As a good trial lawyer can, he began the process of indoctrinating the jurors to the facts of the case. Asking questions designed specifically to inform the prospective jurors what the case is about in a way to slant the facts toward his side. This is improper and is not supposed to be allowed. A couple of times he went just a little too far and, both times, as Marc began to rise to object, Prentiss would very mildly admonish Slocum to save it for presenting his case.
Slocum continued his questioning, what the lawyers call voir dire, of the first ten people for about three quarters of an hour. All the while Steve Gondeck and Marc quietly made notes about each of the ten while trying to form impressions about the individuals, both favorable and unfavorable.
When Marc’s turn came, since the general information had been pretty well gleaned by Prentiss and Slocum, he went right to specific questions for each of the panelists. Could you, Mr. or Ms. So and So keep an open mind and wait until both sides had presented their case before making a decision? Do you understand that the accused, my client, Mr. Carl Fornich, is presumed innocent? Do you understand that the accused doesn’t have to prove anything? That it is entirely up to the prosecution to prove the accused guilty beyond a reasonable doubt? This too is a means for indoctrinating the juror. Elicit a promise from each and every one of them that they will keep an open mind, decide the case strictly on the evidence presented and an understanding that if the prosecution fails to meet it’s burden of proof, then they must come back with a not guilty verdict. Does it work? No one really knows. It’s the rare person who will honestly admit he or she can’t do these things and that person won’t make the cut.
Marc’s questioning took longer than Slocum. He was deliberately slower and went over his questions with practically every one of the ten. Except for opening statements, the defense doesn’t get another chance to perform before the jury except in a very negative way until the prosecution is finished presenting its case. The good defense lawyer had better take this opportunity to come across as a pleasant and reasonable fellow. The kind of man you wouldn’t mind seeing your daughter bring home. After all, if this nice, pleasant, well dressed, attractive man believes the scumbag sitting next to him is innocent, well, who knows, maybe I better keep an open mind?
Marc’s questioning lasted well over an hour and, after he had finished, Prentiss called for a fifteen minute break. After the break, while the chosen ten waited in the jury box, the selection process began. Prentiss started off by excusing three of them, one of whom Marc wanted, for hardship. Due to jobs or family commitments, an eight week trial would be too difficult for them to endure. The three all rose from their seats, quite pleased with the good news, not realizing they were not going home. They had been called to jury duty and they could easily be stuck with another case in another courtroom before the day was over.
Three more were excused because the lawyers successfully argued that, for one reason or another, there was some bias that had come to light during the questioning. Each lawyer then used one of their precious peremptory challenges to strike two more from the panel. Challenges that each side is given and can be used to strike a juror for no reason at all without explanation. With that, they were left with two of the first ten just before noon. Prentiss, not looking at all pleased, called a two hour recess for lunch.
After the lunch break, the next group of ten was led into the courtroom by the same deputy and the process was repeated. The spectator area had dwindled in size as several of the media and family members had decided the show was a little too boring and their attendance not required.
By 5:00 o’clock they had gone through three more groups of ten leaving the days work complete with the selection of seven jurors selected. Prentiss, realizing that the pace would likely result in meeting his Wednesday tee time deadline, seemed more relaxed. Having already denied Marc’s request to sequester the jury during the trial, he instructed the five not to discuss the case with anyone or watch any news programs or read any news articles about the case. With that, the first day of the State of Minnesota vs. Carl Milton Fornich, was complete.
SIXTY
“How do you think it went today, how’d we do with the selection?” Joe Fornich asked Marc when they had exited the building into the muggy August air.
“Not too bad, I think,” Marc replied. “I got number fourteen on my list. The others don’t seem too bad. Lost a couple I would’ve liked to have. But, remember Joe, all we need is one. One juror willing to hold out.”
“And Carl walks?” Joe asked.
