by Grace Mead
“The prosecution in this case is seeking the death penalty. If the jury determines that Mr Durant committed first-degree murder and aggravating factors are present, Mr Durant will be taken to the Louisiana State Penitentiary. He’ll be placed on death row and at some point will be taken to the death house where he will be strapped on a gurney, an IV will be put into his arm, and he’ll be injected with a substance that will cause his death as a result of a jury verdict. Under these circumstances, could you vote to impose the death penalty?”
“I oppose the death penalty politically, but if the judge instructed me that if we reached certain factual conclusions the defendant should be executed under the law, I’d make the necessary findings without regard to my political opinions.”
“No further questions, Your Honor,” Thibedeaux concluded.
Farrar rose. “Do you know the minimum penalty for first-degree murder in the state of Louisiana?”
“No.”
“And if the judge instructed you that the minimum penalty for first-degree murder is life imprisonment, would that affect your determination of Mr Durant’s guilt or innocence?”
“No.”
“Thank you. No further questions, Your Honor.”
“Your Honor, may we have a sidebar?” Thibedeaux asked.
“Yes.”
The attorneys and Matt followed Judge Masterson to the corner of the courtroom, where they huddled.
“Your Honor, I request that Mr Whitley be excused for cause,” Thibedeaux said. “I believe Mr Whitley’s testimony demonstrates a reluctance to impose the minimum penalty of life imprisonment.”
“Nonsense,” Judge Masterson said. “You asked Mr Whitley an open-ended question about what he’d consider a reasonable minimum penalty, but when Mr Farrar informed him of the actual minimum penalty, he said he’d be willing to follow the law and impose that penalty.”
“Well, Your Honor, we’d therefore like to exercise a preemptory challenge and strike Mr Whitley,” Thibedeaux said.
“Your Honor, we object,” Farrar said. “Prosecutors can exercise their preemptory challenges for many reasons, but they can’t strike potential jurors solely based on their race or gender. The United States Supreme Court has held such strikes violate a criminal defendant’s rights under the federal Constitution, including the Sixth Amendment and the Fourteenth Amendment’s Equal Protection Clause. As you just explained, the prosecutor hasn’t offered a legitimate reason for striking Mr Whitley.”
“I said the prosecutor hadn’t offered a legitimate reason for excusing Mr Whitley for cause,” Judge Masterson said. “You and I both know preemptory challenges are very different. You just acknowledged they can be exercised for a wide variety of reasons. You also know as well as I do the courts have treated potential discrimination based on race and gender very differently from sexual orientation. The United States Supreme Court has ruled race and gender are suspect classifications under the Equal Protection Clause of the Fourteenth Amendment. There’s a very strong presumption that using those criteria is illegitimate and unconstitutional. But the Supreme Court has made also very clear that distinctions based on sexual orientation aren’t suspect classifications. There need be only a rational relationship between distinctions based on sexual orientation and the government interest being advanced.”
“Your Honor, we’d respectfully submit that a preemptory challenge based on sexual orientation is without rational basis and hence unconstitutional,” Farrar argued. “In Romer v. Evans, Justice Kennedy’s majority opinion striking down a Colorado constitutional amendment stripping gay people of employment protections explained the government must identify a rational link between the classification adopted and the goal obtained. We don’t think there’s any such rational link here.”
“Your Honor,” Thibedeaux responded, “we want to exercise a preemptory strike to dismiss Mr Whitley for the same reason we requested you excuse him for cause. We don’t believe he’ll objectively and fairly consider Mr Durant’s guilt in light of a minimum sentence that he considers unreasonable. I also have serious misgivings about whether he’ll really be able to ignore his political beliefs about the death penalty.”
“I don’t buy those as reasons for excusing Mr Whitley for cause,” Judge Masterson said, “but I do think those reasons can support the prosecution’s exercise of a preemptory challenge. I also find that the entire framework for objecting to a preemptory challenge that may have been exercised on the basis of gender or race doesn’t apply to sexual orientation. Unless sexual orientation is a suspect classification, we don’t get to the point of examining the prosecutor’s motives. It’s like any other reason for exercising a preemptory challenge and entirely within the prosecution’s discretion. Mr Thibedeaux may exercise his preemptory challenge and Mr Whitley will be excused.”
