Defense of an Other

by Grace Mead

  The Tigers received the ball on their forty-yard line and Matt’s mother reached out to grasp his hand. Her fingernails dug in and almost drew blood, but Matt welcomed the displacement of larger worries.

  The offense then began grinding out the yards, relying on Jacob Hester every other play. Twice they faced the choice of whether to go for it on fourth down, and twice Hester barreled through the defensive line, until—with less than two minutes left in the game—he ran the final two yards and scored the game-winning touchdown.

  The crowd erupted. But after being tackled in the end zone, Hester lay on the ground, apparently injured and with his helmet so covered in muck it couldn’t be unsnapped. The crowd of almost 100,000 fell silent and players from both teams knelt with their helmets off. When Hester rose and trotted off the field, the LSU and Florida fans all applauded.

  With a little over a minute left, Florida drove toward the end zone, but its quarterback’s last, desperate heave was batted down in the end zone by a Tiger defender. When the clock reached zero, the stadium exploded in wild fits of glee and the crowd’s rapturous outburst bent the laws of physics and threatened to shake the Earth.

  Part II

  Chapter 8

  The first day of trial caught Matt off guard. Anxiety and endless strategy meetings had elongated and dilated the wait, slowing the trial’s approach, but the suddenness of its arrival still left him gasping and nauseated.

  Matt tried to draw comfort from the familiar routine of dressing for court; he slipped on fine wool pants, fastened the top button of his shirt, and knotted and adjusted his tie. But he had to buckle his belt a couple notches tighter than usual. The attempt to compose himself failed to unknot his stomach, but he was breathing normally again and could at least appear calm. Mary drove them down to Farrar Levinson’s offices, where the defense team was assembling.

  Donna pointed Matt and Mary to the conference room where Farrar sat working on his opening statement. Mary’s left foot bounced on the floor, bringing the right knee atop it closer and closer to the table bottom until she jarred it. Farrar looked up, and she had questions. “How does jury selection work?”

  “Well,” Farrar said, “the prospective jurors fill out background questionnaires with information like their addresses, occupations and whether they’re registered with any political party. The lawyers then have a chance to question each potential juror. If a potential juror is biased, a lawyer can ask the judge to excuse him for cause or because he’s biased. The judge can theoretically excuse any number of people for cause. But the prosecution and defense also each have twelve preemptory challenges, so if the judge rejects a challenge for cause, each side can veto any twelve potential jurors for almost any reason. You just can’t strike a juror based on race or sex.”

  “What kind of questions can you ask them?” Mary’s foot had stilled, her hands clasped together on the table.

  “Well, you ask questions to attempt to determine whether they have a bias obviously. But there are limits. They’re not like witnesses. You know witnesses’ identities weeks in advance and you usually have documents the witness created, or the testimony of others who were present for the same events. With jurors, figuring out whether they’re telling the truth comes down to gut instinct. And you also don’t want to ask questions that could make your case look unsympathetic or prejudice the jurors against you.”

  “It seems like a pretty random way of picking the people who are going to decide whether Matt’s guilty.” Mary frowned and furrowed her brow.

  “It is. But it’s better than anything else anyone can come up with.” Farrar shrugged. “I’d hate to have a single judge who might have developed opinions about a case before trial making every factual finding.”

  “How important is jury selection?”

  “I think it’s pretty important, but you never really know whether a jury’s good for you until they read the verdict.” Farrar looked down and continued working.

  Mary seemed satisfied for the moment and the three sat in silence for the next few minutes before packing up. Lost in thought about the trial, Matt snapped back into awareness again only when he found himself seated at counsel’s table.

  He’d sat at this same table six months before, when litigating a pro bono case on behalf of an indigent criminal defendant. Like countless courtrooms, there were walnut tables and fixtures, chairs with black-leather seats, and oil portraits of mostly white, male judges. But moving over a single seat altered his perspective—it amplified the adrenaline rush by at least a thousand and heightened his awareness of the presumed race, sex, and orientation of the judges on display.

