The Brass Verdict

Thirty-four

Everybody lies.

Cops lie. Lawyers lie. Clients lie. Even jurors lie.

There is a school of belief in criminal law that says every trial is won or lost in the choosing of the jury. I’ve never been ready to go all the way to that level but I do know that there is probably no phase in a murder trial more important than the selection of the twelve citizens who will decide your client’s fate. It is also the most complex and fleeting part of the trial, reliant on the whims of fate and luck and being able to ask the right question of the right person at the right time.

And yet we begin each trial with it.

Jury selection in the case of California v. Elliot began on schedule in Judge James P. Stanton’s courtroom at ten a.m. Thursday. The courtroom was packed, half filled with the venire – the eighty potential jurors called randomly from the jury pool on the fifth floor of the CCB – and half filled with media, courthouse professionals, well-wishers and just plain gawkers who had been able to squeeze in.

I sat at the defense table alone with my client – fulfilling his wish for a legal team of just one. Spread in front of me was an open but empty manila file, a Post-it pad and three different markers, red, blue and black. Back at the office, I had prepared the file by using a ruler to draw a grid across it. There were twelve blocks, each the size of a Post-it. Each block was for one of the twelve jurors who would be chosen to sit in judgment of Walter Elliot. Some lawyers use computers to track potential jurors. They even have software that can take information revealed during the selection process, filter it through a sociopolitical pattern-recognition program and spit out instant recommendations on whether to keep or reject a juror. I had been using the old-school grid system since I had been a baby lawyer in the Public Defender’s Office. It had always worked well for me and I wasn’t changing now. I didn’t want to use a computer’s instincts when it came to picking a jury. I wanted to use my own. A computer can’t hear how someone gives an answer. It can’t see someone’s eyes when they lie.

The way it works is that the judge has a computer-generated list from which he calls the first twelve citizens from the venire, and they take seats in the jury box. At that point each is a member of the jury. But they get to keep their seats only if they survive voir dire – the questioning of their background and views and understanding of the law. There is a process. The judge asks them a series of basic questions and then the lawyers get the chance to follow up with a more narrow focus.

Jurors can be removed from the box in one of two ways. They can be rejected for cause if they show through their answers or demeanor or even their life’s circumstances that they cannot be fair judges of credibility or hear the case with an open mind. There is no limit to the number of challenges for cause at the disposal of the attorneys. Oftentimes the judge will make a dismissal for cause before the prosecutor or defense attorney even raises an objection. I have always believed that the quickest way off a jury panel is to announce that you are convinced that all cops lie or all cops are always right. Either way, a closed mind is a challenge for cause.

The second method of removal is the preemptory challenge, of which each attorney is given a limited supply, depending on the type of case and charges. Because this trial involved charges of murder, both the prosecution and defense would have up to twenty preemptory challenges each. It is in the judicious and tactful use of these preemptories that strategy and instinct come into play. A skilled attorney can use his challenges to help sculpt the jury into a tool of the prosecution or defense. A preemptory challenge lets the attorney strike a juror for no reason other than his instinctual dislike of the individual. An exception to this would be the obvious use of preemptories to create a bias on the jury. A prosecutor who continually removed black jurors, or a defense attorney who did the same with white jurors, would quickly run afoul of the opposition as well as the judge.

The rules of voir dire are designed to remove bias and deception from the jury. The term itself comes from the French phrase “to speak the truth.” But this of course is contradictory to each side’s cause. The bottom line in any trial is that I want a biased jury. I want them biased against the state and the police. I want them predisposed to be on my side. The truth is that a fair-minded person is the last person I want on my jury. I want somebody who is already on my side or can easily be pushed there. I want twelve lemmings in the box. Jurors who will follow my lead and act as agents for the defense.

And, of course, the man sitting four feet from me in the courtroom wanted to achieve a diametrically opposite result out of jury selection. The prosecutor wanted his own lemmings and would use his challenges to sculpt the jury his way, and at my expense.

