Blind Justice

33

BEN WILLED HIS EYELIDS to remain open. He would’ve slapped himself if there hadn’t been a couple hundred people watching. He had to bring himself around, and quickly. It was the first day of the trial—and he was barely able to stay awake.

By the time the federal agents had hauled him back to their headquarters, it was four in the morning; it was six-thirty before he was released. Ben was certain they were aware he had an early court date. They probably considered it an interdepartmental favor to assure that defense counsel and defendant would be operating under extreme sleep deprivation.

He hadn’t heard a word about the two men they arrested. Or Wolf.

Ben watched Christina at counsel table, her hands folded neatly in her lap. She was trying to remain placid, as Ben had instructed her, but he knew it was a struggle. She was just as worried as he was, with better reason, and she had been out just as late. Despite her valiant effort with cosmetics she customarily never used, the dark half moons under her eyes were plainly visible.

She was wearing a simple blue print dress with a lace collar. It was unlike anything to be found in Christina’s clothes closet; Ben bought it himself at the secondhand store down the street from his office. He was taking no chances; he even bought the shoes and accessories. He thought he had the look right—reasonably attractive, in a simple, understated fashion. Not at all upper class. Someone the jury could sympathize with.

The courtroom, as expected, was packed. A special row in the front of the gallery had been cordoned off for members of the press. The remaining six rows on both sides were jam packed with curious people who wanted to see the notorious Drug Princess for themselves. There were even two standing rows in the back of the courtroom, for those who were willing to remain on their feet all day long. In fact, there were still more would-be spectators outside waiting for a seat to open up in the gallery. The security guard told Ben some of them had been there since six in the morning. Ben couldn’t believe it—this was a murder trial, for God’s sake, not Phantom of the Opera. But Phantom wasn’t in Tulsa this week, Ben realized, and everybody loves a good trial.

Ben scanned the sea of faces in the courtroom. He saw few he considered friendly. Ben had forced Jones, against his wishes, to stay at the office, monitoring the telephone and poring over the records from Reynolds’s office. Loving still had not resurfaced. Ben just hoped he wasn’t found at the bottom of the Arkansas River in cement galoshes.

There was one face in the gallery Ben recognized: Margot Lombardi. He realized he shouldn’t be surprised; she was the victim’s widow, after all. She was sitting in the front, wearing dark sunglasses. Didn’t want to be recognized, he supposed. He could hardly blame her.

He leaned over the rail separating the gallery from the courtroom. “Mrs. Lombardi?”

She seemed startled. “Y-yes?”

“It’s not my job to advise you, but you know, if you’re in the courtroom, you could be called to testify.” And remind the jury that Lombardi was married, Ben thought. Wouldn’t that be great?

“Mr. Moltke assured me that wouldn’t happen.”

Ben leaned in closer. “Ma’am, your attorney, Quinn Reynolds, has been withholding documents I believe may be crucial to Christina’s defense.”

“Oh…my. Have you talked to him about this?”

“Yes. Repeatedly. And he’s refused to produce the documents. I was required to obtain them from…uh, an independent source. As a result, I don’t have a witness who can act as custodian of the documents and testify as to their authenticity.”

“How can I help?”

“I know Reynolds would refuse if I asked him to authenticate the documents. But you’re his client; if you ask, he’ll have little choice.”

“Oh. I…see.”

“Will you do it? My client’s life may be at stake.”

Margot hesitated. Her finger stroked her chin. “If my attorney didn’t want you to see the documents, he must have a reason.”

Ben’s jaw clenched.

“My financial situation is quite precarious at the moment.…If my attorney believes this is not in my best interest, I must trust his judgment.”

It was a familiar Catch-22: the lawyer blames the client and the client blames the lawyer. Disgusted, Ben returned to defendant’s table.

Moltke, of course, was playing the publicity to the hilt. He seemed ebullient; he clearly thought he had a win. He could already taste the victory, and the Senate seat beyond. And why not? Ben thought. A criminal jury trial was the prosecutor’s playpen. All that television hype about judges and lawyers making it impossible to lock up criminals was absurd. The reality was they could convict almost anyone if they wanted. Prosecutors, cops, forensic scientists—they were all players on the same team, and they all liked to win. Juries were the prosecutor’s Play-Doh. The hallowed principle of presumed innocent was a joke; most jurors presumed that if the defendant wasn’t guilty of something, he wouldn’t be sitting at defendant’s table.

