In the legal world, there was a saying—tough cases make for bad law. Similarly, ridiculously high-profile incidents like the OJ case made for bad examples. They were too atypical be instructive for any remotely normal case. “You think these jurors will want to punish the prosecutors because law enforcement has harassed people of color?”
“We can hope. Does your client feel he has been harassed by cops based upon his color?”
“Yes. To be fair, he was fleeing arrest.”
Fisk raised a hand to stop him. “Never mind that. Use it.”
“I don’t want to play the race card unless I think race actually has something to do with it.”
“Do you want to win the case?”
“Well, of course I want to—”
“Use it.”
“The jury should make its decision based upon the evidence, not—”
“You hired me to help, so I will. If the jury makes a decision based on the evidence, you’re toast. You need to muddy the water with everything you can. Like race. Like hostility toward law enforcement. Make them believe this is a massive frame. The cops can’t stand the thought of a black punk getting rich, so they tried to make sure he wouldn’t inherit. And that should be your go-to theory for jury selection. Keep everyone of color. Keep everyone who appears to suspect cops, or prosecutors, or the justice system.”
“People who don’t believe in the justice system are routinely removed.”
“Only if they admit it. You need to find the people who don’t admit it because they’re hoping to throw a wrench in the works. And while you’re at it, keep everyone who hates rich people.”
“I’m not sure that’s even a thing.”
“Are you joking? Have you not seen the t-shirts around town? ‘Kill the rich.’ Have you not noticed the growing trend toward socialism? Some people deeply resent anyone who has more than they do—even people like Zachary Coleman, who worked his way up from nothing. In fact, sometimes that’s worse—because theoretically anyone could have done it. Rather than admit they didn’t have the right stuff or do the work, some prefer to blame the system and resent successful people.”
“I don’t see how this helps us.”
“We live in the era of the greatest wealth disparity in history. The upper 1% have more wealth than the lower 90%. When you’re struggling to pay the bills, there’s nothing worse than hearing about some tech billionaire who just bought an island.”
“I still don’t see—”
“The prosecution is planning to tell the jury it’s all about the money, right? I read Maria’s strategy notebook. It’s all relatives squabbling over a huge inheritance?”
“Sort of...”
“Great. That plays well into the ‘kill the rich’ sentiment. Make your client the underdog. He suffered in poverty and degradation for fourteen years, and then when he’s finally about to come into his own, the family tries to stop him, aided by the bigoted white law enforcement community. Make the other relatives your super-villains.”
“Wait,” Ossie said. “I don’t like that.”
He turned his head. He didn’t even realize Ossie was listening to this.
“My grandfather is sick and fragile. He doesn’t need—”
Fisk completely ignored him, as if his opinion were of no import, or worse, as if he weren’t even there. “You also want to remove any self-made successes, not that you’ll get many, and anyone with money, not that you’ll get many. You might see some doctors’ wives. Society matrons.”
“So basically, we want an all-poor, all-black jury.”
“You won’t get anything that perfect. But if you get a majority of desirable jurors, or even a plurality, you’ll be in good shape. For that matter”—he tilted his head to one side—“it only takes one determined juror to hang the jury.”
“I don’t want a hung jury,” Ossie said. “I don’t want to do this all over again a year later.”
“A hung jury is better than a conviction.”
Dan spotted the bailiff holding a bowl full of names. They needed to wrap this up. He didn’t like being the old fogey who objected to new ideas, but he thought this jury consultant was a waste of time. He was far more likely to trust his own observations and instincts than to listen to this amalgamation of clichés.
And his back was killing him. Sitting in one place too long reminded him that he had two broken ribs that hadn’t healed. But he didn’t say anything. Let them think his discomfort was just because he didn’t agree with Fisk.
He noticed Maria watching him closely. He thought she was about to speak, but Fisk cut her off.
“What is your theory of jury selection, Mr. Pike?”
He shrugged. “The prosecution wants soldiers. People who will overlook the flaws in the case and do their patriotic duty. The defense wants thinkers. Because if you take seriously the requirement of finding guilt beyond a reasonable doubt, almost no prosecution case meets the standard.”
Fisk made a tsking sound. “I think you may have made the tragic error of starting to believe your own BS.”
His back stiffened.
“Listen to me, Pike. The defense does not want thinkers. You get a jury full of thinkers and you’re dead in the water. Maybe you haven’t read the forensic reports and witness affidavits, but I have.” He glanced at Ossie. “No disrespect intended. But ninety-nine juries out of a hundred would convict on this evidence. And this jury will too unless you start getting way smarter about the process. Jury selection may be the most important thing you do.”
“Of course, you would say that, since you’re getting paid a small fortune to advise on jury selection.”
“Yes, I advise,” Fisk said, folding his arms across his chest. “But I do not, unfortunately, have the power to make people listen.”
Chapter 33
Typically, the judge asked the jurors a few preliminary questions before turning them over to the lawyers. But it became readily apparent that Judge Smulders had no questions other than those written out for him on a piece of paper he clutched in his hands. Bertha to the rescue again? This forced Kilpatrick, because the prosecutor went first, to kill a lot of time asking the obvious. Do you know any of the people involved? Have you already formed an opinion on the case? Do you believe in the justice system? Are you capable of delivering a death sentence, if you feel the evidence warrants it?