By ten fifteen the efficient Judge Stanton had looked at the printout from the computer that randomly selected the first twelve candidates and had welcomed them to the jury box by calling out code numbers issued to them in the jury-pool room on the fifth floor. There were six men and six women. We had three postal workers, two engineers, a housewife from Pomona, an out-of-work screenwriter, two high school teachers and three retirees.

We knew where they were from and what they did. But we didn’t know their names. It was an anonymous jury. During all pretrial conferences the judge had been adamant about protecting the jurors from public attention and scrutiny. He had ordered that the Court TV camera be mounted on the wall over the jury box so that the jurors would not be seen in its view of the courtroom. He had also ruled that the identities of all prospective jurors be withheld from even the lawyers and that each be referred to during voir dire by their seat number.

The process began with the judge asking each prospective juror questions about what they did for a living and the area of Los Angeles County they lived in. He then moved on to basic questions about whether they had been victims of crime, had relatives in prison or were related to any police officers or prosecutors. He asked what their knowledge of the law and court procedures was. He asked who had prior jury experience. The judge excused three for cause: a postal employee whose brother was a police officer; a retiree whose son had been the victim of a drug-related murder; and the screenwriter because although she had never worked for Archway Studios, the judge felt she might harbor ill will toward Elliot because of the contentious relationship between screenwriters and studio management in general.

A fourth prospective juror – one of the engineers – was dismissed when the judge agreed with his plea for a hardship dismissal. He was a self-employed consultant and two weeks spent in a trial were two weeks with no income other than the five bucks a day he made as a juror.

The four were quickly replaced with four more random selections from the venire. And so it went. By noon I had used two of my preemptories on the remaining postal workers and would have used a third to strike the second engineer from the panel but decided to take the lunch hour to think about it before making my next move. Meanwhile, Golantz was holding fast with a full arsenal of challenges. His strategy was obviously to let me use my strikes up and then he would come in with the final shaping of the jury.

Elliot had adopted the pose of CEO of the defense. I did the work in front of the jury but he insisted that he be allowed to sign off on each of my preemptory challenges. It took extra time because I needed to explain to him why I wanted to dump a juror and he would always offer his opinion. But each time, he ultimately nodded his approval like the man in charge, and the juror was struck. It was an annoying process but one I could put up with, just as long as Elliot went along with what I wanted to do.

Shortly after noon, the judge broke for lunch. Even though the day was devoted to jury selection, technically it was the first day of my first trial in over a year. Lorna Taylor had come to court to watch and show her support. The plan was to go to lunch together and then she would go back to the office and start packing it up.

As we entered the hallway outside the courtroom, I asked Elliot if he wanted to join us but he said he had to make a quick run to the studio to check on things. I told him not to be late coming back. The judge had given us a very generous ninety minutes for the lunch break and he would not look kindly on any late returns.

Lorna and I hung back and let the prospective jurors crowd onto the elevators. I didn’t want to ride down with them. Inevitably when you do that, one of them opens their mouth and asks something that is improper and you then have to go through the motions of reporting it to the judge.

When one of the elevators opened, I saw the reporter Jack McEvoy push his way out past the jurors, scan the hallway and zero in on me.

“Great,” I said. “Here comes trouble.”

McEvoy came directly toward me.

“What do you want?” I said.

“To explain.”

“What, you mean explain why you’re a liar?”

“No, look, when I told you it was going to run Sunday, I meant it. That’s what I was told.”

“And here it is Thursday and no story in the paper, and when I’ve tried to call you about it, you don’t call me back. I’ve got other reporters interested, McEvoy. I don’t need the Times.”

“Look, I understand. But what happened was that they decided to hold it so it would run closer to the trial.”

“The trial started two hours ago.”

The reporter shook his head.

“You know, the real trial. Testimony and evidence. They’re running it out front this coming Sunday.”

“The front page on Sunday. Is that a promise?”

“Monday at the latest.”

“Oh, now it’s Monday.”

“Look, it’s the news business. Things change. It’s supposed to run out front on Sunday but if something big happens in the world, they might kick it over till Monday. It’s either-or.”

