Sam was momentarily knocked off his game. It was improper for the judge to make such a remark, as it tended to have jurors looking at their watches rather than paying attention. But he could do nothing about it, so he took a deep breath and looked at the jurors.
“May it please the court, Ms. Fulks.” Sam paused for a moment, deliberately making eye contact with each potential juror. Eye contact was not a strong point for him; in fact, it made his stomach hurt, but it had to be done.
“Good afternoon, ladies and gentlemen. As Judge Daniels told you, my name is Sam Johnstone. I’ve only been a lawyer here in town for less than a year, but I’ve been practicing for a while. It will be my honor and privilege to speak to you in this case on behalf of Tommy Olsen.” Sam placed his hand on Tommy’s shoulder.
“Now, as you may have figured out, Ms. Fulks and I are going to disagree on a lot of things. Most importantly, we disagree whether my client murdered Emily Smith,” Sam said. “But one thing we agree on is that under our system the right and fair way to decide a case is to submit it to a jury—a group of people selected from all parts of the community and from all walks of life.
“Now, the rules say that during a trial I cannot speak with you. So the only time I have to get to know you is right now. I’m going to be as brief as possible, but part of my job is to ensure that each of you is willing to give Tommy Olsen the fair shot that he deserves.
“This case is about who killed Emily Smith. The State says Tommy Olsen did it, but Tommy Olsen denies that. We say someone other than Tommy did it,” he said, looking at each juror in turn. Indeed, after Tommy had declined a deal and refused to plead guilty “by reason of mental illness or deficiency,” Sam’s sole alternatives were the “some other dude did it” defense, or self-defense, which was not supported by the evidence, given that she’d been cut from behind.
“Right now, I am responsible for acting on behalf of Tommy Olsen to ensure that he will get his fair day in court. If you are chosen as a juror, you’ll share that duty with me for a while. But at the end of the trial, after I have done everything I can on behalf of my client, I will have to step aside and put Tommy Olsen’s fate in your hands. Is everyone here comfortable with that responsibility?”
Again, Sam attempted to capture each juror’s eye. Two male jurors—one a coal miner, the other a small business owner—held his stare. Most of the others looked away quickly. Sam would focus the remainder of his time on the two men; he had concluded they might well prove persuasive behind closed jury room doors. He needed to know now how they might react.
“Right now, you are not required to know all the law that may apply to this case. At the end of this case, right before the lawyers’ final argument, Judge Daniels will give you some specific instructions as to the relevant law of this jurisdiction regarding the crime of murder. But the judge is going to tell you at the end of this case that to find Tommy Olsen guilty of murder, you will have to find that on or about October 31, and with premeditation, Tommy Olsen killed Emily Smith by cutting her throat.
“Now, I can see that upsets some of you, so I need to know before we get started how you feel about that law and whether it is acceptable to you. So, does everyone agree that if, after hearing all the evidence and the law given to you by Judge Daniels and applied to the facts of this case, you would follow that law and be guided by it in arriving at a verdict?”
All the potential jurors noted their assent. The two male jurors he had identified continued to meet his stare.
“What if the judge gave you an instruction about the law of murder and you personally did not agree with that law? Would all of you follow a law that you personally don’t believe in and disregard your own feelings? Is there anyone here who would not follow a law that you did not believe in?”
No one raised a hand.
“Can any of you think of any reason why a person who is accused of a crime wouldn’t want to testify other than the fact that he might be guilty? Do any of you believe that no innocent person would choose to remain silent?”
No hands. And on it went, well into the afternoon. At last, Sam felt as if he had exhausted the list of questions he had prepared and had a good feel for the jurors. “Ladies and gentlemen, I appreciate your honesty, your candor, and your patience. We look forward to presenting our case to you. Thank you, Your Honor. The defense passes the jury for cause.”
“All right, I am glad you are finally finished, Mr. Johnstone. Because Mr. Johnstone took so long, we are going to take only a five-minute break before we begin final selection,” Daniels said.