“Your Honor, to preserve the record, I’d also like to make the argument that classifications based on sexual orientation should be considered suspect classifications, and the exclusion of Mr Whitley violates my client’s federal constitutional rights, as well as his rights under the Louisiana state constitution,” Farrar said.
“You can consider the argument preserved, Mr Farrar, but you know as well as I do it doesn’t fly,” Judge Masterson said. “The Louisiana constitution prohibits gay marriage, and the Louisiana Supreme Court has upheld the constitutionality of that amendment. There’s no possibility homosexuality is a protected class under the Louisiana state constitution. And the United States Supreme Court has certainly never recognized homosexuality as a suspect classification. It’s applied rational basis review to state classifications based on sexual orientation, as you recognized a few minutes ago. Mr Whitley can go home.”
Jury selection ended shortly before lunch. Only one juror had a gay relative—an estranged lesbian daughter. Farrar ordinarily wouldn’t have taken that juror, but he was out of preemptory strikes. Matt hoped at least some connection to a gay family member could help his cause.
Any jury expert or experienced lawyer would have judged Thibedeaux the winner in the battle to fashion the jury. The twelve individuals who would decide Matt’s guilt or innocence had been chosen.
Judge Masterson excused the lawyers and jurors for lunch. His clerk had set aside a small conference room at the rear of the courtroom for the defense team to use during the trial. A messenger from Farrar Levinson had delivered sandwiches, chips, fruit and soft drinks. After the courtroom cleared out, Farrar and the defense team entered the conference room. Farrar shut the door behind them but, as Matt sat down, he wondered whether it was thick enough to keep their conversation private.
Mary was furious. She remained standing, put her hands on her hips, and began tapping her right foot. Matt always tried to steer clear when that foot started tapping, but the room was small, and he suspected it wasn’t him she was angry at. He was right.
“What just happened in there?” she asked Farrar.
“We picked a jury.”
“I thought you told me lawyers can’t strike jurors based on sex? Everyone in the state knows Gideon Whitley is gay.”
“That’s exactly what I argued to the judge, and he said sexual orientation isn’t sex.”
“That jury also has several people on it who testified they thought being gay was a sin.” She pursed her lips together. “They even said they’d be less likely to believe a gay witness. How did you let that happen?”
“I didn’t just let it happen. Matt was standing right next to me when I objected to the judge. He ruled they could serve because they said they could follow instructions to disregard a witness’s sexual orientation.”
Mary’s eyes narrowed. “And did you even think to question these jurors about how their religious beliefs would influence their opinion of a witness who testified he’d had too much to drink?”
Farrar blanched. “That didn’t occur to me.”
“Well, is it too late now?”
“Yeah. I mean, I can make an objection, but the judge isn’
t going to let me question them again.”
“Mom, he did the best he could, and he did a pretty darned good job.”
“You don’t even start, Matthew Durant. If you hadn’t gotten so drunk, we wouldn’t even be here.” Matt jerked back in his seat as if he’d been slapped.
Mary’s foot stopped tapping, her expression softened, and she walked over to Matt. “Honey, I’m so sorry. I don’t know what came over me. You know your drinking drives me crazy, but I didn’t mean to snap at you like that.” She reached out and pulled Matt’s head into her side. She turned to Farrar. “I’m sorry about snapping at you, too. I know you’re going out of your way to help us. That judge just made me so mad.” She began tapping her left foot, which was located farther away from Matt’s body. That was a first.
“It’s okay,” Farrar said. “I can only imagine what you must be going through. We’re going to have to discuss preliminary jury instructions with the judge after lunch, and I don’t think I’ll get to my opening today, but I need to prepare anyway. Let’s just focus on what we can do, which is put on a hell of a case.”
Mary nodded.
The lawyers finished wrangling over the proposed preliminary instructions around three o’clock and Judge Masterson announced the prosecution could deliver its opening after a fifteen-minute break. After the break, Judge Masterson invited Thibedeaux to begin.
