by Diane Capri
By now, my butterflies had relaxed and I was well into the rhythm of the trial. I overruled the objection, but instructed the jury that defense counsel was well within his rights to make it. I denied the motion for mistrial and instructed both counsel to make any such motions at the bench, out of the hearing of the jury, because I did not intend to have my trial interrupted by grandstanding.
It was familiar territory to all but the jurors. Like a drama in its hundredth performance, each of the actors recited the well-worn lines and like the untutored audience they were, the prospective jurors remained ignorant of the backstage tricks that made the performers successful.
Newton continued his voir dire in the same vein, raising the issues with the jurors and making The Review out to be a scandal sheet of the worst order. Which, of course, it was.
A couple of times I reminded him that this was not argument, but jury selection. Otherwise, I allowed him enough rope to hang himself.
The jury would remember Newton’s voir dire and that the facts he portrayed didn’t resemble what they heard in the trial. Whether they’d hold that against Newton during their deliberations or not was always the multi-million dollar question.
Newton finally ran out of time and yielded the floor to the blue chip, silk stocking law firm partner from New York who had been admitted to practice in my court specially to handle this case. Although the jury wouldn’t be told, he wasn’t a member of the Florida Bar, so he was burdened with the handicap of playing the game in an unfamiliar arena before he opened his mouth.
The man stood up to adjust himself before he began his voir dire. A new actor had entered the stage and the jurors paid attention.
He was about 6’2”, with a full head of expertly coiffed and colored blonde hair, manicured nails and a medium-grey plaid suit that looked as expensive as it undoubtedly was. He wore brown shoes and the hose (for they were not mere socks) picked up the pale brown threads in the suit.
His brilliant white shirt had French cuffs with gold knot cuff links just peeking out of the bottom of the sleeves of his suit. As he pulled down on first one cuff and then the other, straightening them just right as he flexed his shoulders, his clear nail polish reflected the glare of the fluorescent lights.
The tie was a yellow print knotted in a half Windsor and it hung straight down his flat stomach to just above the shiny gold monogrammed buckle of his brown alligator belt.
He looked the picture of what he was: an $850 an hour hired gun. His name, he told us all, was “A. (for Archibald) Alexander Tremain, VI.” When he announced himself to the jury, I noticed twittering in the back row, as I suppressed my own grin.
CHAPTER EIGHTEEN
Tampa, Florida
Monday 11:05 a.m.
January 24, 2000
TREMAIN STOOD IN THE same spot Newton had used to hold the prospective jurors enthralled for the last hour and then he turned to look at the remainder of the jury pool in the gallery behind where Newton was now seated. To each group, Tremain nodded his head slightly, but he didn’t smile.
“I want each of you to know that today, if you are selected for this jury, you will have the responsibility of deciding whether the United States Constitution is something we all live by, or whether it’s not.” He stopped and looked in turn at each of the eighteen prospective jurors in front of him. At this rate, his hour for questions would be up before he got any information at all.
“At the end of this trial, the jury that is selected here will be asked whether the First Amendment still means anything in this country, or whether true speech can be punished. Mr. Bates,” he picked out the juror who had seemed so sympathetic to Newton earlier, “do you believe in the United States Constitution?”
“Yes, sir, I do.” Mr. Bates gave the expected answer. Our voters are a pretty patriotic and conservative lot. Except for South Florida, which was populated primarily by liberal Democrats from the Northeastern United States, the rest of the state has had a strong, conservative Republican electorate for years. That dichotomy has gotten the state into trouble in national elections. But here in Tampa, it was best to remember the probable perspective of local jurors.
Someone had apparently clued Tremain in and he had taken the advice of trial specialists, attempting to condition the jurors early to laws they might find personally repugnant and excuse jurors who couldn’t make the commitment.
“Do you believe that you have the right to say just about whatever you want in this country? Not the privilege, but the right?” He raised his voice when he said “right” and pounded a closed fist into his flat palm.
“I guess so, yeah. But I don’t think you should hurt anybody by saying things that aren’t true. That’s not constitutional.” Mr. Bates remembered Newton’s hypothetical about his wife’s adultery.
“You’re right, Mr. Bates, you’re absolutely right. If you knowingly say something that’s not true, that shouldn’t be protected by the Constitution most of the time. But what if it is true? Shouldn’t you be able to say anything that’s true and not be afraid of being sued?” Tremain pushed his advantage and his theory.
“Sure.” Mr. Bates gave in. He was a true lawyer’s nightmare. He wanted to be on the jury so badly that he’d agree with anything you asked him. The lawyers had no way of knowing which way he’d vote, so leaving him on the jury would be a wild card. The trial lawyer’s equivalent of white-knuckle time.
There was nothing I could do about Bates. One of the parties would have to strike him or he’d remain with us through the course of the trial.
Tremain nodded approvingly, giving Mr. Bates a figurative gold star. Then he moved on. “I certainly hope none of you are gay or lesbian?”
