by Greg Iles
Livy meets my eyes only once during the entire voir dire process, which turns out to be a surprise in itself. I had always assumed I would enjoy the advantage of a largely black jury. White professionals tend to use their jobs and influence to avoid jury duty, but this morning that tradition goes out the window. Not one white in the first group taken from the venire, or pool of potential jurors, tries to evade his civic responsibility. The usual excuses about job and health problems are not voiced, nor are distant blood relations to trial principals invoked. Every juror in the pool wants a front-row seat.
Blake Sims handles voir dire for Marston, pacing before the jury box in a rather annoying fashion while he questions the potential jurors about their backgrounds and what they’ve read in the newspapers. Most admit that they’ve read about the case (how could they have avoided it?) but claim they have formed no opinion as to the guilt or innocence of either party. Most of them are lying, of course. That’s the way these things go. You can’t keep human nature out of a human process.
As the voir dire progresses, I notice that Sims is avoiding direct questions about racial views. At first I thought this was circumspection; with cameras in the courtroom, he would want to avoid any hint of racial bias. But as he exercises his peremptory challenges, his strategy becomes clear. He has seen that he has a shot at a predominantly white jury, and he means to get it, even if it means breaking the law.
After Sims rejects the fourth black juror, I stand and make my first objection of the day, citing Batson v. Kentucky and the line of subsequent cases extending the prohibition against excluding potential jurors on the basis of race to civil cases. Judge Franklin immediately sustains my objection, and Livy finally turns in my direction. Her eyes hold nothing for me. They are merely the eyes of opposing counsel, acknowledging my small victory in a war that will see many more skirmishes before the issue is decided.
After this point the voir dire passes more quickly than any in my career. I judiciously exercise my peremptories, culling on the basis of instinct. When my mental radar picks up echoes of blue-collar or rural backgrounds combined with religious fundamentalism, I pull the trigger. I challenge some whites for cause after tripping them up on questions about prejudice, but most racists quickly figure out how to conceal their true beliefs. Nearly every potential juror admits knowing Leo Marston to some degree, so many that I cannot realistically disqualify them on this basis. By eleven-forty-five a.m., we have empaneled twelve jurors (seven white, five black) and two alternates. Judge Franklin recesses for lunch and instructs the lawyers to be ready for opening statements at one.
I eat a quick lunch with Caitlin in an empty conference room near the chancery court, gobbling deli sandwiches from Clara Nell’s between calls to the newspaper to see whether they’ve heard anything from Stone or his daughter. They haven’t. Then I hurry downstairs through a crowd of courthouse employees and rubbernecking lawyers to give my witnesses one last pep talk, paying particular attention to Betty Lou Beckham, who looks as though she might come apart at any moment. Admitting on the stand that she was fornicating in a car with a married man must be akin to donning a scarlet letter in the village square. If it wasn’t for my father’s influence, Betty Lou wouldn’t be coming near this courthouse today. After holding her hand for a few minutes, I return to the crowded courtroom, sit at my table, and wait for one o’clock to tick around on the clock without hands.
Judge Franklin brings her court to order with a stern look, and Blake Sims rises from the plaintiff’s table and walks to the podium to make his opening statement. Sims is the son of Leo Marston’s former law partner (now deceased) and was raised in Greenville because of a divorce. He speaks with a cultured Delta accent rarely heard in Natchez, and though Greenville-the home of Hodding Carter’s Delta Democrat-Times-was perhaps Mississippi’s most liberal city during the civil rights era, Sims’s accent might evoke some negative responses in the black jurors.
“Ladies and gentlemen of the jury,” he begins. “My client needs no introduction. But allow me to say a few words about him. Leo Marston is one of the most distinguished figures in Mississippi jurisprudence. He is a former attorney general of Mississippi and former justice of the state supreme court. He is a friend and adviser to Mississippi congressmen, and has been for more than thirty years. He’s a powerful business force for the city of Natchez, bringing industry and jobs to Adams County. He is also a pillar of the Catholic church, and a major supporter of charities in our area.”