  Juxtaposed against the traditional courtroom was the electronic equipment the firm brought to every trial: a specially constructed black podium with room for binders as well as an oversized laptop flipped back into tablet mode; a projector for displaying images of transcripts, photographs and documents; and a massive white screen that sat opposite the jury box. The laptop fed into separate monitors for the judge, witness and lawyers so that documents could be viewed and any foundation for their admissibility established before being introduced into evidence and displayed to the jury. Each document or picture in the attorney’s binder had a barcode; zapping the barcode pulled it up on the podium screen; the lawyer could then control whether it was projected on the monitors for the judge, lawyers, witness, jury or any combination; and the lawyer could then use a stylus to magnify and highlight the parts of the document he wanted to focus the viewers’ attention on. The traditional Southern courtroom had ceded a quarter of its space to the deck of the Starship Enterprise.

  Matt noticed that Judge Masterson’s laptop was positioned to his left on the bench and realized for the first time that he was probably left-handed. Mary had always suspected Matt had been born left-handed. At some point before either could remember—perhaps to escape notice—he’d switched, but he’d accidentally learned to shoot pool left-handed and the left side of his body was stronger than the right.

  The gallery and the jury box were already filled with prospective jurors who could have been chosen from a random section of Tiger Stadium. They were every size, shape and hue, but there were more blacks than whites. Some wore business-casual attire, while others had taken full advantage of the time off work to appear in jeans. Twelve would decide his guilt or innocence; if they found him guilty, they would also decide whether his punishment would be life imprisonment or death.

  The judge’s clerk intoned, “All rise. Court is now in session. The Honorable Robert Masterson presiding.”

  Judge Masterson strode toward the bench. He was in his mid-forties with black thick-rimmed glasses, bushy black brows, dark brown eyes and black hair that he either dyed or kept dark through sheer willpower. He towered over the courtroom before taking his seat. “We begin jury selection today,” Judge Masterson said. “As is my usual practice, given that I’ve permitted the parties to submit questionnaires for the jurors, we’ll dispense with questions to the larger group of potential jurors and I’ll restrict you to questions of individuals. The first potential juror is James Dixson. Mr Dixson, can you please come up to the witness box?”

  James Dixson, a heavyset man, wore a white button-down shirt with one flap of the tail peeking out from ill-fitting pants and a tie fastened too tight, framing his chins, red face and graying comb-over. He approached the witness stand and the judge’s clerk administered the oath.

  Judge Masterson turned to the assistant district attorney and said, “Mr Thibedeaux, do you have any questions for Mr Dixson?”

  Thibedeaux rose. He wore a shiny gray suit remarkable only for its dullness, a red power tie, and had salt and pepper hair with the hint of a bald spot on his crown. Matt wondered how much time he’d spend looking at it during the trial.

  “Mr Dixson, have you ever had a sexual relationship with another man?”

  Dixson’s face reddened further and he fidgeted.

  “Objection, Your Honor. Request a sidebar.” F
arrar began to stand as he spoke; Matt started to rise also. As the defendant, he had the right to listen in on the sidebars, where the lawyers and judges discussed legal issues out of the jury’s earshot.

  “Overruled, no sidebar.” Judge Masterson said, glancing at Farrar then turning back to Dixson. “Answer the question, Mr Dixson.”

  “I haven’t.”

  “Mr Dixson, are you aware the state has charged Mr Durant with first-degree murder for killing Brian Cutler during an attempt to purchase cocaine?”

  “I wasn’t, but if you tell me that’s what you’re accusing him of, I believe you.” Dixson looked earnest and eager to please.

  “I’ll represent to you the minimum prison sentence for first-degree murder is life imprisonment. Now if you hear a case that, to your way of thinking, calls for and warrants imposing a life sentence, will you give it?”

  “Yes, sir.” Dixson nodded.

