by Paul Levine
Sometimes prospective jurors are nervous. Just this morning, a member of the panel sought to be excused from our case. "My wife is about to become pregnant," he told the judge.
"I think he means she's about to deliver," I said.
"You're excused," Judge Stanger said. "Either way, you should be there."
Of course, we don't really select jurors. We try to eliminate those we don't want. Once, in a civil case, I ran out of peremptory challenges and couldn't evict a young guy with a Fu Manchu mustache who glared at me all through voir dire. He cleaned septic tanks for a living, which was the only thing we had in common. Whenever I looked at him, he cupped his chin in his hand with the middle finger extended. For a week, every time I glanced at the jury box, there he was in a work shirt emblazoned WE'RE THANKFUL FOR YOUR TANKFUL, shooting me the bird. When the jury came back in and he stood up as foreman, I started planning my appellate brief. But then the jury ruled for us, and when I shook his hand on the way out of the courtroom, I noticed the finger was frozen stiff. A construction accident, he said, when he caught me looking down at his hand. Things are not always as they seem, or, as Doc Riggs say, non semper something or other.
So now, with Chrissy sitting next to me, appearing demure and nonlethal, I looked at the panel of several dozen prospective jurors. It was the usual collection of schoolteachers, government workers, Miami Herald pressmen, American Airlines mechanics, housewives, and retirees, with an occasional college student thrown in. I've had juries with a lobster pot poacher, a nipple ring designer, a santero who chanted prayers to Babalu Aye during recess, and a cross-dressing doorman from a South Beach club, so today's group looked pretty normal.
I went through the motions of asking personal questions that I assured the panel were not meant to embarrass them. After determining that nearly everyone had been the victim of a crime but very few admitted to seeing a psychiatrist, I started paying attention to body language, or kinesics, as Dr. Weiner calls it.
I watched for hands clasped in tension or arms crossed, closing me out. I watched for crossed ankles and hands squeezing the chair in a death grip. At the same time, I paid attention to my own gestures. "Keep your palms open and friendly," Dr. Weiner always reminded me. "Watch your proxemics, your space usage. You're too tall to get close to the rail. Your vertical power will intimidate the jurors. And don't put your hands on your hips. Taking up too much horizontal space is simply too authoritarian."
Thanks a lot. Before hiring the ponytailed, tinted-lensed Dr. Les Weiner, I was content just to know my fly was zipped up.
So I did my friendly big-guy act, not getting too close, not taking up too much space, smiling, shucking and jiving, and trying to find six honest, sympathetic souls who would hear us out, whatever we might have to say. In the front row of the gallery, Marvin the Maven sat impassively, frowning at me whenever I leaned over to talk to my expensive hired gun. As I questioned the jurors, Dr. Weiner took notes when he wasn't thumbing through the latest yachting catalog. He kept his trawler, a forty-two-foot Krogen named The Pleasure Principle, docked at Dinner Key Marina in what he called his Freudian slip. The Krogen is a lot like me, a widebody that is slow but steady in rough seas and high winds. It is finished in rich teak and impresses the doc's women companions, who tend to be young, blond, and susceptible to strong margaritas and salty breezes.
It took all day to seat a jury. Then Judge Stanger gave the group his spiel, telling them not to talk about the case with each other or anyone else. They all nodded knowingly. They'd seen it all on TV a thousand times. In our courthouse, we call it Ito-izing the jury.
I stood and bowed slightly, trying to make eye contact, as the jurors filed out of the courtroom. I would do the same at every recess and adjournment until the trial was over. Some looked at me and some didn't.
Then I took Chrissy Bernhardt by the arm and steered her out of the courtroom. I needed a drink, a good night's sleep, and a trial strategy, and at the moment I would have taken two out of three.
