The Trial

by Robert Whitlow

  A chorus of “I do’s” from more than one hundred throats gave assent to the oath.

  “Mr. Langley, please proceed,” the judge said to the district attorney.

  “Judge, we have several cases to resolve by plea agreements. We’d like to handle those before striking the jury in the Thomason case.”

  “Proceed.”

  Bert called the name of the first defendant, a young man who didn’t look a day older than eighteen. Everyone watched closely as he walked forward. His mother started crying, and a friend put an arm around her. When the judge sentenced him to ten years in prison for drug-related charges, the mother had to be helped from the courtroom. The second defendant received probation. Four more defendants followed in short order.

  “That’s all the preliminary matters, Your Honor,” Bert said. “At this time I call State versus Thomason, case number 76932.”

  All the other lawyers cleared out of the courtroom. Mac and David set their briefcases on the defense table. In seconds, stacks of papers and legal pads took their assigned place. Because she knew so many people in the community, Judy joined them to help Mac with jury selection.

  On the opposite side of the room, the prosecution table underwent a similar metamorphosis. Bert Langley and his staff removed their files and Joe Whetstone and company assumed center stage.

  When the commotion stilled, Judge Danielson addressed the jurors again, “Ladies and gentlemen, in case number 76932, Peter Thomason is charged with the murder of Angela Hightower. The State has indicated its intention to seek the death penalty.”

  Any festive atmosphere in the courtroom immediately vanished, and the room became completely quiet.

  Pete’s mouth, already dry, became more parched, and he poured a glass of water from a pitcher on the table in front of him.

  “When the clerk calls your name, please come into the jury box so the court and lawyers can ask you questions to determine your qualifications to serve as jurors. These questions are not asked in an effort to embarrass you but to provide information so that a fair and impartial jury can be selected to try this case.”

  The clerk stood to call the name of the first juror when the back of the courtroom door opened. Alexander and Sarah Hightower walked together down the aisle. Alexander Hightower, dressed in a dark suit, looked straight ahead, nodding slightly to the judge and Joe Whetstone before taking a seat on the wooden bench behind the prosecution table. He did not look in the direction of the defense. Sarah stole a glance at Pete before looking away.

  Then the court clerk called the names of twelve persons who came forward into the jury box, and the judge began asking the preliminary questions required of all prospective jurors.

  “Are any of you related by blood or marriage to Peter Thomason, the defendant in this case, or Angela Hightower, the victim?”

  No response.

  “Have any of you, for any reason, formed or expressed any opinion in regard to the guilt or innocence of the accused?”

  A heavyset man on the back row raised his hand.

  “Your name, please?” the judge asked.

  “Roscoe Wilson, judge. When I got my jury notice I told two of my friends I thought the man who killed the Hightower girl ought to be strung up, the sooner the better.”

  Mac quickly stood. “I ask that Mr. Wilson be excused for cause, Your Honor.”

  “Just a minute, Mr. McClain. Mr. Wilson, is your opinion so fixed that it could not be changed by the evidence?”

  “I reckon not. I mean, if the defense lawyer proves his client didn’t do it, I would vote to turn him loose.”

  The judge tapped the arm of his chair with his fingers. “Mr. Wilson, the law presumes a defendant is innocent until proven guilty. The burden of proving guilt beyond a reasonable doubt is on the State. The accused does not have to prove his innocence. Could you follow those instructions in this case?”

  Obviously, Roscoe had not watched enough law-and-order shows on TV.

  Shaking his head, he said, “That doesn’t make sense to me, Judge. It seems like both sides ought to put up what they have and let us pick whichever one is right.”

  The judge leaned forward. “I understand your position, Mr. Wilson, but I am going to excuse you from jury service. Please stop by the clerk’s office to receive your pay voucher on your way out of the courthouse.”

  Roscoe Wilson muttered to himself as he walked up the aisle.

  “Has anyone else on this panel formed or expressed an opinion about the guilt or innocence of the accused?

