A Time for Mercy

50

The first fight was verbal, though another angry word or two and it could have easily escalated into a punching match. It erupted over lunch when John Carpenter, juror number five, and without a doubt the one most feared by the defense, resumed his aggressive push to be elected foreman. By then the deliberations were hardly an hour old and Carpenter had done most of the talking. The other eleven were already tired of him. The twelve of them sat around a long table, eating quickly, choking down sandwiches, not sure what to do next because the tension was already palpable.

Carpenter said, “Well, does anybody else want to be foreman? I mean, look, if nobody else wants it then I’ll do the job.”

Joey Kepner said, “I don’t think you should be the foreman, because you’re not impartial.”

“The hell I’m not!” he shot across the table.

“You are not impartial.”

“Who the hell are you?” Carpenter said loudly.

“It’s pretty obvious you’ve already made up your mind.”

“I have not.”

“Your mind was made up Monday,” said Lois Satterfield.

“It was not!”

“We heard what you said about the girl,” Joey said.

“So what? You want the job, hell, you be the foreman, but I’m not voting for you.”

“And I’m not voting for you!” Joey yelled. “You shouldn’t even be on the jury.”

The two bailiffs tending to the jury stood just outside the door and looked at each other. The loud voices were easily heard and seemed to be getting louder. They opened the door, stepped quickly inside, and things were instantly silent.

“Can we get you anything?” one bailiff asked.

“No, we’re fine,” Carpenter said.

“So you can speak for all of us?” Joey asked. “Just like that. You’re our self-appointed spokesman. Sir, I’d like some coffee.”

“Sure,” said a bailiff. “Anything else?”

Carpenter glared at Joey with hatred. They ate in silence as coffee was served. When the bailiffs left, Regina Elmore, juror number six, a thirty-eight-year-old housewife from Chester, said, “Okay, this appears to be just another boy fight. I’ll be happy to serve as foreman if that will settle things down.”

Joey said, “Good. You have my vote. Let’s make it unanimous.”

Carpenter shrugged and said, “Whatever.”

One bailiff stood by the door while the other reported to Judge Noose.

An hour later they were yelling again. An angry male voice said, “I’ll kick your ass when this is over!” Another responded, “Why wait? Just do it now!”

The bailiffs knocked loudly as they entered and found John Carpenter standing on one side of the table being restrained by two men. On the other side Joey Kepner was standing, red-faced and braced for hand-to-hand combat. They relaxed somewhat and stood down.

The tension was so thick in the room that the bailiffs were eager to leave. They reported again to Judge Noose.

At 2:00 p.m. the lawyers and spectators gathered again. The defendant was brought in. A bailiff whispered to Jake and Lowell that the judge wanted to see them in chambers, just the two of them.

Noose was at his conference table, without his robe, and smoking a pipe. He looked troubled as he waved the lawyers in and gestured at their seats. His first words were music to Jake’s ears.

“Gentlemen, it appears as though the jury is at war. The bailiffs have had to break up two fights in the first three hours. I’m afraid this does not bode well for the trial.”

Dyer’s shoulders sagged as Jake tried to suppress a smile. Neither spoke because neither had been asked to speak.

Noose continued, “I’m going to do something that I’ve done only once in my many years on the bench. It has been frowned on by our Supreme Court but not disallowed.”

The court reporter knocked and entered, followed by a bailiff and Regina Elmore. Noose said, “Ms. Elmore, I understand you’ve been chosen as the foreman.”

“Yes sir.”

“Good. This is an informal hearing but I want the court reporter to record it all, just to have it. The lawyers, Mr. Dyer and Mr. Brigance, will not be allowed to say anything, which will be painful for them.”

Everyone snickered. Ha, ha. How clever. Regina appeared rattled and uncertain.

“Now, I don’t want you to name names, or to tell us how you see this case, or how the jury is leaning. But I know there is some conflict back there and I feel the need to intervene. Is the jury making progress?”

“No sir.”

“Why not?”

She took a deep breath and looked at Noose, then Jake, then Lowell. She swallowed hard and began, “Okay, now, I can’t use names, right?”

“That’s correct.”

“Okay. There is one guy back there who shouldn’t be on the jury. Let me go back to something that he said yesterday. Is that okay?”

“Yes. Go on.”

“After Kiera testified yesterday morning, we were having lunch, and this guy made a crude comment to another man on the jury. They kinda stick together. And I assure you, Judge, we have heard your warnings and there has been no discussion of the case until, well, until yesterday.”

“What was the crude comment?”

“Referring to Kiera, he said Kofer probably wasn’t the father since the girl probably started screwing, pardon my language, when she was twelve, just like her mother. The other guy laughed. Most of us did not. I heard it and I was appalled. Almost immediately, Joey, oh, I’m sorry, I used his name. Sorry, Judge.”

