The Jury

chapter eleven

A good trial lawyer is a magician, one who excels at the art of misdirection. Tannery is good at this. He has kept us focused on William Epperson in order to distract us. This morning, in the judge’s chambers, he plucks a surprise from his other sleeve.

It is Tannery’s mystery witness, Tanya Jordan, Kalista’s mother. She has been on the prosecution’s witness list for months, we had assumed for other purposes.

Harry makes the pitch that while the witness may have been disclosed, her testimony, which is now highly prejudicial, was not. “The state is obligated to disclose,” he tells the judge.

“I know the law, Mr. Hinds.” Coats is not impressed.

We are asking him to exclude the testimony and, from the look on the judge’s face, this may be an uphill battle.

“She was on our witness list,” says Tannery. “The defense had every opportunity to approach her to obtain a statement. If they failed. .”

“How could we obtain a statement? According to your own proffer, she lied to your investigators at least three times before she finally came up with this story.”

“That’s a good point,” says Coats.

Harry finally scores one.

“We kept after her, and she finally told us the truth,” says Tannery.

“Right. You browbeat her until she made up a lie you could live with.” Harry turns back to the judge. “Besides, we tried talking with several of their other witnesses and got stonewalled.”

“Are you saying that we instructed them not to make disclosures?”

Harry looks at Tannery for a brief instant, frustration etched in the lines on his face. “Yes.”

“Do you have evidence?” asks Coats.

“No.”

Tannery is smiling.

“That brings us back to the conflicting stories,” says the judge. “What about that?”

“It goes to credibility,” says Tannery. “They are free to raise it before the jury. Ask the witness why she changed her story.”

“What have you told her to say?” says Harry.

“I resent that.”

“Gentlemen, please.” Coats is getting irritated.

“Mr. Madriani, we haven’t heard from you.”

I am shaking my head. “What can I say? This is the ultimate eleventh-hour surprise. A bombshell,” I tell him.

“Do you have any suggestions?”

“Exclude it.”

“Sure,” says Tannery. “What do you expect him to say?”

Harry and I had passed on Tanya Jordan for a simple reason. We assumed she was on the state’s list as a setup, probably a victim-impact witness, somebody they could use if Crone was convicted, to solidify their case in the penalty phase.

According to police reports, except for two brief telephone conversations, she had no contact with her daughter during the month before the killing. I have seen her only once, outside the courtroom. An attractive woman in her late forties. The family resemblance was striking. It was not difficult to imagine this statuesque woman as related to the victim. A neck like a swan, high cheekbones; even in middle age she possessed all the qualities magazine editors might covet in a cover model. And like her daughter, she had opted for other things. She is a teacher at a Michigan high school, a single woman who helped put her only child through college and is now left with nothing but memories. Why she is doing this we can only guess, but bitterness is high on our list of conjecture.

“We were right all along,” says Tannery. “It was a crime of passion. Admittedly it wasn’t romantic, but passion nonetheless.”

“What are you saying?” asks Harry.

“Merely that the murder of Kalista Jordan was motivated by emotion, call it rage if you like. In this case, it was racial.”

“Now we have a hate crime.” Harry is beside himself. “Your Honor, you can’t permit them to do this.”

“I admit it should have been charged earlier. We would have asked for a capital sentence, death qualified the jury, but we didn’t know all the facts,” says Tannery. “The state is prepared to live with the consequences.” This is the bone he is trying to throw Coats to get the evidence in.

Harry points out that it is an empty bag. “You’re not charging it as a hate crime because you can’t. The law is clear on that point. Unless you want to dismiss and start over. And if you dismiss, we’ll argue jeopardy has attached.”

“As I said, we’re not interested in recharging. But we want the evidence in.” Tannery ignores Harry and makes his argument to the court.

“What evidence? The ranting of a distraught mother who will say anything to convict the man the state says killed her daughter?”

“Again, you can argue that to the jury,” says Tannery.

“Mr. Madriani.” The judge tries to move around them. “Have you looked at the state’s offer of proof?”

“I’ve scanned it. It was delivered to us only this morning.”