  Apparently everyone else had learned the lesson the judge tried to teach Mr. Wilson and kept his or her mouth shut.

  “Have you any prejudice or bias resting on your mind either for or against the accused?”

  No response.

  “Is your mind perfectly impartial between the State and the accused?”

  No response.

  “Are any of you conscientiously opposed to capital punishment?”

  A small, white-haired lady in the front row raised her hand so slightly it took the judge a moment to notice her.

  “Yes, ma’am. Your name please?”

  “Mildred Dexter.”

  “Why did you raise your hand?”

  “I’m not sure I could vote to kill someone.”

  “Do you have any religious reason for opposing the death penalty?”

  “No, sir. I’m a Methodist.”

  A few laughs greeted her response.

  “Let me ask you another way. Are your reservations about capital punishment such that you could never vote to impose the death penalty regardless of the evidence and the instructions of the court?”

  “You mean, you would tell us how to vote?”

  “No, ma’am. At the conclusion of the case, I will instruct the jury on the law to apply to the evidence. It will be up to the jury to decide if the death penalty is appropriate.”

  “Well, I’d rather not decide that if I don’t have to.”

  “But you could do so if supported by sufficient evidence?”

  “Yes, sir.”

  “Anyone else?”

  No one raised a hand, and the judge looked at Joe Whetstone. “Mr. Whetstone, you may ask.”

  While the judge was asking the standard questions, Joe’s staff had taped a summary of each juror’s profile to a notebook-size chart of the jury box. Joe quickly put it to good use.

  After introducing himself and his assistants, Joe turned to Mildred Dexter.

  “Mrs. Dexter. Would it be a hardship for you to be away from your husband for a week?”

  Startled, she said, “Yes, it would. I’ve been sitting here worrying about it. He’s got Alzheimer’s, and I guess I could get my niece to come over and stay with him, but she has two small children—”

  Joe interrupted, “Your Honor, the State asks that Mrs. Dexter be excused.”

  “Granted. You may leave, ma’am.”

  Having established himself as the champion of little old white-haired ladies with sick husbands, Joe moved to another area.

  “Do any of you know the defendant, Peter Thomason?”

  A young woman in the back row raised her hand. Quickly noting her name on his sheet, Joe said, “Yes, Ms. Kerney.”

  “I work as a waitress at a restaurant. I’ve seen him there.”

  “Thank you. Would your contact with the defendant affect your ability to fairly weigh the evidence and find him guilty of murder at the conclusion of the case?”

  “No.”

  “The defendant has not been in the area very long. Does anybody else know him?”

  No response. Mac scribbled a reminder on his pad.

  Joe proceeded with his questions. He didn’t ask Jason Patterson, the young man on the front row, about his criminal record of petty thefts and shoplifting in New York, but he did connect for a few seconds with Mrs. Lola Hawkins, the daughter of the Chicago prosecutor, by asking her some questions about her work experience. Four of the twelve jurors knew Mac either profes
sionally or socially. One, Spears Avery, was not on Joe’s list of people to be avoided, but Joe politely uncovered the fact that Mac represented Mr. Avery almost twenty years before in a condemnation action.

  “I’m sure Mr. McClain did a good job.”

  “He was okay,” Avery responded grudgingly. “But I had to get together most of the paperwork and pay for the survey.”

  Mac couldn’t remember the man at first, but Judy leaned over and whispered, “He was a pill. You made me talk to him. He received a good settlement from the power company but resented paying you a dime of it.”

  “That’s all for this panel, Your Honor. Thank you, ladies and gentlemen. Now, Mr. McClain is going to ask you some questions.”

  “Proceed, Mr. McClain,” the judge said.

  Mac stood and moved slowly to a spot directly in front of the jury box. By the time he stopped, he’d established eye contact with every juror and recognized a few familiar faces. He introduced himself and those seated at the defense table, saving Pete for last. “Ladies and gentlemen, this is Pete Thomason,” he motioned toward his client who, as previously instructed, nodded toward the jurors.