22
Chrissy, Chrissy, Chrissy
First thing in the morning, Judge Stanger gave his preliminary instructions, and the jurors leaned forward, listening intently. They're like that at the beginning. On edge, wanting to do their duty. As the surroundings become more familiar, as the lawyers wear out their welcome with repetitious questions and obstreperous objections, jurors kick back and daydream or doze. Sometimes I imagine them as cartoon characters, scenes of bass fishing or sexual liaisons filling little bubbles over their heads. Why not? That's what occupies my mind when Abe Socolow is strutting in front of the jury box or the judge is endlessly repeating his admonitions.
"The indictment is not evidence," Judge Stanger said, "and should not be relied on by you as evidence of guilt."
He told the jurors that they were not permitted to infer guilt if the defendant didn't testify. It's a standard instruction, and many times I won't put a client on the stand, since most defendants will only muck it up. In one of my first trials as an assistant public defender, the prosecutor asked my client, "You say you're innocent, yet five people swore they saw you steal a watch."
"So what?" my saintly client said. "I can produce a hundred people who didn't see me steal it."
When your client remains silent, the prosecution isn't permitted to comment on the failure to testily, and the judge repeats his Fifth Amendment instruction after closing argument. Still, I wonder what the jurors think. Even if they don't discuss it, aren't they saying to themselves. If I was innocent, I'd sure as hell put my hand on the Good Book and tell the whole dang world?
The judge ordered the jurors not to speculate about why the lawyers make their objections and what the answers would have been if the objections had been overruled. So silly. Try not thinking of a pink elephant. Whoops, can't do it. He told them that opening statement was not evidence, but rather each lawyer's version of what the evidence would show. He advised them not to discuss the case with anyone, including their families, friends, and presumably their pets. And then Honest Abe got up to talk.
"This is a simple case," Abe Socolow said. "A man sits at the bar at the opening of a Miami Beach nightclub. His name is Harry Bernhardt, and he is minding his own business, enjoying the fruits of his labors. Harry is a hardworking man who has accomplished much with his life but has so much more to do. As he sips his drink, Harry has no idea it will be the last beverage he ever consumes."
A little B-movie dialogue, I thought, and not strictly accurate if you count the Ringer's lactate IV at the hospital.
"Now, picture this, if you will," Abe continued. "A young woman enters the club, and in front of dozens of witnesses pulls a gun from her Versace handbag."
Versace. Abe's way of saying "spoiled rich bitch."
"And as Harry sits there, here comes this woman with the gun, walking toward him."
Harry. Humanizing the victim. Making the jurors hold their breath, waiting as Abe cuts back and forth cinematically between villain and victim.
"The woman aims the gun at Harry, a Beretta 950, which was hidden in her handbag. Hidden from the security guard outside, hidden from Harry, hidden from the world, so that she could carry out this premeditated assassination. Harry has had no time to put his affairs in order, to say good-bye to friends and loved ones. He has not lived his three score and ten, and no voice has asked him, as Job was asked, 'Hast thou seen the doors of the shadow of death?' "
Job? A reminder that the prosecution has God on its side.
"The woman, this woman sitting here . . ."
Abe approached the defense table and pointed, his index finger a foot from Chrissy Bernhardt's nose. She didn't blink. She just sat there in her three-piece Calvin Klein suit, a big-buttoned V-neck jacket in steel-blue crepe and matching skirt, and a gray washed-silk blouse.
"This woman, Christina Bernhardt, aimed the gun at Harry Bernhardt, her father, and with malice and premeditation, she pulled the trigger. Not once, not twice . . ."
Thrice?
". . . but three times. Bang! Bang! Bang!"
Two jurors winced at the sound effects. The others didn't, perhaps because Abe's perpetual sinusitis muffled the shots like a silencer on a barrel.
"Harry was rushed to Mount Sinai Hospital, where heroic measures were undertaken to save his life. But two hours after surgery, he suffered cardiac arrest and died, his death the proximate result of the shooting. Unlike most trials, in this one there is no doubt as to any of this. You will hear testimony of eyewitnesses who will state under oath that Christina Bernhardt did, in fact, shoot her father. You will hear the testimony of the paramedic, the surgeon, a treating nurse, and the assistant medical examiner. You will hear that the cardiac arrest suffered by Harry Bernhardt was inextricably linked to and caused by the shooting, and therefore you will be compelled to find that Christina Bernhardt killed her father, and that she is guilty of murder in the first degree."
