Compelling Evidence

CHAPTER 27

Apprehension, about yourself, about your client, about the quality of your evidence, and about the seeming flaws of your opponent’s case-all of these are afflictions that plague the lawyer on the opening day of trial. Take each of them and double them down in spades when you are dealing in death, fending off a capital case.

For me it’s been more than six years since the stakes have been so high; longer for Harry.

There are butterflies the size of pterodactyls soaring in my stomach. I am charged by the electricity of nerves down to my knees as Harry and I assemble our files of notes and the few reference works we will need at the counsel table. We work at this in silence, each of us dealing with our own demons of doubt.

These nerves, I have concluded, are universal, perennial. They come with every trial, to every lawyer. The more poised have merely learned to cloak them with the grace that accompanies experience.

“Are you ready?” Harry asks me.

“As I will ever be,” I tell him. My mouth is dry, parched. I reach for the water glass and fill it. Take a little sip.

I’ve had to restrain Talia, to keep her from Tod, who is outside in the corridor, to hold her here at the table with Harry and me. It won’t do to have the press taking social notes of her open courtroom conversations with other men, worse if the jury sees them. An innocent scene will take on whole new meanings once the state hops upon its horse of conspiracy.

Harry’s been giving Hamilton a wide berth, eyeing him with a suspicion that is palpable, since our conversation regarding Tod’s string of indiscretions with Talia. He has me wondering if indeed there is a more calculating side to the man. If Hamilton knows more than he’s saying, anything that could exonerate Talia, and he is withholding this, then his affection for her is a carefully crafted facade. Harry has raised the issue with me-whether it is love or avarice that fuels Tod’s desire for Talia. There are gold diggers and worse who are so bold, who might wait in the wings, even at some jeopardy to themselves, for this woman and what she stands to inherit if she wins.

Tod has appeared for his lineup with the cops, to be ID’ed by their motel clerk. But the police have been amazingly quiet since. He’s not been arrested or questioned further. Maybe the clerk is blind, I think. It’s more likely that Nelson would prefer to spring this trap during the trial, when we can no longer prepare.

In the first rows, immediately behind the prosecution, are the assembled press, busy soaking up color with their pens and slender notebooks. The artists with their large drawing pads have laid claim to the end-row chairs, for a little elbow room.

The rest of the chairs in the courtroom, the largest one in the building, have been set aside for prospective jurors. The public will have to wait until after we have a jury for admission.

The court reporter is ready, poised at her little machine. Harriet Bloom, Acosta’s clerk, is busy at her desk shuffling papers.

From the back behind the bench, Acosta comes out swiftly. A rush of rustling black robes, he ascends to the bench.

“All rise.” The bailiff is at his station.

The judge settles into his high-back chair and takes quick stock of those in his courtroom.

“Department 16 of the superior court is now in session, the Honorable Armando Acosta presiding. Be seated.”

The judge adjusts his glasses, half-frame cheaters that perch toward the tip of his nose. He nods that he is ready, and the clerk calls the case.

A little silence to set the stage, and Acosta takes over.

“The jury clerk informs me that we have a larger pool than usual of prospective jurors for this case.”

It seems they’ve gone out of their way, anticipating that with the pretrial publicity and no change of venue, we will bump a good number selected from the voters’ rolls.

It’s conventional wisdom in the law that in a criminal case the defendant’s fate, like steel rebar in concrete, is fixed with the selection of the jury. This is, I think, one of those truisms that become prophecy only after the result is known, when the trial is over.

But I’m taking no chances. My early concessions in avoiding a change of venue were not, after all, motivated by civic spirit. I’ve exacted a little quid pro quo, in a motion crafted by Harry, over Nelson’s hearty objections and to his considerable chagrin. Acosta has agreed that if the defense is not satisfied with the fairness of this panel, at the proper time he will consider a few extra peremptory challenges, for us and the people. This is his effort at a little hydraulics to level the playing field, following all the adverse publicity against Talia.

To a lawyer in jury selection the peremptory challenge is like a Stinger Missile, used to blow an objectionable juror out of the box without need to show cause, bias or otherwise. It is to be guarded jealously and used with discretion. In this state each side is allowed ten peremptory challenges in most cases. But in cases where death may be the ultimate penalty that number is doubled.