  “One of the defense’s theories may be that the defendant committed manslaughter, which means a killing in sudden passion caused by severe provocation. I’ll represent to you the minimum prison sentence for manslaughter is ten years. If you hear a case that, to your way of thinking, calls for and warrants imposing a ten-year prison sentence, will you give it?”

  “Yes, sir.” Dixon nodded again.

  “Mr Dixson, are you aware the state of Louisiana is seeking the death penalty in this case?”

  “Well, I figured you might when you said murder.”

  “Would you share with us your personal feelings, if you could in your own words, about the death penalty, and tell us if you could serve on this jury and actually render a decision that would result in the death of the defendant?” Thibedeaux looked at Dixon but then across the other potential jurors sitting in the gallery to gauge their reactions.

  “I’m a big believer in the death penalty.” Dixson looked away from Thibedeaux toward Matt. “If I find the defendant over there killed somebody while trying to buy drugs, I wouldn’t have any problem voting for it.”

  “Your Honor, the prosecution has no objection to Mr Dixson.”

  Farrar rose. “Mr Dixson, have you or your relatives ever been a victim of any crime?”

  “About ten years ago, me and my wife got mugged.” Dixson looked steadily at Farrar, without blinking or breaking eye contact.

  “Did the police ever catch who did it?” Farrar asked, then turned to survey the other potential jurors; Lisa had principal responsibility for monitoring their reactions; but their reactions to some questions were too important for only one lawyer to observe.

  “No, sir.”

  “Can you explain how being mugged affected your attitude toward those accused of committing crimes?”

  “Well, I’m not sure it did.” Dixson glanced toward the judge and then back to Farrar.

  “Mr Dixson, you said you’ve never had a sexual relationship with another man, correct?”

  “Yes, sir.”

  “Mr Dixson, can you describe your feelings about somebody being gay?” Farrar again turned toward the gallery to survey the reaction of other potential jurors.

  “Well, I’m a good Christian, and I think it’s a sin. But I don’t think it should be a crime neither. Lots of sins aren’t crimes.”

  Farrar turned back toward Dixon and remained engaged this time, creating the impression that he cared not about how others in the gallery reacted to his follow-up question and any answer. “If you learned a witness in this case was gay, would it influence your evaluation of his testimony?”

  “Well, I’d consider everything. And I guess that would include whether or not he was a homosexual. If someone would sin by havin’ sex with another man, it might affect my decision on whether he’d sin by lyin’.” Dixon locked stares with Farrar too; at this point the two might as well have been the only people in the room.

  “Mr Dixson, is anyone in your family gay?”

  Dixson crossed his arms over his chest. “No, sir.”

  “Mr Dixson, you testified that you would not have a problem imposing the death penalty if the prosecution showed that Mr Durant killed someone while purchasing drugs, correct?”

  “That’s right.” Dixson nodded.

  “If the judge instructed you that the involvement of drugs was only one of many factors you should consider in determining whether to vote for the death penalty, could you follow that instruction?”

  “Yes, sir.” Dixson uncrossed his arms. “I don’t think killing someone during a drug deal necessarily means a person should get the death penalty. I’d consider everything—all the evidence.”

  “No further questions, Your Honor,” Farrar concluded.

  “The prosecution has a follow-up question, Your Honor,” Thibedeaux said.

  “Go ahead,” Judge Masterson responded.

  “Mr Dixson, if the judge instructed you to disregard a witness’s homosexuality when considering the truthfulness of his testimony, do you think that you could follow that instruction?”

  “Yes, sir.” Dixson sat forward in the witness box as he spoke.

  “Your Honor, may we have a sidebar?” Farrar asked.

  “Sure.” Judge Masterson motioned the lawyers and the court reporter toward the corner of the courtroom nearest the bench and farthest from the witness box. Matt hoped the potential juror couldn’t hear them.