“Understood. That isn’t much time. And the court is sensitive to the defense’s need to prepare.” This is not a good sign. Coats is trying to fix the problem, patch it up and sail on.

“We only confirmed the information ourselves late last evening,” says Tannery.

The judge puts up a hand. He doesn’t want to hear anything more from the state. The judge’s problem is fundamental fairness. Can the defendant, in light of the new evidence, get a fair trial? If not, he has two choices: exclude the evidence or declare a mistrial.

“How much damage does it do to your case?”

I’m not going to discuss theories of defense in front of the prosecutor. Coats knows this. He is merely inquiring as to a general assessment of damage.

“Try a torpedo below the waterline,” says Harry.

“Do you agree?” Coats looks at me.

“It’s a serious matter. I would consider it highly prejudicial.”

Coats turns his attention back to Tannery. He walks a fine line. A court on appeal has twenty-twenty hindsight.

“How long have you known about this?”

“As I said, we confirmed it only late last night.”

“That’s not what I asked. How long have you had reason to know there was additional incriminating evidence?”

“The witness lied to us. It’s all right there,” says Tannery. “We exercised due diligence, but you can’t discover what is being affirmatively withheld by a witness.”

Tannery has provided a witness statement, a transcript, a copy to the court and separate copies to Harry and me. We scan these as Tannery pitches the judge.

“The first time we talked to her, she knew nothing. We interviewed her three times, and each time she told us the same thing. It wasn’t until we got an inside tip,” says Tannery, “another woman who’d known her back in college, that we got the information. That was two days ago.”

“You told us a week ago,” says Harry.

“We told you we had a lead, nothing definite,” says Tannery.

“What was the lead?” asks Coats.

“There was a history with Mrs. Jordan, the victim’s mother. It seems she attended college in Michigan, the university. This was at the same time that the defendant was a member of faculty.”

“And you discovered that when?”

“About ten days ago. It took us a day to schedule a meeting with the defense.”

“So when did you get some notice?” Coats turns this on Harry.

“I doubt that a court on appeal would call it that.”

The judge takes the question under advisement, and turns back to Tannery for more.

“At the time, back in the eighties, Dr. Crone had drawn considerable controversy. He issued some papers, research documents that resulted in a great deal of disruption on the campus. Student demonstrations,” says Tannery.

“Surely this is not news,” says Coats. He is looking at me now. “This information was in the file. I believe I saw newspaper articles from the period. Why didn’t you check it out?”

“We knew about Dr. Crone’s background,” I tell him. “We didn’t know about the victim’s mother attending the same school.”

“Go on.” Coats to Tannery.

“Anyway, our source. .”

“Who was?” The judge wants all the details.

“Her name is in our brief. Jeanette Cummings. She was a student with Mrs. Jordan at Michigan back at that time. They were both active in civil rights. They participated in student demonstrations against Dr. Crone’s research. And the research is the key,” says Tannery. “A kind of genetic racial profiling. Dr. Crone was in the vanguard of some studies. .”

“Which he has since disavowed in writing,” I remind the court.

Coats cuts me off with a raised hand.

“Whether he’s disavowed them or not, it goes to the issue of motive,” says Tannery. “Motive as to why Kalista Jordan went to work for Dr. Crone, and why she was murdered.”

This catches the judge’s attention. He wants to know more about the studies.

“Your Honor, if I might.” I break in rather than have Tannery fill in the blanks. “The data was skewed. The people collecting it, mostly undergraduates and some hired help, violated protocols. The result was that my client, Dr. Crone, based his findings on faulty data. He has acknowledged this.”

“Which begs the question of why he was studying the stuff to begin with. But we won’t get into that.” Tannery smiles at me.

This is exactly what the prosecution wants to get into, something to poison the jury.

“The defendant’s studies dealt with so-called cognitive abilities of different racial groups,” says Tannery. “It was dynamite then and now.”

“That was over a quarter of a century ago,” I argue. “He hasn’t done anything in that area since.”

“How do you know?” asks Tannery. “A lot of people thought there were serious ethical issues raised.”

“My client is a scientist. He goes where the science takes him.”