“Before we call in the jury, Your Honor, the state has one matter,” says Nelson. “A motion in limine.”

Acosta looks up. “Here or chambers?” he asks.

“Chambers would be best, Your Honor.” This means it is something Nelson doesn’t want the press to know.

There’s a noticeable groan from the pool in the front row. A lot of grousing. Pens poised, not even started and it’s downtime already.

I’m wondering what problem Nelson is hatching for me.

The judge is down off the bench, Nelson and Meeks behind him, Harry and I taking up the rear.

In chambers Acosta doesn’t bother to take off his robe. If he has his way this will be a brief gathering.

“What is it?” he says. There’s a little impatience in his voice.

“Your Honor, the people move to quash the subpoena issued by the defendant for trust records from the Potter, Skarpellos law firm. The defense is on a fishing expedition,” says Nelson. “These records are irrelevant to any issue bearing on this case.”

Acosta looks to me. “I’ve wondered about that myself,” he says. “How about it, counsel?”

“We’re fully prepared to make an offer of proof, Your Honor.” This is a little demonstration, an explanation of how these documents bear on Talia’s defense, to satisfy the court on the issue of relevance.

“Just tell me,” he says. Acosta doesn’t want to take the time to pull the court reporter into chambers or clear the courtroom for an argument on the record. I will insist if I lose.

“Your Honor, we have reason to believe, based on credible testimony of a witness we will produce during this trial, that the client trust account in question will reveal serious imbalances, trust deficiencies that are the direct result of embezzlement.”

Nelson looks at me in wonderment, like “So what?”

“We believe that these trust deficiencies are directly linked to the motive for the death of Ben Potter and bear directly on my client’s innocence,” I say.

Nelson’s looking at Meeks, who makes a palpable shrug with his shoulders-it’s a mystery to him.

I’ve carefully measured my argument. As few revelations as possible.

Acosta looks to Nelson, who stands silent.

“Motion denied,” he says. “I’ll allow the subpoena to stand.” Then he looks at me, more severe this time. “Admission will be subject to a showing of relevance at a later time, by your witness,” he says.

“Understood, Your Honor.”

“Good. Then let’s get a jury.”

I look at Nelson, who’s making a face at Meeks. The copiers at Potter, Skarpellos will be busy this night. So will Jimmy Lama, gathering excerpts of these records for Nelson’s accountants. I have already called my own and told them to get ready. I will need a rapid turnaround on an audit.

Acosta’s back on the bench, business settled in chambers.

In this county we use the jury selection process known as the “six-pack,” three rows of six, in the jury box.

“We’ll have the first eighteen,” says Acosta.

The clerk calls the first eighteen names from the jury list. Like sheep at the shearing, they file up from the audience and into the jury box. The rest, another 282 souls, sit and watch, to see what’s in store for themselves. Eleven women and seven men take their chairs. The demographics are already cutting against us.

There is a proclivity for older females, retired military types, and telephone company workers on juries in this county. I am leery of each. These people have seen too much of the inside of courtrooms for my liking. Utilities, it seems, love to do their civic thing, sending their people in droves, paying them their full salary while on jury duty. A conspiracy, I think, on the part of big business to whittle down civil judgments; these people spill over and show up too often on the criminal side now that I am doing the defense.

At best, even with the most scientific of approaches and tools, the selection of a jury under our system is a crapshoot of the most random variety. I have read and studied every method, from the high-priced tort sharks with their theories of body language and human paramessages, to the corporate gurus who do their voir dire while some shrink whispers psychic sweet nothings in their ears. In the final analysis, the passing upon any prospective juror comes down to your lawyer’s gut.

Factors that make any single juror desirable on one level, with regard to one aspect of your case, can make him the enemy on another. These are the psychodynamics of human bias multiplied by twelve. The unforeseen twists that are common to too many trials can, in one bad day, turn the best jury into a hanging mob.

A full quarter of the good citizens called for jury duty in this country show up at the courthouse already harboring the belief that criminal defendants wouldn’t be there unless they were guilty, though on penalty of death these jurors would never admit this in open court.

Harry and I know there are definite parameters to our jury in this case. Most women are likely to hang a scarlet letter about Talia’s neck. They will never condone her infidelity, or the relationship of convenience that was her marriage.