  “Your Honor, the defense requests the court dismiss Mr Dixson for cause,” Farrar said. His tone and gestures were emphatic but muted as he tried to conceal the substance of the conversation and the vehemence of his objections from Mr Dixson and the other potential jurors. “We believe he’s biased against gay people, and that requires dismissing him in a case where an essential theme of our defense will be that Mr Cutler and his companions attacked Mr Durant and Mr Buckner because they thought they were gay.”

  “Your Honor, Mr Dixson didn’t express a bias against homosexuality,” Thibedeaux responded. He kept his voice low enough and his gestures restrained enough to show respect for the principle of hiding their discussion from the prospective jurors, but he spoke more loudly than Farrar. “He even said it shouldn’t be illegal. Homosexuality doesn’t have some special, protected status under the law that requires this court to strike every juror who believes it’s sinful. Mr Dixson could just as easily have said that his religious beliefs are consistent with his opinion that an adulterer is less likely to tell the truth. That’s just a juror bringing life experience to the table, not an expression of partiality. And Mr Dixson said he could ignore his religious views on homosexuality if instructed to do so.”

  “Mr Farrar, homosexuality is certainly not a protected class under the federal or state constitutions,” Judge Masterson said. “And I’m going to keep any juror who says he can follow an instruction to disregard a witness’s or the defendant’s homosexuality. I’m not excusing Mr Dixson for cause.”

  “Your Honor, I want to exercise my first preemptory challenge to strike Mr Dixson,” Farrar responded.

  “Well, then, let’s go tell Mr Dixson,” Judge Masterson said.

  Judge Masterson reassumed his place on the bench and turned to Mr Dixson, “Thank you for coming in today. We won’t need you to serve on this jury. Please return to the court officer running the jury pool, who will decide if you need to sit for another jury.”

  Farrar and Thibedeaux battled over the various potential jurors for the next few hours based on their best guesses of how factors as varied as socioeconomic background, appearance, education and accent might somehow affect the trial’s outcome.

  Several potential jurors said being gay was a sin. In response to Farrar’s pointed questions, most of those testified that they’d be less likely to believe a gay person’s testimony. Judge Masterson spent most of the voir dire working on his computer, but consistently perked up to deny Farrar’s requests to excuse such individuals for cause.

  Farrar exhausted his discretionary preemptory strikes and three jurors who’d expressed the view that being gay was sinful and would infl
uence their evaluation of testimony were seated over his objections. And, all morning, every potential juror had heard little but gay, gay, gay.

  Gideon Whitley took the stand midmorning. Whitley, a local painter, had earned moderate fame by painting pictures of his deceased cat in various shades of yellow. Whitley was tall, bespectacled, and unfortunately had the sallow complexion of one of his cats. He sat perched on the edge of his seat in the witness box. Matt also knew that Whitley was openly and outspokenly gay.

  Thibedeaux began his questioning with the thought on the mind of every lawyer in the room. “Are you a homosexual?”

  “Yes.”

  “Do you believe homosexuals are frequently the victims of violence because of their sexual orientation?”

  “I’m not intimately familiar with the statistics, so I’d hesitate to use the word frequent.” He paused. “But I do believe gay individuals are sometimes physically attacked because they’re gay.” Whitely eased back into his seat.

  “Have you ever been physically attacked or threatened because you’re a homosexual?”

  “I’ve certainly been threatened, particularly when I was younger, but I’ve never been attacked.”

  “Would you be inclined to believe a homosexual’s claim that he was physically attacked because of his sexual orientation?”

  “I wouldn’t be inclined one way or another based solely on his sexual orientation. I’d have to know more details.” Whitley looked over at Farrar to measure his reaction. He obviously wouldn’t mind sitting on this jury.

  “In this trial, the prosecution will be seeking to prove Mr Durant committed first-degree murder by killing Brian Cutler while attempting to purchase cocaine. What do you think the minimum sentence should be for such a crime?”

  “If I had to guess, I’d say that the minimum sentence should be twenty years.”