Ben checked his watch; Derek was late again. Probably reading the eleventh-hour motions Ben had filed, trying to contrive reasonable excuses to deny them all. Ben hoped Derek would make a final pronouncement on his motion in limine to exclude any evidence relating to Lennie’s murder. Although Moltke insisted he had substantial evidence against Christina and expected to be filing charges against her on that murder soon, he hadn’t done so yet. And as long as no charges were filed, Ben insisted evidence of Lennie’s death didn’t help prove who killed Lombardi, so the matter shouldn’t be discussed. Derek, in a typical display of judicial cowardice, decided to reserve his ruling “until the issue was raised at trial.”

Ben nudged Christina and tried to sound jovial. “Too bad you don’t have a handsome, supportive husband in the first row. Juries eat that up.”

“Pardonnez-moi,” Christina said. “Would you like me to rent one? I think Burris stocks those.”

Ben smiled, but the smile was forced. Would this trial never begin?

At last, he saw some movement behind the bench. The bailiff called everyone to order and Judge Derek entered. He seemed healthy, well-scrubbed, unusually buoyant. Probably the thrill of displaying his vast judicial prowess to the packed gallery. Ben had always suspected the man was a ham actor at heart.

Derek popped a tablet out of a small box and tossed it into his mouth. “I’ve been thinking about your most recent spate of motions, Mr. Kincaid.”

This was about as welcome as an announcement that Herod had been thinking about babies. “Yes, your honor?”

“As far as I can tell, they’re just revamps of your prior motions. Consider them all denied.”

“Thank you, your honor.”

“Any other preliminary matters before we select a jury, gentlemen?”

“Yes, your honor,” Ben said. “I have a new motion.”

“You’ve got to be kidding,” Derek said. “Can there possibly be one you haven’t already made?”

“Yes, your honor. We move for a change of venue.”

“Based on what?”

“Based on the adverse pretrial publicity that has undeniably tainted the jury pool.”

Derek popped another tablet into his mouth and chewed it vigorously. “Care to elaborate, counsel?”

“Your honor, this trial has been discussed on all three local TV news programs and in both Tulsa newspapers every day for the past month. Usually as the lead feature or headline story. Furthermore, the reports are clearly slanted in favor of the prosecution—”

“Could that perhaps be because the evidence is slanted in favor of the prosecution, counsel?”

“It doesn’t matter, your honor. Criminal cases should be tried in the courtroom, not on TV or in newspapers. Even this morning, in this very courtroom, reporters were shouting statements that suggested my client must be guilty. Prospective jurors were likely within hearing range.”

Moltke rose to his feet. “May I respond, your honor?”

“I don’t think that’s necessary, Mr. Prosecutor. Counsel, can you show me a newspaper article that has unequivocally announced your client’s guilt?”

“No, of course not. That would set them up for a lawsuit.”

“Can you present any evidence specifically indicating that any of the citizens on today’s jury roll are biased?”

“No.”

“Well, that’s the standard, isn’t it? Convincing evidence of prejudice to prospective jurors?”

“This court has the discretion to do what it thinks is right.”

“And I shall, counsel,” Derek said, “believe me. But if I took your lamebrained recommendation, I’d have to transfer every noteworthy case that ever comes before my court. Motion denied. You, of course, may explore any potential prejudices during voir dire. Within reason.”

“Very well, your honor.”

Derek’s voice increased in volume. “And counsel, let me add that this court is weary of your relentless efforts to delay this trial and prevent justice from being done. I reiterate that any further frivolous motions may be considered grounds for contempt.”

Grandstanding for the press again? “Understood, your honor.”

“I hope so, counsel. For your sake. Now let’s proceed.”

Prior to trial, Derek had announced that due to the seriousness of the charges presented, contrary to the usual practice in federal court, he would permit the attorneys to directly question the prospective jurors. Ben wasn’t about to complain—he could learn a good deal more about the jurors than he would if Derek were asking the questions.

The bailiff called the first nineteen names on his list into the jury box. On cue, each of them introduced themselves and briefly described their occupations and marital statuses. Ben saw Myra furiously trying to scribble down each biographical detail. The jury pool appeared to be largely lower middle class, not well educated. The usual. Too often, people in the upper strata of society have means of avoiding jury duty, leaving it to those workaday sorts who are grateful to have a day off with pay. The same folks demographics indicated could be influenced by tabloid journalism and prosecution pleas for justice.

