lowell stood, stepped to the bar, and smiled at the crowd. He said, “Well, first of all, I want to thank each and every one of you for voting for me.” More laughs, another break in the tension. With all eyes on the prosecutor, Jake was able to study the faces and body language of those on the front four rows.

With the ice broken somewhat, Dyer began with questions about prior jury service and a few hands went up. He asked the volunteers about their experiences. Criminal case, or civil? If criminal, was there a conviction? How did you vote? All had found the defendants guilty. Do you trust the jury system? Do you understand its importance? Law school textbook stuff. Nothing creative but then jury selection rarely yielded much in the way of drama.

Ever been the victim of a crime? A few hands — house burglaries, a stolen car, not much crime in Van Buren County. Anyone in your family ever been the victim of a violent crime? Number sixty-two, Lance Bolivar, slowly got to his feet and said, “Yes sir. My nephew was murdered eight years ago over in the Delta.” Well, well, a bit of drama after all.

Dyer zeroed in and, feigning too much sympathy, followed up nicely. He stayed away from the details of the crime and asked about its investigation and aftermath. The killer was found guilty and was serving a life sentence. The experience was terrible, devastating, and the family would be forever scarred. No, Mr. Bolivar did not believe he could be an impartial juror.

Jake wasn’t worried about him because he was too deep in the pool.

Dyer moved on to questions about “peace officers,” as he called them, and wanted to know if anyone had ever worn a uniform or was related to a cop. One lady had a brother who was a state trooper. She was number fifty-one and Jake made another “PC” by her name, though he doubted he would have to use it. Number three, Don Coben, reluctantly admitted that his son was a policeman in Tupelo. His reluctance was a clear sign, at least to Jake, that he wanted to serve on the jury. He had already reached a verdict.

Dyer did not ask if anyone had a criminal record. It was a potentially embarrassing question and not worth the risk. Most convicted felons could not vote, and of those whose records had been expunged, few bothered with registering. However, number forty-four, Joey Kepner, had been convicted of a drug offense twenty years earlier. He served two years in prison before getting clean and having his record erased. Portia had found the old indictment and had a file on him. The question was: Did Dyer know about it? Probably not, because of the expungement. Jake desperately wanted him on the jury. He had served hard time for possessing a small quantity of marijuana and probably had a dim view of law enforcement.

Stuart Kofer’s bad habits would not be discussed during jury selection. Jake doubted Dyer would go there because he did not want to weaken his case so early. Nor would Jake drag out the dirt. It would come soon enough, and he did not want to be seen as an overzealous defense lawyer too eager to blame the victim.

Dyer was methodical but good on his feet. He smiled a lot as he warmed to the task and seemed to connect with the jurors. He stuck to his script, stayed on point, and did not belabor the obvious. When he finished he thanked them again and sat down.

Jake took his spot at the bar and fought to settle his nerves. He introduced himself and said that he had been practicing law next door in Ford County for twelve years. He introduced Libby and described her work with a nonprofit organization in Washington. He introduced Portia as his law clerk, just so the jurors would know why she was sitting with the defense.

He said that he had never been accused of a crime but had represented many people who had. It was frightening and unsettling, especially when a person believed he or she was not guilty or had acted in a reasonable manner. He then asked if anyone in the pool had ever been accused of a serious crime.

Joey Kepner did not raise his hand. Jake was relieved and assumed that Kepner felt as though his record had been thoroughly erased. That, and he probably believed that possessing ten ounces of pot was not that “serious.”

Jake explained that the trial would include allegations of domestic abuse by Stuart Kofer. He cautioned that he wasn’t about to go into the details — that’s what the witnesses would attempt to do. However, it was important to know if any of the prospective jurors had ever been the victim of domestic abuse. He did not look at Della Fancher, but Libby and Portia were watching her every move. Nothing. No reaction other than a slight glance to her right. She was on board, or so they thought.

Jake moved to an even heavier issue. He talked about killing, and its various forms. Manslaughter, negligent homicide, self-defense, and outright premeditated murder, the charge against his client. But did anyone on the panel believe that killing could ever be justified? Dyer shifted in his chair and seemed ready to object.

The question was too vague to elicit responses. Without knowing the details, it was difficult for any juror to speak up and initiate a conversation. Several squirmed and looked around, and before anyone could answer, Jake said he knew it was a tough one. He didn’t want a response. The seed was planted.

He said Drew’s mother was Josie Gamble, a woman with a colorful past. Without going into it, he explained that she would testify, and when she did the jurors would learn that she had a criminal record. That is always revealed, for any witness. Would that fact lessen her credibility? Her past had nothing to do with the events surrounding the death of Stuart Kofer, but, in the spirit of full disclosure, he wanted the jurors to know that she had served time.

