When court was back in session, he returned from the garage, sat in the gallery, and communicated what he knew about each potential juror to my co-counsel. I wasn’t alone at the table but I wasn’t with Jennifer Aronson either. My new co-counsel was Maggie McPherson. She had taken a leave of absence from the District Attorney’s Office and answered my distress call. I could think of no one better to be sitting next to as I faced the most difficult challenge of my life.
You never want to use your last peremptory, because you never know who will take the seat of the potential juror you just dismissed. You could clear the way for a new face that is a prosecutor’s dream, and you are left with nothing with which to stop it. So you always hold back the last peremptory for emergency circumstances only. I learned this the hard way as a baby lawyer when I was defending a man accused of assaulting a police officer and resisting arrest. I felt sure that the assault charge was bogus, an add-on by the arresting officer because of personal animosity. The officer was white and my client Black. During jury selection I gambled with my last peremptory to kick out a potential juror who was yellow on my meter. There were still several African Americans in the courtroom pool waiting to be randomly called to the box. I figured my chances were almost fifty-fifty that one of them would get the call to take the open seat for questioning. The move paid off. A Black woman was called, but under questioning she revealed that she was the daughter of a retired law enforcement officer who had served in the Sheriff’s Department for thirty-two years. I questioned her at length, trying to elicit an answer that would get her bumped for cause, but she maintained her stance that she could view the case impartially. The judge denied my request to dismiss her, so there I was, with a cop’s daughter on my assault-on-a-police-officer jury and no peremptory to change it. My client went down on all charges and spent a year in a county detention center for a crime I believed he had not committed.
I followed my usual routine for charting and tracking jurors through the selection process. A plain manila file folder was open flat on the defense table. I had drawn what I called the ice-cube tray across both flaps: a long rectangle divided into fourteen squares for the jury of twelve and two alternates. Each cube was two inches square—the size of a small Post-it Note. I wrote the salient thoughts and details about each prospective juror in the cube numbered for the jury box seat the candidate occupied. As jurors were dismissed and new people took the seats, I used Post-its to cover the no-longer-needed details and start again. Charting everything on the file folder allowed me to flip it closed if inquiring eyes wandered over from the prosecution table.
The prosecution got to question the new additions to the panel first. And while Berg went through her routine questions, Maggie and I checked the texts coming to her laptop from Cisco, who had to disguise what he was doing because no one but the attorneys on the case was allowed to use electronic devices in the courtroom. Cisco hid his phone from the courtroom deputies by keeping it down on the bench next to one of his massive thighs.
To protect the anonymity of the jury in a criminal case, the prospective jurors were referred to by numbers given to them when they checked in at the jury coordination center on the first floor. Cisco’s texts did the same.
17 parked in handicap—no tag.
That reference was to the male member of the new trio. It was an interesting piece of information but not something I would be able to go at directly without possibly giving away how I got the information. Revealing that I had an investigator scoping out potential jurors in the parking garage would not go over well with the judge or the California bar. It didn’t go over well with Maggie McFierce either. She was getting a quick education in criminal defense and didn’t always like what she was learning. But I wasn’t worried. She was now co-opted by the attorney-client relationship.
I had watched number 17 stand up in the gallery when his number was called. He had squeezed past others out of the row and then moved to the jury box for questioning without showing any obvious physical difficulty or handicap. Of course, there were other possible unseen issues that could have resulted in his receiving a handicap tag. But it bothered me. If the man was a cheat, I didn’t want him on the jury.
Cisco immediately followed his first missive with a text on one of the women.
68 should be 86ed. Trump 2020 bumper sticker.
This was good intel. Politics were a good window into a person’s soul. If 68 was a supporter of the president, it was likely she was a law-and-order hard-liner—not good for a guy accused of murder. That this person would continue to support the president after the media had documented his many, many untruths was a factor as well. It was blind loyalty to a cause, and an indicator that truthfulness was not an important part of her framework.
I agreed with Cisco. She had to go.
On the third potential juror—number 21—Cisco had limited intel.
21 drives a Prius. Extinction Rebellion sticker on rear window.
I didn’t know what an Extinction Rebellion sign was but I thought I understood the sticker’s message. Both pieces of information were almost useless. Both could be indicators of a judgmental personality, particularly when it came to the environment and crime. I drove a gas-eating Lincoln and that would certainly come out in trial. And I was charged with a very violent crime while being a person who associated professionally with others charged with violent acts.
I kept an ear on the proceedings as Berg questioned the new candidates but I also huddled with Maggie as she pulled out the questionnaires the three had filled out when reporting for jury service.
Immediately I changed my mind about 21. I liked what I read. She was thirty-six years old, unmarried, lived in Studio City, and had a job as a prep chef at one of the upscale restaurants at the Hollywood Bowl. This told me she liked music and culture and chose to work in a place that had both. She also listed reading first among her hobbies. I didn’t think anyone who was a reader could avoid coming across stories—nonfiction or fiction—that underscored the frailties of the American justice system, chief among them that the police don’t always get it right and that innocent people are sometimes accused and convicted of crimes they didn’t commit. I believed that would give 21 an open mind. She would listen closely to my case.