There were twelve women, seven men—a devastatingly unfavorable imbalance. Conventional wisdom dictated that Ben try to get rid of as many women as possible; women tended to be much harder on other women than men, particularly when sexual impropriety was involved. Unfortunately, the remaining jury pool was over two-thirds female; even if Ben used all twenty peremptory challenges, this jury was going to have a disproportionate share of women.

Derek introduced all the lawyers and asked if any of the jurors knew them. No one did. When he asked the same question about Christina, every hand in the box shot up. As became clear, most of the jurors either read the papers or watched the TV news, and many considered themselves very well informed about Tulsa’s Drug Princess. Then Derek asked the ultimate questions—whether they had already formed an opinion about the case, and whether they believed they could still evaluate the evidence fairly and without prejudice. Not surprisingly, they all did. Ben knew without a confession of prejudice he had virtually no hope of removing a juror for cause. That left him with a limited number of peremptories. Of course, even if he could remove more jurors, with whom would he replace them? The jury remainders sitting outside would be no different.

After Derek finished his preliminary questions, Moltke strolled to the podium. He made a little speech about the role of the prosecutor in protecting the commonwealth from lawlessness and anarchy. “But you jurors have one of the most important jobs in the entire world,” he said. “A job upon which the very fabric of our society is dependent.”

After he finished flattering them, Moltke began the voir dire. His first few questions were all softballs designed to continue cozying up to the jurors, and to suggest that he was a good ol’ hometown boy, just like them. After that, Moltke asked the usual questions, totally irrelevant to the legitimate purposes of voir dire, designed to preview the prosecution theory of the case and prejudice the jury in his favor. Finally, he made the jurors promise they would evaluate the evidence fairly, but not shy away from a conviction if the evidence convinced them the defendant was guilty.

“Now, let me ask you a question, Mrs. McKenzie.”

The elderly woman looked up, startled. Another venerable trial lawyer trick: memorize while the jurors are called, so later you can address them by name. Jurors, tended to be impressed by this showy display of attorney acumen.

“I believe you said you were married.”

“T-that’s right,” Mrs. McKenzie answered.

“You probably wouldn’t think very highly of it if your husband went off and had an affair, would you?”

“I should say not.”

“Adultery is a bad thing, wouldn’t you agree?”

“Well, of course I would.”

“And you probably wouldn’t think very much of the floozy he was with either.”

“I’d probably wring her neck,” Mrs. McKenzie said. The rest of the jury chuckled.

“And if this floozy got your husband involved in criminal activity, oh, let’s say drugs for instance, you probably wouldn’t be happy about that.”

Her neck stiffened. “No, I certainly wouldn’t.”

“And if that floozy actually killed your husband—”

“Objection, your honor,” Ben said. “This has gone far beyond the bounds of permissible voir dire.”

Derek nodded. “I’m afraid I have to agree. Mr. Moltke, please confine yourself to rooting out areas of possible prejudice, without creating any yourself.”

“Yes, your honor,” Moltke said, seemingly chastised. “I certainly don’t want to prejudice anyone. And speaking of that, there’s some evidence I want to ask you jurors about, just to make sure you won’t be unfairly prejudiced by it.”

Very smooth segue, Ben thought. Under the cloak of obedience he’s going to do exactly what the judge told him not to do.

“Unfortunately, ladies and gentlemen, you’re going to hear some evidence in this trial of…well…” He paused and acted embarrassed. “Of a…sexual nature.”

Well, they’re all wide awake now, Moltke. Good technique. Trial by titillation.

“As I’m sure you all know, some people…well, darn it all, some people just don’t conduct themselves like you and me. I’m not saying their morals are worse than ours—”

The hell you aren’t.

“—but they are certainly…different. Now, Mrs. Applebury, you wouldn’t hold a grudge against a woman just because she was having, um, relations without benefit of marriage, would you?”

There was nothing Ben could do. If he objected because there was no evidence of any, um, relations between the defendant and the victim, he would only appear defensive, which would ensure the jury would assume that there were some, um, relations…

Mrs. Applebury placed her hand against her chest. “I-I would try not to.”

“And how about you, Mrs. Bernstein?”

“Well, I always try to keep an open mind.”

“And you, Mr. Svenson? You wouldn’t assume a woman was guilty just because she engaged in sexual practices you don’t consider…normal.”