“That’s okay. Keep going.”

“Joey didn’t like his comment and called him out. He said we’re not supposed to be talking about the case, and they went back and forth for a few minutes. It was pretty tense. Neither guy will back down. And so today, as soon as we retired, this guy tried to take over, wanted to be the foreman, wanted to vote immediately. It’s obvious he wants a guilty verdict and the death penalty. He wants the kid strung up tomorrow.”

Jake and Lowell were fascinated by her narrative. They had never heard a juror discuss deliberations before reaching a verdict. Jurors could be contacted after the trial and quizzed about what happened, though most declined. But to hear a firsthand account of what was happening in the jury room was mesmerizing.

Obviously, Jake was far more pleased with her story than Lowell.

She continued, “Personally, I don’t think he should be on the jury. He is a bully and tries to intimidate us, especially the women, which is why he and Joey are clashing. He’s abusive and vulgar and dismissive of any argument he disagrees with. I don’t think he approached his jury service with an open and impartial mind.”

Noose could not remove a juror until he or she did something wrong, and swearing to be impartial while holding a secret bias was not unusual.

He said, “Thank you, Ms. Elmore. In your opinion, will it be possible for this jury to reach a unanimous verdict?”

She actually laughed at the judge, not out of disrespect, but out of surprise at such an absurd question. “Sorry, Judge. But no. First we went through all the exhibits, like you said, then we read the instructions again, just like you told us to. And this one guy, same guy, started pushing for a vote. Finally, after lunch, and after he and Joey were separated the first time, we voted.”

“And?”

“Six — six, Judge, with no wiggle room anywhere. We’re even sitting on opposite sides of the table now. You can keep us here until the cows come home, but it’s a hard six — six. Me, I won’t vote to convict that boy of anything, not after what Kofer did to them.”

The judge showed her his palms and said, “That’s enough. Thank you again, Ms. Elmore. You are free to go.”

“Back to the jury room?”

“Yes ma’am.”

“Judge, please, I really don’t want to go back in there. I can’t stand that nasty man and I’m tired of him. All of us are, even the ones who agree with him. It’s pretty toxic in there, Judge.”

“Well, we have to keep trying, don’t we?”

“There’s gonna be a fight, I’m warning you.”

“Thank you.”

After she left, Noose nodded at the court reporter who hustled out of the room too. Alone with the lawyers, Noose relit his pipe, blew some smoke, and looked thoroughly defeated.

He said, “I’m looking for some brilliant advice, gentlemen.”

Dyer, eager to salvage his case, said, “Why not excuse Kepner and the bad guy and replace them with the two alternates?”

Noose nodded. It was a decent idea. “Jake?”

“Kepner is obviously in our camp and he’s done nothing wrong. That might be a tough one to defend on appeal.”

“Agreed,” said Noose. “They were properly chosen. I can’t dismiss them because they’re arguing too strenuously. We can’t quit after only three hours of deliberation, gentlemen. Let’s meet in the courtroom in five minutes.”

With great effort, Jake managed to continue to suppress a smile as he entered the courtroom and sat next to his client. He leaned back and whispered to Portia, “Six — six.” Her jaw dropped before she caught herself.

There were no smiles either from the jurors as they filed in and took their seats. Noose watched them carefully and when they were settled, he said, “Ladies and gentlemen, the court has been advised that you appear to be deadlocked.”

There were noises from the spectators — gasps, murmurs, shifting.

His Honor then unloaded what was commonly referred to as the Dynamite Charge: “Each of you took an oath to weigh the evidence with an open and impartial mind, to bring no personal biases or preferences into the courtroom, and to follow the law as I have given it to you. I now instruct you to return to your deliberations and do your duty. I want each of you, regardless of how you now feel about this case, to begin anew from the position of accepting the opposing view. For a moment, look at the other side and tell yourselves that it might just be the correct one. If you now believe Drew Gamble to be guilty, then, for a moment, tell yourself that he is not, and defend that position. Same if you believe he is not guilty. Look at the other side. Accept the other arguments. Go back to square one, all of you, and begin a new round of deliberations with the goal of agreeing on a final, unanimous verdict in this case. We are in no hurry, and if this takes several days then so be it. I have no patience with a hung jury. If you fail, then this case will be tried again, and I assure you that the next jury will not be any smarter, or better informed, or more impartial, than you are. Right now you’re the best we have and you are certainly up to the task. I expect nothing less than your full cooperation and unanimous verdict. You may retire to the jury room.”

Chastened, but unmoved, the jurors retreated like first graders headed for the time-out chair.

“In recess until four p.m.”