“Whatever. I’ll believe it when I see it.”

I saw that the area around the elevators was clear. Lorna and I could go down now and not encounter any prospective jurors. I took Lorna by the arm and started leading her that way. I pushed past the reporter.

“So we’re okay?” McEvoy said. “You’ll hold off?”

“Hold off on what?”

“Talking to anyone else. On giving away the exclusive.”

“Whatever.”

I left him hanging and headed toward the elevators. When we got out of the building, we walked a block over to City Hall and I had Patrick pick us up there. I didn’t want any prospective jurors who might be hanging around the courthouse to see me getting into the back of a chauffeured Lincoln. It might not sit well with them. Among my pretrial instructions to Elliot had been a directive for him to eschew the studio limo and drive himself to court every day. You never know who might see what outside the courtroom and what the effect might be.

I told Patrick to take us over to the French Garden on Seventh Street. I then called Harry Bosch’s cell phone and he answered right away.

“I just talked to the reporter,” I said.

“And?”

“And it’s finally running Sunday or Monday. On the front page, he says, so be ready.”

“Finally.”

“Yeah. You going to be ready?”

“Don’t worry about it. I’m ready.”

“I have to worry. It’s my – Hello?”

He was gone already. I closed the phone.

“What was that?” Lorna asked.

“Nothing.”

I realized that I had to change the subject.

“Listen, when you go back to the office today, I want you to call Julie Favreau and see if she can come to court tomorrow.”

“I thought Elliot didn’t want a jury consultant.”

“He doesn’t have to know we’re using her.”

“Then, how will you pay her?”

“Take it out of general operating. I don’t care. I’ll pay her out of my own pocket if I have to. But I’m going to need her and I don’t care what Elliot thinks. I already burned through two strikes and have a feeling that by tomorrow I’m going to have to make whatever I have left count. I’ll want her help on the final chart. Just tell her the bailiff will have her name and will make sure she gets a seat. Tell her to sit in the gallery and not to approach me when I’m with my client. Tell her she can text me on the cell when she has something important.”

“Okay, I’ll call her. Are you doing all right, Mick?”

I must’ve been talking too fast or sweating too much. Lorna had picked up on my agitation. I was feeling a little shaky and I didn’t know if it was because of the reporter’s bullshit or Bosch’s hanging up or the growing realization that what I had been working toward for a year would soon be upon me. Testimony and evidence.

“I’m fine,” I said sharply. “I’m just hungry. You know how I get when I’m hungry.”

“Sure,” she said. “I understand.”

The truth was, I wasn’t hungry. I didn’t even feel like eating. I was feeling the weight on me. The burden of a man’s future.

And it wasn’t my client’s future I was thinking of.

Thirty-five

By three o’clock on the second day of jury selection, Golantz and I had traded preemptory and cause challenges for more than ten hours of court time. It had been a battle. We had quietly savaged each other, identifying each other’s must-have jurors and striking them without care or conscience. We had gone through almost the entire venire, and my jury seating chart was covered in some spots with as many as five layers of Post-its. I had two preemptory challenges left. Golantz, at first judicious with his challenges, had caught up and then passed me and was down to his final preemptory. It was zero hour. The jury box was about to be complete.

In its current composition, the panel now included an attorney, a computer programmer, two new postal service employees and three new retirees, as well as a male nurse, a tree trimmer and an artist.

From the original twelve seated the morning before, there were still two prospective jurors remaining. The engineer in seat seven and one of the retirees, in seat twelve, had somehow gone the distance. Both were white males and both, in my estimation, leaning toward the state. Neither was overtly on the prosecution’s side, but on my chart I had written notes about each in blue ink – my code for a juror who I perceived as being cold to the defense. But their leanings were so slight that I had still not used a precious challenge on either.

I knew I could take them both out in my final flourish and use of preemptory strikes, but that was the risk of voir dire. You strike one juror because of blue ink and the replacement might end up being neon blue and a greater risk to your client than the original was. It was what made jury selection such an unpredictable proposition.