There was an uncomfortable silence in the room. Some jurors shook their heads and looked from side to side, almost involuntarily, wondering where this was going. The statement of the case that was read to the jury at the beginning of the voir dire never mentioned what it was that The Review had printed about Newton.
“If any of you eighteen potential jurors are gay or lesbian, please tell us now, because you must be excused from this jury,” Tremain said firmly.
“Objection!” Newton shouted, jumping to his feet as I banged down my gavel and sternly admonished the defense attorney. The jurors chuckled self-consciously, looking around for raised hands. I asked to see both counsel in chambers and we left the courtroom for my smaller hearing room, each of the members of the defense team following behind Tremain the way goslings follow their mother.
I turned to defense counsel as we entered my chambers, “Just what exactly are you trying to do here? If this is standard voir dire in your part of the woods, I can tell you that’s not the kind of question we routinely ask here in Tampa.”
“Your honor, the issue of Mr. Newton’s homosexuality will be at the heart of this trial. He denies it, but he has put the truth of the matter squarely before the court. I think my client is entitled to know whether any homosexuals are on that panel. They should not be sitting in judgment on the decision to publish this material. I want them all dismissed for cause.” The rest of the defense team nodded on cue.
“Judge,” Newton responded, all pretense of the country bumpkin magically erased. “Assuming some potential jurors are homosexuals, the defendant would not be entitled to excuse them on that basis alone. If he tried, it would be objectionable and possibly even illegal. That last question should be stricken and no others like it should be allowed in the rest of the voir dire.”
Newton was hot and I didn’t really blame him. But he had to have known Tremain’s attack was coming. Like a lot of things, though, knowing and experiencing are vastly different.
“Do either of you have any law on this for me?” I looked at them both, sternly. They didn’t, which made me suspect that the defense knew what the law was and it wasn’t good for their side.
If Tremain had any support for his argument, he’d have been waving it in my face. In triplicate. Like so many issues that come up durin
g any trial, I had to fly by the seat of my pants and hope for the best. That’s what judicial discretion was most of the time: careful application of the sophisticated wild ass guess method.
“I don’t know what the legal answer to the question is, but I found your question personally offensive, Mr. Tremain. On that basis, I will not allow any further questioning into the personal sexual habits of jurors.” I turned the doorknob to return to the courtroom. “And if any more questions like that are asked in violation of my order, I will declare a mistrial. Understood?”
To his credit, Tremain didn’t argue. His point had been made with the jury panel and we all knew it. Newton requested a curative instruction, which I agreed to give, but it wouldn’t help. The cat couldn’t be forced back into the bag.
I asked both lawyers whether they wanted a mistrial now, to start over. They declined.
We went back to the courtroom and finished up the jury selection without further incident. Not surprisingly, at the end, Tremain used one of his pre-emptory challenges to dismiss Mr. Bates.
When I glanced at my watch, I was amazed that we’d reached the late afternoon. Absorbed in the problems of others, I’d managed to forget about General Andrews for a while. We’d made good progress today. Our jury was sworn and I’d adjourned until the next morning for opening statements.
As soon as the gavel came down, my personal world flooded back into my thoughts, bringing back the unease I’d gone to sleep with last night.
CHAPTER NINETEEN
Tampa, Florida
Monday 5:30 p.m.
January 24, 2000
KATE AUSTIN, MY MOTHER’S best friend and the woman who has been like a mother to me since mom died when I was sixteen, lives in a bungalow, four houses from the Bayshore on Oregon Avenue. The house sits on an exposed corner lot and the kitchen looks out over the side street.
Both George and I worried about strangers being able to drive up and see Kate standing in the kitchen, but she said we watch too much television. She wouldn’t even put blinds on the windows. She says she moved to Florida for sunlight, but we know she moved here for me.
I pulled into the driveway and walked up to the back screen door, calling her name as I approached. I didn’t want to startle her, since I hadn’t called to tell her to expect me.
Kate was in the backyard working on her newest project, an English garden. As always in her presence, total calm washed over me and I felt more relaxed than I had in days.
I should have come here before now. It’s not easy for me to admit that the strength and competence I have as a judge when dealing with other people’s problems doesn’t always translate into taking care of myself. George had always understood that about me and been my advocate.
When I had to face the fact, I comforted myself with the old adage that the lawyer who represents himself has a fool for a client. In my case, that was certainly true. I could fight the fiercest battle for someone else, but for myself . . .
I watched Kate for a few minutes, still flexible enough to get down on her knees in her garden easily. Kate had been doing yoga for thirty years and she was still as flexible as any twenty-five year old. The yoga was part of Kate’s New Age philosophy that seemed to serve her well at the same time that it annoyed my conservative husband.
Almost as if she knew I was there, Kate turned around and waved to me. Was she clairvoyant? She claimed to be. She said it was a skill anyone could develop. She did seem to be one step ahead of my emotions all the time, a trait that often annoyed me.
Kate put away her tools and suggested a glass of iced tea, the quintessential southern hospitality offering. We chatted about nothing in particular for a while in the kitchen as she washed up, poured the tea into tall glasses, added a sprig of mint and a slice of lime to each one.