“No, not necessarily. We get a hung jury and then the prosecution has to decide if they want to try it again. Usually they don’t, but with this case, well, we’ll see. But, I gotta tell ya’ Joe, with the evidence against Carl, hoping for an out and out acquittal, convincing all twelve that he’s not guilty. That’s probably a pipe dream.”
“I have some more money for ya’,” Joe said as he pulled a folded check from his shirt pocket. He handed it to Marc who unfolded it, looked at the amount folded it back the way it was and slipped it into his coat pocket. “I know it’s not enough, but I’ve got more comin’.
“Who’re those two people sittin’ behind the prosecutors? You know, the ones they keep talkin’ to?” Joe asked.
“Jury selection experts,” Marc answered. “They’re people who hire themselves out to do profiles on potential jurors. Try to come up with a psychological profile on the people you want on your jury. Help to select a jury that will lean your way.”
“They work in the County Attorney’s office?”
“No, Joe. They’re a private firm hired just for this trial.”
“Why didn’t we hire some?”
“Why do you think?” Marc asked, smiling. “Money. Those people don’t come cheap. A case like this, with the taxpayers picking up the bill, the prosecution can spend whatever they want. Whatever they have to.”
“The whole thing kinda seems a little unfair. A little one-sided. “
“What the hell does ‘fair’ have to do with anything? Life is unfair, Joe. No one ever said it isn’t. Listen, I gotta go. Grab a bite to eat and get back to work on my jury list. I’ll see you tomorrow.”
“No, I can’t make it. Gotta work. I’ll be here as much as I can but, I can’t take two months off, either. So far, the boss has been really good but I don’t want to press it just yet.”
The two men parted company, Joe toward the parking ramp where he had left his car, Marc back inside the building to do the same.
On his way back to the office he stopped at a fast food burger place on Lake Street for some supper. He spent the evening going over the remaining names on the list, knowing the prosecution’s jury selection team would not be resting. All three of the other lawyers in Marc’s office stayed for a couple hours to offer their opinions on each of the remaining names. Maddy stopped by with a little more information that she was able to come up with on the panelists and to give Marc a preliminary report on her investigation of Jake Waschke.
“Jacob Albert Waschke,” she began. “Age 47. Two divorces, two kids from the first marriage. Father, Albert Stephen Waschke. Married his mother, the former Louise Marie Gingrich, November 8, 1964. Father died two years later in a train accident. Worked for the railroad, the old Northern Pacific.
“Grew up in St. Paul. Graduated from Central High in ‘83. Joined the Army right after his eighteenth birthday. Got his military record, don’t ask me how. A favor from a friend. Served as an M.P. Nothing remarkable but nothing to raise any eyebrows, either. Worked for the CID, Criminal Investigation Division, at Ft Bragg until his discharge in ‘84. Normal promotions. Good reports all around. In fact, very good to excellent on all of his fitness reports.”
“So, nothing in his early background to give us a hint what he’s up to,” Marc said.
“Well, I’m not so sure,” Maddy said hesitantly. “Let me finish. Got outta the Army in ‘87, came back here and went to school at a local Community College. After tw
o years, joined the Minneapolis Police Department in ‘89 and went to night school at the U. Earned a bachelor’s degree in criminology in ‘91.”
“So, he’s got some education. I’m not surprised. He’s obviously a pretty bright guy.”
“Has a Master’s degree, Marc,” she continued. “Sociology. A people studier.”
“Interesting,” Marc said.
“We’ve been over his record with the department,” Maddy continued. “Very solid. A damn good cop, actually. Looking at just his life, nothing really there to indicate any kind of problem.”
“What do you mean, ‘just his life’?” Marc asked as he straightened in his chair and then leaned on the desktop.
“Well, you know, he’s got a brother, Daniel. Almost four years younger than Jake. Born two years after Jake’s father died.”
“So, the mother remarried. So what?”
“That’s right,” Maddy said, nodding her beautiful head in agreement. “The mother remarried. A guy named Rodney Peterson. He’d be Daniel’s father.”
