Absolute Certainty

by Rose Connors

  I pause here and walk slowly back to the jury box, deliberately making eye contact with every juror. Each one returns my look with a level gaze. This is good. Jurors who look the prosecutor in the eye at the end of a case are generally inclined to convict. I lower my voice again.

  “The defense attorney would like you to believe that this defendant is guilty only of theft from a corpse. Revolting, perhaps, but certainly not first-degree murder. The defense has argued that some depraved third party must have killed Michael Scott; that Michael was already dead when this defendant happened upon him; that this defendant did nothing more than help himself to the spoils.”

  The defense attorney is Harry Madigan, a man I know well and admire. He was two classes ahead of me in law school, and he has been with the Barnstable County Public Defender’s office his entire career. He is a worthy opponent, always thoroughly prepared and quick on his feet. Harry routinely gives each client a better defense than most highly paid attorneys in private practice could muster. He didn’t have much to work with this time. Given Rodriguez’s lengthy record, Harry couldn’t even put his client on the witness stand.

  I raise my voice again.

  “But this defendant’s argument doesn’t work, people. It doesn’t work because it defies our common sense. Look at the evidence. Michael Scott’s killer was left-handed; this defendant is left-handed. Michael Scott’s killer was wearing Viking fish boots, size ten; this defendant—arrested just hours after the murder—was wearing Viking fish boots, size ten. Michael Scott’s throat was slit with a fine blade made of high-carbon steel, just like the blade of a Dexter Ripper; this defendant had access to those knives any day he showed up for work. Michael’s blood was on this defendant’s shirt, a shirt he rolled into a ball and hid in the trunk of his car. Michael’s tips and wristwatch were in his pockets.”

  I lean on the railing of the jury box and look at each of them. I lower my voice yet again to just above a whisper. I am pleased when three jurors in the back row lean forward to listen.

  “Common sense, people. When Judge Carroll gives you his instructions, he will tell you that you are not to leave your good judgment outside the courtroom door. He will tell you that your good judgment is one of the main reasons you were chosen to sit on this jury. He will tell you that we’re all counting on you to use that good judgment now.

  “I never met Michael Scott, people. And I never will. You will never meet him either. And yet it is your job to speak for him. By your verdict, you must do for him what he can no longer do for himself. Speak.

  “The word verdict comes from the Latin—veritas dictum, which means ‘speak the truth.’ Do it, people. Speak the truth.”

  CHAPTER 4

  Friday, May 28

  “What the hell do they need, a videotape of the crime in progress? What’s taking so long?”

  Geraldine has been in and out of my office all morning. Now she’s followed me into the lunchroom. The jury has been out almost two full days—longer than any of us had expected—and Geraldine is a wreck. The rule of thumb among criminal law practitioners is that the longer a jury is out, the less likely it is to convict.

  I pour a cup of coffee and sink into the nearest old wooden chair. “Relax, Geraldine. We gave them a lot of evidence. It took a week. These are conscientious jurors; they’ll look at all of it before they come back.”

  Telling Geraldine to relax is like telling a pit bull to act like a golden retriever. The truth is, though, I am anything but relaxed myself. Few creatures on the planet are so tortured as the lawyer awaiting a verdict after a murder trial, and I am no exception. Help less to do anything further for the Scott family, I’ve been equally unable to focus on any other task since Wednesday.

  The waiting is not made any easier, of course, by Geraldine’s constant hounding. She flicks her cigarette ashes into the sink and focuses those green eyes of hers on the wall clock. “Conscientious jurors, huh? We’ll see how damned conscientious they are in a couple of hours.”

  Geraldine is referring to a phenomenon well documented by trial attorneys throughout the country. Deliberating jurors, even those who appear sharply divided, have a remarkable ability to resolve their differences when Friday afternoon rolls around. Cape Cod attorneys take this maxim one step further. The verdict will be in by three o’clock, they say, if it’s Friday before a summer holiday weekend.