Red-blooded males, on the other hand, can empathize, not with Talia, but with her lovers. They can fantasize about themselves with this woman, and in so doing forgive her for her indiscretions. The younger the better, I think. The minds of youth are not yet warped by convention.

In my wildest dreams I have mused on the perfect jury for this case, a panel of young, single males, twelve fraternity jocks squirting prurient hormones.

As we begin, Harry is endlessly turning his pencil, sliding it through his fingers, eraser to point and back again on the table. This first part belongs to the court.

In cryptic terms Acosta summarizes the case and performs a little precursory examination, not directed to any of the veniremen in particular. This is general stuff, designed to short-circuit some of our questions.

He spends a good deal of time on hardship. “This is likely to be a long trial; if there are reasons why any of you might have difficulty serving over an extended period, this is the time to tell me.”

Three hands go up like rockets, women with small children; two of them are juggling kids and a job.

Acosta shoots them all down. “These are not hardships,” he announces. “You have a civic duty. Jury duty is a privilege.” This from a judge with a live-in maid. Acosta’s making a little show, to set the tone for others in the audience, a message that their excuses had better be good. As a practical matter, all sides flush with peremptories, it is likely that few if any of these will survive to make the final cut.

He moves on to other subjects: Do they know the defendant? Do they know any of the attorneys? Have they read extensively of the case?

One woman raises her hand.

“And what have you read, madam?”

“The papers,” she says.

“I think we’ve all read the papers. What in particular?”

“Where it said she was guilty.” The old lady is holding her hand close to her breast, pointing with her finger a little tentatively at Talia, as if she’s not sure whether this pretty woman is the defendant.

“I must have missed that story,” says Acosta. “Where did it appear?”

“I can’t say as I remember.” The lame cop-out of a juror anxious to go home.

“I see. And you believe that this would interfere with your ability to objectively judge the evidence in this case?”

“I don’t know,” she says. “I can’t be sure.”

“I would encourage you to put it out of your mind,” says Acosta.

“Your Honor.” I’m on my feet, looking down at a piece of paper with little grids, a name in each, corresponding to the jurors in the box. Harry and I have made these from the jury lists, using the numbers assigned to each juror. “I move that Mrs. Douglas be dismissed for cause.”

“Mr. Madriani, if we do this for every witness who has read about the case we’ll end up funneling the entire population of the county through this courtroom and we’ll never find twelve.”

“Your Honor, the juror says she isn’t confident of her ability to judge the evidence objectively.”

He humors me on this point, but makes clear that I should not view this as any precedent. He will judge the jurors, for cause, on their individual responses.

I tell him I understand.

“Very well. Mrs. Douglas, you’re dismissed.”

One down, I think.

She files out and passes her replacement on the way. Harold Parry takes her chair. He is fifty-five, looking seventy, in a string tie. No frat brother, but perhaps still capable of fantasies. I look at Talia, sitting impassively, glowing in the chair next to me. Yes, I think, Mr. Parry can dream.

It is after lunch, edging on toward mid-afternoon, before Acosta finishes these preliminaries and turns the jury over to the players.

We work through the jurors, give and take; me first, then Nelson.

I find he is skilled in his questioning, polished in his approach. He uses his noble bearing not to overwhelm the jury but to folks it to death.

There is an art to voir dire, different from the examination of witnesses, and Duane Nelson excels in it.

The adroit question to a juror, unlike direct examination, which often seeks a “yes” or “no” reply, is open-ended, designed to elicit conversation, a narrative from the veniremen, during which the lawyer can search out subtle prejudices. He works on his first juror, Mark Felding, in his thirties, a draftsman for a local architectural firm.

“Tell me about your family, Mr. Felding.

“Tell me, did you attend college?

“Tell me a little about the subjects you studied.”

Like the spider to the fly-“tell me,” “tell me,” “tell me.”

Nelson is schooled. He keys in on the big-ticket items. Studies have shown that more than in any other place-the family, school, church, or social organizations-overt prejudice is fostered most in the work place.

“Tell us a little about your line of work,” he says. “Tell us about your fellow workers. Are many of them women? Are any of your supervisors women?”

