To speak for the dead

23

"Mrs. Goldfarb, do you believe that old expression, where there's smoke, there's fire?"

Reba Goldfarb eyed me suspiciously from her perch in the front row of the jury box. She hadn't gotten settled yet, was still patting her ice-blue hair, locking it into a 1950s pompadour. She looked toward the judge for help, shrugged, and said, "Maybe there's fire, maybe just a teapot blowing its lid."

"Exactly," I said. "Things are not always as they seem. And just because Dr. Roger Salisbury is charged by the state with a crime doesn't mean he's guilty, does it?"

"Goodness no," she agreed, smiling, picking up the rhythm.

"And this indictment," I said, holding the blue-bordered document at arm's length as if it smelled of rotten eggs, "this piece of paper, this scrap, is not proof of guilt, has no more dignity than a grocery list-"

"Objection!" Abe Socolow was on his feet.

"Sustained," Judge Crane declared without emotion. "This is voir dire, not argument, Mr. Lassiter."

During trial I will argue over Good morning.

"Your Honor, I'll rephrase the question. Mrs. Goldfarb, do you recognize that Roger Salisbury, as he sits here today, is as innocent as a newborn child?"

Ignoring the concept of original sin.

She nodded.

"That he is cloaked with a presumption of innocence, that he does not have to prove anything, that the burden of proving his guilt is on the government?"

"I heard that before," she conceded, nodding again. She had seen enough television to know this stuff. My kind of juror, willing to believe that intrigue and incompetence frequently nail the wrong guy.

I liked her. Roger Salisbury liked her. She visited doctors regularly, an internist, a podiatrist, a chiropractor, and a dentist. She was Jewish, and defense lawyers from Clarence Darrow on down liked that. An old saw. Put Mediterranean types on your jury if you're defending. Jews and Italians are more sympathetic. Minorities, too. Blacks are suspicious of the police and will cut you a break in a close case. Hispanics used to fall into that group, but in these parts, they're the majority and may have lost the feel for the underdog. Keep

Germans, Poles, and Swedes off the panel. Too harsh and rigid.

Anyway, that's what the book says. But nearly every defense lawyer shakes his head over a black social worker or schoolteacher who ended up leading the posse for the state. And nearly every prosecutor remembers a Teutonic male who probably once wore a Luger but carried the banner for the defense in the jury room. Go figure.

I needed Reba Goldfarb. I had lost Deborah Grossman, Dominick Russo, and Philip Freidin. All three had said that they wouldn't vote for the death penalty under any circumstances. Socolow challenged them for cause, saving his precious peremptory challenges while I spent seven of mine getting rid of guys who had blood in their eyes.

It isn't fair. Talking about the penalty phase of the case before the trial begins. Mocking the presumption of innocence. But it's legal.

"Are you in favor of capital punishment?" Abe Socolow now asked Earl Pottenger, an airline mechanic.

"Yes sir!"

Hoo boy. This guy's ready to pull the switch. Ayatollah Pottenger. Socolow smiled and moved on to a heavyset black woman.

"Mrs. Dickson, if you find the defendant guilty of murder in the first degree, and if the state convinces you that the crime is sufficiently heinous, could you recommend to Judge Crane that he impose the death penalty?"

"Ah don't rightly know," Clara Dickson said, squinting up at him.

"Do you have moral or religious objections to the death penalty?"

"It's against the preachin' ah believe in."

"Challenge for cause," Socolow said.

"Granted," Judge Crane ruled.

I stood. "Objection, Your Honor. Dr. Salisbury is being deprived of a jury of his peers. We won't have a cross section of the populace if the state systematically excludes those with moral or religious objections to the death penalty."

"Denied. The Supreme Court ruled on this in the Witt case. The state is entitled to a death-qualified jury."

I shot back. "What's Roger Salisbury entitled to, just death?"

Oh, that was dumb. Judge Crane's long, sad face sharpened and he motioned me to the bench with a tiny wave of his gavel. Socolow slid silently behind me, his invisible smile a knife in my back.

"Mr. Lassiter, I don't make the rules, I just apply them," the judge said. "Now, one more remark like that in the jury's presence and I'll hold you in contempt. Verste?"

"Understood, Your Honor."

We would have a bloodthirsty, gung-ho, hang-em-high jury because the law allowed it. But I wasn't doing Roger Salisbury any good whining about it. I would just try to keep some people on the panel who neither belonged to the National Rifle Association nor folded their bodies into tight balls when I asked my questions.

