The Color of Law

TWENTY-FOUR

"Voir Dire” is a legal phrase meaning “to speak the truth.” In the American legal system, “voir dire” refers to the process of picking a jury, perhaps because of all the players in a criminal trial, only the jurors are truly interested in the truth. Everyone else just wants to win.

In federal court, jurors must be citizens; at least eighteen years old; proficient in reading, writing, understanding, and speaking English; not be physically or mentally infirm; not have been convicted of a felony; and not have felony charges currently pending against them. Finding twelve people who meet such qualifications is easy; finding twelve people you would want to sit in judgment of your life is not.

That’s where voir dire comes in. The judge and lawyers question the prospective jurors to uncover biases, prejudices, and predispositions that might prevent them from rendering a fair and impartial verdict. At least that’s the theory. The reality is that every juror comes to court with his or her personal biases, prejudices, and predispositions that will absolutely prevent that person from rendering a fair and impartial verdict-which is precisely the kind of jurors both sides want. The real goal of voir dire is to find twelve jurors who are biased, prejudiced, and predisposed in your favor.

A trial in a court of law is not about truth, justice, and the American way. It’s about winning. Prosecutors want a conviction so that they can build a track record of putting criminals in jail, a prerequisite for election or appointment to higher political office; defense attorneys want an acquittal because acquittals in high-profile criminal cases bring fame and fortune. Thus neither the prosecutor nor the defense attorney is concerned with truth or justice: truth is whatever they can get a jury to believe, and justice is when they win.

As he sat in a federal courtroom in downtown Dallas on a hot day in August, Scott Fenney believed his client had put the barrel of her. 22-caliber gun to Clark McCall’s head and pulled the trigger. He also believed she had done so in self-defense. Now he had to question the men and women sitting before him in the hope of finding twelve jurors who might agree with him and, if not acquit his client, at least not send her to death row.

Judge Buford had already questioned the prospective jurors concerning their legal qualifications and dismissed only one, a man who, when asked if he had any pending felony charges, answered, “They haven’t been able to prove anything yet!”

Ray Burns had then questioned the prospective jurors about their willingness to find the defendant guilty knowing she might be sentenced to death. Seven prospective jurors said they were morally opposed to the death penalty and were excused.

Now twenty-nine prospective jurors were staring at Scott Fenney and Robert Herrin, waiting for the defendant’s counsel to question them. In every prior voir dire, sitting next to A. Scott Fenney had been an expensive psychologist trained in the art of jury selection, not a lawyer who practiced street law in a strip center next to a Mexican bar. For fees up to $1,000,000, such jury experts conduct mock trials, focus groups, and pretrial polling to develop a detailed psychological profile of the ideal juror. They investigate the prospective jurors’ employment, income, religion, hobbies, and politics. They study their clothes, their body language, and their answers during voir dire. They coach the lawyers on what to drive to the courthouse (leave the Mercedes-Benz at home because jurors might see you in the parking lot), what to wear to trial (no Rolexes or double-breasted Armani suits), and how to act in front of the jurors (try to “humanize” yourself; that is, pretend to be a normal human being in front of the jurors, a more difficult assignment for most lawyers than merely dressing down). They give the lawyer a thumbs-up or a thumbs-down on each prospective juror.

A lawyer learns with his first jury trial that the case is won or lost during jury selection. Today, with enough money, you can legally fix a jury. But since neither Scott nor his client had enough money to hire a jury expert, there was no paid consultant sitting next to Scott, only Bobby.

So Scott said to the men and women before him, “I’m nervous, about this. I’ve never represented a person accused of murder. Are you nervous, too?”

Heads started nodding.

“Well, rather than me asking you a lot of questions, maybe we’ll just visit for a while. Forget what we’re here for, forget you might be jurors, forget we’re lawyers-as you might have read, my former law firm’s been trying to forget I’m a lawyer.”

A few chuckles from the jury box, which gave Scott an idea.

“What’s the difference between a rattlesnake lying dead in the middle of a highway and a lawyer lying dead in the middle of a highway?”