“Yeah, so, what’s the problem?” Marc asked, genuinely confused and unsure of where Maddy was heading. “So, they’re half-brothers. So what?”
“Seems Rodney died in some kind of accident in ‘76, when Daniel was eight and Jake eleven. An accident in the home was all I could find out, so far. Talked to an old neighbor of theirs who remembered it, sort of. Couldn’t remember exactly what happened, just that it was some kind of accident.”
“Maddy, where you going with this?” Marc asked, a puzzled look on his face.
“I’m not sure, Marc. But, when I first learned about all this, something kept working at my head. I couldn’t quite put my finger on it, but something didn’t quite make sense. Then, it occurred to me. Why, if the two boys had different fathers, why do they have the same last name? The name of Jacob’s dad?”
“That is a little odd,” Marc quietly agreed.
“So,” Maddy continued, “I did a little digging. Got a peek at their school records.”
“Those are supposed to be confidential, aren’t they? How’d you get at them?”
“Marc,” she sighed, “I’ll tell you this just once more. Men are basically superficial little boys. I know what I have and it’s not too tough to get most men, to, shall we say, cooperate with me.”
“You can probably get ‘em to sit up and bark like seals,” Marc said, both of them laughing heartily.
“Anyway, checking the school records, Daniel was Daniel Peterson up through the third grade. Rodney dies in June ‘76 right after school gets out for the summer. Daniel is Daniel Waschke when he starts the fourth grade less than three months later. His mother barely waits to put the kid’s father in the ground to change the kid’s name.”
The silence hung in the air between them as Marc pondered the information. He leaned his elbows on the desk, rubbed his hands together, his brow furrowed as he thought over the significance or insignificance of Daniel’s name change. They stayed like this for a couple of minutes. Finally, Marc broke the silence by saying, “I don’t know. I’m not sure it means anything. I mean, is it really that unusual for a mother to want both boys to have the same last name? It’s just, I don’t know...”
“Change the kid’s name that soon. That quickly. The woman just buried her husband and she can’t wait ‘til the body’s cold to change the kid’s name?”
“It does seem a little odd,” Marc quietly agreed. “Well, check it out. Start with Rodney’s death. What happened there? How’d he die? See if you can find some people that knew the family back then. Things like that. What’s the neighbor’s name? The one you talked to?”
“Mildred McDonald,” Maddy answered without referring to her notes. “Those old records aren’t so easy to dig up. Mildred gave me a couple more names, but I haven’t had a chance to look yet. I thought I’d see what I could find out about Rodney’s untimely demise. See what I can come up with as far as his relationship with the boys and their mother.”
“Where’s the mother? Is she still alive?”
“Don’t know. I haven’t been able to find her yet. But, I did come up with a social security number for her. It was in the school records. I’ll check it out.”
“I figure they’ll put Waschke on the stand early. Probably first. Have him explain the killings and the investigation. What led them to Carl. If there is something there, it’d be nice to have it during cross exam. But, we can always recall him later. Do your best.”
SIXTY-ONE
The next one and a half days of the trial were spent in the same way as the first. The prospective jurors would be led in by a deputy then briefed by the judge about the selection process. They would then introduce themselves and be questioned by the lawyers. Marc was becoming increasingly displeased with, what he began to suspect, Prentiss’ bias. To have a juror stricken for bias Slocum barely had to give the judge a reason and that venireman would be politely excused. On the other hand, Marc found himself arguing strenuously to the bench about every one he wanted dismissed and rarely did Prentiss rule in his favor. Usually, Marc would be forced to use one of his precious peremptory challenges until he was left with just one when the last group of ten was led in on Wednesday morning. Among the ten and living up to Marc’s worst fears, was the retired Marine colonel. Not surprisingly, the man was quickly accepted by Slocum and Marc’s objections overruled by Prentiss. With no other way to keep him off the jury, Marc was forced to use his last challenge to strike the man.
