HE WAS AT THE courthouse by a quarter to seven, the first party from either side to arrive, driving in unnoticed via the back subterranean entrance to the underground parking lot. The proceedings would commence at nine, but he wanted to be there early. For the next several weeks this was going to be where he lived, and he wanted to become as comfortable here as possible.
On the street in front of the courthouse, as well as in the central downstairs rotunda, the media circus was beginning to set up its tent, camera crews already jockeying for the most advantageous positions.
He thought about how slow the first few weeks would be. Judge Grant’s opening remarks and the selection of the jury would take at least two weeks. For the principals, however, jury selection would be crucial. By the time the jury was selected, the case would be well on its way to being won or lost. Trying to find twenty men and women (twelve jurors plus an ample alternate pool) who had not formed an opinion about Marvin’s innocence or guilt was going to be close to impossible because it was a given that everyone in the city had heard or read or seen something about Marvin White and these killings. Something bad. Wyatt and his team had to ferret out the few people from the jury pool who had any kind of open mind, because there was no residue of goodwill built up around Marvin, whose profile was that of men, particularly black men, who in situations like this were convicted ninety-eight percent of the time.
Because of the notoriety and the sheer numbers of the murders, Wyatt had made a pretrial motion to separate the cases, a normal procedure, especially since some of the prosecution’s evidence was based only on the circumstances of the final murder. Grant had denied it—he felt the connections were strong enough to warrant one trial for all seven. That it would be prohibitively expensive to conduct seven separate murder trials went unspoken, but everyone knew that was a big factor.
Josephine arrived at 7:15. She had a sheaf of telegrams from friends and supporters, almost all of them other criminal-defense lawyers. “Illegitimi Non Carborundum” was the general sentiment. The Missouri renegade prosecutor Brent Bollinger’s was more specific: “Break that son of a bitch Dwayne Thompson down. He’s the key.”
Innocence or guilt was not their concern—most of those who sent telegrams figured Marvin White was guilty as charged. They were supporting Wyatt because they were part of a small, beleaguered fraternity, fighting a rising tide that proclaimed the credo “Innocent until proven guilty beyond a reasonable doubt” was only words on paper, no longer to be taken seriously in the real world.
By 7:30 the other members of his team had drifted in. Walcott, Darryl (in an unofficial, cheerleading capacity), and Freida Berman, his jury consultant.
Berman was a jury specialist, a sociology professor from the University of Chicago. Wyatt had brought her on a month ago, when the questionnaires from the jury pool had been returned and needed to be analyzed by an expert. Freida’s fee was $250 an hour, a low price for someone well qualified in the field. Wyatt had petitioned the court for money to pay her. The prosecution had their own team of consultants; their bill would run close to $10,000, more if they needed it. He should have equal access to expert advice, he argued.
Judge Grant awarded the Public Defender’s office $2,500, a ludicrously low amount. On his big billion-dollar corporate case Wyatt and his team had spent $150,000 on jury consultants alone. Wyatt had complained about the paltry award but Walcott had given him the facts of life, lesson 97, the same lesson as numbers 1 through 96: the courts are not about to help you out. You fly on a wing and a prayer.
He couldn’t operate that way, not with a life and his reputation at stake, so he paid Berman an additional $5,000 out of his pocket—out of the firm’s pocket. Ben Turner wasn’t about to let his star go into combat without some ammunition. “We’re not a bottomless pit on this,” he told Wyatt, “like we would be if we were defending a deep-pockets client, but we’re not going to let a member of the family drown, either.”
Berman had reviewed the questionnaires, marking the candidates who appeared to be the most promising. There weren’t many. Most of those available were middle-aged and older, and more than half of them were not African American. A large percentage were people who formed their opinions through a narrow prism and held strong, uncompromising attitudes about right and wrong. These prospective jurors would be highly predisposed to believe what the police and prosecutors told them.
Wyatt and Freida separated the candidates into three broad categories: pretty good, barely possibly, and NFW (No Fucking Way). This would change when they saw and questioned the individuals face-to-face, but it was a start. There were twice as many NFWs as the other two categories combined.