He looks for signs, the latent sneer, overt patronage, resentment at being under some occupational high heel, promising signs, things that might, in the due course of trial, lead to a little unknowing and repressed revenge.

Felding waves it off, normal, well adjusted by all accounts, “red-blooded,” perhaps himself a skirt chaser-good for our side.

Nelson works his way through three more jurors in an hour and turns them over to me again.

I return to Felding, lay light on him, some follow-up questions to put a face on it after Nelson’s examination. I’m throwing him a few big marshmallows.

“Can you judge this case fairly?

“Can you put everything out of your mind but the evidence?”

Questions requiring nothing more than a cursory “yes” or “no.” I try to pump up a little suspicion, a projection to Nelson that this man is not all I would hope for.

I move on to witness number four, Mary Blanchard, twenty-seven, a secretary with a small electronics company.

The danger of women-married and, worse, divorced-is that Talia will be viewed as the mythical “Other Woman,” a female capable of stealing their husbands away if given the opportunity. In the age-old battle of the distaff set, a man is the prize that goes to the victor, and Talia has displayed an astonishing ability to win in this war. She will be perceived as a threat in the competition for men. The prudent defense lawyer will avoid, like the plague, people on the jury who feel threatened by the defendant. To admit too many women to the jury is to run the risk of turning the trial into a silent and psychic cat fight.

“Tell me, Ms. Blanchard, about your family,” I say.

Three children, a dog, divorced. I shudder and move on to happier subjects. In an hour I have worked my way through three more jurors.

I turn them over to Nelson and he starts with Blanchard, then moves to Susan Hoskins, a housewife, married to the pastor of a church. He moves more swiftly now. By three in the afternoon we have worked our way through the first panel of jurors, and Acosta asks us to pass upon them for cause.

“Peremptories, gentlemen?”

I look at Nelson and nod, giving him the first shot.

He pauses for a moment back at the counsel table and looks at his paper with the little grids. Then like lightning from a dark cloud: “The people would thank and excuse juror number one, Your Honor, Mr. Felding.”

“You’re excused, Mr. Felding.”

Zap, like that, and Felding is gone. The others are looking about, avoiding eye contact with this undesirable as he leaves, wondering what it was he had said that caused Nelson to reach back and make him an instant outcast.

I return the favor. Mary Blanchard and Susan Hoskins are history, replaced by a man and a woman. Attrition will out, we will end up with a little male domination on this jury. Nelson comes back, and three more are gone. My turn, and I take out another four. By the time we are finished the jury box is looking decimated.

As a theory they call it the “alpha factor.” In recent years I’ve become one of its adherents.

Psychologists and those who work with them have isolated individual characteristics that cause some persons to establish dominance over others, territorial imperatives that give them influence. This human authority quotient is set by a number of factors. Age, gender, financial history, education, social status, mastery of the spoken tongue, and the number of people one supervises on the job-all of these and more are keys, indicative of the fact that the person may possess the alpha factor.

It’s a dangerous game, dealing in authoritarian personalities, and not one that most defense attorneys take to naturally. The trick is to find that dominant spirit who will favor your theory of the case, take pity on your client or otherwise buy into your evidentiary bag of goodies. Pick wrong and this godlike figure in the jury room may lead the pack to hang your client.

I thought I had him this morning. Sixty, silver-gray hair, articulate as the devil in his den, retired, professor emeritus at a small private college. A sociologist’s dream boat. Nine yards of touchyfeely in a package that looked like Maurice Chevalier. He came on strong, a humanist of the first order. Without his saying it, I could tell that to this man, human violence, even the ability to murder, was a character flaw to be counseled, cured, and quickly forgiven.

Nelson turned him into instant dog meat-cannon fodder. I could have spit when he wasted this guy with a peremptory.

Now we are getting thin. Challenges for cause are becoming more critical, but difficult to get. To Acosta, partiality, the specter of prejudice, is a thing of the past, a ghost that hangs its coat somewhere other than in his courtroom.

* * *

Five days into voir dire and we have empaneled nine jurors, six men and three women. The other three plus two alternates will take most of this day. We’re growing weary, doing this jury like an aerial dog fight, strafing the box, dealing out casualties, and taking more from this “target-rich environment,” as they say. The marble-mouths in the Pentagon would say they are “getting attrited.” The jury, the nine who have been here the longest, are beginning to look like the walking wounded.