The latest addition to the box was the artist who took the opening in seat number eleven after Golantz had used his nineteenth preemptory to remove a city sanitation worker who I’d had down as a red juror. Under the general questioning of Judge Stanton, the artist revealed that she lived in Malibu and worked in a studio off the Pacific Coast Highway. Her medium was acrylic paint and she had studied at the Art Institute of Philadelphia before coming to California for the light. She said she didn’t own a television and didn’t regularly read any newspapers. She said she knew nothing about the murders that had taken place six months earlier in the beach house not far from where she lived and worked.

Almost from the start I had taken notes about her in red and grew happier and happier with her on my jury as the questions progressed. I knew that Golantz had made a tactical error. He had eliminated the sanitation worker with one challenge and had ended up with a juror seemingly even more detrimental to his cause. He would now have to live with the mistake or use his final challenge to remove the artist and run the same risk all over again.

When the judge finished his general inquiries, it was the lawyers’ turn. Golantz went first and asked a series of questions he hoped would draw out a bias so that the artist could be removed for cause instead of through the use of his last preemptory. But the woman held her own, appearing very honest and open-minded.

Four questions into the prosecutor’s effort, I felt a vibration in my pocket and reached in for my cell. I held it down below the defense table between my legs and at an angle where it could not be seen by the judge. Julie Favreau had been texting me all day.

Favreau: She’s a keeper.

I sent her one back immediately.

Haller: I know. What about 7, 8 and 10? Which one next?

Favreau, my secret jury consultant, had been in the fourth row of the gallery during both the morning and afternoon sessions. I had also met her for lunch while Walter Elliot had once again gone back to the studio to check on things, and I had allowed her to study my chart so that she could make up her own. She was a quick study and knew exactly where I was with my codes and challenges.

I got a response to my text message almost immediately. That was one thing I liked about Favreau. She didn’t overthink things. She made quick, instinctive decisions based solely on visual tells in relation to verbal answers.

Favreau: Don’t like 8. Haven’t heard enough from 10. Kick 7 if you have to.

Juror eight was the tree trimmer. I had him in blue because of some of the answers he gave when questioned about the police. I also thought he was too eager to be on the jury. This was always a flag in a murder case. It signaled to me that the potential juror had strong feelings about law and order and wasn’t hesitant about the idea of sitting in judgment of another person. The truth was, I was suspicious of anybody who liked to sit in judgment of another. Anybody who relished the idea of being a juror was blue ink all the way.

Judge Stanton was allowing us a lot of leeway. When it came time to question a prospective juror, the attorneys were allowed to trade their time to question anyone else on the panel. He was also allowing the liberal use of back strikes, meaning it was acceptable to use a preemptory challenge to strike out anybody on the panel, even if they had already been questioned and accepted.

When it was my turn to question the artist, I walked to the lectern and told the judge I accepted her on the jury at this time without further questioning. I asked to be allowed instead to make further inquiries of juror number eight, and the judge allowed me to proceed.

“Juror number eight, I just want to clarify a couple of your views on things. First, let me ask you, at the end of this trial, after you’ve heard all the testimony, if you think my client might be guilty, would you vote to convict him?”

The tree trimmer thought for a moment before answering.

“No, because that wouldn’t be beyond a reasonable doubt.”

I nodded, letting him know that he had given the right answer.

“So you don’t equate ‘might’ve’ with ‘beyond a reasonable doubt’?”

“No, sir. Not at all.”

“Good. Do you believe that people get arrested in church for singing too loud?”

A puzzled look spread across the tree trimmer’s face, and there was a murmur of laughter in the gallery behind me.

“I don’t understand.”

“There’s a saying that people don’t get arrested in church for singing too loud. In other words, where there’s smoke there’s fire. People don’t get arrested without good reason. The police usually have it right and arrest the right people. Do you believe that?”

“I believe that everybody makes mistakes from time to time – including the police – and you have to look at each case individually.”

