Hit List

Twenty-two

The foreman they had selected was named Milton Simmons. He was tall, forty-five or fifty, and he looked a little like Morgan Freeman. Keller figured that was why they had chosen him. Morgan Freeman had a kind of moral authority. Whether he was playing a good guy or a bad guy, you somehow knew you could count on him.

“Well,” Simmons said now, “we’re going to have to figure out how to do this. I guess the question is, did the state prove their case?”

“Beyond a reasonable doubt,” someone said, and a lot of heads nodded along with the phrase.

Keller felt keyed up, eager to get to it. Closing arguments had been extended, and Keller didn’t think either of the lawyers was particularly good. Nierstein had led off, picking the prosecution’s case apart piece by piece, switching from earnest reasoning to blistering sarcasm and back again. Then Sheehy, the prosecutor, took just as much time putting it back together again. Then, finally, the judge had charged the jury.

Keller loved the expression. He could picture the judge, lowering his head, pawing the ground, then charging the jury box like a bull, his black robes sweeping the floor.

The judge’s charge had been less dramatic than that, and lengthy, and impossibly tedious. He kept saying the same thing over and over, as if they were children, and not particularly bright children, either. And finally the twelve of them had been led away and locked up together, and here they were, entrusted with the awesome responsibility of determining the fate of a fellow human being.

“It seems to me,” one woman began, and left it at that when there was a knock on the door. The bailiff entered, followed by a pair of willowy young men who moved like dancers, each bearing a tray and depositing it gracefully on the side table.

“State of New York’s buying you lunch,” the bailiff announced. “There’s turkey sandwiches, all white meat, and there’s ham and cheese sandwiches, and the cheese is Swiss. I asked before was there any vegetarians, and nobody said a word, but just in case there’s a couple of peanut butter and jellies. Coffee and iced tea and Diet Coke, plus water if there’s any Mormons. Enjoy your meal.”

He followed the two young men out of the room. There was a silence, broken at length by Morgan Freeman. “I guess we’ll eat,” he said, “and talk later.”

Keller had a ham and cheese sandwich and a glass of iced tea. When there turned out to be no takers for the peanut butter sandwiches, he had one of those as well. Lunch was a curious business, with all conversation suspended, and the room dead silent but for the hum of the air conditioner and the resolute chomping of twelve pairs of jaws. When they’d all finished, one woman proposed summoning the bailiff and having the rest of the food removed. Mr. Bittner, who’d brightened up considerably when lunch arrived, pointed out that the bailiff hadn’t told them to do so, and suggested they leave the leftovers on the table, in case anyone got hungry during deliberations.

Keller looked across the table at Gloria, who rolled her eyes. One of the Asians said she couldn’t possibly eat another bite, and the foreman said neither could he at the moment, but that wasn’t to say he might not get the munchies down the line. Another woman said the sandwiches would get stale, just sitting out in the open like that, and someone countered that they were going to waste anyway, that the bailiff would just have them tossed out once they were removed from the room.

“It’s not like they could take them out of here and ship them to Somalia for famine relief,” she said, and a black woman across the table from Keller frowned momentarily, then evidently decided there was nothing essentially racist in the remark and let it go.

“Is there a consensus?” Morgan Freeman asked. “Are we all agreed that we’ll keep the food and drink handy?” No one said otherwise, and he smiled. “Well, we’ve settled the difficult issue,” he said. “Now we can turn our attention to the question of whether the defendant is guilty or innocent.”

“Guilty or not guilty,” Gloria said.

“I stand corrected,” he said, “and thank you. Judge hammered away at that one, didn’t he? We don’t need to believe in the man’s innocence to acquit him, just so he hasn’t been proved guilty. Anybody have any thoughts on how to approach the question?”

A hand went up, a Mrs. Estйvez. The foreman nodded to her, and smiled expectantly.

“I got to go to the bathroom,” she said.

The bailiff was summoned. He led the woman off. When he brought her back, he was accompanied by the two willowy young men, who began clearing away the leftovers. No one said a word.

“I wonder if we could go back to the VCR,” Gloria said.

“My cousin had one just like it,” somebody said, “and it was fine for playing movies from the video rental, but you could not get it to record a program.”

“She couldn’t program it,” someone else said.

“My cousin’s a man, thank you very much, and he programmed it just fine. It would start recording something, and then it would switch to another channel all by its own self. I swear that machine had a mind of its own.”

That put it ahead of the jury, Keller decided, which at the very least didn’t know its own mind, if it had one at all. They kept going off on tangents.