I’m matching Nelson peremptory for peremptory. We each have two left in our respective quivers, and I’m beginning to wonder if I will have to go back to the well, to remind Acosta of his earlier pledge, a few more if we need them, for fairness’ sake.

“Mrs. Jackson”-I dip my wing and dive; another run-“tell me a little about yourself; what do you do occupationally?”

The questionnaire that came with the jury list says “school administrator.” I want to see how many variations she can play on this theme, to draw her out.

“I’m an administrator, with the school district,” she says. Short and clipped, and not too creative, like the lady’s following a script.

“I know,” I say, “but what do you do?”

“Budget oversight.” It is clear that Mrs. Jackson is not paid by the word. I might say this, even get a few laughs. But I have learned that jokes at the expense of an individual juror do not play well to the rest of the panel. Among people who moments before were strangers, the threat of probing and personal questions from a lawyer forms a fast fraternal bond.

Mrs. Jackson sits glaring at me from the box.

“I see you’re married. Can you tell us a little about your family?”

“We have three children. My husband’s in security,” she says.

I raise an eyebrow. “What type of security?”

“Military police,” she says.

I turn and look up at Acosta. His eyes are rolling in his head.

“Mrs. Jackson,” says the judge, “didn’t you hear me ask whether you or any member of your family was involved in law enforcement?” This is part of Acosta’s general spiel.

She looks at the judge with a blank stare. “Yes.”

“Well, you didn’t tell us your husband was in the military police. That is rather important.”

“I thought you meant real law enforcement,” she says.

There’s a little laughter from the audience.

The judge is shaking his head. “Go on, Mr. Madriani.”

I give the Coconut a look, like “Thanks for all your help.”

“Does your husband make arrests in his line of work?”

“On the base,” she says.

“Does he testify in court?”

“Military court-martials.” She pauses for a moment, straining in the box to think. This lady’s not going to get caught twice. “One time in federal court,” she admits.

“Do you understand, Mrs. Jackson, that much of the testimony which will be provided by the state in this case will come from sworn law enforcement officers?”

She nods.

“You have to speak audibly so the reporter can hear you,” I tell her.

“Yes, I understand about the police testifying.”

“How reliable do you believe a police officer’s testimony is, Mrs. Jackson?”

“Good,” she says. Like the Bible lettered in gold, I think.

“Would you tend to think it’s more believable than testimony offered by, say, a plumber?”

“Not if they’re talking about fixing a sink,” she says.

There are a few chuckles from the panel and the audience. I laugh along with them, like some cheap MC.

“Would you believe your husband, Mrs. Jackson?”

“Depends what he told me.” More laughter from the audience. She’s loosening up now, a regular sit-down comic.

“Would you tend to think that the testimony of a police officer is more believable, say, than testimony from a secretary?”

“I’d have to hear the testimony.”

I look at Acosta. There’s a tight little grin on his face, like “No help here.”

I load up with a few leading questions.

“I suppose,” I say, “that you share a lot of work experiences with your husband, that he tells you about arrests that he makes, about appearances in court or court-martials?”

“Yes,” she says.

“I suppose, if you were to see a young, good-looking police officer, maybe in uniform, appearing here in this trial, you might tend to think about your husband?”

“I might,” she says.

Acosta’s head is rolling slowly on his shoulders, like he’s on the ropes, close to a decision.

“And if that same police officer were to testify, you might have pleasant thoughts of your husband?”

She shrugs and says, “Maybe.”

“Your Honor-”

“All right, Mr. Madriani, you don’t have to put ’em in bed together.” Acosta shuffles a few papers on his desk. “We’re at that point anyway,” he says, “to pass upon cause for this panel. Any nominees, Mr. Madriani?”

“Mrs. Jackson,” I say.

“Mrs. Jackson, you’re excused,” he says, “for cause.”

She gives me a dirty look as she pulls out of the box.

Nelson and I pass on the rest for cause. We are getting close.

Jackson’s seat is quickly filled, by another woman, a housewife from down near the delta.