“Are you saying he is involved in this research?” Coats is now inquiring.

“No, I’m not saying that.” I don’t want to tell him the truth, that I don’t have a clue as to what Crone is involved in.

“He published two articles in a very embarrassing study and took a lot of heat. It nearly ended his career. He has acknowledged his error in this regard. He has done so repeatedly over the years. And now to use this against him over twenty years later in order to inject race into this trial would be a gross miscarriage.”

“I understand your position,” says Coats. “Still, I have to look at what is before me.” He motions Tannery to continue.

“We don’t contend that Dr. Crone is a racist.”

“No, you only imply it,” says Harry.

“The evidence goes to the issue of motive. According to our information, Kalista Jordan went to work for Dr. Crone principally at the behest of her mother. There is independent evidence to support this. We know, for example, that the victim received a number of higher-paying offers for employment. But she went to work for the Genetics Center. She turned them all down in order to take the job for less money. Some would argue less of a future. Why?

“We know why. Mrs. Jordan will testify that she had conversations with her daughter at the time. She will testify that Kalista Jordan was socially motivated. Like her mother before her, she was interested in civil rights. Both mother and daughter were convinced that David Crone was again working on theories of genetic racial profiling.”

Harry looks at me. I can tell what he is thinking. The reason why Crone and Tash have refused to tell us anything about their work.

“The reason Kalista Jordan went to work for Dr. Crone was to uncover these facts and to expose them,” says Tannery. “This is the reason she was killed. To keep her quiet.”

“Why? It doesn’t make any sense,” says Harry. “If he was doing research, clearly he intended to publish the results.”

“There might not be any results if his funding was cut off,” says Tannery. “He knew this was dynamite. He knew the university would want no part of it.”

“A lot of conjecture,” says Harry. “A grieving mother will tell you a lot of things.”

“It’s a point,” I tell the judge. “Where’s the evidence?”

“Where are the documents the victim took from Dr. Crone’s office?” Tannery turns it around. “The papers are missing. Why was the defendant so intent on getting them? Why was he so angry with Kalista Jordan for taking them? We contend that the killer has these papers, and that these documents will bear out our theory, that David Crone was hard at work on theories of racial intelligence.”

“You have the documents?” Harry’s into him.

Tannery hesitates for just an instant. “Mmm. No.” The way he says it makes me wonder.

“But I don’t believe we need the documents in question. We have witnesses,” he says.

“Who?”

“Tanya Jordan.”

“Not if the court doesn’t allow her to testify. They’re trying to bootstrap themselves,” says Harry.

“There is also Aaron Tash.”

Now Harry’s head whips to take in Tannery. Suddenly Harry is quiet.

“Dr. Tash has been with the defendant a long time. They have known each other from the days of those earlier studies. They have been colleagues.” Tannery says colleagues as if it is a dirty word. “We propose to put him on the stand and find out what they were working on. After all, there is no privilege here.”

“We’re informed that there are serious trade secrets involved,” says Harry.

“We’re prepared to deal with that,” says Tannery. “The needs of justice take precedence over mere commercial interests. The court can evaluate it and decide whether the witness must answer.”

Tannery already knows the result, a criminal courts judge faced with questions involving a potential life sentence. It is not a close call. He will order Tash to answer the question.

It’s a neat strategy, knowing as Tannery does that the papers taken by Kalista Jordan from Crone’s office are likely never to be found. He also knows that Tash has made a point about the nature of his work, that it is off-limits, that he would rather go to jail for contempt than answer questions about the center’s research. If the state puts Tash in front of the jury, he will no doubt refuse to answer questions regarding his work, thereby raising questions about what he has to hide. No matter what he says, questions of racism are likely to overwhelm any other evidence. Even a bald denial of racially related research, without some indication of what they were working on, is not going to satisfy the jury. And the specter of Tash, Crone’s number two, being hauled off in chains to serve time for contempt does not augur well for our case. We are about to be called on the very issue Crone has studiously avoided from the beginning, the nature of his work with Kalista Jordan.

“It’s time to cough it up,” says Harry.