Kilpatrick worked through the obvious dutifully, and Dan didn’t want to make it any slower or more tedious than it already was, so he made no objections. At Fisk’s recommendation, he removed a few jurors early, and neither Kilpatrick nor the judge posed an objection. He was impressed by what an even-handed job Kilpatrick did, never taking advantage of his lead. Until one of the man’s questions made him feel distinctly uncomfortable.
“Does anyone have problems with defense attorneys?” Kilpatrick looked at them with a wide-eyed smile, as if they were all in on the same joke. “I know you said you were okay with the justice system. But that doesn’t always extend to lawyers. You know the clichés. They’re all crooked. Will say or do anything for a buck. Put crooks back on the street. Anyone feel like that?”
Kilpatrick hadn’t said anything quite meriting an objection—yet. Was he trying to suggest that he wasn’t a nasty old lawyer—but Dan was?
A well-dressed, middle-aged white woman in the middle of the back row raised her hand. “Are you talking about that man back there? The one in the fancy suit? I think I know him.”
Kilpatrick gave her a straight-faced reply. “That’s Daniel Pike. He represents the man accused of murder. How do you know him?”
“I’ve seen him on tv. He represented the mayor when she was accused of murder.”
“How did you feel about that?”
She seemed hesitant. “Well...I never voted for the woman.”
Dan made a mental note. He didn’t need Fisk to tell him that woman got his next peremptory removal.
“Did you have an opinion as to her innocence or guilt?”
Ok, this was irritating, if only because it reinforced what Fisk had been saying.
“Do you have negative thoughts toward Mr. Pike because he represented the mayor?”
“I’m...sure he was just doing his job. And making lots of money in the process.”
The worst possible answer. If she had answered the question in the affirmative, he could remove her immediately for cause. But instead, she denied having a grudge—which meant he’d have to use one of his limited peremptory challenges.
Kilpatrick continued. “We shouldn’t resent Mr. Pike because he makes a lot of money and can afford fancy suits.” This was why Kilpatrick wore a lame suit. He anticipated how Dan would dress—and countered it. He was the regular guy. Dan was the slick shyster.
It was never pleasant, realizing you were wrong. But Maria had been correct about the importance of courtroom attire. And Fisk had been right about the threat posed by this prosecutor.
“For that matter,” Kilpatrick continued, “they’ve dressed the defendant up in fancy duds that I’m sure he doesn’t own, but don’t hold that against the man. Your decision must be based upon the evidence. Ma’am, can you set aside your feelings about the attorneys and make a decision based upon the evidence?”
“Sure,” she said. “I just wanted to be honest.”
“And we appreciate that. New question. There’s some controversy about exactly who the defendant is. Does anyone feel they won’t be able to treat him fairly because the court is calling him John Doe?”
* * *
Dan didn’t get his shot at the jury until well in the afternoon, and by that time, they were tired. He knew if he went on too long it would only result in irritation, and he didn’t need to get on their wrong side before the trial began. He had chatted with not only Fisk but Maria and Jimmy, so he felt like he had the consensus opinion on which jurors needed to be removed.
There were a few more questions to ask before they ended the examinations. For the most part they went smoothly and without difficulty. Until they didn’t.
“As you may already know, this case involves a great deal of money. Almost a billion dollars. More money than most people are ever going to see. More moolah than most of us can even conceive of. Some of the players in this drama are extremely rich. Will you hold that against them?”
At first, no one took the bait. Finally, a small man on the left side of the back row raised his hand. Mr. Bailey, he recalled.
“I wouldn’t hold it against them exactly.” He thought a moment. “But I know whenever there’s money to be had, some people do crazy things.”
“And...what exactly do you mean by that?”
“I had a stepsister. Used to be nice. But when my mother died, she went off the deep end. Started saying all kinds of ugly things about me. Claiming I...did stuff. Course it was all because she wanted the money. I ended up giving her half my inheritance just to shut her up. And Mother didn’t leave that much money. Imagine if it had been a billion dollars. Some people would do anything for that kind of cash.”
“Your stepsister may have lied about you...but she didn’t try to kill you, right?”
Bailey looked supremely uncomfortable. “I wouldn’t put it past her. If she thought she could get away with it.”
“What about the rest of you? Do you agree?”
Another woman, Mrs. Kravitz, spoke. “Depends on the people. But when the circumstances are sketchy and you don’t really know who someone is anyway...it’s easy to think the worst.”
Like when a claimant appears out of nowhere after fourteen years? He was starting to worry that just hearing these theories spoken aloud would influence others. He was tempted to shut this down, but he needed to make sure there was no more serious prejudice lurking beneath the surface. “You wouldn’t criticize someone for fighting for what’s theirs. Would you?”
Back to Mr. Bailey. “When someone like my stepsister wants something badly enough, they start lying. Thinking they deserve more than they’re getting. Once they’ve convinced themselves they’re a wronged party, they can justify anything in their minds. Lying, cheating, scheming. Maybe even murder.”