Their big concern was black men, especially younger black men. Of the fourteen black men (out of two hundred jury candidates) on the list under the age of forty-five, six had been arrested, and three others had had some kind of trouble with the criminal justice system. Being arrested wasn’t in itself grounds for disqualification, but Wyatt was afraid the prosecution would try to make it one, and he was concerned that Judge Grant would let them.
Wyatt’s bottom line was one young black man on this jury. It was paramount. He would prefer someone from the streets, a true peer to Marvin, but any black man would be better than none, even a college graduate who might want to put the ghetto shit behind him, or pretend it didn’t exist.
“Ready?” Walcott asked.
Wyatt smiled. “I’ve been waiting for this day for a long time,” he said.
“Good luck. I’m not going to be here much,” Walcott told him, “but I’ll always be reachable. So give ’em hell.” The head of the office gave him a firm punch on the shoulder as he left.
Wyatt sipped from his coffee mug. “Finger-lickin’ good, as usual,” he complimented Josephine. “You’ll be close behind me?”
“Every inch of the way.”
He could go to the bank on that. She would be doing most of the legwork during the proceedings.
“Thanks for coming,” he told Darryl.
“I wouldn’t miss this for the world.” Darryl smiled his devilish smile.
He’d thought about bringing Darryl in to sit second chair: having an experienced defense lawyer by his side, who happened to be black, like the defendant, was a tempting notion. In the end, though, he’d decided not to. He had left the security of workplace and home to do this, and it was his to do alone.
A marshal stuck his head in the door. “The courtroom’s open. You can come up anytime now,” he said.
Except for a couple of deputies checking to see that everything was in order, the large, classically styled courtroom was empty. Wyatt stood in the aisle between the defense and prosecution tables, soaking up atmosphere.
The trial had been playing in his head for weeks. Sometimes he would close his eyes and watch it unfold, as if viewing a movie. Witnesses, exhibits, examinations, cross-examinations, a swirl of images alternately coalescing and diverging, in constant flux. Sometimes these daydreams would take on a surreal quality, faces interchanging, his witnesses becoming adversarial, prosecution witnesses becoming his allies. He would hear his opening argument filling every inch of space in the room, the sound of his voice spreading to the ceiling and out the windows. There were times when he was so focused, so in the zone, that it was as if a shaft of light from above came down and shone upon him, spotlighting him in an almost spiritual, protective sheath.
As if in a time-release moment, the courtroom suddenly came to life. Marvin hadn’t been brought in yet, and Judge Grant had not taken the bench. But there, not ten feet away, sat Helena Abramowitz, looking over some notes, talking to her cocounsel, Norman Windsor. Sitting alongside them was their team of jury consultants, a man and a woman.
Freida Berman sat next to him, Josephine next to her. On his other arm there was an empty chair for Marvin. Sitting behind him in the gallery were Darryl and Marvin’s family and a few friends: Jonnie Rae, his sisters and brother, Dexter, Richard, and Louis. Other than them,
the room was empty.
He walked over to the railing and leaned in close to Jonnie Rae. “How are you doing?” he asked.
She shrugged and gave a half smile. “Okay, I guess.”
“Jury selection is going to take days, weeks. It’ll be boring. You don’t have to be here for this part.”
“I need to be here for him,” she said, nodding toward the empty chair.
She had kicked her son out of the house for slacking, lying, and thieving. Now she was standing foursquare behind him. This is a good woman, he thought. This kid is lucky to have her.
“Okay,” he said. “That’s good. It’ll make a good impression.” He glanced over at Dexter, nodded a greeting. Dexter, looking grim, nodded back.
Marvin was brought in. He was dressed nicely, in sports coat, white shirt, and tie, and he had a fresh haircut. A handsome young man, Wyatt thought, as Marvin stood compliantly while his handcuffs were removed. In appearance, at least, he posed no threat to the prospective jurors.