There was no response from the pool.

Full disclosure? Since when was selecting a jury the time to be completely transparent?

Jake kept his questions brief and sat down after thirty minutes. He and Dyer would soon get the chance to quiz the jurors individually.

Next, Noose asked the first twelve to move to the jury box. With the clerk directing them to their assigned seats, they settled in as if already chosen to hear testimony. Not so fast. Not nearly so fast. Noose explained that they would begin the process of privately interviewing the first forty or so jurors. Those with numbers higher than fifty were free to leave the courtroom for one hour.

The jury room was more spacious and far less cluttered than his chambers, so he instructed the lawyers to retire there. The court reporter followed them, and they gathered around a long table where the jury would eventually decide the case. When Noose was settled at one end, with the defense on one side, the State on the other, he said to a bailiff, “Bring in number one.”

Jake said, “Judge, if I may, could I offer a suggestion?”

“What is it?” Noose was grimacing with lower back pain as he chewed on the stem of an unlit pipe.

“It’s almost three and it’s pretty clear we won’t start testimony today. Can we release the witnesses we have under subpoena until tomorrow?”

“Good idea. Mr. Dyer?”

“Fine with me, Judge.”

A small victory for the defense. Get Kiera out of town for now.

Mark Maylor settled into an old wooden chair looking as though he was guilty of something. The Judge took charge: “Now, Mr. Maylor, I remind you that you’re under oath.” His tone was almost accusatory.

“I realize that, Your Honor.”

“This won’t take long. Just a few questions from me and the lawyers. Okay?”

“Yes sir.”

“As I said, this is a capital case, and if the State proves its allegations, you will be called upon to consider voting to impose the death penalty. Will you be able to do this?”

“I don’t know. I’ve never been asked to do this before.”

“How do you feel, personally, about the death penalty?”

Maylor looked at Jake and looked at Dyer and finally said, “I guess I’m for it, but believing in it is one thing. Being asked to send a guy to the gas chamber is something else. And he’s just a kid.”

Jake’s heart skipped a beat.

“Mr. Dyer?”

Lowell smiled and said, “Thank you, Mr. Maylor. The death penalty, whether you, or I, or we, like it or not, is the law in this state. Do you believe that you can follow the laws of Mississippi?”

“Sure, I suppose so.”

“You seem to be hedging a bit.”

“I’m a little off guard, Mr. Dyer. I’m not prepared to say one way or the other what I might do. But, yes, I will try my best to follow the law.”

“Thank you. And you don’t know anything about this case?”

“Only what I’ve heard this morning. I mean, I remember the newspaper stories when it happened. We get the Tupelo paper and I think it was on the front page, but it died down pretty fast. I haven’t kept up.”

Noose looked at Jake and said, “Mr. Brigance.”

“Mr. Maylor, when you saw the news back in March, did you say to yourself something like, ‘Well, he’s probably guilty’?”

“Sure. Don’t we all do that when someone gets arrested?”

“I’m afraid so. But you understand the presumption of innocence, don’t you?”

“Sure.”

“And so as of right now do you believe that Drew Gamble is innocent until proven guilty?”

“I guess so.”

Jake had more questions, but he knew Maylor would not serve on the jury because of his reticence about capital punishment. Dyer wanted a dozen death penalty supporters and the courtroom was full of them.

Noose said, “Thank you, Mr. Maylor. You are excused for one hour.”

Maylor stood quickly and disappeared. Waiting outside the door with a clerk was Mrs. Reba Dulaney, the organist at the Methodist Church. She was all smiles and seemed to appreciate the importance of the moment. Noose asked a few questions about the notoriety of the case and she claimed to know nothing. Then he asked if she could impose the death penalty.

She was taken aback by the question and blurted, “For that kid out there? I don’t think so.”

Jake was pleased to hear it but knew immediately that she, too, was as close to being on the jury as she would ever get. He asked a few questions but didn’t dig.

Noose thanked her and called for number three, Don Coben, a tough old farmer who claimed to know nothing about the case and believed firmly in the death penalty.

Number four was May Taggart, the first black, and she had misgivings about capital punishment but was convincing in her belief that she could follow the law.

The parade continued with steady efficiency as Noose limited his questions and those from the lawyers. His two concerns were readily obvious — knowledge of the case and reservations about the death penalty. As each juror was excused and asked to leave the jury room, another was pulled from the pool and placed in the jury box in the courtroom. After the first forty, Noose decided to take those on the fifth row. Jake suspected this was because there were several who had misgivings about the death penalty and would be challenged for cause.