Sam looked at Daniels, astonished. Again, this was clearly improper, as the comment could tend to prejudice the jury panel against the defendant. But, again deciding the better part of valor was to hold his tongue, Sam simply seethed.
Five minutes later, all parties were re-seated. Each side had a number of peremptory challenges to exercise against jurors, meaning that juror could be excused for any reason or no reason at all. As Sam had been addressing the jury, he had been watching all jurors closely, silently confirming or denying the initial impressions he had gleaned from their questionnaires. In addition, he had Tommy watching the jurors and attempting to make eye contact with each. The task—the art, really—before them now was to combine all the information and try to select a jury panel that would be as fair to his client as any fourteen people could be.
“Tommy,” Sam had said during the brief recess, “in my mind, we've got a pretty good panel. I’ve got some peremptory challenges to use. The problem is I think there are only seven jurors on the panel who are good for you. Tell me who you think needs to go.”
“Sam, I don’t like the gal in seat number ten, that fat guy, or that old lady in number two.”
This was not good news. The number two and number ten chairs were jurors Sam had wanted to keep. He was most worried about the juror in seat seven, as well as those in seats eleven and twelve. The thing to do now, and quickly, was to prioritize the removal of jurors and hope that the prosecution would remove a couple of those that Sam and Tommy didn't like.
“Well, let’s see what happens,” Sam said. He was hoping against hope that Ann would remove some of those who really concerned him so he could justify keeping jurors two and ten.
“Ms. Fulks, are you ready to proceed?” Judge Daniels asked.
“We are, Your Honor.”
“Mr. Johnstone.” It wasn’t a question.
“The defense is ready, Your Honor.”
“Ms. Fulks, please hand the bailiff your first challenge slip,” Daniels instructed. The bailiff retrieved the slip from Ann and handed it to him. “Juror 274, you are free to go. Will the clerk call a replacement?”
It was the juror in seat seven. Sam and Tommy exchanged a look. Tommy was almost smiling. Sam put a hand on his leg and patted it. “Hold your poise,” he whispered.
The clerk called a replacement juror, who, after gathering her coat, purse, and other belongings, took chair number two.
“Mr. Johnstone?”
Sam handed the bailiff a piece of paper with the number eleven written on it. The process was repeated, alternating between the prosecution and the defense, until all of the preemptive challenges had been used.
“Ladies and gentlemen," Daniels said. “At this time I will give counsel a brief time in which to inquire of the newly-seated jurors. This brief questioning will take no more than thirty minutes. Each side will then have one additional peremptory challenge, after which the jury panel will be final. Mr. Johnstone, do you understand?”
“Your Honor, I understand. But I must say that—”
“Sit down, Mr. Johnstone,” Daniels said sharply. “Ms. Fulks, you may begin.”
Sam’s ears were burning, and he heard little to nothing as Ann completed her questioning of the new jurors. He was still angry and preoccupied when he felt Tommy pulling on his sleeve. “Sam, you’re up!”
He asked a couple of perfunctory questions and passed the new panel for cause
. “Anyone you don’t like?” he asked his client.
“Well, I still don’t like that guy.” Tommy pointed at the fat man’s name on the chart.
“I understand that, but I have a feeling about him. Besides, if we cut him, we have no say in who will take his place and no way to get rid of them. I’d prefer to go with what we got.”
“Okay, Sam. I trust you.”
Sam got rid of a middle-aged man with his last peremptory challenge. To Sam’s horror, Juror 465 was randomly summoned to fill the empty seat, albeit as an alternate.
Jury selection had taken two days, but they had a jury. Trial would begin tomorrow. Sam looked at his watch. It was going to be a long night.
37
Frac was mopping the marbled hallway in front of the courtroom where the trial had begun that morning while Fricke used an electric floor burnisher to apply wax. The courthouse had been empty for hours, the only sounds coming from the two of them.
“So, Frac, let’s make us a bet,” Fricke said.