Marvin leaned over the rail and hugged his mother. The deputy in charge gave them a few seconds before tapping Marvin on the shoulder and shaking his head.
“You okay?” Wyatt asked.
Marvin nodded.
“Stay calm and look people in the eye, but not threateningly. Don’t make any unnecessary gestures, and for sure don’t make signs of disapproval, even if you don’t like what’s being said or done. Some of these people will wind up sitting on the jury, and the first impression they get of you will be an important one. If you need to tell me something whisper in my ear, as quietly and unobtrusively as possible. Okay?”
Again, a nod.
He patted Marvin on the thigh. “We’re going to get through this. Trust me.”
Marvin turned to him. “I do.”
They all rose as Judge Grant entered the chambers, then sat down again. Grant opened his jury portfolio. “Is the prosecution ready to proceed?”
Abramowitz rose, nervously smoothing her skirt. “We are, Your Honor.”
Grant to Wyatt: “Is the defense ready?”
Wyatt stood up. With one hand on Marvin’s shoulder, he said, “Yes, Your Honor.”
“Bring them in,” the judge directed his bailiff.
Two hundred members of the jury pool filed in and were seated in the courtroom. Judge Grant made a brief speech, explaining the selection process, how important serving on this jury would be, and thanking them in advance for their cooperation and participation. That someone was willing to serve, or even strongly wanted to, was not cause for selection. Many critical criteria had to be met. If they were disqualified they shouldn’t take it personally—most of them would be, for all kinds of reasons that they might not understand but that were legitimate.
Each prospective juror had been assigned a number. All the numbers were put into a glass bowl. The bailiff blindly drew the first twelve and called them out. Those twelve people whose numbers had been selected got up from their seats and entered the jury box. A few of them glanced over at Marvin as they passed through the swinging gate.
After they completed the initial voir dire the individual selections were done privately in the jury room, adjacent to the courtroom. Joining Judge Grant were Wyatt, Marvin, and Freida for the defense, and Helena, Windsor, and their jury experts for the prosecution. Both sides had requested that their jury experts be allowed in the room as each prospective juror was individually questioned, and Grant had allowed it. The experts’ active participation would make the process go slower than normal, but he wanted to guard against either side later bitching that they hadn’t been able to present their case to the best of their ability. William Grant had almost never been reversed at the appellate level; he definitely wasn’t going to be this time.
Each prospective juror was brought into the chamber in the order in which his or her number had been drawn. Grant did the questioning; if either Wyatt or Helena wanted to ask a question they would tell him. Most of the time they didn’t have to, because before they got to a particular situation the juror had already been disqualified for cause by Grant.
His first question eliminated twenty-five percent of the prospects. “This is a capital case in which the death penalty is an option if the defendant is found guilty. Do you have any problems—morally, religiously, philosophically, whatever—in handing down a death sentence if the findings in the trial warrant it?”
One in four people couldn’t hand down a penalty of death. They were automatically dismissed.
Marvin gulped hard the first time Grant made that statement. Wyatt put a calming hand on his shoulder and kept it there. After it had been repeated half a dozen times, each time with the same neutral inflection, Marvin was able to bear it without openly flinching.
Wyatt had thought about arguing against this blanket dismissal policy, even filing a formal brief. To only qualify people who could vote for a death penalty was prejudicial against a defendant, in his opinion. But at the end of the day, he backed off. He’d researched the case law, talked with Walcott, Darryl, and other criminal-defense lawyers, and concluded that he wouldn’t have a prayer of winning and could prejudice Grant against him, so he let it slide.
Out of the first group of twelve, two were accepted, both women. Wyatt and Berman conferred at length before agreeing to the inclusion of one of them, a middle-aged white female postal worker who was a regular churchgoer from a Pentecostal sect. After a lengthy, careful discussion they decided not to fight her. A lot of Pentecostal churches were integrated, and as a postal worker she was in daily contact with hundreds of black people, fellow members of the civil service and customers. She shouldn’t have a knee-jerk antiblack attitude. And she’d never been raped, nor did she personally know any woman who had.