“I want her,” I whispered.
“Yeah, she looks good,” Maggie whispered back.
I moved on to the other two questionnaires. I saw that 68, the other female, was my age and had gotten married the same year she graduated from Pepperdine, a conservative Christian school in Malibu. Add all of that to the Trump bumper sticker, and I was convinced. She had to go.
Maggie agreed.
“You want to use the last challenge?” she asked.
“No, I’m going to question her,” I said. “Try to get her bumped for cause.”
“What about the guy? There’s nothing here.”
She was referring to 17. I scanned his questionnaire and had to agree with Maggie. Nothing on the single page drew a flag. He was forty-six years old and married, an assistant principal at a private school in Encino. I was familiar with it because Maggie and I had flirted with the idea of sending Hayley there for elementary school many years before. We took the tour and went to a parents’ presentation but ultimately got a bad vibe. Most of the students came from well-to-do families. We weren’t destitute by any means but Maggie was a civil servant and I was always chasing money cases. Some years were fat, some were thin. We thought the peer pressure on our daughter would be unhealthy. We enrolled her somewhere else.
“You remember this guy?” I asked. “He would have been there when we looked at the place.”
“I don’t recognize him,” Maggie said.
“I’ll see what I can get on Q and A. You okay with my taking all three?”
“Of course. It’s your case. I don’t want you deferring to me.”
While Berg finished her canvassing of the jurors, I wrote notes on all three on Post-its and attached them to the correspon
ding squares on my ice-cube tray chart. I wrote in green for 21 and red for 68. For 17, I wrote a yellow question mark. Then I folded the file closed.
38
When it was my turn to question the people who might decide my future, the judge verbally cut me off at the knees before I even got to the lectern.
“You have fifteen minutes, Mr. Haller,” she said.
“Your Honor, we technically have three open seats and then the alternates to fill,” I protested. “The prosecution just took way more than fifteen minutes to question these three.”
“No, you’re wrong. I timed it. Fourteen minutes. I’m giving you fifteen. Starting now. You can use the time to argue with me or to question the jurors.”
“Thank you, Your Honor.”
I went to the lectern and started with number 68.
“Juror sixty-eight, I was looking at your questionnaire and didn’t see what your husband does for a living.”
“My husband was killed in Iraq seventeen years ago.”
That brought a moment of silence—a collective holding of breath—as I retooled my approach. I could not let the jurors who were already seated see me treat the woman with anything but kid gloves.
“I’m sorry for your loss,” I said. “And that I even brought the memory up.”
“Don’t worry,” she said. “The memory never goes away.”
I nodded. Though I had stumbled into this, I had to find a way to finesse my way out.
“Uh, on the questionnaire, you didn’t check that you had been a victim of a crime. Don’t you consider the loss of your husband to be in a way a crime?”
“That was war. That was different. He gave his life for his country.”
God and country—a defense lawyer’s nightmare on a jury.
“Then he was a hero,” I offered.
“And still is,” she said.
“Right. He still is.”
“Thank you.”
“Have you been on a jury before, ma’am?”
“It was one of the questions on the form. No, I have not. And please don’t call me ma’am. Makes me feel like my mother.”
There was a slight tickle of laughter in the courtroom. I smiled and pressed on.
“I will refrain from doing that. Let me ask you a question: If a police officer testifies to one thing and then a regular citizen testifies and says the opposite, whom do you believe?”
“Well, I guess you just have to weigh what each one says and try to figure out who’s telling the truth. It could be the officer. But it might not be.”
“But do you give the police officer the benefit of the doubt?”
“Not necessarily. I would have to hear more about the officer. You know, who he is, how he comes across. Like that.”
I nodded. It was becoming clear that she was a Jury Judy—someone who wants to be on the jury and gives the right answer to every question whether or not it reflects her true sentiments. I am always suspicious of people who want to be on a jury, who want to judge others.
“Okay, and as the judge explained yesterday, you know that I am both the defendant and defense attorney in this case. If at the end of this trial you think that I probably committed the crime of murder, how do you vote in the jury room?”
“I would have to trust my instincts after weighing the evidence.”
“Which means what? How would you vote?”
“If I’m convinced beyond a reasonable doubt, I vote guilty.”
“Is thinking I probably did it convincing? Is that what you mean?”
“No, like I said, I would have to feel you are guilty beyond a reasonable doubt.”
“What does reasonable doubt mean to you, ma’am?”
Before 68 could answer, the judge cut in.
“Mr. Haller, are you trying to bait the juror?” Warfield said. “She asked you not to call her that.”
“No, Judge,” I said. “I just forgot. My Southern manners. I apologize.”
