Cruel Justice

by William Bernhardt

  The Hands of Justice

  42

  BEN PUSHED HIS WAY through the crowd to the front of the seventh-floor courtroom. People were squabbling over seats and shoving one another out of the pews. “I was here first!” he heard, and “No fair saving seats!” and other cries he would’ve expected on a playground perhaps, but not in a state courthouse.

  Seats were at a premium; the courtroom wasn’t that large and there was a long line of would-be spectators outside. Everyone seemed interested in this case, not just in Oklahoma but throughout the country. Several network news reporters were present, as well as a few representatives from major newspapers. Court TV had even asked for permission to broadcast portions of the trial, but Ben had refused to consent.

  Ben couldn’t believe so many people were galvanized by this murder trial. He wasn’t sure who or what to blame. Maybe it was the heat—everyone was looking for a diversion from this oppressive humidity. Maybe it was the media. They’d been playing the hell out of the story. The ten-year-old “impalement from the past” gave them abundant grist for the evening-news mill, usually playing up the gruesome details of the murder itself. The line separating tabloid TV and legitimate journalism seemed to be getting thinner every day.

  Or maybe the appeal was the implied class struggle—a poor developmentally disabled black man accused of committing a violent crime in a citadel of opulent wealth. Or maybe it was just the ever-present interest some people have in other people’s business. Courtrooms provided a justifiable opportunity to pry into the affairs of others.

  Ben finally made it to the defendant’s table. Leeman wasn’t there, Christina wasn’t either, but she had clearly been there earlier; all Ben’s notebooks and exhibits and other trial paraphernalia were lined up and organized.

  “How about a few words on the trial, Mr. Kincaid? Do you expect to win?”

  Ben turned and saw a man on the other side of the railing extending a microphone as close to Ben’s face as possible. The first two rows on the right side of the gallery had been roped off for the press. A badge on the man’s lapel identified him as a reporter for Channel 2.

  “Sorry,” Ben answered. “In my experience, television coverage of legal matters is somewhat less than accurate.”

  “Come on,” the reporter said. “All I need is ten seconds.”

  “I know,” Ben replied. “That’s the problem.”

  Ben scanned the two full rows of coiffed heads jockeying for position behind the man from Channel 2. They probably wanted to be on the scene so they could do a live remote from the courthouse. Beth Rengel and Clayton Vaughn, the Channel 6 anchorpersons, were both there. As was Karen Keith, interviewer and all-around smart lady. Leslie Turnbull and Rick Wells. And Ben’s personal favorite, Karen Larsen. He might consider giving her an interview. If she promised to give him more than ten seconds.

  “Starting to feel the heat, Ben?”

  Jack Bullock was hovering over Ben’s table.

  “It’s always tense just before a trial begins. There’s nothing unusual about that.”

  “I guess you still think you can pull a rabbit out of your hat and get your boy free so he can skewer some more women, huh?”

  “Jack, you know I have an obligation to represent my client to the best of my ability. I have no choice—”

  “You took this case voluntarily, Ben. No one forced it on you.”

  “I took this case because I think Leeman Hayes is innocent. Why are you taking this so personally?”

  “Because it is personal to me. I care about people, Ben. I care about this city. I’m not in this for the big bucks and the swimming pools and the million-dollar homes? I want to make the world a better place. And I don’t like people like you getting in my way.”

  “Jack …” Ben shook his head sadly. What was there to say? And what was the point? “I’d like to go over my notes. If you’ll excuse me.”

  “Whatever you say.” Bullock drew himself up, then added quietly, “I’ve got a surprise for you.”

  Alarm bells rang out in Ben’s brain. “What are you talking about?”

  Bullock strolled back to his own table. “Have fun reviewing your notes.”

  “In case you haven’t heard, Bullock, trial by ambush is history. My client has a constitutional right to know the accusations that will be made against him at trial.”

  “Wah, wah, wah,” Bullock mock-cried. He began whispering to his second chair, Myrna Adams.