The proceedings moved glacially, each prospective juror taking up to an hour to be questioned. There was considerable consulting with experts on both sides. Anyone Wyatt liked Helena opposed, and vice versa. By the time the lunch break was called they’d only gotten through the initial group of twelve.
The first indication there was going to be trouble came midway through the afternoon session. The first black male jury prospect, number seventeen, a twenty-eight-year-old construction worker, ambled into the room. He laser-beamed Marvin with a badass stare while folding himself into the oak captain’s chair, facing Judge Grant.
Definitely copping an attitude, Wyatt thought, quickly sizing him up. He looked at the man’s questionnaire. Frieda had put him in the top twenty percent. This one was someone to fight for.
In answer to Grant’s death-penalty question, the prospect answered in a streetwise voice: “Absolutely. You do the deed, you pay the price.” Looking again at Marvin: “Not saying the brother here did it. I don’t know one way or the other.”
Grant turned to his list of questions, the same basic questions he asked every prospect, but before he could get the first question out of his mouth Helena, having been whispered to by one of her jury specialists, raised an objection. “Request dismissal for cause,” she said forcefully.
Wyatt’s head whipped around.
“On what grounds?” the judge asked.
“This man has a criminal record,” she stated. “He did six months in the Iowa reformatory for breaking and entering.”
On his feet immediately, Wyatt responded, “So what? That was in a youth-detention center, when he was a juvenile. He didn’t try to conceal it, he admitted it on his questionnaire. That isn’t grounds for dismissal, Your Honor. If counsel wants this man disqualified she’ll have to use a challenge.”
“In this case there are grounds, Your Honor,” Helena shot back. “There is ample case law backing up our position.”
“There’s as much case law opposing it,” Wyatt retaliated. He knew; he’d researched this issue carefully. “Having been arrested is not automatic grounds for dismissal from serving on a jury, Your Honor. If that were the case almost half the black men under forty in this country would be disqualified from sitting on a ju
ry. If my client is denied this segment of the jury pool he won’t have anyone resembling a peer sitting in judgment on him. That’s blatantly unfair.”
Grant thought for a moment. “ ‘Peer’ is a broad term, Counselor.”
“You know what I’m talking about, Your Honor.”
Grant turned to juror number seventeen. “Wait outside for a moment, please.”
The man cast a baleful eye upon them all and exited.
“This would be letting the fox into the henhouse,” Helena stated vehemently, as soon as the door was closed. “This man has absolute contempt for the criminal-justice system.”
“Who endowed you with mind-reading powers?” Wyatt shot back. He turned to Grant. “He fulfills all the criteria for serving on a jury. He wouldn’t be in here if he didn’t—unless being young, masculine in gender, and black is ipso facto disqualification.”
He looked over at Marvin. His client was sitting rock still. So, he noticed, was Deputy Prosecutor Windsor.
Grant leaned back in his chair and looked up at the ceiling as if asking for divine guidance. “I’m inclined to go with Ms. Abramowitz’s motion,” he said finally.
“What is the basis for this ruling, Your Honor?” Wyatt asked. If this was the beginning of a trend, it was very disturbing.
“Because his record indicates he will be prejudicial.” Grant sat up straight. “This is not to be taken as a blanket endorsement,” he said to Helena.
“So he’s out?” Wyatt asked, his voice rising in indignation.
“He’s out,” Grant answered gruffly. To his bailiff: “Call the next in line.” He turned to Wyatt again. “This is my courtroom, Mr. Matthews. I make the decisions. Don’t question them.”
AT THE END OF the day they had three jurors: the two women from the morning session and a man, a retired accountant. Two whites—the postal worker and the accountant—and one black woman, who was elderly and (at least on paper) fit the profile of a law-and-order type. She had a son in the air force, a major, and liked how he looked in his uniform. On the other hand, she did volunteer work in inner-city school remedial programs. Wyatt thought hard about excluding both her and the retired accountant, but he had already used four of his preemptory challenges and didn’t want to run out before some totally unacceptable candidates came up.
Key Witness Page 48