“A bet?”
“Yeah. A bet. I’ll bet you four-to-one that Tommy gets convicted.”
“What’s that mean?”
“What’s what mean?”
“What’s that four-to-one thing mean?”
“Dude, haven’t you ever placed a bet?”
“No.”
“Well, if I’m giving four-to-one, that means if you bet a dollar, and Tommy gets off, I’ll pay you four dollars. But if he gets convicted, then I’ll take your dollar—get me?”
“What’s ‘convicted’ mean?”
“You don’t know nothin’, do you?”
“How did it go, honey?” Marci Daniels asked, putting a plate of meatloaf in front of the judge.
“Fine,” he responded. “I just hope these two are up to the task. I don’t want to have to try this case twice.”
Bad lawyering led to more reversals and remands than bad judges ever did. Good lawyers tried clean, well-planned cases. Evidentiary questions, questions of procedure, and even objections were meticulously planned. Arguments made by good lawyers were characterized by citation to case law and relevant statute. Poor or novice lawyers were generally “winging it,” whether as the result of sloth or inexperience. It didn’t really matter; whatever the cause, bad lawyering made a judge’s job exponentially harder.
“How did Ann do?”
“Fine. Bigger case than she’s used to, so she was a little nervous, but I think she’ll be okay,” he said, taking a bite of meatloaf. Marci’s meatloaf was legendary in Custer. It was one of the few things she knew how to make when they got married forty years ago, and at his request she’d been making it every week since.
“And the other fellow—Johnson, was it?” she asked.
“Johnstone. Sam Johnstone. I suspect he’ll be fine. Biggest issue with him will be keeping up with all the State throws at him. He’s a one-man show and that’s difficult, especially for a guy without a lot of criminal defense experience.”
“I heard Paul fired him for taking the case.”
“I heard the same thing. Not surprising. Paul can’t have one of his guys defending murderers,” he said, sampling the mashed potatoes. Lots of butter. “That’d be bad for business.”
“Aren’t you glad you don’t have to worry about clients anymore?”
“Every day, honey. Every single day.”
“So, how did it go?” Howard asked.
“It was interesting.” O’Hanlon signaled the waitress for another round. “I’ve never been on a jury before. Been required to show and all that, but never got picked to serve before now.”
“Civic duty,” Howard toasted.
“Here’s to it.” O’Hanlon returned the toast.
“What’s your initial impression?”
“Well, that Fulks gal was a little nervous—’course, I’d probably be nervous, too, if I were her age and tryin’ a case like that. That other guy—Johnson or whatever—he seemed pretty cool about it all, but his client looks guilty as hell.”
“Well, I think it’s safe to say that the cops get more right than wrong.”
“Yeah, I hear that. But you know, I been watching some of them shows on television, and it seems there’s a fair number of guys who get convicted and didn’t really do it.”
“I suppose,” Howard said, taking a long pull from his glass. “But I think you’ll find there’s a lot of differences between what you see on television and in real life.”
“Yeah. Hey, Judge, I got a question.”
“Shoot.”
“After we got selected, and before we got released for the day, Daniels ordered us all not to talk with anyone about this case. That didn’t mean you, did it?”
“Well, I am an officer of the court, so technically I think you could. But you know what? Probably better that we just kind of keep this under our hats, okay?”
“Okay. Hey, you know better than I do.”
“Probably,” Howard said, finishing his drink and putting it on the table. “Another?”
“You betcha, Judge.”
Ann was afraid she was going to vomit. “What’s the matter, dear?” her mother asked, looking at the half-eaten meal on Ann’s plate. “Isn’t it good?”
“Mom, it’s fine. I’m just not hungry.”
“But you need to eat! Tomorrow you have your big trial.”
“Mom, I’m well aware of what is happening tomorrow.”
“You’ll do fine, dear. You always do.”
“Fine is not good enough, Mom. ‘Fine’ is not going to get me out of this hellhole.”