A female juror: “Skid marks in front of the snake.”

The jurors laughed.

“You know why New Jersey got all the toxic waste dumps and California got all the lawyers?”

A male juror: “New Jersey got first choice.”

Louder laughter from the jury box.

“What do lawyers and sperm have in common?”

A male juror: “They both have a one-in-a-million chance of turning out human.”

Raucous laughter.

The same juror: “How do you know when a lawyer is lying?”

An old lady: “His lips are moving.”

Another: “A lawyer is a liar with a permit to practice.”

And another: “If an IRS agent and a lawyer were both drowning and you could save only one, would you read the paper or go to lunch?”

Scott finally interrupted the revelry.

“Hey, I went to law school. I get to tell the jokes.”

The jurors’ laughter died down, but their smiles remained.

“I take it you people don’t care for lawyers?”

All twenty-nine heads shook emphatically.

“You hate lawyers?”

All heads nodded emphatically.

“Why?”

An older man: “Because lawyers don’t know the difference between the truth and winning an argument.”

An older woman: “Because lawyers think being clever is the same as being smart.”

A young woman: “Because a lawyer will tell you the sky is green if that’ll help his case.”

A young man: “Because lawyers are greedy.”

Bobby: “Yeah, and they’re-”

“Bobby!”

Scott turned to the jurors. “And he’s a lawyer!”

The jurors were chuckling again.

Ray Burns stood. “Your Honor, if Mr. Fenney is through with his stand-up comedy act, perhaps we could-”

“Sit, Mr. Burns,” the judge said.

Ray Burns sat. Scott addressed the prospective jurors.

“Okay, I think we’ve established that all of you hate lawyers. And that’s okay. We deserve it. But my client doesn’t. You can hate me because I’m a lawyer, but don’t hate her because you hate her lawyer. Her life is in your hands. Give her a fair shake. Can you all agree to that?”

The smiles were gone, replaced by sober expressions. Every single juror nodded.

“All right, now I need to ask you a few questions. First, have any of you participated in voir dire before?”

One young man with a nose ring raised his hand and asked, “Is that like when there’s four?”

“Four what?”

“Four people. You know, like menage a trois plus one.”

From behind, Judge Buford’s weary voice: “You’re excused.”

The man rose, shrugged, and shuffled out of the courtroom.

Scott said, “Any of you not heard about this case?”

No one raised a hand.

“All right. My client is a prostitute and a heroin addict. You all know that, right?”

Their heads nodded.

“Again, I ask only one thing of you: Don’t prejudge her. Don’t assume. You don’t know what another person’s life is like until you’ve walked around in her shoes awhile. Ms. Jones is not here today because she’s ill. She’s suffering withdrawal sickness. How many of you smoke?”

Eight jurors raised their hands.

“Imagine if you had to quit cold turkey.”

They nodded.

“Have any of you ever retained a prostitute?”

No hands were raised, but one man glanced around.

“Sir?”

“I ain’t never retained a hooker, but I had sex with one.”

The judge: “You’re excused.”

Scott thumbed through the jurors’ questionnaires and stopped at one completed by a high school football coach. Most football coaches considered themselves smarter than the general population because they understood the definition of pass interference. But one other predisposition of football coaches gave him pause. So he turned to juror number 28 and said, “Coach, who’s the greatest running back ever produced by the State of Texas?”

Without blinking, the coach asked, “Negro or white?”

The judge: “You’re excused.”

After the coach had left, Scott turned to another juror, an older man whose sunburned face told Scott he worked outdoors.

“Sir, in response to question number eleven asking how far did you go in school, you answered twelve miles.”

“Yes, sir, we lived in the country, so that’s how far we had to go.”

“Uh, well, the question means, you know, what was the highest grade level you attained?”

The man seemed genuinely embarrassed. “Oh, hell, I’m sorry. I made a B once.”

The judge: “You’re excused.”

Scott now turned to an older woman clutching a big purse in her lap and wearing a worried expression.

“Ma’am?” She looked up. “Ma’am, is there anything that would interfere with your serving on this jury?”

