The One-Eyed Judge

by Ponsor, Michael;

  39

  The following Monday morning, Linda Ames, on three hours of sleep, sat at counsel table in Judge Norcross’s courtroom, waiting to commence jury selection in United States v. Cranmer. She felt totally alive. Even her fury at Sid for blowing the “Plea Bargain of the Century,” and embarrassing her in front of Judge Norcross in the process, had evaporated. This morning, she was going to trial—her favorite thing in life, next to Ethan—and every neuron in her body was firing.

  Part of the source of her energy spike may have been the French toast she’d had for breakfast—real Vermont maple syrup and lots of butter. No diets while on trial was her rule. The carbo-loading had the tips of her fingers tingling.

  Behind her, ninety or so randomly selected citizens of the four counties of western Massachusetts sat in the gallery, murmuring like bees, uncertain whether they’d be picked. Ruby Johnson, the courtroom deputy, had already diverted a dozen of them into the jury box for preliminary questioning when the judge came in, which would be any second. At least four of this first batch were giving Sid menacing looks, evidence that they’d seen the newspaper reports about the notorious local porn professor. One, an enormous Mafioso-looking guy, had been glaring at Sid, arms folded, for a steady three minutes. In the unlikely event that he made it onto the final panel, one of Ames’s ten peremptory strikes would definitely be going to knock this leg-breaker off.

  The headlong rush of preparation in the last twenty-four hours had been, as always, like going over Niagara Falls on a tea tray. The court’s electronic docketing system, which permitted attorneys to file motions any time of the day or night, allowed almost no letup. At one a.m. that morning, hoping Campanella would be asleep, Ames had made two last-minute filings: an emergency motion to postpone the trial and a motion to exclude certain evidence. At two a.m., Campanella had filed his oppositions, along with a motion of his own, probably thinking that she’d be in bed. At three a.m., she’d opposed his motion with a six-page memorandum. Life just didn’t get any better than this.

  To her chagrin, Judge Norcross had once more denied Ames’s motion to release the name of the confidential informant whose supposedly “reliable” information had provided the basis for the futile second search of Sid’s house. The judge had noted that the denial was still “without prejudice,” which meant she could resubmit the motion if she discovered new grounds. For now, he said, the sealed information was irrelevant, since no evidence against Sid had been uncovered at the second search. Ames had confidence she could come up with something new to justify resubmitting the motion, if only to jerk Campanella’s chain. Something was going on there. Campanella was trying way too hard to keep this information away from her.

  Ames placed her hand on Sid’s shoulder and spoke into his ear. “How you doing?”

  “I’m okay.” Sid kept looking down at his hands, which were clasped in front of him. “Like going into combat.” He gave her a resigned look. “The waiting’s over, finally.”

  It was okay if Sid was miserable. Given the charges, Ames certainly didn’t want the jury seeing him looking cocky. The situation, in fact, seemed to be making Sid unusually calm, which was a relief. His student intern, Libby, had trimmed his hair, and his blazer and tie looked okay. The tie/no-tie decision was always tough, but as she looked at him now, Ames felt good about having him stick one on. He was a professor, after all, and some of the jurors might see it as a gesture of respect. In the courtroom, every detail mattered.

  AUSA Campanella sat to Ames’s right at the neighboring table, two arm’s lengths away.

  Now, he leaned over and said in a low voice, “I’m going to want to play an excerpt from the government’s proposed Exhibit One, the DVD, before we begin formal selection. It’s just a thirty-second snippet, so they’ll know what they’ll be dealing with. I assume you have no objection?”

  Campanella’s timing was such a transparent ploy that Ames would have laughed if she weren’t so disgusted. She’d noticed Campanella keeping an eye on Ruby Johnson and suspected he was up to something. It was only when Ruby picked up her phone and nodded—a sure sign Norcross was on his way in—that Campanella made his move and dumped his crafty little plan on her. Now he’d be able to tell the judge he’d conferred with her, without actually giving her time to think. If he’d hoped to rattle her with this bush-league move, he was wrong.

  “Of course I object, Paul. Are you out of your skull?” She wasn’t sure why she was objecting yet, but if Paulsie wanted to do it, she was opposed.

  “Sorry I didn’t mention it earlier. Just thought of it now.”