“Now, Ann, don’t talk like that. Rebecca and Mike have given you a wonderful opportunity. You’re making a name for yourself. You just keep working hard and all your dreams will come true. Speaking of which, are you seeing anyone?”
“No, Mom. I don’t have time—I told you that last time you asked me.”
“Well, I know. But I worry. Your sister is only two years older and she already has two kids and—”
“And a mortgage, and a husband who drinks too much and can’t hold a job, and a fourteen-year-old minivan that breaks down every week.”
“Ann! Bobby’s got his problems, but he’ll find something one of these days. Now, try not to be so judgmental. Your sister loves Bobby.”
The silence was lengthy while Ann tried without success to finish her meal. She had invited her mother to Custer for the trial, thinking her presence might be calming. “Look, Mom, I think this was a mistake. I’m just a little uptight, okay? I’m looking at the biggest trial of my career.” She took her mother’s face in both hands. “I know you want to help, and I love you for it. But I think I’ll be better off spending these last few hours alone, preparing for tomorrow. Are you okay with that?”
“Of course, dear. At least take a piece of pie. I made strawberry, your favorite.”
Moments later, after her mother had gone upstairs, Ann threw the pie in the garbage. Strawberry was her sister’s favorite.
Sam thought he was going to die, but he saw no light, nor did his life flash before his eyes. Instead, he simply skidded and slid along the road for what seemed like forever. Coming to a stop at last, he felt the impact of the round before he heard the report of the rifle. There was intense pain, but the only things that crossed his mind were getting to safety and then killing the bastards who did this. He could barely breathe, and panic was setting in when he saw Jenkins appear in slow motion and drag him back to the vehicle. He feared he’d be shot. “Hurry up! Hurry up!” he yelled. He watched as he found his driver and his gunner dead. He looked at their wounds and smelled the coppery odor of their blood and knew. He tried to look for the others, but he couldn’t walk. He was furious and wanted to act but was overcome—tired beyond exhaustion. “My men!” he screamed.
Sitting on his bed, he looked at his alarm clock. The red numbers showed 03:05. Too late to go back to sleep—which wasn’t likely, anyway—and too early to go to work. He strapped on his leg and made h
is way to the bathroom, then brushed his teeth and got a drink of water. Looking in the mirror, he saw the age in his eyes. “How much longer are you going to torture yourself?” he asked aloud.
At 03:15 he was sitting at his dining room table listening to the coffee brew. Atop the previous day’s mail was a copy of a book on mindfulness Martinez had mailed him. When the coffee was ready, Sam moved to his recliner, sat down, and began to read.
Punch had gotten in early—he couldn’t sleep. In the pre-dawn silence, he’d finished a couple of reports that were due and completed an affidavit of probable cause on a couple of teenagers who’d been “car-hopping”—going through neighborhoods, getting into unlocked vehicles, and stealing whatever they could get their hands on to sell for booze and drug money. Now, he had a couple of things to do on the Olsen matter. Taking care of loose ends. He called the lab in Cheyenne.
“State crime lab, Technician Simmons.”
“Just the guy I wanted to talk to,” Punch said. “This is Detective Polson in Custer. I’m working a murder case up here. I’ve got a fingerprint on a beer glass. I want you to go ahead and see if you can get DNA off that print from the beer glass. Then I need to know if it matches a sample of semen we found. I think that’s already been sent down your way.”
“Okay. We’re going to need a service agreement.”
“I’ll get it.”
“Right. And we’ll need authorization from the lead prosecutor.”
“Really? I’d really rather not involve her.”
“Well,” Simmons said, “the sole exception is if we already have on file a Form LPPM8A—do we have one of those?”
“Uhh, I’m not sure.”
“Well, we’ve already done some work on this case, haven’t we? I seem to recall doing something?”
“Yes,” Punch answered, sensing an out. “I think you have.”
“I’m assuming you’ve got clearance, Detective?”
“Go ahead and assume that.”
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