“Will I be home in time for Oprah?”

The judge: “You’re excused.”

On the drive home, Bobby said, “Will I be home in time for Oprah? That was a good one.”

Scott had struck seven prospective jurors and Ray Burns nine. The twelve jurors who would determine whether Shawanda Jones would live or die had been selected and seated for the trial that would start on Monday: there were seven men and five women; six were white, four were black, and two were Hispanic; there was a teacher, a nurse, a carpenter, a dental assistant, a car salesman, two housewives, a mechanic, a junior college professor, a contractor, a bartender, and a grocery store clerk.

Scott said to Bobby, “Do you trust Karen?”

“Yeah, why?”

“I’m worried Dan Ford planted her.”

“You mean as a spy?”

“Yeah, to learn our strategy.”

“What strategy? Prayer? ” Bobby smiled. “Don’t worry, Scotty, she’s not a spy.”

“How can you be sure?”

“Remember a few weeks ago, in the pool, I said I’d probably never have sex again?”

“Yeah.”

“I was wrong.”

“You mean…?”

“Yeah. And no girl would have sex with me just for money. Believe me, I know.”

Money could not make the rape go away. The physical pain was gone, but the mental pain would never leave Hannah Steele.

It was a beautiful afternoon in Galveston. The sun was warm, but the sea breeze was cool against her skin. Hannah was strolling down the seawall, seventeen feet above the beach. To her left, across the boulevard, were restaurants, bars, gift shops, and beachfront condos and hotels; to her right was the sandy beach and beyond that the Gulf of Mexico, a body of brown water whose swells rolled ashore and broke into small waves that died in the sand around the feet of kids wading at the water’s edge. Their parents were sitting in chairs under colorful umbrellas that dotted the beach in both directions as far as Hannah could see. Other kids were building sand castles or hunting for seashells, and a few surfers were trying to find waves strong enough to provide a ride, but without much luck.

Hannah liked to walk the seawall.

Her therapist said it was good for her to take these walks and to realize that all around her life went on and that her life must as well. But Hannah always focused on the kids; her therapist said she would have children one day, but Hannah didn’t think she would ever be able to have sex again. Clark McCall had destroyed her life.

And now his life was over.

She had tried not to feel happy when she had heard about Clark’s death. But somewhere deep inside her she hoped he had suffered. Now she was the accused woman’s only hope, Mr. Fenney had said. Her only hope. So she would fly to Dallas on Sunday. It would be her first trip back since she had left.

Could she do it?

Could she go into that courtroom and sit up there and see Senator McCall and tell the world what Clark did to her? He kissed me… he touched me… I said no… he said yes… he slapped me… hit me… once, twice, three times, harder each time… he was wild-eyed, crazy, strong

… he pinned me down… pulled my panties down… pried my legs apart… yes, I fought him… but he was too strong… he pushed into me… the pain… the pain…

The pain would never go away.

She had gone to SMU on a dance scholarship. She loved to dance. She had not danced since that night. The rape had changed her life. She hadn’t been able to get over it, to get on with her life. Her therapist had convinced her that testifying at the trial might be just the closure she needed to move forward. She almost walked into a man.

“Excuse me,” she said.

“Hello, Hannah,” the man said.

Hannah looked up at the big bald man in front of her and started to cry.

The only open chair was next to Penny Birnbaum.

Scott and Bobby had returned home and eaten lunch with Louis and the girls. Scott had then driven the Jetta to the title company that was closing the sale of 4000 Beverly Drive. The receptionist led him to the small conference room where he would sign over his home to Mr. and Mrs. Jeffrey Birnbaum.

Penny was smiling and patting the seat of the empty chair.

Scott introduced himself to Joy, the closing agent sitting on the near side of the table next to Jeffrey, who was poring over the stack of documents like a jeweler over a new batch of uncut diamonds. Scott walked around the table, sat next to Penny, and scooted his chair up under the table. Before he had settled in, her right hand was on his left knee.

“I still need to measure for furniture, Scott,” she said.