Nelson burns another peremptory, a young man in the front row. He was good for our side, articulate. This guy would not have to fantasize far to see Talia in his arms.

The clerk brings up one more, an old man, moving slowly. Nelson’s now down to his last peremptory. We are getting close to our jury.

I start on the old man. His age is an obvious problem, though I would not venture a guess. Nelson is immediately scanning the jury list.

“Mr. Kauffman,” I say.

He squints at me from behind Coke-bottle lenses and tilts his head, in hopes that my words may run louder downhill into his better ear. He appears to have made out his name.

Meeks is whipping through paper for Kauffman’s questionnaire at the prosecution table. When he finds it, he’s all fingers, to the block at the top, listing date of birth. There are knowing looks exchanged with Nelson, like “Maybe this guy was a drummer boy for the Confederacy.”

This presents a real problem for the prosecution, the single hung juror, a venireman who may not be up to the rigors and mental gymnastics of jury service for reasons of age. The fear here is not bias but indecision, the risk of having to try the case again, months of lost work, a small fortune in squandered tax dollars.

Nelson may look to Acosta for a little understanding on cause, but the Coconut knows older people vote. More to the point, they have time to organize for all forms of political vendetta. They come to court to watch in droves. In this county criminal sessions have replaced the soaps in terms of audience share. The little shuttle bus that stops in front of the courthouse hourly deposits an army of gray-haired citizens, all marching toward the latest drama in superior court. They are waiting outside in the hall for jury selection to end. The politic judge knows this.

“Mr. Kauffman, can you hear me?” I say.

“Oh yes, I can hear.”

“Do you know anything about this case, sir?”

“No.”

“Do you see the defendant sitting here?”

He cranes his neck a little to look, to take in all of Talia, not particularly impressed by what he sees.

“Have you ever heard of the defendant, read anything about her?”

“No.”

Sees lightning and hears thunder, I think.

“That’s all, Your Honor.” I take my seat and leave this problem to Nelson.

“Mr. Kauffman, I know that you heard the judge talk earlier about the likely duration of this trial. Do you really think you are up to the day-to-day demands of being here, listening to long hours of testimony?”

“Emm?”

“I say …” Nelson’s turning toward the table to look at Meeks. “Never mind.”

Nelson returns to the counsel table and looks at a pad where he’s jotted some notes.

“Mr. Kauffman, do you have any health problems, matters which require you to see a physician on a regular basis?”

Given his age, this is a good bet.

“Little constipation,” he says. “Gives me pills for it.”

“When’s the last time you were hospitalized, Mr. Kauffman?”

This sets the juror thinking, his eyes looking up, taking in all the perforated little panels on the ceiling. A good minute goes by while he counts on his fingers.

“Ah, ninet-e-e-e-e-n … fifty-six. No, no,” he says. “Mighta been ‘fifty-seven. Hemorrhoids.”

“You’re sure?” says Nelson.

“Oh yeah, hemorrhoids, real painful,” says Kauffman.

There’s laughter in the audience.

“No, I mean the year.”

“Oh yeah, about then.”

Nelson goes back to his little pad on the table, shaking his head.

“Do you live with anyone, sir?”

“What’s that got to do with anything?”

“Mr. Kauffman, please, just answer the question.” Acosta gives him a little chiding and a benign smile.

“Pioneer Home for Seniors,” he says. This is the bed-and-board high rise in the center of the city, one stop short of a convalescent hospital, for those who need cooking but aren’t quite ready for confinement.

“Sir, do you really think you’re up to coming here every day, maybe for weeks, possibly months, to listen to detailed testimony, from doctors, police officers, witnesses …”

As Nelson speaks Kauffman’s eyes begin to sparkle, a refreshed interest lights his face. Nelson’s describing more excitement than this man has seen in a decade.

“Sure,” he says. “I can do that.”

“It’s serious work, Mr. Kauffman. Hard work.” Nelson is stern, trying to quell this little rebellion of enthusiasm.

“I can do it,” he says. “I know I can.” There’s life in his voice, like with this kind of amusement to fill his days he could make it through the next century.

“You know,” says Nelson, folksy charm dripping through, “they used to excuse good senior citizens like yourself from jury service. The law figured that people over seventy worked hard, contributed their share to society, and now it was the turn of others to work. That these good people,” he gestures toward Kauffman, “deserved a rest, to relax in their later years.”