Abe went on for a while, advising the jury to pay keen attention to the witnesses, to follow all of Judge Stanger's instructions, and to listen carefully to Mr. Lassiter when he stood up for his opening statement. By raising his eyebrows and his voice just a bit, Abe made "carefully" sound like "skeptically." He thanked the good folks for their time, told them he'd move the case along quickly—implying that any delays were my fault—then sat down with a warm and gracious smile.
I stood and bowed slightly toward the judge. Behind me, I heard a press camera click, the sound not quite deadened despite the elaborate apparatus designed to silence it. The courtroom door creaked open, then banged shut. Shoes squealed on the tile floor, and someone in the first row coughed. I heard it all, just as I'd always heard the few cheers and many boos that greeted me in the stadium.
"May it please the court," I began, paying homage to five hundred years of English common law. Then I turned toward the jury. "Yesterday, I asked each of you if you would wait until all the evidence is in before making up your minds as to whether the state has proved its case beyond a reasonable doubt. You all said yes."
Jurors are an honest bunch. Remind them of their promises.
"That is important in every case, but crucial here, for this is not a simple case, though certain facts are undisputed. Chrissy Bernhardt did shoot her father, who did die later that night. But there will be issues as to Chrissy's intent and her mental state, issues that Mr. Socolow did not discuss with you."
And I won't either. Not in any detail anyway, because I still don't know what the hell to say.
"These issues are important because you cannot find Chrissy guilty of first-degree murder without finding that she had the specific intent to kill, and that she formed that intent before acting and had that intent when she did act."
"Objection, Your Honor." Socolow got to his feet. "Opening statement is no place to argue the law."
"I'm not arguing, Your Honor," I replied. "I'm just previewing a jury instruction."
"Overruled as long as the law is not misstated. But, Mr. Lassiter, the function of opening is to discuss the evidence, so move it along. I'm quite capable of telling the jurors the law at the appropriate time."
I decided to walk the fine line the judge drew for me. "When all the evidence is in, Judge Stanger will instruct you on the law. He will read you the legal definition of first-degree murder, and you will apply that legal standard to the evidence. The judge will tell you that to find Chrissy Bernhardt guilty, you must find that she killed her father with premeditation. And then the judge will define that term. 'Killing with premeditation is killing after consciously deciding to do so.' I suggest to you now that the evidence will show that my client did not consciously form such an intent."
The jurors looked puzzled. Who could blame them? I sounded like a hairsplitting pettifogger. Better to play to my strength, my beautiful and presumably innocent client.
"You will learn much about Chrissy Bernhardt in the course of this trial. You will learn about her upbringing and about her invalid mother, about why Chrissy left home as a teenager, refusing to ask her father for support, even refusing to tell him where she was."
Chrissy, Chrissy, Chrissy. Making her sound like a child, even now.
"You will learn that there are two victims of this tragic incident."
Making it sound like an accident.
I moved close to the jury box and gave its occupants my sincere look. "This is a hallowed proceeding, the ultimate in our democracy." I turned and rested a hand on the back of the witness chair. "Here, truth and nothing but the truth is acceptable. Nothing less than complete, unvarnished, untainted truth should be acceptable to you. If lies, fabrications, and falsehoods come from this chair, this throne of truth, if any doubts are raised as to the guilt of Chrissy Bernhardt, you must acquit."
If the glove doesn't fit . . .
"Objection," Socolow said. "This isn't closing argument."
The judge waved him off without a word. I seldom object during opening statement or closing argument. In my old game, when you throw the ball, three things can happen, two of them bad. Same thing here. Object during opening, the judge is likely to overrule you or ignore you.