She was wearing a sundress that accentuated her round breasts and narrow waist. Her hand moved up to Scott’s thigh and began closing in on his crotch. He reached down, grabbed her wrist, and placed her hand firmly in her lap. She pushed out her lips in a pouty face. But when he released her wrist, her hand returned to his thigh like a spring-action screen door slamming in place. She smiled.

Joy pushed a pile of papers across the table to Scott and began reciting the numbers shown on the closing statement.

“Three-point-four million sales price due to the seller, less deductions for the loan payoff, two-point-eight million principal plus twenty-four thousand eight hundred ninety accrued interest, the title policy premium, nineteen thousand, miscellaneous title company charges for the escrow fee-”

“Two-fifty?” Jeffrey said.

Joy said, “Standard charge.”

“But there’s no escrow.”

“We still charge the fee.”

“But-”

“I’ll pay the two-fifty, Jeffrey,” Scott said.

He wasn’t in the mood to argue over a $250 charge in a $3.4 million deal. Even with that deduction, Scott would net over $500,000 from the sale. After paying taxes and closing on the little starter home by SMU, with the rest of his 401(k) and the $67,000 from the yard sale, he’d have enough to start a new life.

He removed Penny’s hand again and whispered, “Stop!”

Across the table, Jeffrey and Joy were huddled over the buyer’s closing documents, more voluminous because of the mortgage documents between Jeffrey and his bank. Scott’s thoughts drifted back to that day three years ago when he had signed similar mortgage documents to purchase this very home, but before he could get very far he felt a soft whisper in his ear: “I’m not wearing any panties.”

Penny pulled back and their eyes met. Her eyes dropped and led his down. She twisted slightly in her chair and spread her legs a little and slowly slid the end of her dress up to reveal her tanned lower thighs, her smooth upper thighs, and finally that lovely intersection of thighs and torso. Scott inhaled sharply. She wasn’t lying.

Scott felt the blood rush southward. He began signing the closing papers as fast as his hand could scribble his signature: the closing statement, lien affidavits, nonresident alien certification, tax proration agreement, and the deed conveying his dream house to Jeffrey Birnbaum et ux Penny Birnbaum. Scott’s hand trembled when he signed A. Scott Fenney. He pushed the deed across the table to Jeffrey. And with that, his dream home was gone. He felt as if he had handed over his manhood.

But he knew he hadn’t because Penny had a firm hold on his manhood below the table. Scott’s face felt hot, whether from the emotion of signing away his home or the movement of Penny’s hand, he couldn’t say. All he knew was that he had to get out of this closing fast, so he scratched his name on the final document, the temporary lease by which he would lease the home back from the Birnbaums for ten days, enough time to vacate the premises. He pushed the paper across the table to Jeffrey, who glanced up from his stack of documents and at the lease, then at Scott and Penny and back to Scott, his eyes narrowing with suspicion.

“What the hell’s going on?” he said.

Scott froze, as did Penny’s hand.

“Uh, what do you mean, Jeffrey?”

Jeffrey picked up the lease. “Ten days? It was supposed to be seven.”

Scott exhaled with relief; Penny’s hand went back to work.

“Jeffrey, you moved up closing to today.”

“Well, can’t you get out sooner? We’re ready to move in.”

“No, Jeffrey, I can’t. I’ve got a murder trial starting Monday-you might’ve read about it. That’s a little more important than you getting into my house a few days earlier.”

“It’s not your house anymore, Scott.”

Jeffrey said it with the arrogance of a man completely unaware that at that very moment his wife was massaging another man’s penis.

That night, after prayers, Pajamae asked Scott, “So those twelve people are going to decide what happens to Mama?”

“Yes, baby, they are.”

“Do you trust them, Mr. Fenney?”

“Well…I don’t know them well enough to know whether I trust them or not. I hope they can find a way to be fair.”

Pajamae said, “I’m going to pray for them.”

“The jurors?”

She nodded. “Mama always says to pray for other people, so they do the right thing. Like she said I should pray for you.”