False Dawn

10

Judge Herman Roth adjusted his eyeglasses, ran a hand over his shiny skull, and peered in the general direction of the twelve warm bodies filling the jury box. “Does each of you understand that a defendant is not required to prove his innocence or to furnish any evidence whatsoever, and that this right is guaranteed by the Constitution?”

Twelve heads bobbed yes.

“And does each of you promise not to hold it against this defendant if he chooses to exercise his constitutional right not to testily?”

The double negative notwithstanding, on cue, all the sheep baaed.

Sure, I thought. They’ve all heard of the Fifth Amendment, some technicality used by wily lawyers to keep racketeers out of jail. Jurors want to follow the law, they really do. And they’ll answer all the questions correctly in voir dire. But behind the closed door, whether it’s said openly or not, the thought is there. Dadgummit, if I was innocent, I’d just get right up there and say so. What’s that fellow hiding? Every lawyer knows this, but there are simply times you cannot subject a client to cross-examination. It is often the most important decision a lawyer will make in a criminal case.

With Francisco Crespo, it was easy. If Crespo took the stand and told the story he had recited to me, he would convict himself. No doubt about it. So my original plan was to keep him sitting at the defense table looking frail and innocent while I took a whack at the state’s witnesses and tried to ferret out some reasonable doubt. That morning, I had asked him whether he had forgotten to tell me about Smorodinsky threatening him with a knife three days before the fatal fight.

“ Ay, el cuchillo. Three rows of saw teeth.”

Those teeth again. At least they had their stories straight. “And on the sixteenth. Did he come at you again with this knife?”

“Would it get me off if I said he did?”

I like someone who thinks before answering.

“Maybe. But you never mentioned it to the cops and nobody found a knife. If the jury thinks you’re lying, you’ll be convicted for sure.”

“ Veintecinco anos.”

“Right, without parole, and it would be a damn shame, Francisco, because you didn’t kill him. If you’d only tell me what happened…”

He shrugged and his neck disappeared inside the dress shirt I had just bought for him. I got him a new suit two sizes too large and a white shirt with a collar that would fit me. When Crespo dozed off during the judge’s preliminary statement to the jury, his chin disappeared inside the shirt collar.

Emilia Crespo sat in the first row of the gallery, directly behind me. She gave us moral support plus a bag of homemade guava pastries. In the corridor that morning, she kissed Francisco and hugged me, but without the strength I remembered. Then she whispered a prayer in Spanish, crossed herself, and said again, “ Protegeme a mi hijo.”

I hugged her back and promised I would. I looked into her eyes. She had gotten old without my noticing it. Dark shadows clung to the folds below her eyes. Along the jawline, the skin was no longer taut. She moved slowly and seemed to have lost weight. A robust woman when I first met her-she carried my suitcase into the house that day years ago-she had shrunken with age.

Now Judge Roth was holding up a blue-backed document and waving it at the jury. “Does each of you understand that this piece of paper called the information is not evidence. It carries no inference of guilt.”

Twelve heads nodded in unison. But where there’s smoke, there’s fire. That sumbitch didn’t get here by helping little old ladies cross the street. Sometimes, I wonder why we even bother. Just round up the first six people you find and sit them in the box. Our juries wouldn’t be any better or any worse.

Abe Socolow sat at the state’s table, furiously taking notes, recording observations about each prospective juror on the twelve-square grid he had drawn on his legal pad. He was also trying to memorize each name before he began his questioning. All lawyers do that. How about you, Mrs. Ferbergooble? Can you give the state a fair trial, Mrs. Ferbergooble? We all love to hear our own names. If you don’t believe it, you haven’t been imprisoned in an eight-foot-square cubicle with a car salesman.

Socolow was good. He was always prepared, and once he worked with them, so were his witnesses. Once, when I was new at this and he was still handling misdemeanors, I defended a DUI case where my client caused an accident that didn’t hurt anybody but ruptured his own car’s radiator. Socolow’s main witness, the investigating officer, testified that he smelled alcohol on my client’s breath.

“Isn’t it possible,” I asked on cross-examination, “that what you smelled was antifreeze?”

“Sure,” the cop replied, not missing a beat, “if that’s what he was drinking.”

Judge Roth was reciting his litany, asking if anyone had served on a jury before, if there were any policemen in the family, and if each juror would base his or her verdict solely on the testimony and the law. He received what he sought, mindless agreement. The judge droned on, hunched over the bench, a wizened old bird who liked running a courtroom better than poling for bonefish or whacking a little ball out of the sand or any other sane activity. He asked whether they would be more likely to believe testimony of police officers, and they all solemnly said no. Funny, I whispered yes because cops are the best liars.

I kept waiting for my favorite question as did Bill the Bailiff. Bill is a retired postal worker who’s even older than Judge Roth and skinnier than Abe Socolow. We had a standing bet on the victim-of-crime question. I took “over”; he took “under.” Although we only needed to seat six jurors plus two alternates, there were twelve prospects sitting in the box at all times. If more than six raised their hands, I would win the over, and Bill would bring me a quart of his homemade cerviche, bay scallops marinated in lime juice with onions, peppers, and cilantro. It’s my one exception to the no-raw-fish rule. If fewer than six jurors raised their hands, I would bring him a lug of Saigon mangoes I would steal from neighborhood trees. An even six, and the bet would be a push.

“Any of you ever been a victim of a crime?” Judge Roth asked. Bill the Bailiff tugged his suspenders and winked at me.