We have wasted no time. It is early afternoon, and we have Crone in the little cell off the courtroom. Coats is looking for a way out. He has deferred a decision on whether Tanya Jordan can testify until tomorrow, when he will allow us to voir dire her outside the presence of the jury, put her on the stand under oath and see what she will say. Harry and I are now like blind men wandering through a minefield.

Tannery’s position is that it doesn’t matter whether racially charged research was involved or not. The mere fact that Kalista Jordan believed Crone was back delving into this field was sufficient to motivate her to take the job. Where the prosecution may fall short is on the second issue. Was it the motive for murder? Without some showing that our client was actually involved in what might be construed as politically volatile research, why would Crone kill her? On this issue Tannery may have to make some showing, link his suspicions with at least some hard evidence.

It is now imperative that Crone tell us what he was working on, so that we can sweep the racial issue off the table.

“I can’t do that. I’ve told you repeatedly. .”

“Why? Are you telling us that you were working on this?” Harry is in his face.

“No. I’m telling you that my work is not a subject for public disclosure.”

“Trade secrets?” asks Harry.

“If you like.”

“I don’t like.”

I tell Crone that the rules have changed. There’s a new wrinkle.

“Not as far as I’m concerned.”

He can hide behind the Fifth Amendment, refuse to take the stand. Tash does not have that luxury. “If he refuses to testify, he’s gonna end up in the bucket,” says Harry. “And his refusal would work against you. The jury would draw conclusions you don’t want them to draw. Believe me.”

This slows him down. Crone thinks for a moment. Looks at Harry. “It had nothing to do with race,” he says. “Not in a direct fashion. Not in the way that you think.”

“What does that mean?”

“I can’t say anything more. You’ll just have to trust me,” says Crone.

Harry is now beside himself. “Not likely.” He’s pacing the little room. “It’s been a surprise a minute and you expect us to trust you? I’m telling you, we should have withdrawn.” Harry puts this to me. “The first time he lied to us.”

“I never lied to you.”

“The argument with Kalista the night before she disappeared?”

“That was an oversight. I forgot. I told you. And besides, the police are making more out of it than it was.”

“Great,” says Harry. “Fine. We’ll tell the jury that. What do you know about Tanya Jordan?” He changes gears.

Suddenly shifty eyes from Crone. Who says you can’t read demeanor?

“Nothing.”

“She certainly knows about you,” says Harry. “According to Tannery, she toted the tar and feathers when they rode you out of Michigan on a rail.”

“Nobody rode me out of anywhere. I received a better offer out here. More freedom to do my work, so I came. That’s the truth.”

“There were a lot of students,” says Harry. “They had to use tear gas to keep them from storming the walls of your classroom building. They didn’t like what you were doing.”

“They didn’t understand. They didn’t have the first clue about academic freedom, the need for free and independent research. A scientist goes where the science takes him.”

“You tell ’em that on the stand,” says Harry, “and they’re gonna hang a great big sign around your neck that says RACIST.”

“I’ll have to live with it,” says Crone.

“Perhaps in an eight-by-ten-foot cell for the rest of your life.” I finally come into the conversation, and Crone looks at me.

“You think so?”

I give him an expression that it’s anybody’s guess. That I would not be surprised.

“Five hundred years ago that same kind of mentality, those same people, put Galileo in front of the Inquisition,” says Crone.

“You’re no Galileo,” says Harry.

“Like it or not, it’s a political world,” I tell him. “Offend people at a cocktail party, and they’ll give you a dirty look and walk away. Offend people on a jury, and they may lock you away for the rest of your life, or worse.”

Crone thinks about this for a moment. Silence, then he offers a distant look, somewhere halfway between here and hell. “That’s the price we pay for truth,” he says.

Outside the courthouse, I have a sinking feeling in the pit of my stomach, wondering whom I represent: the Dr. Jekyll who laid himself on the blocks to help Penny Boyd, or the Mr. Hyde who dabbled in racially charged research.

Crone has been tethered to a line of other jail inmates for the walk back to the county lockup. Whatever it is he isn’t telling us may come rolling out of the witness box like a bomb. In criminal law, your biggest enemy too often is your own client, based on the lies they tell or the truths they withhold.