“But do you believe that the police usually have it right?”

He was cornered. Any answer would raise a flag for one side or the other.

“I think they probably do – they’re the professionals – but I would look at every case individually and not think that just because the police usually get things right, they automatically got the right man in this case.”

That was a good answer. From a tree trimmer, no less. Again I gave him the nod. His answers were right but there was something almost practiced about his delivery. It was smarmy, holier-than-thou. The tree trimmer wanted very badly to be on the jury and that didn’t sit well with me.

“What kind of car do you drive, sir?”

The unexpected question was always good for a reaction. Juror number eight leaned back in his seat and gave me a look like he thought I was trying to trick him in some way.

“My car?”

“Yes, what do you drive to work?”

“I have a pickup. I keep my equipment and stuff in it. It’s a Ford one-fifty.”

“Do you have any bumper stickers on the back?”

“Yeah… a few.”

“What do they say?”

He had to think a long moment to remember his own bumper stickers.

“Uh, I got the NRA sticker on there, and then I got another that says, If you can read this, then back off. Something like that. Maybe it doesn’t say it that nice.”

There was laughter from his fellow members of the venire, and number eight smiled proudly.

“How long have you been a member of the National Rifle Association?” I asked. “On the juror information sheet you didn’t list that.”

“Well, I’m not really. Not a member, I mean. I just have the sticker on there.”

Deception. He was either lying about being a member and leaving it off his info sheet, or he wasn’t a member and was using his bumper sticker to hold himself out as something he was not, or as part of an organization he believed in but didn’t want to officially join. Either way it was deceptive and it confirmed everything I was feeling. Favreau was right. He had to go. I told the judge I was finished my questioning and sat back down.

When the judge asked if the prosecution and defense accepted the panel as composed, Golantz attempted to challenge the artist for cause. I opposed this and the judge sided with me. Golantz had no choice but to use his last preemptory to remove her. I then used my second-to-last challenge to remove the tree trimmer. The man looked angry as he made the long walk out of the courtroom.

Two more names were called from the venire and a real-estate agent and one more retiree took seats eight and eleven in the box. Their answers to the questions from the judge put them right down the middle of the road. I coded them black and heard nothing that raised a flag. Halfway through the judge’s voir dire I got another text from Favreau.

Favreau: Both of them +/- if you ask me. Both lemmings.

In general, having lemmings on the panel was good. Jurors with no indication of forceful personality and with middle-of-the-road convictions could oftentimes be manipulated during deliberations. They look for someone to follow. The more lemmings you have, the more important it is to have a juror with a strong personality and one who you believe is predisposed to be for the defense. You want somebody in the deliberations room who will pull the lemmings with him.

Golantz, in my view, had made a basic tactical error. He had exhausted his preemptory challenges before the defense and, far worse, had left an attorney on the panel. Juror three had made it through and my gut instinct was that Golantz had been saving his last preemptory for him. But the artist got that and now Golantz was stuck with a lawyer on the panel.

Juror number three didn’t practice criminal law but he’d had to study it to get his ticket and from time to time must have flirted with the idea of practicing it. They didn’t make movies and TV shows about real-estate lawyers. Criminal law had the pull and juror three would not be immune to this. In my view, that made him an excellent juror for the defense. He was lit up all red on my chart and was my number-one choice for the panel. He would go into the trial and the deliberations that come after it knowing the law and the absolute underdog status of the defense. It not only made him sympathetic to my side but it made him the obvious candidate as foreman – the juror elected by the panel to make communications with the judge and to speak for the entire panel. When the jury got back in there to begin deliberations, the person they would all turn to first would be the lawyer. If he was red, then he was going to pull and push many of his fellow jurors toward a not-guilty. And at minimum, his ego as an attorney would insist that his verdict was correct, and he would hold out for it. He alone could be the one who hung the jury and kept my client from a conviction.

It was a lot to bank on, considering juror number three had answered questions from the judge and the lawyers for less than thirty minutes. But that was what jury selection came down to. Quick, instinctual decisions based on experience and observation.