So here I was, bobbing and weaving, trying to seat twelve honest men and women without itchy trigger fingers. Not that I wanted to be picking a jury. I didn't want to be doing anything except feeling sorry for myself. The three weeks since her death had been a blur. Preparing for trial, arguing with Socolow, waiting for some word about Susan from Charlie Riggs. At night, when sleep came, it was filled with dreams. An expanse of water, iridescent blue, a calm seductive lagoon. But when I dived in, the water thickened into a gelatinous muck and 1 sank to the bottom, gasping for air. Anonymous hands rescued me and dragged me to the beach where a laughing Roger Salisbury bent over me, giant syringe in hand.

Waking at dawn, I drifted uneasily toward consciousness, vaguely aware of an undefined pain. As my eyes focused on the light, the pain took shape, a vision of Susan Corrigan. Pretty and smart and tough. And dead.

Charlie Riggs had pulled some strings, and the ME's office performed an autopsy. Salt water in the lungs. A pinkish foam in the airway. Absolute proof, Charlie said, that Susan was alive when she stepped into the pool. If she'd been killed and dumped there, the lungs wouldn't produce the foam. Death by drowning on the certificate. Nothing to dispute it.

It was murder, I told Abe Socolow. He didn't buy it, asked for proof. I told him about the cabana break-in, the theft of the drug, the widow clamoring for the videotape. Proof, he reminded me, consisted of witnesses and physical evidence. Then I told him of my run-in with Sergio and his pal with the baseball bat.

He laughed. "Ambush at Shark Valley. Sell it to Hollywood."

"Your star witness set me up."

"Not the way I heard it," Socolow said, poking a finger at me. "She says you tried to extort her. If she testifies, you play the tape. She doesn't testify, you give her the tape.

Gonna get your balls whacked, Jake, you don't watch out. Could bust you for obstruction right now."

But he wouldn't. Because I was his buddy, he said. He wanted a copy of the tape. Fine with me, I told him, because it's defense exhibit number one.

He laughed again. "What's its relevance, that Melanie Corrigan is a sword swallower?"

"Pure impeachment. Lying under oath. On deposition, she denied the affair with Roger."

He wasn't impressed. "Nice try. She denied banging the doc after her marriage to Corrigan. The videotape was premarriage, so no lie on deposition, no impeachment. I'm filing a motion in limine to keep it out."

Judge Crane reserved ruling on the motion. Said he wanted to see the videotape. A couple of times. So did the clerk, the bailiffs, the probation officers, and everybody else within ten blocks of the Justice Building.

Without the tape, what would I have? Charlie Riggs saying that Corrigan died of an aneurysm, not succinylcholine. But no suspect to feed to the jury in place of Roger Salisbury. It would come down to a swearing match, beautiful widow versus spurned lover. Who said what to whom? Where did the drug come from? Who did what in Philip Corrigan's hospital room? Would the jurors even listen to Charlie Rigg's technical explanation of a bursting aorta? Probably not. Not with a black valise, two hypodermics, and a deadly drug staring them in the face.

Socolow had a tight little smile on his hawkish face as Judge Crane gave the newly empaneled jurors their preliminary instructions. Don't discuss the case among yourselves or with family members and friends. Don't speak to the witnesses or lawyers. Don't read the newspapers or watch television reports about the case.

Do jurors have the willpower not to follow their cases in the press? In a bribery trial a few years ago, a local columnist complained in print that the male jurors looked like they were headed for a ball game, all polo shirts and guayaberas. Next day, they all wore coats and ties.

My mind was wandering as the judge did his stuff. We would be back in the morning for opening statements. Tonight I would see Charlie Riggs. Beside me sat Roger Salisbury. Worried, a little grayer around the temples than at the first trial. His future a black hole.

"It is your solemn responsibility to determine if the state has proved its accusation beyond a reasonable doubt against this defendant," the judge gravely intoned. "Your verdict must be based solely on evidence, or lack of evidence, and the law."

I walked out of the courthouse into the blast furnace of a Miami afternoon. The blinding sun bounced ferociously off the marble steps. Thick fumes from the buses fought to rise through the soggy air.

There is no industrial smog in Miami. No steel mills, no oil refineries. Heavy industry is cocaine processing; high technology is money laundering. But a million cars in the shimmering heat add their own color to the horizon. Most days a fine red haze sprouts from the expressways and hovers over the city, hugging the ribbons of 1-95 from downtown Miami northward to Fort Lauderdale. Not a thick smog, just enough airborne particles to add a counterfeit glitter to the sky, a reddish breast on the feathery clouds drifting over backlit beaches. One good blow, a cold front from the northwest, and the muck would be shoved out to sea.

But no more cold fronts. Not for six months. Until then, just broiling days and steaming nights. Purgatory for those who inhabit the swamp. My own fire burned deep inside. A score to settle. A woman had died. A woman I loved. I made a vow. When I knew for sure the how and the who of it, someone else would die, too.