  Great. Kincaid glanced over his shoulder and noticed the reporters were scribbling away. They had probably caught most of that dramatic little exchange. The press seemed to love it when lawyers started bickering. He could see it now—a murder trial billed as the grudge match of the century.

  Bullock still had not even acknowledged the possibility of a plea bargain. Normally, given the difficulties inherent in trying a ten-year-old crime, Ben would’ve expected a deal proposal to be the first words out of the prosecutor’s mouth. But not this time. Bullock seemed determined to make this charge stick.

  The buzz in the courtroom suddenly diminished. It wasn’t the judge; he was still in chambers. All the heads in the gallery were facing the rear.

  Leeman Hayes was being escorted into the courtroom.

  Despite the ban on cameras in the courtroom, Ben saw several flashes go off and heard the soft whir of minicam motors. Two men from the sheriff’s office escorted Leeman to the front of the courtroom. Ben smiled and offered Leeman the chair beside him. Leeman returned a small smile, but it was clear to Ben that he was terrified. Ben wondered—not for the first time—just how much of this Leeman really understood. He could imagine the questions racing through his mind. What are we doing? Why are all these people here? Why are they staring at me?

  Ben patted Leeman on the shoulder and gently turned him away from the gallery. “It’s all right. Just forget they’re here. The only part of this room you need to be concerned with is up front.”

  Leeman leaned forward pensively, his chin resting on his hands.

  Ben had visited Leeman several times since their first meeting. Although he hadn’t obtained any new information, he thought Leeman had come to know him a little better, and had perhaps even come to trust him. According to Vera, Leeman had only two visitors: Ernie and Ben.

  With each visit, Ben had become more and more convinced that Leeman was not competent to stand trial, no matter what the state’s shrink decreed. Judge Hawkins, however, had denied all Ben’s motions to revisit the issue. Hawkins insisted that this trial had been delayed long enough. It was time to see justice done.

  Justice. What a concept.

  Leeman’s head cocked at that odd angle. “Papa …?”

  “Sure. He’s here. He’s in one of the back rows. See?” Ben pointed him out. Ernie saw them looking and waved.

  “Don’t …” Leeman’s neck extended and twisted. He turned his shoulders awkwardly.

  Don’t … wanna be here? Ben guessed. “I understand, Leeman. No one wants to be here. But we have to clear this up once and for all.”

  Leeman shook his head vigorously. “Don’t … go back.”

  It was the most words Ben had ever heard Leeman speak at once. Don’t … go back? To the hospital, Ben realized. Don’t wanna go back to the many many hospitals.

  “Home,” Leeman whispered softly.

  Ben laid his hand on Leeman’s. “I’ll do my best,” he said. He tried to sound confident.

  Leeman lifted his chin tentatively. “Later …?”

  “Later?”

  Leeman straggled to finish the thought. “Beet-hooven.”

  Ben smiled. “It’s a date.”

  Ben heard the sound of shuffling feet coming from the front of the courtroom. The chamber door opened, and Hawkins’s bailiff stepped out. “All rise.”

  The crowd hushed and rose to their feet. Judge Hawkins emerged from chambers, draped in his black robe, and moved somberly to his chair at the head of the courtroom.

  “All right, then,�
� Hawkins said briskly. “Let’s not waste any time. Call the case.”

  The bailiff did so. When Leeman heard his name, he started to rise. Ben gently tugged him back down into his seat.

  “Very well,” Hawkins said. “The court has determined that the defendant is competent to stand trial. Let all those with business before this court now come forward.”

  The judge paused a millisecond, then continued. “Gentlemen,” he said, gazing down at Ben and Bullock, “let’s get this show on the road.”

  43

  “FIRST OFF,” JUDGE HAWKINS announced, “we need to pick a jury. Bailiff, call the first twenty-four veniremen.”

  The bailiff pulled out a large bingo hopper filled with names written on slips of paper. The names of the potential jurors were taken at random from driver’s-license rolls and copied into the hopper. The names of those who had managed to get themselves excused were removed. As Ben knew all too well, that often left only the names of those too bored or too stupid to figure a way out of jury duty.