Then she carried the glasses and cookies she’d made using an old family recipe on a small tray out to her patio. We sat, enjoying the companionable silence overlooking her wonderfully over grown flowers.
Kate’s garden is so wild and uncontrolled, like nothing else in my life. All the flowers are mixed together erratically, the colors both brilliant and subdued. Our gardens at Minaret are beautiful, too, but they’re perfectly ordered, weeded, matched and wouldn’t dare encroach on the brick paths or the grass. Kate’s garden was creative and free, a reflection of Kate herself.
After a while, Kate said, “Dear, why don’t you just ask me what you came to ask? The suspense is more than my heart can take on such a beautiful afternoon.”
My connection to Kate is intense, almost as if she were my real mother. She can sense my moods and can usually tell when I’m troubled. She says it’s because she’s a channel for the universe and she trusts her intuition. That may be true, and it comforts me to think so.
Or, it may be that I rarely come by just to chat anymore, so that every time I come over it’s because something is bothering me. That’s George’s theory, anyway.
Whatever the reason, whenever I’m in trouble, I go to Kate. She knows it and I think she likes it. Everyone wants to be needed.
Today, I wanted reassurance. I hoped George would return to normal. But what if he didn’t?
“It’s George,” I said.
“George? Mr. Wonderful? Your knight in shining armor? That George?” She teased. Actually, Kate thinks more of George than I do, if that’s possible. They are members of some kind of mutual admiration society that makes it useless to complain about one to the other.
“It’s not funny, Kate. George has been acting very strangely and I just don’t understand it. Now that this Andrews thing is behind us, I’m hoping he’ll be better. But I’m worried.” So I told her about his outburst at the restaurant and how he threw the Warwicks and Andrews out for good.
“Good for him.” She sounded almost as indignant as George had been. “It’s about time Tory started acting her age instead of like a thwarted toddler. Throwing crystal glasses, indeed. Are you alright now?” She reached over and moved my hair away from the right side of my forehead so she could look at the lump, which was a lot smaller, but the bruise was still slightly visible.
“I’m fine. It’s George I’m worried about. That night, I don’t know what time he finally came upstairs. The next day, he was out and gone before I got up. He made up some story about breakfast, but that’s not likely,” I said, continuing my litany of grievances, afraid to express the extent of my worry.
“Maybe the man wants a little privacy, Willa. He stays right where you can find him ninety-nine percent of the time. Isn’t he entitled to a little mystery? Once in a while?” Kate never accepted even the smallest criticism of George.
When we first married, she told me I should never tell her about arguments with my husband. She said that he and I loved each other, so we’d make up, but she would not be able to forgive him if he hurt me.
So, I rarely complained to her about George. But in truth, there was seldom much to complain about at all in the seventeen years we’d been married. George was near perfect as far as I was concerned. Until lately.
George wasn’t a man of mystery at all. Never had been. But everyone was entitled to privacy. “Sure he is. But he could just say that. Why does he have to make something up that we both know is untrue?” As we discussed this, I became more upset, not less. “I’m not used to George lying to me.”
“Ok. George is protective of you and occasionally wants a little privacy. What’s so terrible?” She ate a cookie and offered the plate to me. I shook my head.
Then I told her about his temper tantrum at Deborah’s house with the reporters, his insistence that Andrews didn’t commit suicide and how interested Chief Hathaway was in George’s murder theory.
Kate seemed a little more concerned, now, but tried to reassure me. “Tell me what it is, exactly, that you’re worrying about,” she said. Solemnly. Seriously.
CHAPTER TWENTY
Tampa, Florida
Monday 6:00 p.m.
January 24, 2000
Unlike the relief of turning on a light to expose the absence of the bogey man in the closet, voicing my concern seemed to make it more real.
Kate reached over and patted my hand. “Willa, you love George and you don’t want to lose him, which makes sense. You’ve just come from Deborah’s home, a widow, and the possibility of losing your husband has foolishly captured your imagination.”
“But it’s not foolish, Kate. I feel it,” I told her, voicing for the first time the truth. I did feel like I was losing George. I didn’t want to be melodramatic about it, but he seemed to be slipping away from me and I didn’t know how to hold onto him.
“You’re imagining things. And you’re worrying unnecessarily,” she said. I wanted to believe her. “Let me think about it and we can talk some more. But now that you’ve told me, don’t you think about it anymore or that will just confuse the energy.”
Kate poured another glass of tea and changed the subject, but I couldn’t concentrate on what she said.
Unfortunately, I wasn’t a child anymore. I couldn’t just decide not to think about George and wish my concerns away.
When I was younger, Kate had a worry box. She would have me symbolically put my worries in the box and she would lock them in with a small gold key that she wore around her neck. I’d forget about my troubles and she would tell me that she’d given them to the Universe to handle.
What worked when I was sixteen didn’t work as well at thirty-nine. But I was still willing to try it. At this point, I was willing to try anything. I felt that, on some level, my marriage was in trouble, and what made me so uneasy was that I didn’t know, couldn’t figure out exactly, what that trouble was.
