Deadlocked

Chapter 36

The minimum qualifications for the grand jurors who would decide whether to charge Mason with murder were that they had either registered to vote or had licensed a car. Those were the lists from which the grand jury was chosen to serve for a six-month term.

Mason knew that selecting a jury was one of the most critical parts of a trial. It was his chance to question potential jurors about anything that could reveal their bias against his client. Billed as a way to select a fair jury, it was, in reality, a way to de-select jurors who were likely to favor the other side.

When he selected a jury, Mason tried to learn as much as he could about each potential juror: where they lived, where they went to school, what they did for a living, what they thought about legal issues such as the death penalty and the burden of proof. He observed their body language, thought about the clothes they wore, and wondered if they watched PBS or American Idol and whether they read USA Today or The Wall Street Journal.

The grand jury was different, chosen at random from the county's master list of jurors. Neither Mason nor his lawyer had any right to question them or to object to their selection. His fate was in the hands of twelve strangers whose names had been plucked from the public rolls.

On Friday, Mason chose a navy blue suit for his grand jury testimony, rejecting the black as too funereal and the gray as too bland. He picked a white shirt and a pale blue tie, hoping the ensemble shouted his innocence in muted tones. He was in the bathroom down the hall from the courtroom used by the grand jury studying his appearance in a mirror, only minutes left before he would testify. He caught a tic in the corner of his left eye, an involuntary betrayal of his less than steely nerves. Worried that the grand jurors would read the minispasm as a guilty plea, he massaged the spot, hoping it would pass.

That his life might depend on such trivial matters sent the tic momentarily into overdrive. He loved the courtroom arena, always getting juiced by the battle, never shrinking from the challenge. He embraced nervousness, knowing that it was born of anticipation, not fear. Beneath it all, he had an inner calm nurtured by his trust of the system. He believed in its fundamental fairness and he never doubted the wisdom of leaving life and death to a jury of one's peers.

Until today. Hearing his name called as the defendant and not the counsel of record changed everything. Now every weakness in the system jumped out at him like bogeymen at a haunted house. Prosecutors dealt from a stacked deck. Jurors had hidden agendas, waiting for a chance to star in the ultimate reality show. Defendants were presumed innocent but must have done something wrong to have been charged in the first place.

Grand jury proceedings were more frightening because they were secret. The jurors were prohibited from disclosing the witnesses' testimony or their vote on whether to indict.

Witnesses, however, were free to discuss their testimony after their appearance.

Whitney King had been the first witness that morning, holding a brief televised press conference afterward on the courthouse steps. Mason had watched from his office. The storm had left behind a city with temperatures in the low eighties, Mother Nature's apology for the brutal heat wave. Morning was even cooler, giving King a crisp appearance, the sun smiling over his shoulder.

"What did you tell the grand jury?" a reporter asked King.

"The truth," King answered. "When I was charged with a crime, I put my faith in the truth and I wasn't disappointed."

"At the arraignment, Lou Mason's lawyer said you were supposed to meet Mason and Sandra Connelly at your office. Is that true?" another reporter asked.

King shook his head. "No. I told the grand jury that I don't know anything about that."

"Why would Mason say that if it was so easy to prove he was lying?" a third reporter asked. The camera panned to the reporter. It was Sherri Thomas from Channel 6, no friend of Mason's. She had chased Mason throughout the Gina Davenport case, Mason refusing to feed her habit of distorted reporting aimed only at boosting her ratings. The camera swept back to King for his answer.

"Desperate people do desperate things," King said.

"Like Nick Byrnes trying to kill you?" Thomas asked.

King pursed his lips. "Nick Byrnes and I have more in common than you think," he said. "We've both been hurt by the murders of his parents. I understand that and that's why I'm not pressing charges against him. The doctors say he's going to be okay. I'm glad for that. It's time for both of us to move on."

"What about the disappearance of Mary Kowalczyk and the suspicious deaths of all those jurors who found you innocent? Why do so many people connected to you end up shot, missing, or dead?" yet another reporter asked.

The camera remained locked on King, but Mason recognized the reporter's voice. It was Rachel Firestone. Mason knew she wasn't covering the story. She was covering him. King's jaw tightened, his eyes narrowing for an instant as he fought with his composure.

"Life is a fragile thing, Ms. Firestone. You'd do well to remember that," he answered.

Moments from his grand jury appearance, Mason repeated King's answer, rolling it around in his mind, testing it for elements of confession and threat. He owed Rachel a bottle of her favorite wine for taking the shot at King, especially since he knew her editors at the Kansas City Star would probably kick her to the classifieds for butting into a story that was off limits to her because of her friendship with Mason. He was grateful for what she had done, but didn't want her on Whitney King's short list of problems to be solved.

He took a last look in the bathroom mirror. The tic had submerged for the moment. He splashed cold water on his face, wiped it clean and winked at himself for luck.

The grand jury met in a courtroom on the sixth floor of the courthouse guarded by sheriff's deputies who kept out the curious. Dixon Smith was waiting for Mason outside the courtroom, greeting him with a firm handshake and a clap on the back. Smith guided him to a quiet alcove.

"I got the phone records this morning. There's no record of a call from Whitney to Sandra."

Mason leaned hard against the wall. "Maybe Whitney stole a cell phone so the call couldn't be traced to him."

"Negative," Smith said. "All of Sandra's incoming calls are accounted for except one that fits with your time frame.

There's no information identifying the source of that call,

only that it was received."

"How can that be?"

"I don't know yet. But, if Whitney used his phone, there would be a record of it. If he stole a cell phone, there would be a record on that account and on Sandra's bill. We can show Sandra received a call, but we can't prove who made it."