Thibedeaux drew himself up to his full height and fastened the top button of his jacket. Matt concentrated on regulating his breathing and maintaining a blank expression. Regardless of who addressed the jury at any given moment, they’d always be scrutinizing him for even a hint of a reaction.
“Ladies and gentlemen, I’d like to begin by echoing Judge Masterson’s thanks for your service. I appreciate many of you are being forced to take time away from your jobs and families, which may or may not be a hardship.” Thibedeaux smiled, and several jurors grinned in response. “But a man has been murdered and your help, participation and sacrifice are necessary to bring this killer to justice. The state of Louisiana needs you. Although an important case, I don’t believe that you’ll find it particularly difficult. The evidence will show that on Friday night, September 7, 2007, the defendant Matthew Durant decided to go out drinking in the French Quarter. And he drank plenty.
“Mr Durant’s blood-alcohol content that night reached at least 0.18, which is over twice the legal limit for driving. But Mr Durant decided not to limit himself to alcohol. Mr Durant met Joey Buckner, an admitted and convicted drug dealer, in a bar named Drink on Bourbon Street. Mr Durant had at least $800 in his pocket when he met Mr Buckner, and Mr Buckner had over four grams of cocaine in his possession. Mr Buckner will testify that Mr Durant was already intoxicated when he arrived at Drink and that Mr Durant and he shared several additional adult beverages after his arrival. Mr Buckner will also testify that he asked Mr Durant if he wanted to purchase any cocaine, and that he and Mr Durant then ducked out the back door so Mr Durant could buy cocaine from Mr Buckner.
“The evidence will also show three men then happened on them in that alley. Those three men were Brian Cutler, John Harlan and Don Rand. When they saw Buckner and Durant huddled together as they left the club, they suspected that it was a drug deal. And they took action. These men refused to sit idly by and allow Mr Durant to commit a crime on the public streets. The evidence will show Brian Cutler and John Harlan grabbed Mr Buckner, the drug dealer, and restrained him. When Mr Buckner attempted to escape, Don Rand, who as you’ll see is a fairly large man, punched Buckner in the nose. That ended Mr Buckner’s escape attempt. But while the three men detained Mr Buckner, Mr Durant had started to move down the alley toward them. And so Mr Cutler walked out to meet Mr Durant. And when Mr Durant reached Mr Cutler, he swung his beer bottle at Mr Cutler’s temple. And he swung that beer bottle a second time, killing Mr Cutler. The evidence will show that Mr Durant killed him in cold blood so he could avoid being arrested for buying drugs.”
Several jurors were wide-eyed. Knowing that you’d been selected to serve on the jury for a murder trial was different from hearing the sordid details.
“Now, you may be thinking to yourself: that sounds pretty simple. Well, I think what happened in that alley is pretty simple. There were only five men in that alley and all of them, other than Mr Durant and his victim, will take the witness stand, swear to tell the truth, and explain that’s what happened.
“But the defense will try to wriggle out using a few arguments. First, the defense will attempt to show Mr Buckner isn’t a reliable witness. Mr Buckner is a convicted drug dealer, and the state of Louisiana agreed to give him a reduced prison sentence in exchange for his cooperation. Mr Buckner will still go to prison, but not for as long as he would’ve gone for if he hadn’t agreed to testify. And I’ll be the first to admit Mr Buckner is no angel. After all, my office is sending him to prison for a year for dealing drugs. Unfortunately, it’s a fact of life that criminals are the most frequent witnesses to crimes, particularly crimes such as selling drugs, where everyone involved is a criminal. And criminals rarely volunteer to give testimony that will send them to jail out of the goodness of their hearts. But you can look further than those simple facts of life to find indications that Mr Buckner is telling the truth. As you’ll see, Mr Buckner didn’t provide us with corroboration about the events that Mr Rand and Mr Harlan had described until after he’d retained a lawyer. And that lawyer summarized Mr Buckner’s description of what happened that night after Mr Buckner had been released on bail. The Louisiana public defender’s office was representing Mr Buckner when he told us what had happened in that alley. Those fine folks have a lot of integrity. They’d never knowingly pass along a lie to us. And, as you’ll see, there’s absolutely no reason to believe they did so in this case.”