At last, just minutes before Prentiss’ noon deadline, the final fourteen were seated in the box. Twelve jurors and two alternates. Seven women and five men among the first twelve and one of each for the alternates. As Prentiss went over his preliminary instructions, both Marc and the prosecution team went over their final list to see how each did. On the whole, Marc didn’t feel he had faired too badly. Only two, including the male alternate, on the bottom third of his list. On the other hand, only one in the top ten. The vast majority, he believed, were listed in the middle portion of his rather unscientific, subjective rankings.
A few minutes past the noon hour, Prentiss finished his talk to the jury and, looking back and forth between the lawyers, said, “We’ll begin with opening statements at 9:00 a.m. tomorrow morning. I’ll see counsel in chambers now. Court is recessed until 9:00 a.m. tomorrow.”
After Prentiss left the bench and while the jury was led out, Marc shook hands with Carl and turned to walk back to the judge’s chambers. An uneasy feeling swept over him as he watched the prosecution team practically celebrate a winning touchdown over the perceived quality of the jury selection. ‘Well,’ he thought, ‘we’ll see’.
“Opening statements, gentlemen,” Prentiss began after the lawyers had gathered in his chambers. “Mr. Slocum, how long?”
“Three to four hours, your Honor,” Slocum exaggerated.
“Not a chance,” Prentiss answered. “You’ll keep it to two hours. Understood?”
“Yes, sir,” Slocum answered, two hours being what he wanted anyway. “I’ll try my best.”
“Mr. Slocum,” Prentiss continued, “that wasn’t a request or a suggestion. Two hours, maximum. Mr. Kadella, how about it? Have you decided to do your open tomorrow? I know,” he continued as he held up a hand when he sensed Marc was going to protest. “I know you don’t have to tell me and you can wait until they’re done presenting their case. I’m just asking. If you do decide to do it, how long will you need?”
“An hour, judge,” Marc answered. “Maybe a little more, maybe a little less.”
“That’ll be fine. Gentlemen, we have a long trial ahead of us. We’ll start taking testimony from the first witness tomorrow afternoon. Anything else? Good. See you in the morning.”
The next day the crowd from the first day was back in place. There wasn’t an empty seat to be found and, in fact, a small mob had been turned away because they couldn’t get a seat.
While they waited for Prentiss to appear, Marc took the time
to look around and study the faces in the room for the very first time. All wore the same serious, somber mask. A few made a little small talk with their immediate neighbors in hushed, whispered tones which accounted for the muted buzz that emanated from the crowd. He looked at Slocum, who was going over his prepared statement one last time. He noticed Slocum wore a nice, not expensive, not cheap, dark grey business suit, laundered white shirt and plain, unimaginative tie. Nothing that would distract a juror during his opening. Marc was silently pleased with himself that he had dressed the same, basic way. Only, in his case, he had saved his best, most expensive suit specifically for this day. He wouldn’t wear it again until closing arguments.
At 9:05 the bailiff intoned the traditional “All rise” as Prentiss entered the courtroom and took his chair on the bench. After everyone had resumed their seats, Prentiss took a few minutes to question the jury about news reports or articles which, of course, none of the fourteen admitted seeing or reading. Satisfied, Prentiss looked over the room, settled his gaze upon Slocum and asked, “Is the State ready to proceed?”
“Yes, your Honor,” Slocum replied after very slowly, deliberately rising from his chair.
“And the defense?” Prentiss asked, looking at Marc.
“Yes, your Honor,” Marc answered after taking a fraction of a second longer than Slocum had to stand and face the bench.
“Mr. Slocum, you may proceed,” Prentiss said.
Opening statements by the lawyers are intended to be an opportunity to give the jury an overview of the case. It is their opportunity to present the facts and evidence that the jury will hear and see during the course of what is known as each side’s case-in-chief. The lawyers are not supposed to present their arguments and opinions but simply state the factual evidence that each side will present and leave the argument until the end. That is what the final summation or closing argument is for.
(2012) The Key to Justice Page 31