Kauffman’s look is the expressive equivalent of spit. He’s not buying Nelson’s geriatric populism.

“They used to feed Christians to the lions,” he says. “That don’t make it right.”

There’s laughter in the courtroom, a little applause from three older women in the back row. This is not going well. Nelson retreats to his table, conferring with Meeks. If they get him for cause, they have to consider at what cost, the alienation of other jurors on the panel.

“That’s all, Your Honor.” Nelson takes his seat.

Acosta looks at me.

“Mr. Madriani, for cause?”

“This juror is acceptable to me, Your Honor.” I look at Kauffman and smile. I would wave, but other jurors might think it improper. It’s a calculated risk, the assumption Nelson can’t live with Kauffman.

“Mr. Nelson?”

“Your Honor, we would move that Mr. Kauffman be excused for cause.”

“Not that I’ve heard,” says Acosta.

“Your Honor, it’s obvious that this trial is likely to go on for weeks. It’s going to be extremely rigorous.”

“And I hope you’re up to it, Mr. Nelson.”

There’s more laughter from the audience.

“Fine, Your Honor.” Nelson’s not interested in being the butt of political pandering. He takes his seat.

The judge looks at me again. “Peremptories?”

“No, Your Honor.”

“Mr. Nelson.”

Nelson’s in conference with Meeks. It seems they do not agree. Finally he tears himself away.

“Your Honor, the people would like to thank Mr. Kauffman and excuse him.”

“Mr. Kauffman, you’re excused.”

The panel is staring at Nelson like some tyrannical first mate who has just tossed the oldest and most infirm from the lifeboat.

Kauffman’s looking around like he’s not sure what this means. Another juror whispers in his good ear.

“Do I have to leave, judge?”

“Yes, Mr. Kauffman, I think so. Maybe you could help him out.” Acosta’s prodding his bailiff for a little help. The marshal and two men on the panel get him around the railing and point him toward the door.

Kauffman’s seat is quickly filled, a tall man, well proportioned, in a buff cardigan and tan slacks.

Kauffman’s still moving, shuffling like flotsam and jetsam toward the door, while other jurors talk to him from aisle seats in the audience, patting him on the arm, a folk hero.

I’m on my feet at the jury railing, starting on the cardigan sweater.

“Sir,” I say, “you’ll have to excuse me, but I don’t have the jury list. Could you give me your name?”

“Robert Rath,” he says.

He is bald as a cue ball, with a slender, intelligent face and delicate wrinkles of thought across the forehead.

“Can you tell us a little about yourself? What type of work you do?”

“Retired,” he says.

I’m wandering near the jury box. Harry has the list and the juror questionnaires, so I’m blind as to Rath’s background.

“What kind of work did you do?”

“Military,” he says. “I’m retired from the Air Force.”

I get bad feelings in my bones. This kind face, I think, is deceptive.

Rath’s not volunteering anything. Nelson’s pulled the questionnaire from Meeks and is looking at it. He drops the paper and lifts his gaze to the judge, round-eyed, like there’s some concern here.

“Tell us about the kind of work you did in the military, before you retired.”

“JAG,” he says.

“Excuse me?”

“I was part of the judge advocate general’s office, a military lawyer,” he says.

I turn and look at him. There’s a kind of confident, cocky expression on his face, like he knows he has coldcocked me.

“What type of legal work did you do in the military?”

“When you’re there for twenty-seven years, you do a little bit of everything,” he says. “But the last ten years I represented airmen under the uniform code of military justice. Your counterpart to the public defender,” he says. “Area defense counsel.”

He smiles at me, broad, benign, a brother in the cloth.

I glance at Nelson. He’s putting a face on it, composed, disinterested, unwilling to poison the other jurors with a burst of venom. But I know that in his gut he is churning, like the screws on the Love Boat.

I try to match his composure. But there are little yippees, jumping, erupting, crawling all over inside of me. A defense lawyer on the panel and the people out of peremptories.

Nelson’s not exactly screaming, but it’s the closest imitation I’ve seen by a lawyer at a judge in my recent memory. Acosta’s taking this in chambers, with the door closed. This time the court reporter is with us.