Eight hands shot up, then slowly a ninth, a computer systems analyst for a department store chain. “Does it count if my car was broken into but not stolen?” he asked.

Judge Roth considered the question as if it were of momentous gravity. “Nothing stolen, you say?”

“Well, my gun, of course. A Colt Combat Commander. 45 taken from the glove compartment.”

Two other jurors nodded and murmured something about their guns being stolen in home burglaries.

The judge let out a low whistle and shook his head. “Never leave a gun like that in your car. Too valuable. Personally, I prefer something lighter, but not too small.” He pulled up his fuchsia robe until it covered his bald head. We were now treated to a view of a sweat-stained armpit and a shoulder holster with a small pistol. With a palsied hand, the judge drew the gun, squinted one eye shut and aimed in the general direction of Francisco Crespo, who sat about two feet to my right. I leaned the other way but decided not to raise an objection.

“Colt Mustang 380,” Judge Roth announced, using a two-hand grip now, the barrel bouncing up and down as if he stood on a pitching boat. “Only five rounds, but packs four times the knockdown power of the 25 ACP automatic.”

A middle-aged woman juror-a registered nurse at Mount Sinai Hospital-raised her hand. “I think firepower is overrated, Your Honor. I just carry a Beretta 25 semiautomatic. Seven rounds and only weighs twelve ounces. Fits in my purse.”

The judge nodded judiciously. “Light weight’s an advantage, no doubt about it, but with a twenty-five millimeter, you’d better hit the perp in a kill spot.”

At this point, half the jurors were exchanging views on handguns. The court clerk, a black woman with a well-groomed Afro, told the stenographer she kept a Sig Sauer 230 in her gym bag to keep interlopers out of her spot in aerobics class. The stenographer was too busy typing to answer.

Bill the Bailiff looked gloomy as he moped over to the defense table to congratulate me. He hadn’t won an under bet in two years. “A little less onion this time, Bill,” I told him.

Finally, sensing that matters had careened off track, Judge Roth cleared his throat and plunged ahead. “Does any of you have a physical impairment that would keep you from serving on this jury?”

Nothing worse than your hardening of the arteries, I thought.

Eleven heads wagged no. “I got a pretty fair case of hemorrhoids,” answered an airline mechanic in a blue work shirt.

“The bailiff will find you a pillow,” Judge Roth said, dismissing the notion that an itch can keep you home. To get a medical excuse, a juror better qualify for last rites. There are just too few folks willing to spend a week with smart-alecky lawyers who ask nosy questions and try to trick them into believing that a degenerate slimebag is a misunderstood choirboy.

Finally, it was Abe Socolow’s turn. Before he stood up, a middle-aged man in a gray suit and wire-rimmed glasses walked from the gallery to the prosecutor’s table, leaned over, and whispered something in Socolow’s ear. The state gets all the help. I only had my client, who was sound asleep, and my secretary Cindy, who sat behind me and selected jurors by their astrological signs. Marvin the Maven was still miffed with me and was spending the week in Divorce Court.

Socolow unfolded his long, lean body from the carved wood chair and approached the jury box. He wore his trial suit of undertaker’s black, a white button-down shirt, and a black tie festooned with silver handcuffs. His sallow complexion had a hint of color today, and not from the sun. The start of a trial, the adrenaline flows, the heart picks up the pace. With Abe, it was an insatiable desire to win. Me? I just try not to embarrass myself.

“May it please the court.” Abe bowed deferentially to Judge Roth, who waved a liver-spotted hand signaling Socolow to begin. “This is the part of the trial known as voir dire.” Somehow Abe gave it four syllables, voy-eur dy-ar. “That’s a fancy foreign phrase meaning ‘to speak the truth.’ Judge Roth has asked some preliminary questions, and now it’s my turn, and then Mr. Lassiter’s. Each of us wants you to simply speak the truth. Now, why do we ask these questions, some of which can be quite personal. To embarrass you? No. To get a jury biased in our favor? No. We merely want a fair and impartial jury…”

Maybe you do, Abe, but I once seated a blond flight attendant for the simple reason that she wasn’t wearing a bra.

“… a jury that will decide the case solely on the evidence and free from any prejudice that may result from their backgrounds.”

Abe took up the rest of the morning asking everybody’s occupation, whether any of their kinfolk had run-ins with the law, and whether they believed in the grand old American jury system. “Mr. Bolanos, you heard the judge tell you that, to adjudge the defendant guilty, you must find that the state proved its case beyond and to the exclusion of a reasonable doubt.”

A hesitant nod. He knew there’d be a follow-up.

“And Mr. Bolanos, do you understand that beyond a reasonable doubt does not mean a shadow of a doubt, a fleeting doubt, an imaginary, illusory, or fanciful doubt?”

Bolanos nodded his profound agreement.

“To be a reasonable doubt, it must be…”

Reasonable, I figured.

“Solid, substantial, real-”

“Objection!” I was on my feet. “Counsel for the state is rewriting the jury instructions before our very eyes.”

“Overruled. But that’s quite enough on that issue, Mr. Socolow. Move along.”

I sat down. I had lost the objection but won the point as Judge Roth ruled in the time-honored fashion of not offending either lawyer.

When it was my turn, I decided to be brief. I stood up, reintroduced myself, and shuffled my two-hundred-some pounds over to the rail. I ran a hand through my shaggy hair, showed my friendly grin, looked at the clock on the wall, and said, “Well, it seems the judge and the state attorney have asked all the good questions, and since it’s a few minutes until noon, I just want to know who’s ready for lunch.”

I got a dozen raised hands and just as many smiles.