Thibedeaux’s endorsement of the public defender’s office was objectionable, but Matt agreed with Farrar’s decision to remain silent. It wasn’t worth drawing the jurors’ attention to it.
“You’ll see other evidence Mr Buckner is telling the truth. Mr Durant’s lawyer, Mr Farrar, will no doubt spend a lot of time questioning Mr Buckner about his prior criminal conviction. But he may gloss over what he wants you to consider an unimportant detail. Mr Buckner has never been convicted of a violent crime. And Mr Buckner will tell you the defendant’s brutality shocked him, and that’s part of the reason he’s testifying in court against him.”
Matt saw a couple of jurors shift in their seats and eyes darted toward him then away uncertainly. He supposed they were wondering at the degree of violence required to shock a drug dealer and ex-convict.
“Perhaps most importantly, though, is that you don’t just have the testimony of Mr Buckner,” Thibedeaux continued. “Mr Harlan and Mr Rand will also testify. And they’ll explain that they were trying to break up a drug deal and summon the police when they approached Mr Durant. And Mr Durant, a highly educated lawyer who made really good money working for Mr Farrar’s law firm, realized how much he had to lose from a drug conviction. And when faced with the prospect of losing his comfortable job and way of life, Mr Durant brutally attacked Mr Cutler. Mr Durant wasn’t satisfied with throwing a simple punch. He instead used his beer bottle as a weapon to crush Mr Cutler’s skull. And Mr Durant hit Mr Cutler with that beer bottle not just once, but twice.” Thibedeaux swung his own left arm in a slow motion with the confidence of one who has practiced in front of a mirror. “Mr Durant did not act in self-defense, as the defense will claim. Mr Durant’s testimony will be contradicted by every other witness to the events of that night. Mr Durant killed Mr Cutler in an attempt to flee and cover up the fact he was buying cocaine. Mr Durant failed in his first attempt to escape justice. You should make sure the defendant fails again in his second attempt to escape justice.”
Thibedeaux gazed steadily at the jurors for several seconds, as if daring them to aid a felon in his escape.
Chapter 9
That night, Matt dreamt he was back in law school.
&
nbsp; In the dream, he woke afraid he was late for a class, felt an itch beneath the covers, and drew his left leg up. A searing pain shot up from his foot as it brushed against the sheet and he looked down to see scarlet bumps oozing yellow pus. The flesh was cracked like hard-baked dirt and he gagged on the sour, rotting odor. It was leprosy.
He was in a doctor’s office. The doctor confirmed his suspected diagnosis and asked him if he had a girlfriend. When Matt told the doctor about Andrea, the doctor said she’d need to be told immediately because it was highly contagious. He added little could be done to stop the short-term spread of the disease, but they could hope to kill the infection over time.
Matt wandered in a daze through routine law-school activities: attending classes, making phone calls to clients for the legal clinic and studying. But throughout the day he was acutely conscious of his hidden rash. He wondered how long he could hide it.
Matt woke in his actual bed in New Orleans, the dream interrupted before disclosure. His sheets were soaked with sweat and the alarm clock showed it wasn’t even five. He certainly wouldn’t be late for court. A single cup of strong coffee banished his grogginess, but he remained shaken.
Matt and Mary arrived at court by eight o’clock and found Farrar reviewing his opening statement.
After what seemed like an interminable wait, Judge Masterson took his seat on the bench around nine. “Any new business we need to attend to before we bring in the jury?” he asked.
Farrar stood. “Your honor, I just wanted to renew our objection to the composition of the jury. We believe seating the three jurors who testified they believe being gay is a sin and allowing the prosecution to strike Mr Whitley were independent violations of our client’s constitutional rights.”
“Your objection’s noted and I’m seating this jury over that objection,” Judge Masterson said. “Anything else? No? Please bring in the jury.”