“You can’t allow him to sit.” This sounds like an order from Nelson. He’s pacing in front of the judge’s desk, his hands flailing the air.

“If it doesn’t violate the letter of the law, it certainly violates the spirit. The policy’s clear,” says Nelson. “The courts would never condone a lawyer exercising that kind of influence, dictating results to a jury of lay people behind closed doors. I can’t believe that you would want that.”

“It’s not what I want or what the courts want, Mr. Nelson. It’s what the law demands.”

For decades the statutes of this state had disqualified any lawyer from jury duty. Conventional wisdom held they would poison the fair-minded justice dispensed by average citizens, dominate other jurors. The organized bar went along with this, more interested in standing in front of the jury railing and being paid than sitting behind it. For forty years everyone was happy with this arrangement. Then a few years ago a lawyer-baiting legislator looking for headlines noticed these exemptions buried in the codes and cried foul. Reasoning that lawyers owed a civic duty to jury service, just like everybody else, he cowed the bar into silence, managed to suppress all rational thought on the subject, hustled his bill through the legislature, and promptly died. It was, it is said, his sole act of note in an otherwise undistinguished and brief legislative career. Lawyers on both sides of the railing have been taking his name in vain since.

I wade into the argument, trying to take some of the heat off Acosta.

“I wonder if the people would be here complaining, Your Honor, if Mr. Rath was a former prosecutor,” I say.

“No,” says Nelson, “we wouldn’t have to, you’d have already scotched him with a peremptory.”

It’s the hardest thing a lawyer has to do, argue with fundamental truth.

The prosecution has leveled an assault on the juror Rath that would shame a Roman legion, all in an effort to excuse him for cause. He has dodged each of these with the guile of a magician. Here, I think, is a retired man, younger but like Kauffman, with much time on his hands, a man whose heart pines for a return to the courtroom.

Nelson turns on Acosta and makes an impassioned plea for more peremptory challenges. Now he’s going for the soft underbelly. If the court can’t change the law to exclude Mr. Rath, it can exercise its discretion to grant the extra peremptories, he says. The ones the court talked about earlier.

“I object. Absolutely not, Your Honor. The court’s ruling on this was clear,” I tell Acosta. “You agreed only to entertain a defense motion for additional peremptories to be given to both sides, if it was felt we could not empanel a fair jury for reasons of publicity. So far, I’m satisfied with this panel. The defense makes no such motion.”

I tell Acosta that any additional peremptories given on request of the state would be viewed as highly prejudicial against the defendant.

Acosta can hear little bells tinkling, the sounds of appeal.

“Mr. Madriani’s right,” says Acosta. “My concession for additional peremptories was only for the causes as stated and then only upon proper motion by the defendant.”

“Besides,” I say, “it’s time to finish with this jury and get on to the trial.” Expedition, getting on with it, the standing general order of every judge.

“Sure,” says Nelson. “You’d put your mother on the jury and argue I was stalling if I tried to take her off.”

“Mr. Nelson, if you have a comment make it to me.” Acosta cuts him to the quick. The argument is degenerating.

“I can’t rewrite the statutes to excuse Mr. Rath because he’s a lawyer, and you’ve exhausted your peremptories. You tell me, you think you have an argument for cause?” Acosta’s looking at Nelson, heavy eyebrows bearing down.

The answer is written in the prosecutor’s bleak expression.

“It does violence to any sense of fairness, Your Honor.” Nelson’s shaking his head, but the imperative is gone from his voice. This is a little drama now, something that Nelson can put in the bank for later withdrawal, for use in a future skirmish, to remind the court how he was kicked on this one, and where.

The judge is heading for the door, Nelson two steps behind him.

“Just like a damn lawyer. When everything else fails, fall on equity.” I say this to Nelson, up close in his ear. My part, a bit of mock grousing.

He smiles, spares a laugh at this. It’s good to see, at least at this early stage, Nelson still has a sense of humor.

“The law’s the law. You and I both have to follow it, Mr. Nelson.” Acosta’s grumbling, unaware that we’ve both pitched it in. He’s blaming the law, unhappy that he couldn’t end this argument with all parties loving him.

But for the moment he has my warm affection, and I have Robert Rath, my alpha factor.