The bottom line was that I was going to let the two lemmings ride on the panel. I had one preemptory left and I was going to use it on juror seven or juror ten. The engineer or the retiree.

I asked the judge for a few moments to confer with my client. I then turned to Elliot and slid my chart over in front of him.

“This is it, Walter. We’re down to our last bullet. What do you think? I think we need to get rid of seven and ten but we can get rid of only one.”

Elliot had been very involved. Since the first twelve were seated the morning before, he had expressed strong and intuitive opinions about each juror I wanted to strike. But he had never picked a jury before. I had. I put up with his comments but ultimately made my own choices. This last choice, however, was a toss-up. Either of the jurors could be damaging to the defense. Either could turn out to be a lemming. It was a tough call and I was tempted to let my client’s instincts be the deciding factor.

Elliot tapped a finger on the block for juror ten on my grid. The retired technical writer for a toy manufacturer.

“Him,” he said. “Get rid of him.”

“You sure?”

“Absolutely.”

I looked at the grid. There was a lot of blue on block ten, but there was an equal amount on block seven. The engineer.

I had a hunch that the technical writer was like the tree trimmer. He wanted badly to be on the jury but probably for a wholly different set of reasons. I thought maybe his plan was to use his experience as research for a book or maybe a movie script. He had spent his career writing instruction manuals for toys. In retirement, he had acknowledged during voir dire, he was trying to write fiction. There would be nothing like a front-row seat on a murder trial to help stimulate the imagination and creative process. That was fine for him but not for Elliot. I didn’t want anybody who relished the idea of sitting in judgment – for any reason – on my jury.

Juror seven was blue for another reason. He was listed as an aerospace engineer. The industry he worked in had a large presence in Southern California and consequently I had questioned several engineers during voir dire over the years. In general, engineers were conservative politically and religiously, two very blue attributes, and they worked for companies that relied on huge government contracts and grants. A vote for the defense was a vote against the government, and that was a hard leap for them to make.

Last, and perhaps most important, engineers exist in a world of logic and absolutes. These are things you often cannot apply to a crime or crime scene or even to the criminal justice system as a whole.

“I don’t know,” I said. “I think the engineer should go.”

“No, I like him. I’ve liked him since the beginning. He’s given me good eye contact. I want him to stay.”

I turned from Elliot and looked over at the box. My eyes traveled from juror seven to juror ten and then back again. I was hoping for some sign, some tell that would reveal the right choice.

“Mr. Haller,” Judge Stanton said. “Do you wish to use your last challenge or accept the jury as it is now composed? I remind you, it is getting late in the day and we still have to choose our alternate jurors.”

My phone was buzzing while the judge addressed me.

“Uh, one more moment, Your Honor.”

I turned back toward Elliot and leaned into him as if to whisper something. But what I really was doing was pulling my phone.

“Are you sure, Walter?” I whispered. “The guy’s an engineer. That could be trouble for us.”

“Look, I make my living reading people and rolling the dice,” Elliot whispered back. “I want that man on my jury.”

I nodded and looked down between my legs where I was holding the phone. It was a text from Favreau.

Favreau: Kick 10. I see deception. 7 fits prosecution profile but I see good eye contact and open face. He’s interested in your story. He likes your client.

Eye contact. That settled it. I slipped the phone back into my pocket and stood up. Elliot grabbed me by the sleeve of my jacket. I bent down to hear his urgent whisper.

“What are you doing?”

I shook off his grasp because I didn’t like his public display of attempting control over me. I straightened back up and looked up at the judge.

“Your Honor, the defense would like to thank and excuse juror ten at this time.”

While the judge dismissed the technical writer and called a new candidate to the tenth chair in the box, I sat down and turned to Elliot.

“Walter, don’t ever grab me like that in front of the jury. It makes you look like an asshole and I’m already going to have a tough enough time convincing them you’re not a killer.”

I turned so that my back was to him as I watched the latest and most likely the last juror take the open seat in the box.