Sims leaves the podium and walks halfway to the jury box, testing Judge Franklin’s formality. She makes no objection to his move. “With that in mind,” he goes on, “I want to ask you a question. What is a man’s name worth? The defendant in this case, Mr. Penn Cage, has signed an agreement stipulating to certain facts. First, that he uttered the vile charges in question. Second, that he uttered them in the full knowledge that they would be published in a newspaper. And third, that my client’s reputation has been severely damaged by his charges. That being the case, I won’t waste your valuable time trying to prove damages. Mr. Cage has publicly called my client a murderer. What more malicious charge could anyone make against another human being? Child molestation perhaps.” Sims slowly bobs his head as though weighing this issue.
“My client does not contest the fact that a tragic murder took place in May of 1968. Mr. Cage may even have evidence against the man who committed that crime. But what he does not have-what he cannot possibly have-is evidence that Leo Marston had anything whatever to do with that crime. Leo Marston was, in fact, the district attorney at that time. The chief law enforcement officer of the county. Mr. Cage may present some sort of circumstantial evidence, which he may try to weave into a web of deception to fool you good people. But my client and I know that you will not be fooled. Del Payton was a civil rights worker murdered to stop him from doing his noble work. And Leo Marston is demonstrably one of the most racially progressive leaders in this town, and has been since he was a young man.”
Sims lists various pro-civil rights statements Leo made during the sixties, his friendships with black leaders, donations to black causes. He cites testimonial letters he will enter into evidence, attesting to Marston’s contributions to Mississippi’s economy: letters from John Stennis and Jim Eastland (both deceased), Trent Lott, Mike Espy, and five former governors.
“What we have here,” Sims concludes-giving me a theatrical look of disdain-“is an irresponsible and sensational attack carried out by a man who has had a personal vendetta against my client for more than twenty years. Before this trial is over, you will understand why. And I want you people to know something else. The money involved in this case is of secondary importance to my client. What he wants, and what he deserves, is the vindication of his good name.” Sims fold his hands with the apparent probity of a deacon. “But if you good people should see fit to teach Mr. Cage a moral lesson about the price of such irresponsible action, so be it. We leave that to you. Thank you.”
Sims is unable to conceal his self-satisfaction as he takes his seat, but if he was hoping for congratulations from his client or co-counsel, he is disappointed. Leo stares sullenly ahead like a truck driver in the eleventh hour of a drive, while Livy sits with the cool composure of a pinch hitter waiting to be called to the plate.
In the restless silence of the crowd, I rise from my table and walk slowly toward the jury box. Their faces are expectant, as they always are at the beginning of a trial. Before boredom has set in. Before resentment against vain attorneys who love to hear themselves talk has settled in their veins. I lay my hands on the rail and speak directly to them.
“Ladies and gentlemen, my name is Penn Cage. I am a writer. Before I wrote books, I was a prosecuting attorney. I spent every day of my life putting violent criminals behind bars. I put more than a few on death row.
“I was born and raised right here in Natchez, but like a lot of our young people, I had to move away to earn my living.”
Several jurors nod their he
ads, probably those with adult children.
“I earned that living as a prosecutor in Houston, Texas. Now, if you were to go to Texas and ask about Penn Cage, you might find some people willing to speak ill of him. If you went to the penitentiary at Huntsville, you’d find a lot of them.”
General laughter from the gallery.
“What you would not find is a single person who would describe me with the word Mr. Sims just used. Irresponsible. Because when you are prosecuting murderers and asking for the death penalty, irresponsibility is not a weakness you can afford. It’s not a trait that my former boss, the district attorney of Harris County, would tolerate for one minute. Folks, you are looking at a man who says what he means, and means what he says.”
From the rapt faces of the jury, I can see that I haven’t lost the old touch. It’s a good feeling, like climbing onto a horse after ten years away and feeling him respond without a moment’s hesitation. It’s a pity that I have no case.