  Throughout the course of the trial, Mac would never call Pete “the accused” or “the defendant.” He wanted the jury to realize that Pete was a human being.

  “Do any of you know Mr. Joe Whetstone?” he began. “He is not from this area.”

  No one knew Joe or his assistants.

  Mac continued asking questions and in a few minutes he was in an easy, conversational relationship with the jurors. David leaned over to Pete. “He’s smooth, isn’t he?”

  “Yeah,” Pete muttered. He listened to Mac’s questions, but his attention was on the faces of the people. He knew some of those faces would decide his fate.

  Five panels of twelve came into the jury box. Ten jurors were excused for legal excuses ranging from uncorrectable bias against the defendant to one man who said he would never believe a police officer under any circumstances.

  Mac could tell that the Hightowers’ former housekeeper was antagonistic toward Joe. Dennis Kendrick gave Mac a big grin, which was duly noted by one of Joe’s assistants. Lyman Bakerfield was harder to decipher. He didn’t change expression or give any hint of his attitude toward the Hightowers during questioning, and both Mac and Judy had a big question mark beside his name. Judy’s neighbor whose nephew’s murderer was freed on a technicality was excused for cause, and Joe sadly watched her walk out of the courtroom. She would have been a great juror for the prosecution.

  The judge didn’t stop for lunch and, except for a couple of bathroom breaks, moved the proceedings along as rapidly as possible. It was 2:00 P.M. when Mac asked his final questions to the fifth panel. There were fifty qualified jurors left to pick from.

  “Mr. Whetstone and Mr. McClain, we are going to choose twelve jurors and two alternates. Because the State has announced its intention to seek the death penalty, the defendant will receive twenty strikes and the prosecution ten strikes for the initial twelve jurors and two strikes to one for the alternates. Any questions?”

  “Could we have a recess to prepare?” Joe asked.

  “Yes.” The judge raised his voice. “The court will be in recess for thirty minutes. Please do not leave the building. Reassemble in the courtroom at two-forty-five.”

  Like opposing football teams, each group went into immediate huddles around the notes and information that now lay scattered across their tables. It was a time of short but intense debate. Accept, cut, don’t know. Some decisions were easy: a business associate of Alexander Hightower, a loyal client of Mac’s who thought Mr. McClain was the greatest lawyer on two legs. Others were more difficult. Lyman Bakerfield topped Mac’s list; Joe expressed concern about an intelligent-looking young man who worked for a local CPA.

  The primary participants in the defense debate were Mac, Judy, and Vicki, who joined them with notes she’d taken during voir dire. They moved through the list in a series of short but intense debates. Mac always cast the deciding vote. They were left with three unknowns.

  “Do you have any opinion about these?” Mac asked Judy.

  “No.”

  He turned to David. “Any intuitive reactions?”

  The young lawyer responded without hesitation. “Yes to Vera Black, no to Quinn Mashburn, yes to Lance Patrick.”

  “That’s confident. Why do you say yes to Lance Patrick?”

  “His name has a decisive ring to it. I think he’ll be a strong juror.”

  “Very scientific,” Mac said.

  Plans and guesswork complete, everybody took a five-minute break. The jurors wandered back into the courtroom, and the judge brought the group to order precisely at 2:45 P.M.

  “Ladies and gentlemen, we are now ready to select a jury in the case of State versus Thomason. As your names are called, please stand. If you are accepted by both the State and the defense, come forward into the jury box. Madam Clerk, please proceed.”

  The court clerk had furnished a revised list of jurors to both sets of lawyers so they could see the order of selection and plan their strategy accordingly. “Beatrice Lancaster.”

  “The State excuses Mrs. Lancaster,” Joe said.

  “Gary Kanolin.”

  “The State accepts Mr. Kanolin.”

  “Mr. Thomason excuses Mr. Kanolin,” Mac said.