“Your honor!” Ben said. “This is outrageous. This is totally irrelevant to this case.”

“Well,” Derek said, “if it’s totally irrelevant, it can’t do your client any harm, can it?”

Ben had to hand it to him; Derek was pretty quick on his feet.

“That’s all right, your honor,” Moltke said. “I’m ready to move on. I have one last subject to discuss, again, with considerable regret. This case will touch upon the subject of illegal narcotics. I’m sure each of you knows what a serious problem this is in the United States today, with drags available on every street corner, even in decent, God-fearing neighborhoods. Even on grade-school playgrounds—”

“Objection, your honor.”

“Sustained.”

Moltke continued unperturbed. “I’m sure each of you knows there’s a war on—a war against drugs. Many of us in the government consider ourselves foot soldiers in that war. Perhaps many of you do, too. But I must remind you that this is a trial for murder in the first degree. Even though you may find the defendant was in possession of sizable quantities of illegal narcotics, you must not let that prejudice your decision on the larger issue. I’d like each of you to promise me you will view the evidence fairly, and that if you bring back a conviction against the defendant, it will be based upon the considerable evidence proving she committed murder, and not simply an understandable, if misguided effort to sever this link in the virulent chain that is destroying our fine nation—”

“Objection, your honor!” Ben said, practically screaming. “This is grossly prejudicial. Counsel is practically testifying.”

Derek nodded calmly. “The objection is sustained.”

“I also move to strike the prosecutor’s improper remarks from the record, and that the jury be instructed to disregard.”

“If you insist.”

Well, at least he didn’t say: Why bother?

Derek gazed impassively at the jury. “You are instructed to disregard any remarks of counsel that may have suggested criminal activity as yet unproven.” He peered down at Moltke. “Anything else, or are you about done?”

Moltke could take a hint. “I ‘m done, your honor.”

“Good. Counsel for the defense?”

Ben went to the podium and began running through the list of questions he had prepared in advance. He did it like they taught him in law school; he avoided questions intended to tarnish opposition witnesses, questions designed to preview opening statement, and questions designed to predispose the jury in his favor. The point of voir dire was to determine whether the jurors could be fair and impartial, and he stuck to it. That was the way it was supposed to work. Right?

Ben was barely halfway through his questions when he sensed the jury’s attention was beginning to wane. They kept peering over his shoulder, trying to size up Christina. The sad fact was that half of them would probably be more influenced by her personal appearance than any evidence they heard at trial.

“I noted that opposing counsel required you to make all kinds of promises during his voir dire examination,” Ben said in conclusion. “I’m only going to ask you to make one. Later in this trial, you will hear the judge use the phrases presumed innocent, and beyond a reasonable doubt, and he will instruct you on the meaning of those phrases. Please listen carefully to what the judge tells you, and bear in mind at all times that Christina McCall is presumed innocent, and that the burden of proving her guilt beyond a reasonable doubt is entirely on the prosecution. All I ask is that you hold them to that legal standard. Will each of you promise to do that?”

There was a general, unenthusiastic nodding of heads.

“What about you, Mrs. McKenzie? Will you make that promise?”

It was a mistake, Ben realized almost immediately. He just didn’t have Moltke’s finesse. She looked stricken, embarrassed to be singled out. “I—why, yes, I suppose,” she said, flustered. She covered the side of her face with her hand.

“Thank you.” He decided not to compound the error by trying anyone else.

“And thank you, counsel,” Derek said. “Both sides will take ten minutes to deliberate, then I want to see counsel in chambers to make their initial challenges.”

All in all, it could have been worse. Ben took off three older women, including Mrs. McKenzie, the one he had mortified. Moltke took off three men, all for reasons that eluded Ben. Perhaps they weren’t responding properly to his charismatic feints.

Derek called for opening statements. Moltke strode up to the jury box and smiled. Derek cleared his throat and pointed at the podium.

“Oh, of course, your honor. I forgot where I was.” He retreated to the podium.

Just another tactic from Moltke He went up front and close to the jury to remind them he was one of them, one of the gang. Ben knew he would never have an opportunity to get that close. They would always perceive him as being more distant.

“It was a dark, moonless night,” Moltke began, setting the mood. “Most law-abiding Tulsans were still asleep in bed. All was calm, silent, still. Until suddenly, the night was shattered”—he pounded on the podium, startling the jurors—“by a sudden act of grisly violence.”