“When I called Leo Marston a murderer,” I say evenly, “I meant it. Together with a brutal and crooked cop named Ray Presley, Leo Marston engineered the death of a young father, army veteran, and civil rights worker named Delano Payton. And contrary to what Mr. Sims suggested-and what the citizens of our town have believed for thirty years-that murder had nothing to do with civil rights. No, Leo Marston had Del Payton killed for profit.” I glance back at Livy, but she refuses to look at me. “The same reason he does everything else. And despite what Mr. Sims told you, money is never of secondary importance to Leo Marston.
“Mr. Sims also mentioned the term ‘circumstantial evidence’ in a rather derogatory tone. After all the television lawyers we’ve seen, a misconception has grown up that circumstantial evidence is somehow inherently weak. But that is simply not true. Circumstantial evidence is merely indirect evidence. Let’s say a woman is shot to death at midnight with a thirty-eight caliber pistol. When the police arrive, they learn from one neighbor that the woman and her husband were in the middle of a messy divorce, and from another that the husband sped away from the house at five past midnight. The next day the police discover that the husband has a thirty-eight revolver registered in his name. Everything I just told you is circumstantial evidence. But I think a pretty clear picture of what happened is emerging in your minds. I’m not saying it’s conclusive evidence. I’m saying this is evidence that cannot be ignored.”
More nods from the jury, especially from the women.
“Mr. Sims asked what a man’s name is worth. I’ll tell you.” I turn and point at Leo, the man who acted with such shocking dispatch last night. His blue-gray eyes burn with the subzero cold of liquid nitrogen. “After this trial that man’s name won’t be worth the price of a cup of coffee. He ordered one of the most terrible crimes in the history of this city, and by so doing stained the name of Natchez, Mississippi, for thirty years. And with the help of J. Edgar Hoover, he sabotaged the investigation that followed that crime. The cold-blooded details of this premeditated murder will sicken you, just as they did me. But you must hear them. For the time has come to remove the bloody stain from the name of our fair city. Thank you.”
The jury seems a bit flabbergasted by the passion of my indictment, but it’s been my experience that juries like passion-to a point. And in my present situation, passion is better than nothing.
When Blake Sims rises to present his case, he does just as he promised: he ignores the question of damage to Leo’s reputation. He accomplishes this by a neat reversal, calling three character witnesses whose combined testimony is designed to canonize his client, making the image of Leo Marston as a cold-blooded murderer one that jurors will feel guilty for even entertaining.
The first is Governor Nunn Harkness, a Republican with a two-fisted, shoot-from-the-hip style that has won him two terms despite his methodical gutting of social programs. Playing to the balcony TV cameras, Harkness praises Leo to the skies, lauding his success in bringing industry and gaming to Mississippi, and lamenting that, while Marston is a bit too liberal on issues like affirmative action, he is morally beyond reproach. It’s a pitch-perfect performance by a master, and the jury is visibly impressed. When Sims tenders the governor to me for cross-examination, I don’t ask a single question. Best to get Nunn Harkness offstage as soon as possible.
Sims’s second character witness is Thomas O’Malley, bishop of the Catholic diocese of Jackson. Once the priest of St. Mary Cathedral in Natchez, O’Malley has moved up the hierarchy. For fifteen minutes he waxes poetic about the multitudes of poor children whose Christmases Leo Marston brightened with toys. Then he moves on to the church itself. To hear O’Malley tell it, Leo single-handedly restored the cathedral to its present splendor, donating over half a million dollars to the restoration effort. As the bishop speaks, I am reminded of Michael Corleone being honored by the pope in The Godfather III. I shudder to think what sins O’Malley must have heard Leo confess during his years as a priest in Natchez, but none of that will ever pass the bishop’s lips. When Sims tenders O’Malley to me, I let him go without a word. Unless you’re dealing with questions of sexual molestation or mismanagement of funds, a Catholic bishop is bulletproof.