“Agreed,” Mrs. Kravitz said.
“Anyone else feel the same way?”
No one admitted it. But they probably did. He would have to address both the civil and criminal claims in this trial. Because if they believe Ossie was lying—about his identity or anything else—it would be all too easy to believe he was a murderer.
Chapter 34
Dan was relieved that they managed to complete the juror selection, but since it took most of the day, the judge postponed opening statements to the following morning. He was grateful for the additional chance to strategize, incorporating what he learned about the jurors during the quizzing. He even practiced his opening a few times for his teammates.
As he entered the courtroom the next day, he spotted Zachary Coleman in the gallery, rolling about in his wheelchair. Benny and his wife Dolly were present, though he didn’t spot the other son, Phil. Why were they here? Sure, they didn’t think Ossie was really Ossie. But even if they didn’t want him to inherit, did that mean they wanted to see him executed?
Today, he wore a cheaper suit to court. Not as cheap as Kilpatrick’s. He didn’t want it to be obvious that he was reacting to what Kilpatrick said. And in truth, he didn’t own anything that cheap. But he toned it down a bit. From Zenga to Brooks Brothers.
He still used the cane, but the aching in his back had subsided somewhat. He thought about choosing a tie that matched the cane but decided that was taking coordination too far.
Prudence Hancock was in the courtroom. Scouting for Sweeney, no doubt.
While he contemplated where to go first, Prudence strode right up to him. “Good to see you again, Pike. Hate the suit.”
“Well...you know. Juries.”
“If you think you’re going to convince them you’re a man of the people, forget it. They’ve already got you pegged.”
“Meaning what?”
“Meaning you’re a highly compensated showboat and they know it. Might as well be who you are. At least that’s honest. Juries respect honesty. And they turn on anyone they think is putting on a show.”
He’d be more irritated if he didn’t know she was right.
“Dr. Sweeney instructed me to ask if you were okay.”
He tried not to sneer. “Tell him I’m fine.”
“You’re limping.”
“I’m fine.”
“And he wanted me to say that his offer still stands.”
“So does my complete disinterest.”
“Your funeral. I personally have my heart set on engaging in some extreme sports with you. I want to see what you’re really made of.”
Was this going where he thought it was going? “Maybe after the trial.”
“I understand you need time. But when you’re ready—I know a great place for heliskiing.”
One of the most dangerous extreme sports. But he didn’t doubt her. “I’ll keep that in mind. Excuse me—I need to get to work. Please give Sweeney my worst.”
He headed to the defense table. Ossie sat with Maria—and both looked worried.
“Top of the morning, Ossie.”
“Looks like you’re walking a little easier.”
“Yeah. Practically back to normal again. Hey, I’m sorry about that business with the consultant.”
“He thinks I’m guilty.”
True. “He’s concerned the jury will think you’re guilty. And he wants to make sure we do whatever we can to avoid that.”
“Everyone thinks I’m guilty. Do you see how my relatives glare at me?”
He did. “You’re probably imagining that.”
“I’m not. They hate me. My own family hates me.”
“Families are complicated. Once all legalities are smoothed out, things will change.”<
br />
“They will never accept me. Even if I win. I might get the money. But what’s the point of money when you don’t have family?”
Maria tried to comfort him. “They’ll come around, Ossie. It just takes time. But right now, we need your head in the game. Focus on the trial.”
He didn’t appear any happier, but he didn’t argue. “If you say so.”
A few minutes later, Judge Smulders called the court into session and asked for opening statements. Kilpatrick went first. He scrutinized the prosecutor carefully. He sensed that every move Kilpatrick made, every syllable he uttered, was carefully calibrated, possibly pre-tested, for maximum impact. He appeared to be wearing the same suit, with a different shirt and tie, and a rather potent aftershave. Not unpleasant, but noticeable.
“Ladies and gentlemen of the jury. Thank you for allowing me to speak to you this morning. I wish we were meeting under happier circumstances. My mother used to bring me out to St Pete during the summer when I was young. She was a teacher, so she always made the most of summer months. She loved to get out in the boat, ski and swim. Wonderful woman. This is sort of a homecoming for me.”
All completely irrelevant, of course, but he knew why Kilpatrick was saying it. He was acting more like a pal than a lawyer, trying to get the jury to warm up to him. His Southern accent helped. Seemed smooth and pretty, like a glass of bourbon, neat. Was it his imagination, or was Kilpatrick’s accent thicker when he spoke to the jury?
“Course I don’t know much about boats and watersports. I can’t afford to live on a boat and spend my money on daredevil sports like my worthy opponent.” He gestured toward the defense table. “Only thing I ever did with a kite was fly one at the park. But I do love this area. My momma taught me to love the water, and she’s always been the biggest influence on my life.”
Okay, if the man didn’t get to the case soon, he was objecting. The unsubtle digs were bad enough, but this ingratiating talk about his mother—to a jury that was predominantly female—was offensive.
Trial by Blood Page 18