Ben tried to refrain from rolling his eyes. He hated attorneys who thought they were Edgar frigging Allan Poe. He hated seeing what should be a cold, unemotional recitation of the facts turned into “The Fall of the House of Usher.”

“Ladies and gentlemen, the overwhelming evidence will show that on that moonless morning, the defendant, Christina McCall, took her lover’s gun and shot him, at point-blank range, four times in the head. As you might imagine, one such shot would easily have killed him. What kind of woman would stand there and shoot, not once, but four times? The same woman, as the evidence will show, who was found by FBI agents hovering over the body, her fingerprints still fresh on the gun. The same woman whose only statement to the arresting officer was, ‘I killed him.’ ”

There was no point in objecting. It was argumentative, but Moltke was carefully couching his statements in terms of what “the evidence will show,” which theoretically kept him within the scope of opening statement. Derek would simply rule that the jury could listen to the testimony for itself and decide whether the opening remarks were accurate. Then Derek would sneer and make it clear to the jury that he held Ben in complete contempt. No, Ben was going to save his objections for when he needed them.

Moltke continued for about twenty minutes, painting Christina as a spiteful tramp, linking the murder to drug smuggling and organized crime, and evoking sympathy for the bereaved widow, the betrayed woman. He gestured to Margot, now without her sunglasses, poised in the front of the gallery with a stricken expression on her face. Had he arranged for her to get a front-row seat? Probably.

Moltke seemed to go back and forth on motive, sometimes suggesting the killing was the product of a lover’s spat, sometimes suggesting Christina was after Lombardi’s drug stash. It didn’t really matter. The motives weren’t entirely contradictory. Besides, this was a jury trial, not Logic 101. Ben watched the jurors follow Moltke’s. words, gestures, and facial expressions. He held them spellbound throughout his presentation.

When Moltke was finished, Ben took the podium. He would be the voice of reason, he thought, presenting the hard facts in a calm, even-handed manner, without Moltke’s manipulative gimmicks. “Ladies and gentlemen of the jury,” Ben began. “Everything counsel for the prosecution has just told you is disputed. You will hear evidence refuting every fact of importance in their case. And the judge will instruct you to make your ultimate decision based upon the evidence, not the things attorneys tell you. I merely ask that you listen carefully to the evidence presented, and that you remember the promise you made to me earlier.”

He saw a puzzled expression on Mr. Svenson’s face. Promise? Oh yes, you had one, too, didn’t you? What was it about? Ben could tell he didn’t remember. He wondered if any of them did.

Ben carefully sorted through the facts previewed in Moltke’s opening, presenting Christina’s denial, or refutation, or explanation. He covered the forensic evidence, the medical evidence, the ballistics evidence, and the inconclusive drug analysis. All the hard-core facts. All the nitty-gritty detail that Moltke left out of his opening.

For good reason. Again, Ben could feel the jury’s attention drifting. He was boring them. It was hard to believe a drug-related homicide could be boring, but he was making it so. Of course they loved Moltke. He fulfilled their expectations; he made the lugubrious trial process almost as compelling as it was on television. Ben turned it into algebra in a courtroom.

Ben saw them stretch, twist, and glance at the clock on the wall, but there was nothing he could do. He stuck to the script he had prepared in advance; he couldn’t improvise a Stephen King subplot just to grab the jury’s attention. He finished his preview of the evidence and began identifying the anticipated defense witnesses.

“Excuse me, counsel.”

Ben glanced back at Derek. He was yawning. Thanks, Judge, very subtle.

“I believe your time has expired.”

“Time?” Ben said. “I wasn’t aware the court was imposing time restraints on opening statement.”

“Well, normally I wouldn’t, but…” His voice trailed off. Several of the jurors smiled. “Try to wrap it up, okay?”

Ben could argue, but it would be pointless. The jury clearly sympathized with Derek. He listed his witnesses quickly and returned to defendant’s table.

Christina was still focusing straight ahead, looking alert, but not otherwise displaying emotion, just as he had told her to do. But Ben could see past that. He could see the tiny crinkles encircling her eyes, the near invisible trembling of her hands. She’d been in the courtroom many times before—more times than Ben for that matter. She knew who was winning. And who wasn’t.

“Splendid,” Derek said, popping another tablet. “Let’s move right along. Mr. Prosecutor, call your first witness.”