  On it went. Like jack-in-the-boxes, people popped up and sat down. A few became red in the face when they were rejected; others showed signs of obvious relief. Those accepted by both prosecution and defense took a seat in the jury box. There were eight jurors when the State used the last of its ten strikes. Mac accepted the next two jurors then quickly struck six in a row. He had used a total of eighteen strikes when Lyman Bakerfield’s name was called. Of the next three jurors on the list, two were unfavorable. If Mac had known Joe Whetstone was holding his breath, it would have made his decision easier. But he didn’t.

  “Mr. Thomason accepts Mr. Bakerfield.”

  Joe wrote a big “Yes!” on his legal pad.

  Mac excused the next two jurors and exhausted his strikes. The final juror, a retired schoolteacher, took her seat in the box.

  “Gentlemen, we will now select two alternates.”

  Joe rejected the first juror. Mac struck one, accepted Lance Patrick as first alternate, and allowed the next juror on as second alternate without using his final strike.

  When the jury was seated, the judge turned to the lawyers. “Is this your jury?”

  “Yes, Your Honor,” they answered in unison.

  “Ladies and gentleman of the jury, please stand and raise your right hands while I administer your oath for this particular case.”

  Everyone in the courtroom stood as the oath was issued.

  “You shall well and truly try the issue formed upon this bill of indictment between the State of Georgia and Peter Thomason, who is charged with the crime of murder, and a true verdict give according to the evidence. So help you God.”

  A smaller chorus of “I do’s” responded.

  “At this time, the bailiffs will take you to the motel, where you will be given opportunity to contact your families and make necessary arrangements to obtain your personal belongings. Any assistance you need will be provided by the bailiffs, and if you experience any difficulties that they cannot handle, please let me know. You are not to discuss the case among yourselves or with anyone else from this moment forward. You will not seek information about the case from any media source. Your deliberations and decision in this case must come solely from the testimony and evidence presented to you in this courtroom upon proper instructions from the court. Do any of you have any questions?”

  The weight of responsibility already settling in, no one spoke.

  “Very well. The court will be in recess until nine o’clock in the morning.”

  29

  The men of war which went to the battle.

  NUMBERS 31:21 (KJV)

  As they walked through
the front door of the office, Mindy cried out, “Help!”

  “What is it?” Judy asked.

  “You think it was tough being in court trying a murder case. You should have been here handling everything else by yourself.”

  “What happened?” Judy asked.

  “Phone calls, people coming by. I had to give legal advice. It was terrible.”

  “What kind of legal advice?” Mac said sharply.

  “Oh, I told a man whose textile machine was repossessed that he didn’t owe the deficiency if the bank failed to send him the proper notification under the security agreement and the Uniform Commercial Code.”

  “How did you know that?” Mac asked.

  “I read it off the letter you sent to Mr. Portsmouth. That’s right, isn’t it?” “Yes.”

  “I try to pay attention and learn.” Mindy pushed her hair behind her ears.

  “Until you pass the bar exam, just take the calls,” Mac said. “It will keep the State Bar of Georgia and my malpractice insurance company happy.”

  “What do you think?” Mac asked David when they were seated in the library.

  “I think you should send Mindy to law school.”

  Mac chuckled. “How was the Chinese restaurant Friday night?”

  “There’s more to Mindy than you realize. She can use chopsticks with either hand and recently read an article in a travel magazine about Cantonese cooking.”

  “It’s easier to order in Chinese than to select jurors,” Mac said.

  “Definitely. And my stomach reacted better to the food than it did to court this morning. I was tied up in knots all morning.”

  “Watching is harder than doing. I’ve had lawyers from out of town ask me to assist in local trials at my highest hourly rate, but I can’t be a spectator. Be patient, I’ll get you involved.”

  “What do you want me to do?”

  “Review the cross-examination of Sergeant Laird about the stipulated polygraph exam.”

  “Okay.”

  “Also, get ready to muffle Dr. Newburn’s squeal when he gets the subpoena for the names of his patients for the past three years. The process server in Atlanta delivered it to his office while we were in court this morning.”