I rambled on for a while, telling the jurors I was their taxi driver, and we were going to take a trip of discovery, learning the facts as we went. But it was a bumpy road filled with potholes and dangerous curves. I spoke in vague terms, hinting at the sexual abuse without saying it. I never mentioned Dr. Lawrence Schein by name, but as I stood there, skimming my notes, watching for jurors' eye contact, occasionally scanning the gallery where crime reporter Britt Montero was taking notes, it occurred to me that I didn't have a choice. I had to put Schein on the stand. He had become the enemy. He could cast doubt on the memories he had uncovered, hurt us with the tape that showed premeditation, and toss out any number of lies I wouldn't be prepared for. But I didn't have anything else. If I could prove he'd had a motive to kill Harry Bernhardt, I could put the gun in his hands. To have a chance, I had to destroy him. Anything less, and he would destroy us.
23
Javert and Finch
A good prosecutor is a careful carpenter building a bookshelf. He saws a sure cut, hammers the nails straight, and hangs the shelves in plumb. Nothing fancy. The goal is to build the case slowly, competently. No razzle, no dazzle. No missing pieces.
A good prosecutor does not ask questions without knowing the likely answers. He does not ask a defendant to try on a pair of gloves that may not fit. He is a solid fullback, not a dipsy-doo wide receiver. The path to the end zone is a straight line if you don't fumble.
Abe Socolow is a master of his craft. His strength is his burning desire to win. He is fueled by a righteous indignation toward those miscreants who dare violate the law, and he takes seriously his role as representative of the people.
As a career prosecutor, Abe is not looking for a cushy job in private practice or an appointment to the bench. He wants to do what he always has done: get in early, work like hell, eat a brown-bag lunch, work some more, and, by the end of the day, ship another criminal upstate.
Abe sees the world in stark contrasts. Good and evil are painted in white and black, to hell with shades of gray. A defendant had a shitty childhood. Tell it to the prison chaplain. Drugs made you a robber or a rapist. Fine, we've got the cure, and it's not hugs and therapy. When the law has been broken, justice demands a penalty. It's as simple as that, and most folks in this great land of ours would agree.
Even me. Unless I'm representing the lawbreaker. Then my duty is different. It's not to society as a whole, or to the victims, or to abstract notions of justice. My loyalty belongs solely to my client, and I'll ford the deep rivers where the current is swift if it will save the poor soul whose fate is entrusted to me.
So our roles are clearly defined, Abe's and mine. From my days as a drama student and woeful actor, I sometimes cast friends and foes in various productions. If you were casting Les Miz, Abe Socolow would be a perfect Javert, the relentless arm of retributive justice. And me?
/> All defense lawyers see themselves as Atticus Finch, standing tall before a jury, pleading for—no, demanding—justice. But few of us look like or sound like Gregory Peck, and our clients are hardly virtuous, so there is little social utility in beating the rap. It's an ethical conundrum, this duty to the individual that conflicts with the rights of society. Do your job well enough and you've returned a killer, rapist, or robber to his chosen line of work. Fail, and you've done society a favor.
On direct examination, Abe Socolow stayed out of the way. He stood at the end of the jury box and asked his questions simply and directly. His witnesses were well prepared, concise, and matter-of-fact. Johnny Fiore, the bartender at Paranoia, used to work at the Delano Hotel, just up the street. He was a short, muscular man in his late twenties with a buzz cut and a black silk shirt decorated with mermaids. Fiore had recognized Harry Bernhardt from the lobby bar of the Delano, where he'd been a regular, and they chatted this last night while Harry drank. Harry had asked him the time twice, even while checking and double-checking his Rolex.
"Did Mr. Bernhardt appear to be waiting for someone?" Socolow asked.
"Objection!" I was on my feet. "Mr. Bernhardt might have been waiting for the eleven o'clock news. He could have been late for an appointment elsewhere. He could have needed to know when to take his heart medicine."
"Mr. Lassiter!" The judge shot me a look that could have left bruises. Chrissy passed me a note saying that her daddy had never taken heart medication, but I knew that. "Please refrain from speaking objections," the judge ordered. " 'Objection, leading' will do nicely. 'Objection, calls for speculation' wouldn't be bad either."