  It’s one o’clock on Friday before Memorial Day. Geraldine expects this verdict within two hours.

  I loathe the idea of jurors compromising their convictions to safeguard the leisure of a long weekend, but I won’t argue about it with Geraldine. I learned years ago that her jaded view of the jury system is not something I can fix. I’m spared the need to respond when the Kydd leans into the lunchroom.

  “Marty, Wanda called. The jury is ready to come back, but not with a verdict. They’ve sent word with Charlie that they’re hopelessly deadlocked.”

  CHAPTER 5

  Our offices are on the first floor of the District Courthouse. I head out as soon as the Kydd delivers his message, though I know that means I’ll arrive in the Superior Courtroom too soon. Harry Madigan’s office is ten minutes away, and Judge Carroll doesn’t take the bench for any hearing until both sides are present. The truth is I look forward to the short wait. I love being in the Superior Courtroom alone.

  The Barnstable County Complex consists of four buildings arranged rectangularly. The Probate Court and the District Court make up the short sides of the rectangle. One of the long sides is bordered by a tall chain-link fence topped with electrified barbed wire, beyond which looms the redbrick Barnstable County House of Correction. There are more than a few residents of that facility who would give their right arms for five minutes alone with me.

  Directly across from the jail is the back entrance to the Superior Courthouse, but I spend the extra couple of minutes to walk in the sunshine out to Main Street in Barnstable Village. I approach the courthouse from the front, and the view is impressive. It’s an imposing Greek Revival structure, almost two hundred years old, listed on the National Register of Historic Places. The original gray granite building has undergone five major alterations since its construction, but it still has only one courtroom. The rest of the building is devoted to office space, meeting rooms, and document storage.

  Two large cannons rest on the front lawn of the Superior Courthouse. They were dragged here from Boston by oxen after the War of 1812. Behind the cannons, four grand pillars frame the imposing front entrance. Few people realize that the pillars, though massive and solid-looking, are actually hollow.

  The solitary courtroom is on the second floor, and it’s empty when I arrive, just as expected. It’s not a very large room, but it is stately. The judge’s bench, jury box, witness stand, counsel tables, and spectator pews are all made of highly polished mahogany. Behind the raised judge’s bench are floor-to-ceiling bookcases, also mahogany, lined with hardbound volumes of Massachusetts case law. Behind the jury box hangs a large pendulum clock in a glass case. Framed portraits of retired judges—most of them bearded—line the walls.

  The lower half of every wall is covered with mahogany wainscoting; the upper half is painted a deep ivory. Each sidewall contains six rectangular windows which extend to the full height of the two-story room, admitting a flood of natural light through sheer, cream-colored curtains. Additional light is provided by four elaborate chandeliers. The thick wall-to-wall carpeting weaves ivory, maroon, and hunter green hues in a floral design.

  In the back of the room there is a small loft for those rare cases, like this one, which draw overflow crowds. Behind the mahogany dowels of the loft’s banister are two elongated deacon’s benches for additional seating.

  During the courtroom’s most recent renovation, a suspended ceiling was removed, and the room’s original dome was revealed and preserved. A circular plaster frieze in the center of the ceiling was restored. Delicate stenciling around the perimeter of the frieze was enhanced. And there, su
spended from the middle of the frieze, from the pinnacle of the room, was a large tin codfish—the official symbol of the Commonwealth of Massachusetts. The codfish was refurbished in painstaking detail, then returned to its prominent spot overlooking all of the proceedings in Superior Court.

  At times like this, when I am alone in here, I remember why I chose this profession, why I turned my back on higher-paying jobs with private law firms. Even now, after more than a decade of prosecuting, I believe in what I do. I am proud to represent the Commonwealth against thugs like Rodriguez. I am eager to serve as a surrogate for those whose voices have been wrongly silenced. I am honored to champion the causes of families like the Scotts.