"Swell. Who am I following?" Mason asked.

"The priest," Smith answered. "Father Steve. I think Ortiz is going to use the shooting of Nick Byrnes as part of your motive. He'll tell the grand jury that you decided to take the law into your own hands or some bullshit like that."

"Were you here when Father Steve came out? Did you get close to him?"

"Not close enough to make confession. Why?"

"Did he smell like he'd been smoking?"

Smith thought for a moment. "Yeah, I guess he did, now that you mention it. So what? Even a priest has to have a few vices."

"Remember I told you that there was something familiar about the killer but I couldn't put my finger on it? Well, I remembered. It's that smell."

Smith rolled his eyes. "Lou, you don't have enough problems, you want to accuse a priest of killing Sandra Connelly because he smokes?"

"It's all I've got," Mason said.

"Then we damn well better get something else. Now, remember the magic words-Fifth Amendment-and you'll be out of there in five minutes," Smith said.

"If I'm not, send in a search party," Mason said.

Smith gave him another pat and opened one of the heavy, double doors for Mason who stepped inside the courtroom, the door silently closing behind him, a small rush of air swooshing out of the room. Mason stood still for a moment, surveying the scene.

The courtroom was big, suitably grand for the stature of the jury. The judge's raised bench was vacant, flanked by the state flag on one side and the Stars and Stripes on the other. The Great Seal of the State of Missouri hung above the bench, two bears surrounding the inscription "United We Stand, Divided We Fall." It was a curious choice for a state that had been more slave than free when that phrase meant something.

Without a judge, it felt to Mason more like a movie set with the grand jury rehearsing their roles. They were dressed for summer, wearing short-sleeved shirts, slacks, and jeans. Even Patrick Ortiz had taken off his suit coat and rolled up his sleeves as if their production wasn't even a dress rehearsal. Though he knew it was real, Mason still couldn't believe the part he was playing.

The jury box was cut from dark walnut, as were the judge's bench, counsel tables, and pews. There were no windows, the only light coming from a constellation of fixtures planted in the high ceiling, bulbs shaded by opaque milky glass, diffusing cool light, leaving the room gray and cold.

The grand jurors were seated in the jury box, legal pads poised on their laps for the notes they were taking. They were a mix of races and ages, all staring at him. He wanted to study them, do a quick and dirty jury analysis, pick the strong leaders to focus on, the weak followers to ignore. But he knew there wasn't time. Hesitation, even at taking his seat, could give the wrong impression.

Mason smiled at them, nodding, drawing a handful of smiles and nods in return, pleased that he'd made a connection, even if it was only a reflex courtesy. He strode toward the witness stand, paying no attention to Patrick Ortiz who stood at his counsel table, head down, gathering his notes. One assistant prosecutor arranged stacks of exhibits while another hurriedly scratched questions on a legal pad. The flurry of activity would be wasted as soon as Mason invoked the Fifth Amendment.

The court reporter seated at her steno machine raised her right hand as Mason approached the witness stand.

"Raise your right hand and be sworn," she told Mason who faced her, his hand up, palm out, level with his face. "Do you solemnly swear that the testimony you are about to give in this proceeding shall be the truth, the whole truth, and nothing but the truth, so help you God?"

Mason looked past her to the grand jurors, answering in a loud, clear voice. "I do."

"Be seated," the court reporter said.

Patrick Ortiz sauntered to the podium in the center of the courtroom, sighing as he put his papers down. He was a working man doing the people's business. Without a judge, it was like playing a ball game without an umpire. Every pitch would be a strike.

"State your name," Ortiz said.

"Lou Mason."

"Mr. Mason, this grand jury has been convened in the matter of the death of Sandra Connelly," Ortiz began. "You understand that you have been summoned here to testify in connection with that crime?"

The witness chair could swivel and rock, adding more spin to an evasive witness. Mason leaned against its wooden back, planted his feet firmly on the floor, hands folded in his lap, bracing the chair with his feet.

"I do," he answered.

"Mr. Mason, were you with Sandra Connelly when she was killed?"

The question was a simple one. The answer would place him at the scene of the crime, the first step in convincing the grand jury that he should be charged with murder.

Mason couldn't answer the questions he liked and invoke the Fifth Amendment to avoid the questions he didn't want to answer. The privilege was absolute, not elastic. If he answered any question about what happened that night, his privilege was gone forever. If he declined to answer, Ortiz would ask a few more questions to make the point that he was refusing to testify, then kick him loose.

His case was a marathon, not a sprint. The smart play was to take the Fifth. He'd take his lumps today and be ready for trial. The privilege was for his protection. He had never let a client waive it, making the prosecutor earn his money. It would be a mistake to break that rule in his case.

Still, Mason wanted to answer. He wanted to put his faith in these people, not the system. He wanted to talk to them the way he knew Ortiz would. Like they were having coffee and he was telling them what happened. They were reasonable people. They would understand. They would believe him.

The grand jurors were sitting twenty feet away, holding the power to indict him for murder or set him free. He knew that they wanted to hear what he had to say as much as he wanted to tell them and that his refusal, no matter how well grounded in the law, would turn them against him.

He looked at them again. They were sitting up straight, edged forward in their chairs, a few holding their breath without knowing it.

"Mr. Mason," Ortiz said, stepping around the podium, holding a plastic evidence bag containing his handgun. "Would you like me to repeat the question?"

Mason squared his shoulders and turned toward the grand jury, the mantra of his right not to testify forming in his mind, the words never materializing, shoved aside by what seemed like common sense.

"I didn't kill her."