In the courtroom, the spectators came and went and killed time. The only person who didn’t move was Drew Gamble, who sat at the defense table with two deputies nearby just in case he decided to make a dash for it.

At 4:45, Noose needed his next round of pills. He told the lawyers that he was determined to pick a jury before dinner and start the testimony first thing in the morning. “Let’s meet at 5:15 sharp in chambers and go through the list.”

Morris Finley commandeered a room in Land Records on the first floor, and the defense team met there. Carla, Harry Rex, and Lucien joined Portia, Jake, and Libby, and they hurriedly went through the names. Lucien didn’t like any of them. Harry Rex said, “Dyer will probably cut all the blacks, don’t you think?”

Jake said, “That’s our assumption. And since there are only eleven blacks in the first five rows, we’re looking at an all-white jury.”

“Can he do that?” Carla asked. “Just on the basis of race?”

“Yes, he certainly can, and he will. Both the victim and the accused are white, so Batson doesn’t apply.”

Because she was married to a criminal defense lawyer, Carla knew that the Batson decision prohibited the exclusion of potential jurors solely on the basis of race. “Still doesn’t seem right,” she said.

“What’s your take on Della Fancher?” Jake asked Libby.

“I’d stick with her.”

“She should’ve raised her hand,” Portia said. “I think she wants to be on the jury.”

“Then I’d be worried,” Lucien said. “I’m suspicious of anyone who wants to serve on a capital jury.”

“Morris?” Jake asked.

“She’s our ringer, right? I sort of agree with Lucien, but, dammit, we have a battered wife who refused to speak up. She has to have sympathy for Josie and her kids.”

“I don’t like her,” Carla said. “She has a hard look, bad body language, doesn’t want to be here. Plus, she’s hiding something.”

Jake frowned at Carla but didn’t respond. He reminded himself that his wife was usually right about most things, especially when sizing up other women.

“Portia?”

“I don’t know. My first impulse is to take her, but something in my gut says no.”

“Great. We’ll lose Rodney Cote and Della Fancher, two of our three ringers. That leaves Joey Kepner with his drug conviction.”

“And you’re assuming Dyer doesn’t know about it?” Lucien asked.

“Yes, and I freely admit that all of our assumptions could be wrong.”

“Good luck, ole boy,” Lucien said. “It’s always a crapshoot.”

With his robe off, his tie loosened, and his pill bottles put away, His Honor fired a torch into the bowl of his pipe, sucked hard on the stem, let loose a lethal cloud of smoke, and said, “Any challenges for cause, Mr. Dyer?”

Lowell had three names he wanted to get rid of. For twenty minutes they went back and forth and it was obvious the prosecutor considered them unfit because they seemed soft on capital punishment. Jake argued forcefully to keep them and preserve his peremptory challenges, which could be used to strike any juror but not to keep one. Noose finally said, “We’ll strike the organ player, Mrs. Reba Dulaney, because it was obvious that she would struggle with the death penalty. Mr. Brigance?”

Jake wanted to strike Mrs. Gayle Oswalt because she was a friend of Dyer’s, and Noose agreed. He asked to strike Don Coben, number three, because his son was a policeman, and Noose agreed. He asked to strike number sixty-three, Mr. Lance Bolivar, because his nephew had been murdered, and Noose agreed. He asked to strike Calvin Banahand, because his son once worked with Barry Kofer, but Noose said no.

With no more challenges for cause, Dyer used seven of his peremptories and submitted a list of twelve — ten older men, two older women, all white. Jake’s assumptions were correct. He huddled with Libby and Portia on their side of the table, and challenged six of them, including Della Fancher. It was tense work, reviewing the names they had memorized, trying to remember their faces, their body language, trying to guess Dyer’s next move, and anticipating how deep into the pool the selection might go. And the clock was ticking as His Honor waited and Dyer schemed and pored over his own well-worn lists. Jake used six of his prized challenges and kicked the ball across the table.

The prosecutor submitted his second list of twelve and stuck with his game plan of excluding blacks and preferring older white men. Ten of his peremptory challenges were gone, but he had used one for Rodney Cote. Jake cut three of them. Dyer saved his last two for two younger women, one white, one black, and in doing so revealed that he did not know of Joey Kepner’s drug conviction. To get to Kepner, Jake was forced to exclude two women he really wanted. Kepner was the last juror chosen.

Twelve whites — seven men and five women, ages ranging from twenty-four to sixty-one.

They haggled over the selection of two alternates, two white women, but doubted that they would be needed. The trial, once it began, would not last more than three days.