Sims’s third witness is another matter. As Bishop O’Malley leaves the courtroom, pausing in the aisle to shake the hands of a half dozen former parishioners, Sims calls FBI Director John Portman.
Portman enters the courtroom with two bodyguards, who take up posts at the door as their master walks up the aisle. Lean, tanned, perfectly coiffed, and attired in a dark blue suit, the FBI director is clearly accustomed to television. He ascends to the witness box with the air of a medical expert about to hold forth on matters beyond the understanding of a lay audience.
This time it is not Blake Sims but Livy who rises from the plaintiff’s table and approaches the box. Judge Franklin gives Sims a questioning look, but Sims says nothing.
“You will be handling this witness, Ms. Sutter?” asks Franklin, using Livy’s legal surname.
“With the court’s permission, Your Honor.”
Franklin turns to me. “Any objection, counselor?”
“No, Your Honor.”
Livy walks past the podium and up to the witness box. Though Portman is much older than she, both emanate a sense of confidence and ease to which lesser mortals should not begin to aspire.
“Mr. Portman, what is your current position?” she asks.
“I’m the director of the Federal Bureau of Investigation. The FBI.”
“Do you know the plaintiff in this case?”
“I do. I’ve known Leo Marston for thirty years.”
“How did you meet?”
Portman purses his lips like he’s thinking back. “Leo was the district attorney in Natchez in 1968. I was serving here as an FBI field agent at that time, investigating the death of Delano Payton. Mr. Marston gave the Bureau valuable assistance during that investigation.”
My heart lurches.
“Why do you think he did that?” Livy asks.
Portman opens his hands, palms upward, as though the answer were obvious. “Leo Marston believed in the necessity of civil rights legislation. At no small risk to himself, he worked to help us enforce that. The man was a hero.”
Livy nods thoughtfully. “How did you first become aware of the charges made by Penn Cage against Leo Marston?”
“Leo contacted me in Washington by telephone on the day the charges were printed in the local newspaper. We spoke at length at that time, and several times subsequent.”
So much for the phone records. Livy’s strategy is all too clear. She plans to undercut what little documentary evidence I have before I can present it.
“What was the substance of those conversations?” she asks.
“Judge Marston expressed anxiety that this sensitive case was being dragged through the media, and that his reputation was being damaged.”
“You called the Payton case a sensitive case. Why is that?”
Portman adopts a
pose of paternal concern. “I’m afraid I can only speak indirectly to this issue. As I’ve stated to the press, our file on Delano Payton is sealed on the grounds of national security interest. It has been for thirty years. Earlier this week the Senate Intelligence Committee voted to maintain the sanctity of that file.”
“Please tell us anything you can about the case.”
Portman nods agreeably. “The Payton case involved a veteran of the U.S. Army, a man who served in Vietnam. J. Edgar Hoover, the FBI director at that time, felt that the details involving this man, if released during the Vietnam conflict, might damage national morale, particularly the morale of line troops in Vietnam, where racial problems had become an issue.”
He has to be talking about Ike Ransom.
“But the Vietnam War has been over for more than twenty years,” Livy points out. “Why is the file still sealed?”
“As I said, I can’t speak as fully to this issue as I would like. I’m sorry Mr. Cage has seen fit to exploit this case in his bid for publicity or revenge, or whatever it is.”
Livy pretends to be intrigued by this aside. “Have you had experience with Mr. Cage in the past?”
“I had some dealings with him when he was an assistant district attorney in Houston, Texas. I found him to be highly partisan, and indeed an unstable sort of man for that type of job. He actually killed the brother of a man he tried for murder, and the facts of that incident were never satisfactorily explained. I think the citizens of Texas were well served when he left that job to pursue a career in which a vivid imagination is an asset, not a liability.”
I feel like throwing my pen at Portman, just to break up the rhythm. He and Livy are like tennis pros giving an exhibition match, sleek and practiced, the volleys perfectly timed, every shot a winner.