“That’s all well and good, but I know you were born right here in Los Angeles, because I knew your father.”
“Just a figure of speech, Your Honor. I won’t say the offending word again.”
“Very well, continue. You’re using up all your time on this one juror. I’m not giving you an extension.”
Fifteen minutes to interview the people who might decide your fate. I thought I had my first point of appeal should the trial not go the way I wanted it to. I turned my attention back to the woman in the jury box.
“If you could, can you tell us what you believe reasonable doubt to mean?”
“Just that there’s no other possible explanation. Based on the evidence and your evaluation of it, it couldn’t have been anybody else.”
I realized I wasn’t going to be able to make any headway with her. She had her answers rehearsed. I had to wonder whether she had been following the case in the media.
“Yesterday morning the judge asked for a show of hands for anyone who had read about this case in the media. You did not raise your hand, correct?”
“That’s correct. I had never heard of it before.”
I didn’t believe her. She knew about the case and for some reason wanted to be on the jury. I checked my watch and moved on to Mr. 17. I had no choice.
“Sir, you are an assistant principal at a private elementary school, correct?”
“Yes, that’s right.”
“I see on the questionnaire that you have a master’s degree in education and are working on a doctorate.”
“Yes, part-time on the doctorate.”
“Is there a reason why you haven’t chosen to teach at the university level?”
“Not really. I like working with younger kids. That’s where I get my fulfillment.”
I nodded.
“It says you also coach the boys’ basketball team at the school. Does that require a lot of physical activity on your part?”
“Well, I think the boys should see their coach as someone who can keep up with them. Someone in shape.”
“You do strength-training exercises with them?”
“Uh, sometimes.”
“You run with them?”
“I do laps in the gym with them.”
“What is your philosophy on sport? Winning is everything?”
“Well, I’m competitive, yes, but I don’t think winning is everything.”
“What do you think, then?”
“I think winning is better than losing.”
That drew some polite laughter. And I changed the direction of my questions.
“Your wife. According to the info sheet, she is a teacher as well?”
“Yes, same school. We met there.”
“So I assume you carpool to school together?”
“No, I have the coaching after school, and she has a part-time job at a crafts store. So different schedules, different cars.”
“Do you think that there are serious crimes and not serious crimes?”
“Excuse me?”
“Do you think that there are some crimes that shouldn’t be considered crimes?”
“I don’t really understand.”
“I guess I’m talking about the highs and lows. Murder—that’s a crime, right?”
“Yes, of course.”
“And those who murder should pay for their crimes. You agree?”
“Of course.”
“What about smaller crimes? Crimes where there are no victims—should we bother with those?”
“A crime is a crime.”
The judge intervened again.
“Mr. Haller, do you intend to question juror twenty-one with the time you have left?” she asked.
I was annoyed at the interruption. I was building toward a decision with 17 and she shouldn’t have interrupted.
“As soon as I’m finished here, Your Honor,” I said, my frustration clear in my voice. “Can I proceed?”
“Go ahead,” Warfield said.
“Thank you.”
“You
’re welcome, Mr. Haller.”
I turned back to 17 and attempted to gather my splintered momentum.
“Sir, is a crime a crime, no matter how big or small?”
“Yes. Of course.”
“What about jaywalking? It’s against the law but do you think it’s a crime?”
“Well, if that’s what the law is, then, yes, I guess it’s a crime. A minor crime.”
“What about parking in a handicapped zone when you have no handicap?”
It was a gamble. All I knew about 17 was what I had read on the questionnaire and what I learned in the text from Cisco about his parking in a handicapped spot. I had to make a call on him but could only dance around the essential question: Was he a cheater?
We stared at each other in silent communication before 17 finally spoke.
“There might be a reasonable explanation for someone doing that,” he said.
There it was. He didn’t believe he needed to play by the rules. He was a cheater and he had to go.
“So what you’re saying is that—”
Warfield interrupted again.
“Your time is up, Mr. Haller,” she said. “Counsel, approach.”
I cursed under my breath and turned away from 17.
We had been handling challenges at the bench so the objections to jurors—possibly embarrassing to them—were not made in open court. But when I got to the bench, I was too hot to worry about keeping my voice down.
“Your Honor, I need time to question the last juror,” I said. “You can’t arbitrarily set my time based on what time the state needed. That is patently unfair to the defense.”
Maggie had joined the conference at the bench. She now lightly touched my arm as the judge responded. It was a warning to tread carefully.
“Mr. Haller, your time management is not my problem,” Warfield said. “I made it abundantly clear from the start of day yesterday, start of day today, and at the start of your most recent questioning of potential jurors: we are going to finish jury selection today and opening statements are tomorrow. We are now approaching three o’clock and we still have alternates to seat and I imagine at least one or two jurors. Your time was up. Now, does either of you have a challenge?”
The Law of Innocence Page 23