  Twenty-four potential jurors filled the jury box. Ben wrote down each of the names as it was called. The really slick courtroom attorneys memorized them so they could impress the jurors by addressing them by name. Ben’s memory wasn’t half that good. Still, if he could remember a few of the names, maybe he could drop them at judicious moments, then glance back at his chart as necessary.

  Now began what Ben considered the greatest guessing game ever devised by man. Based upon a host of indirect questions and stereotypical juror profiles, he had to determine who would be good jurors for his client. Did he want men or women, rich or poor, young or old, white or black? It was worse than being in Vegas; the game was just as unreliable, but the stakes were much higher.

  The initial panel was over two-thirds male—not what Ben had wanted. He needed sympathetic souls, and sympathy was a characteristic more commonly attributed to women than men. Ben also saw an unusually high number of ties and jackets—apparel that denoted professionals, individuals with money. Rich people were generally assumed to be conservatives; conservatives tended to convict. Poor people were considered more likely to empathize with the plights of other poor people, although sometimes they could be harder on their own than anyone else.

  And then there was the race issue. Ben, would normally assume that the more black jurors he had, the better. This jury panel had two, for the moment, anyway. The United States Supreme Court had ruled that jurors could not be removed on the basis of their race alone; counsel were required to present an articulable reason for any minority removal—hardly a difficulty for an experienced trial attorney. Bullock would undoubtedly remove them both; he would simply come up with some nonracial excuse for doing it. How could Ben contest it? How could anyone claim to know what goes on in the murky mind of a lawyer?

  Ben glanced over his shoulder and, to his relief, saw that Christina had returned. She was sitting in the back of the courtroom in the area reserved for counsel’s staff. Thank goodness. Her instincts were far better than his. Jury selection was the province of someone who understood people; people mystified Ben.

  The judge instructed the jurors to give their names, addresses, occupations, and the occupations of their spouses, if any. In a few instances, the judge asked for some additional clarifications. Not often. That completed, Hawkins waved the prosecution into action.

  As the prosecutor, Bullock got the first shot at the jury. He made some introductory remarks and told a few little jokes. As anticipated, he called the jurors by name. Show-off. Although Bullock knew Hawkins wouldn’t let him try his case during voir dire, he gave enough hints about the subject matter of the case to whet the jury’s appetite so they would be primed and ready by the time they got to his opening statement. In solemn tones, he let them know that this case involved “shameless, cold-blooded murder.”

  Ben could see the jurors’ eyes brighten. Murder sounded so exciting, so glamorous. Up until that point, for all they knew, they might be hearing a traffic case. Now they knew they were in for something considerably more interesting. The Big Time.

  “Ladies and gentlemen,” Bullock continued, “it is a sad reality of life that all men are not created equal. Some men are born with birth defects, learning disabilities, special problems. We are, of course, sympathetic to them.”

  Juror heads nodded. A few of them glanced at Leeman. In Ben’s experience, jurors were quite adept at putting two and two together.

  “There is a point, however, at which sympathy can be taken too far. Some would say that a learning disability, for instance, is no excuse for antisocial behavior. And nothing can justify murder.”

  Ben knew how this game was played. While Bullock delivered this little heartfelt oration, he was scanning the jury for facial expressions indicating disagreement.

  “What about you, Mr. Smithson?” Bullock nodded toward an elderly man in the back row. “Do you think there is any excuse for murder?”

  “Well,” Mr. Smithson said, clearing his throat, “ ’course I think a man’s entitled to act in self-defense. To protect himself. Or his property.”

  “Certainly,” Bullock said, nodding vigorously. “There are legal defenses. But do you think a man has carte blanche to commit murder just because, say, he’s not quite as bright as me and you?”

  “No, of course not.”

  “And would your opinion change if this hypothetical person had a learning disability? Not insane, mind you, but just a little slower than the norm.”

  Mr. Smithson shook his head. “Don’t s’pose it would.”