  The Scotts surprise me when they walk through the courtroom’s back door. They would have been notified, of course, if the jury were returning with a final decision. But a jury’s initial report that it’s deadlocked is almost never treated as final, particularly when Judge Herbert Carroll presides. Wanda would not have summoned them from their hotel for this hearing. They must be spending their days in the courthouse hallway, waiting.

  They move toward me as a group, as if the physical proximity to one another is all that holds each of them upright. I see by their alarmed expressions that someone—probably Charlie—told them the jury is deadlocked.

  The middle Scott boy—now the oldest, I realize as they walk toward me—is sixteen, same as my son, Luke. I’ve grown to admire this young man during the course of the trial. He is protective toward his parents and younger brother, concerned with their grief as they relive the nightmare, somehow managing his own. I’m not surprised when he is the first of them to speak.

  “Do they think that creep didn’t do it? Are they saying he didn’t do all that to Mike?”

  His raspy voice is angry and the tears in his eyes are about to spill over. In another setting, I would hug him. Instead, I pat his arm and direct my comments to all of them.

  “No, that’s not what they’re saying. They’re telling us they’re worried that they won’t be able to agree on a verdict. Some of them think he’s guilty and some of them—we don’t know how many— aren’t sure.”

  Mr. Scott finds his voice. “So what happens now?”

  “Legal argument,” I tell him. “I’ll ask the judge to instruct the jury to go back and try again. Attorney Madigan will argue that this is a hung jury, that the judge should declare a mistrial and send the jurors home.”

  The Scotts nod at me and move silently into their regular front row spot. They are numb.

  I could spare them this anxiety. I could tell them—truthfully—that the legal argument they are about to hear is a mere formality, a technical device employed only to allow the defense lawyer to preserve this issue for appeal. I could tell them that Harry Madigan and I both know he will lose this argument, that Judge Carroll always gives the “go back and try again” instruction. I could tell them that the instruction Judge Carroll will give is known as the “dynamite charge” among members of the bar because it almost always jolts a stagnant jury into reaching a verdict.

  I could tell them all of that—just as I could have told dozens of nervous families before them—but I won’t. I won’t for the same rea sons a devoted daughter won’t divulge her family’s secrets to the neighbors.

  The criminal justice system shouldn’t work this way. Reasonable doubt is a slippery concept. Some part of me has always agreed with Harry Madigan’s contention that a deadlocked jury is reasonable doubt personified. At the very least, Harry’s argument should be analyzed and considered seriously.

  But Judge Carroll is sixty-eight years old, just two years away from mandatory retirement. He has been on the bench for twenty-two years. He is weary. He is kind and patient with witnesses and jurors, but just plain tired of lawyers and arguments.

  Harry rushes in and remains standing—tapping one foot—in front of the defense table. I like everything about Harry, but the thing I like best is his persistence. Through every case—through every argument, even—Harry nurtures an eternal, stubborn hope that Judge Carroll will actually listen to him.

  The judge takes the bench and adjusts his glasses before he looks down at us. His eyes say, “I’ve heard it all before.”

  CHAPTER 6

  Harry isn’t actually shouting at Judge Carroll as he wraps up his argument, but he’s dangerously close.

  “This trial is over, Judge. These jurors can’t agree, and they have an absolute right to disagree. What we have here is reasonable doubt, Judge, plain and simple. This court should declare a mistrial and send them all home.”

  Judge Carroll barely looks up from his bench. “Thank you, Mr. Madigan. Ms. Nickerson?”

  “Your Honor, my Brother is correct in saying that the jurors have a right to disagree. They do. But the Supreme Judicial Court has held in dozens of cases that giving the dynamite charge doesn’t deprive them of that right.”

  I cite all the pertinent decisions, knowing very well that Judge Carroll is signing orders in other cases as I speak. When I finish, it takes a full minute for him to realize I’ve stopped talking. He looks up abruptly, startled by the silence, and a lock of thin gray hair falls over the left lens of his frameless bifocals.