And now Gloria led them on a particularly oblique path. After the vagaries of VCRs in general had been explored at some length, she took up a thread the defense had pursued with some vigor. Nierstein had called several witnesses to trace the history of the VCR the prosecution had brought to the courtroom, from the moment when Clifford Mapes had allegedly purchased it from the defendant all the way to the present moment. The prosecution had taken pains to identify it as one of a shipment stolen from a Price Club warehouse on Long Island, and had produced a witness, one William Gubbins, who had acted as lookout for the thieves and had received the VCR as part of his share of the proceeds. Gubbins had testified that he sold the VCR to the defendant.

Nierstein’s contention was that the chain of evidence had been corrupted, that the electronic marvel on the evidence table was not the same one that his client had allegedly bought from William Gubbins and allegedly sold to the undercover policeman.

“Remember what he asked that property clerk? Asked him if he ever took home items entrusted to his own care?”

“The man said no,” said one of the Asians, a Ms. Chin.

“But Nierstein didn’t stop there,” Gloria reminded them. “He asked about a specific item, a video camcorder.”

“Wanted to know if the guy didn’t borrow it to film his daughter’s birthday party.”

“And he said no,” Ms. Chin countered.

Keller remembered the exchange. The property clerk, who Gloria felt would cut a much more impressive figure if he lost ten pounds and shaved off his mustache, had admitted that his daughter had a birthday party on such-and-such a date, that he himself had attended, and that he had immortalized the event on tape. He had admitted as well that he had not owned a video camera at the time, and did not own one now, but he steadfastly denied that he had taken one home from work, maintaining that he’d borrowed one belonging to his brother-in-law. Sheehy had objected to the whole line of questioning, calling it irrelevant, and suggesting sarcastically that the defense might next call for the tape of the party to be played in court. That brought a reprimand from the judge, who’d evidently found the whole business absorbing enough to overrule her objections.

“Well, I don’t know,” Gloria said.

“We can only go by the testimony,” Mrs. Estйvez said. “The lawyer asked the questions and the man answered them.”

Keller hadn’t wanted to say anything, but he couldn’t help himself. “But how did he know to ask?” They looked at him, and he said, “How did he know about the birthday party, and that the guy taped it?”

“Everybody tapes their kids’ parties,” somebody said.

Did they? Was every childhood birthday party captured that way, the moment frozen on time through the magic of videotape? Did anybody ever look at the tapes?

“But he knew the date,” Keller said. “He must have heard somewhere that the guy borrowed a camcorder. The clerk had to deny it, it’s a breach of regulations. Just because he denied it doesn’t necessarily mean it didn’t happen.”

“It doesn’t mean it did, either,” a woman pointed out.

“Well, no,” Keller said. “It’s a question of who you’re going to believe.”

“But what’s it matter? There’s no camcorder in the prosecution’s case. Just a VCR. Who cares if the guy borrowed a camcorder? Nobody was using it, and he brought it back in the same condition he borrowed it.”

“It establishes a pattern,” Gloria said.

“What pattern? If he borrowed a camcorder, he must have borrowed a VCR? And so what if he did? So what if he took the VCR home with him, which nobody says he did, by the way, and brought it back a day later or a week later? It’s still the same VCR.”

“Unless he switched it,” a man said.

And now they were off and running, trying to figure out why the property clerk would borrow a VCR in the first place, and why he might then substitute another one for it. “Maybe it was like your cousin’s,” a man said, with a nod at the woman whose cousin’s set kept changing channels for no discernible reason. “Maybe he had a lemon, so he switched it for the one in the evidence locker.”

“The one Mapes bought off the defendant.”

“The one Mapes says he bought off the defendant.”

Keller looked at Gloria. She wasn’t smiling, the expression on her face was carefully neutral, but he could tell that she was pleased.

“Eight guilty,” Morgan Freeman announced. Well, Milton Simmons, Keller thought, but Morgan Freeman himself couldn’t have said it better. “Three not guilty.”

“That doesn’t add up,” someone said.

“Makes eleven, and there’s one blank slip of paper. Guess somebody couldn’t make up his mind.” He frowned. “His or her mind. Their mind. This was just to get an idea where we stand, so your mind don’t have to be completely firm to vote one way or the other, but if you can’t say one way or the other at this point, that’s cool. Anybody who voted not guilty want to say anything about why you voted that way?”

“Well,” Gloria said, “I’m just not convinced the state proved their case. I still can’t be sure it’s the same VCR.”