  Bullock quizzed three more of the jurors along these lines. Very smart, Ben had to acknowledge. Bullock instinctively understood what the hardest part of his case was—he was trying to convict a mentally retarded man. Bullock was confronting the problem head-on, rooting out any natural sympathies that might prevent the jury from convicting even if the evidence indicated that they should.

  Bullock asked these and other related questions for close to an hour. Finally, he moved on to the next major voir dire issue.

  The death penalty. The Supreme Court had laid down the law on this matter, too, in the famed Witherspoon decision. Prosecutors had considerable leeway to ensure that their juries were death-qualified, that is, capable of delivering the death penalty if they believed the facts justified the sentence.

  “Mrs. Skaggs,” Bullock said, addressing the middle-aged woman in the far right corner of the box, “do you believe in the death penalty?”

  “Yes,” the woman replied emphatically. “I certainly do. An eye for an eye. That’s what the Good Book says.”

  Bullock nodded. “Would everyone else agree with that? Let’s have a show of hands. Who believes in the death penalty?”

  The hands rose sporadically, but eventually, twenty hands were in the air. Without saying another word, Bullock turned to face the judge. Hawkins coughed, as if breaking out of a reverie, and glanced at his jury chart. He then dismissed the four jurors who did not believe in the death penalty and called four more to take their places.

  Smoothly done. Bullock had, of course, demanded their removal, but in a subtle way that didn’t make him look like a villain in front of the jury. Ben didn’t bother objecting. The law on the issue was clear. The jury was supposed to apply the law, not debate policy. If a juror wasn’t willing to apply the death penalty—the law of the state—given the proper proof of guilt, he or she must be excused.

  “Mrs. Skaggs,” Bullock continued, “a lot of people believe in the death penalty in principle, but when they’re sitting on a jury, they find they cannot personally give the death sentence to anyone.”

  Mrs. Skaggs nodded silently.

  “Ma’am, assume that I proved this young man’s guilt beyond any question. Would you be able to give him the death penalty?”

  She hesitated. “I—I believe that I—yes, I think that I could do that.”

  “Are you sure? You must understand that if you deliver a sentence of death, there will be no possi
bility of probation or parole, and you must assume there will be no appeal. If you vote for death, execution will follow. The defendant will be killed by lethal injection.”

  Bullock took a deep breath and paused to let the words sink in. “No matter what you may have heard or read, you must assume that your sentence of death will be carried out. Given that assumption, would you still be able to deliver a death verdict?”

  Mrs. Skaggs swallowed. “I—I’m just not sure.”

  “I see.” Bullock’s years of experience were paying off. He was consistently finding the doubters, the weak links that might prevent a guilty verdict, and exposing them. “What do you mean when you say you’re not sure?”

  “I mean—” Stress lines crisscrossed the woman’s forehead. “I want to do the right thing. I want to do my duty. But when you put it like that—well, it’s almost like I’d be killing the man myself.”

  Bullock did not contradict her. “And would you be able to do that, ma’am?” He was being gentle about it, but he was definitely pushing. He needed an unequivocal I couldn’t do it to get her dismissed for cause. Otherwise, he would have to use one of his limited peremptory challenges. “I’m not saying it would be easy. But could you do it?”

  “I—I’d try to be fair.”

  “Mrs. Skaggs, you’re not answering my question.” He gestured back toward Leeman. “Could you look this man in the eye and say, ‘Sir, you must die for what you did’?” His voice swelled in volume. “Could you do that?”

  Mrs. Skaggs stared helplessly at Bullock, then looked up at the judge. Hawkins turned away. No succor there.

  “I—I guess I’ d just have to wait and see.”

  “I’m sorry, Mrs. Skaggs. That’s unacceptable.” He was really leaning on her now. “I need an answer from you. Could you condemn this man to death?”

  “But—” The poor woman was beginning to sound desperate. “I haven’t even heard the evidence yet.”

  “Mrs. Skaggs, we’re not asking you to determine if he is in fact guilty. But assuming that the evidence later proves that the defendant is guilty, could you render the death penalty? Could you sentence this man to death as required by the laws of this state?”