  “Thank you, Ms. Nickerson. And you as well, Mr. Madigan. The court thanks both attorneys for their presentations. Now, having considered the arguments, I intend to give these jurors my standard dynamite charge. You’ve both seen it before. Mr. Madigan, should the court reporter note your usual objections?”

  “Yes, Judge,” Harry sighs.

  Judge Carroll nods to the stenographer, who has all of Harry’s objections to this instruction on record. The Court of Appeals has upheld Judge Carroll’s dynamite charge over Harry’s objections in a half-dozen cases. The judge nods again, this time to Charlie, who hurries out the side door and returns moments later with the jurors.

  The holdouts are easily identified. Juror number six, a retired English teacher, and juror number ten, a young hairstylist, are both in tears. Both women stare at the floor with swollen eyes and red faces, their makeup smudged. A few of the men look furious. And every one of these jurors wears the tortured expression of turmoil.

  Harry is craning forward over the defense table, trying to make eye contact with the two holdouts, hoping to give them a nod of encouragement, I presume. But neither woman so much as lifts her sore eyes from the floor.

  Judge Carroll, speaking slowly and deliberately, gives them the dynamite:

  “Ladies and gentlemen of the jury. In a large number of cases, and perhaps strictly speaking in all cases, absolute certainty cannot be attained, nor can it be expected. The verdict to which a juror agrees must, of course, be his or her own verdict, the result of his or her own convictions, and not a mere acquiescence in the conclusions of fellow jurors. Yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with the proper regard and deference to the opinions of each other.”

  One of the men in front turns completely around in his chair to stare accusingly at the red-eyed hairdresser. Apparently, he doesn’t feel the young woman showed the proper regard and deference toward his opinion.

  “You should consider that you are selected in the same manner and from the same pool as any future jury must be selected. There is no reason to suppose that this case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it. There is also no reason to suppose that more or clearer evidence will be produced on one side or the other. With these considerations in mind, it is your duty to decide the case, if you can do so without violence to your individual judgment.”

  Harry wheels his chair around to face the panel. He does this every time. It’s his way of adding emphasis to the judge’s last phrase. And it’s the first of many silent messages Harry will attempt to send to the jury during the dynamite charge.

  Harry’s little one-man show has never had an impact on any jury, as far as
I can tell. But it always annoys Judge Carroll. The judge pauses just long enough to fire a cautionary stare in Harry’s direction. Harry ignores him. The judge continues.

  “In the event you cannot so decide, a jury has a right to fail to agree. In order to make a decision more practical, the law imposes a burden of proof on one party or the other in all cases. The high burden of proof which must be sustained by the prosecution has not changed. In this case the burden of proof is on the Commonwealth to establish each and every element of the offense beyond a reasonable doubt. And if with respect to any single element you are left in reasonable doubt, the defendant is entitled to the benefit of that doubt and must be acquitted.”

  Harry is nodding now, his elbows on the table, his chin on his hands. This judge is a wise man, his expression telegraphs. We should all listen to him.

  “But in conferring together you ought to pay proper respect to each other’s opinions and you ought to listen with a disposition to being convinced of each other’s arguments. When there is disagreement, each juror favoring acquittal should consider whether a doubt in his or her own mind is a reasonable one when it makes no impression upon the minds of the other equally honest and equally intelligent jurors.”

  Harry scowls at the panel now. No juror favoring acquittal should do any such thing.

  “All of you heard the same evidence and gave it the same degree of attention. All of you are deliberating under sanction of the same oath. All of you are charged with the same duty to arrive at the truth.

  “On the other hand, jurors favoring conviction ought seriously to ask themselves whether they should doubt the correctness of a judgment which is not concurred in by others on this panel. Reexamine the weight and sufficiency of that evidence which fails to carry conviction in the minds of your fellow jurors.”