“Girl,” the largest of the black women said, “is that a defense? ‘That’s not the stolen VCR I sold him. I sold him a different stolen VCR.’ Stolen is stolen and sold is sold.”

“What about the fruit of the poisoned tree?”

“That’s something else entirely,” Milton Simmons said, and explained what lawyers meant when they talked about the fruit of the poisoned tree. “If they searched the man’s house,” he said by way of example, “and if they found a roomful of stolen goods, and if the search was ruled illegal, then everything they found and everything it led to is the fruit of the poisoned tree, and woe unto him who eats of it. Meaning it’s inadmissible as evidence.”

“I bet they did, too,” Keller said.

“How’s that?”

“Search his house. You arrest a man for receiving stolen goods, you’d search his house.”

“Maybe they didn’t find anything.”

“Then you’d have had Nierstein crowing about it. ‘And did you search my client’s residence, officer? And did you find anything incriminating? So you would have us believe that the VCR allegedly sold by my client was the only piece of allegedly stolen property alleged to be in his possession?’ But nobody said a word about a search, which means it was suppressed.”

“Somebody screwed up the warrant,” a woman said. “Fruit of the poisoned tree.”

The mention of fruit aroused Mr. Bittner. “You had to go to the bathroom,” he said to Mrs. Estйvez. “And now there’s nothing to eat.”

“Hey, man, what was she supposed to do?”

“I’m sorry,” Bittner said. “I have low blood sugar, I get cranky.”

“Then why didn’t you tell the bailiff to leave the sandwiches?”

On and on, Keller thought. On and on and on.

There was a knock, and before they could respond the bailiff let himself in. “Judge wants to know how you’re doing,” he said. “If you think you’re getting close to a verdict.”

“We’re doing okay,” the foreman said.

“Well, not to rush you,” the bailiff said, “but it’s four o’clock already, so you got an hour if you want to get home tonight. If you don’t reach a verdict by five you get sequestered for the night. That means you spend the night in a hotel at the city’s expense. It’s a decent place, but it’s not the Waldorf. My opinion, you’d probably be more comfortable in your own homes.”

“What about food?” Bittner demanded.

“Meals will be provided at the hotel.”

“I mean now.”

The bailiff gave him a look and left the room.

“More comfortable in our own homes,” said the large woman, the one who’d called Gloria “girl.” “Translation: Get off your butt and come up with a verdict. Anybody think he didn’t do it?”

“That’s not the question,” Gloria said. “The question-“

“-is did he prove it. You think I don’t know that? We been saying it all day long and not getting noplace. So how about my question? Is there anybody here thinks he didn’t do it?”

No one else answered, so Keller said, “Did the man ever receive stolen property? I would say yes. Did he ever sell stolen property? Yes again. Did he sell it to a cop? Did he sell this particular stolen article to this particular cop? I could believe that and still not believe the state proved its case.”

“Beyond a reasonable doubt,” someone murmured.

“But I don’t know that I do believe it,” he went on. “It comes down to the same question all the time. Do we believe Mapes?”

“Even if Mapes stretched the truth some-“

“If Mapes isn’t telling the truth, there’s no case. And if Mapes is lying, there isn’t even a crime.”

“He’s a police officer,” someone said, “and the ones I’ve known have been pretty decent and honest, but there’s something about him that seems a little shifty.”

“Now that’s funny,” someone else said, “because my experience is cops lie all the time, but he impresses me as a real straightforward young man.”

“That property clerk was lying.”

“Yeah, I’m with you on that one.”

“Took home a camcorder to tape his kid’s party. That don’t mean the evidence got tainted about the VCR.”

“And it doesn’t mean Mapes lied.”

“Doesn’t mean he didn’t, either.”

At a quarter to five Morgan Freeman polled them again, informally this time, going around the room. By the time it got to Keller there were six voting to convict and three voting to acquit. Keller figured it didn’t matter, they weren’t going home that night no matter how he voted, but he had to say something. “Guilty,” he said.

“Not guilty,” said the woman to his left.

So it evened out. Last time they’d done this, Keller had been for acquittal, the woman to his left for conviction. Now Morgan Freeman voted to convict, and they were eight to four, with fifteen minutes left to work it out.

“Okay,” the foreman said. “I don’t say we’re deadlocked, not by any means. It’s just taking us a little while to sort things out. It’s whether or not a man goes to prison, and we don’t need to rush ourselves. Looks like we’re going to spend the night in a hotel.”

There was some grumbling, but Keller thought it seemed pretty good-natured. These people were New Yorkers, after all. You had to expect a certain amount of grumbling.