The defense team huddled at the end of a cramped hallway on the first floor. They were elated but tempered their desire to celebrate.

Jake said, “Noose brought in the foreman, Regina Elmore. She said they’ve had two fights and expects more. Nobody’s giving an inch. She described the split as ‘a hard six — six’ and said everybody wants to go home.”

Carla asked, “What will happen at four?”

“Who knows? If they make it until then without killing each other, I expect Noose to lecture them again, maybe send them home for the night.”

“And you’ll move for a mistrial?” Lucien asked.

“Yes.”

Carla said, “Well, I’m going to get our daughter. See you at home.” She kissed Jake on the cheek and left. Jake looked at Portia, Libby, and Thane Sedgwick, and said, “You guys kill some time. I’m going to see Drew.”

He walked to another hallway and found Moss Junior Tatum and a local deputy sitting in chairs outside the meeting room of the Board of Supervisors. He said to them, “I’d like to see my client.” Moss Junior shrugged and opened the door.

Drew was sitting alone at the end of a long table with his jacket off, reading a Hardy Boys mystery. Jake sat across from him and said, “How you doing, pal?”

“Okay. Kinda tired of this crap.”

“Yeah, me too.”

“What’s happening out there?”

“Looks like a hung jury.”

“What does that mean?”

“It means you won’t be found guilty, which is a major win for us. It also means they’ll take you back to the jail in Clanton and you’ll wait there for another trial.”

“So we have to do this again?”

“In all likelihood, yes. Probably a few months from now. I’ll try my best to get you out, but that’s not likely.”

“Great. And I’m supposed to be happy with this?”

“Yes. It could be a lot worse.”

Jake pulled out a deck of cards and said, “How about some blackjack?”

Drew smiled and said, “Sure.”

“What’s the score?”

“You’ve won seven hundred and eighteen games. I’ve won nine hundred and eighty. You currently owe me two dollars and sixty-two cents.”

“I’ll pay you when you get out,” Jake said, and he shuffled the deck.

At four, they filed in, angry and defeated, and took their seats, careful not to brush against each other. Three of the men immediately folded their arms across their chests and glared at Jake and his client. Two of the women were red-eyed and just wanted to go home. Joey Kepner glanced at Libby with a confident smirk.

His Honor said, “Ms. Elmore, as foreman, I ask you if the jury has made any progress since two o’clock. Keep your seat.”

“No sir, not at all. Things have just gotten worse.”

“And what is the vote?”

“Six guilty of capital murder, six not guilty on all charges.”

Noose stared at them as if they had disobeyed him, and said, “Okay. I’m going to poll the jury by asking each of you one question. A simple yes or no will suffice. Nothing more is needed. Juror number one, Mr. Bill Scribner, in your opinion, can this jury reach a unanimous verdict?”

“No sir,” came the quick response.

“Number two, Mr. Lenny Poole?”

“No sir.”

“Number three, Mr. Slade Kingman?”

“No.”

“Number four, Ms. Harriet Rydell?”

“No sir.”

All twelve responded firmly in the negative, their body language more emphatic than their verbal responses.

Noose took a long pause as he scribbled some meaningless notes. He looked at the prosecutor and said, “Mr. Dyer.”

Lowell stood and said, “Judge, it’s been a long day. I suggest we recess now, let the jurors go home and rest on this for a few hours, come back in the morning and try again.”

Most if not all of the jurors shook their heads in disagreement.

“Mr. Brigance.”

Jake said, “Your Honor, the defense moves for a mistrial and the dismissal of all charges against the defendant.”

Noose said, “It appears as if further deliberations will be a waste of time. Motion granted. I declare a mistrial. The defendant will remain in the custody of the Ford County sheriff.” He rapped his gavel loudly and left the bench.

An hour later, Libby Provine and Thane Sedgwick left the courthouse and headed for the airport in Memphis. Lucien was already gone. Jake and Portia loaded their files and boxes into the trunk of the new Impala and headed to Oxford, forty-five minutes away. They parked on the square and went to a burger joint, one of Jake’s favorites from his college days. It was the ninth of August and the students were trickling back to town. In two weeks, Portia would be back as a first-year law student and she was counting the days. After two years as Jake’s secretary and paralegal, she was leaving the firm and Jake had no idea what he would do without her.

Over beers they talked about law school, not the trial. Anything but the trial.

At seven sharp, Josie and Kiera walked in smiling; hugs all around. They gathered at a table and ordered sandwiches and fries. Josie had a thousand questions and Jake patiently answered as many as possible. The truth was that he didn’t know what would happen to Drew. He would certainly be re-indicted on the same charges, and there would be another trial. When? Where? Jake didn’t know.

They would worry about that tomorrow.