It is verging on darkness, the shortening days of early winter, as Harry and I assess where we go from here. We have few alternatives. Tomorrow we face Tannery’s offer of proof with Tanya Jordan; unable to really prepare for her testimony, we will scramble to take notes and follow up with questions.

Harry is tired, depressed. It has been a while since he’s had a client as unyielding as David Crone. Criminal defendants usually see the light, even the most hardened liars. At some point they are forced to deal with the reality of facing stiff time, and the fact that no lawyer can help them unless they come clean. Usually they crack like a clay piñata. But not Crone. He may take whatever secret he possesses with him to the joint.

Harry doesn’t like it. He thinks we’re being used. “There’re a lot of ways to lose a case,” he tells me. “Our name is out there. New boys on the block in a new city, with our reputation riding. There’s a lot of publicity. And don’t think I’m not worried about the client. But he’s making his own bed.”

Harry getting wound up, moving toward his usual rendition of “Maybe we withdraw.”

“You know we could tell Coats he won’t cooperate with counsel.” I listen under the yellow light haze from the streetlamps overhead. At the curb, a block away a lone blue van is parked across from the steel-gated garage of the county jail, probably waiting to disgorge its passengers chained inside.

The conversation with Harry finally starts to run down. Harry has vented his spleen. No resolution, but he feels better. He says good night and heads for his car. I am parked in the other direction. Five minutes later behind the wheel of Leaping Lena, I am lost in the streaming sea of headlights caught in the rush on I-5, inching my way toward the arching Coronado Bridge and home.

Like half of the world, twice each day I am left alone on a crowded freeway with my private thoughts, modern man’s equivalent of the religious experience of solitude, eyes straining into the rearview mirror at the headlights blinding me from behind.

On mental autopilot, I grapple for some reason why Crone will not level with us. I have long since dismissed the excuse of commercial secrets. No sane person is willing to go to prison for life to protect such interests. David Crone may be accused of a lot of things, but being mentally unbalanced is not one of them. He is hiding something and has a good reason. I can only hope that it is not a glaring motive for murder.

The lights in the mirror are giving me a headache. The vehicle behind me has its high beams on, like flares exploding behind my eyes. I flip to the night mirror to cut the glare. In the summer, it is the setting western sun that blinds you. In fall and winter it is headlights, approaching and behind. Now all that is left in the mirror from behind are little yellow parking lights, the one on the left burned out. And so it goes, the nightly evacuation of the city.

Sarah will be waiting for me at home. We touch base daily in the afternoon by phone. Quite the little lady, she now fixes dinner. I have learned that my daughter loves to cook. My chore is the dishes, the nightly domestic task that I actually enjoy. Unlike my job, interminable delays and unfinished projects, it is a task I can complete in minutes and view with satisfaction, mundane as it sounds.

I take the off-ramp to the bridge. Over the span it is stop-and-go, vehicles backed up for the tollgates on the other side. This takes twenty minutes. Stalled lights behind me as far as I can see. I look at myself in the mirror. The stress of a trial takes its toll. There are times in the morning when, just out of bed, I do not recognize the face looking back from the mirrored door of the medicine cabinet.

Sitting here stalled in traffic, I keep turning over in my mind all the pieces, like a puzzle, looking for the ones that fit. Tash and Crone, Kalista Jordan and William Epperson. And Jordan’s mother, popping out of the weeds as she has. I haven’t seen her much around the courthouse, now I know why. Tannery has been keeping her under wraps.

I make my way to the tollbooth and through, then head for the last stretch, the few blocks home. Within minutes I am in the driveway. It is now totally dark. I step down out of Lena and reach for my briefcase on the passenger seat. As I do, I notice a vehicle pulling up a few houses down on my side of the street. It is a dark van; its headlights out, parking lights on, except for the left one that seems not to be working. It is the absence of lights as it slides to a slow stop at the curb that draws my attention. In that brief and absent observation, it registers. It is the same van that was parked across from the jail where I left Harry.