  “Uh-huh. Bullshit.”

  “Well, the DVD is going to be—”

  “We don’t even know if it’s coming into evidence yet. I can’t believe you’re—” The door behind the bench opened, and Ruby’s strong voice broke in: “All rise!”

  Everyone stood while Norcross strode up the three stairs to his perch, bent forward, as usual, peering down at the fringe of his robe as though he was concerned he might stumble.

  He slid into his chair with a relieved smile and said, “Please be seated.” A soft rumble followed while everyone tried to get comfortable. A backpack or purse hit the floor with a thud, then silence.

  Seeing Norcross up there, Ames took comfort in the fact that he was basically a good guy and a fairly decent judge. He might make a lousy call, or get impatient, but he was not a jerk, and that, on the whole, was what mattered.

  The judge squared up a slim folder in front of him, and they were off.

  “Welcome! My name is David Norcross, and you’re in the United States District Court for the District of Massachusetts, Western Division. I want to begin by thanking you all for being here this morning, especially on such a cold day.”

  The assemblage deserved the judge’s thanks. Temperatures had dropped down into double digits below zero the night before. Everyone was deep in the New England winter freezer, and some of the potential jurors had come from as far away as North Adams, a two-hour drive through an arctic landscape, to fulfill their civic responsibility.

  “Let me begin by telling you what we’re up to this morning, what your role might be, and how long we might need you for.”

  The usual stuff followed: jury service as the duty of every citizen including judges—Norcross had never gotten onto a jury, he told them, but he’d sat around several times over in state court before being excused—his commitment to use their time efficiently, and his hope that, if chosen to sit, they would find their jury service rewarding.

  As they moved toward the more substantive part of this introduction, Ames leaned forward to get on her feet and ask for a side bar. Norcross noticed her immediately, made eye contact, and nodded her back down.

  “Now, I’m going to impose on your patience here for just a minute while I take up a couple of last-minute things with counsel. They’ll be coming up to the side of the bench over here, and I’ll be using this whoosher thing”—he turned it quickly on and off—“to give us some privacy. I’m going to ask that you not talk while we’re conferring. It will distract us. We won’t be long, I promise you. Okay, Counsel, please approach.” He turned on his white noise, stood up, and stepped to the right-hand side of the bench.

  Ames and Campanella walked around their tables and crossed the well to where Norcross was waiting. The court reporter, Maureen, a tall woman with striking red hair, joined them, planting herself and her machine close by.

  “All right.” Norcross leaned over them and spoke in a low voice. Both Ames and Campanella squirmed forward to be sure to hear him. “I’ve got three motions you guys dropped on me last night. All of them could have been filed earlier, but we won’t get into that. First, Ms. Ames, your motion to postpone the trial is denied.”

  “May I be heard?”

  “No. I’ll give you a chance to put your reasons on the record later. But I’ve read your memo, and I know your
expert says he needs more time. I’m not convinced. Your rights are saved.”

  “Very good, Your Honor.” It was a Hail Mary motion anyway. No point in annoying him.

  “Your second motion to exclude evidence is allowed, for now.” Norcross turned and spoke to Campanella directly. “I’m barring you from referring to the defendant’s academic specialty, Charles Dodgson, Dodgson’s practice of photographing children, or the defendant’s possession of these published photos. As you know, Mr. Campanella, these photographs fall outside the definition of child pornography based on the exception protecting material of serious literary or artistic value. I don’t want you mentioning any of this without a further order from me.”

  “But, Your Honor, it’s …” Campanella, to Ames’s satisfaction, looked shocked and was starting to splutter.

  “It’s out, okay? I’ll give you a chance to be heard on this issue later, if necessary.”

  Campanella wouldn’t give up, a mistake on his part. “But it’s not being offered substantively, Your Honor, merely to show state of mind.”

  The judge’s tone went dangerously acid. “I’m aware of your argument, but it’s out. Understand?” Then his voice softened. “I may reconsider later, depending on how the evidence develops. Okay, finally, Mr. Campanella, you’ve added another proposed voir dire question you’d like me to put to the jurors.”

  Like most federal judges, Norcross did not allow lawyers to question jurors directly about their biases, exposure to pretrial publicity, general fitness to serve, and so forth. Rather, he invited lawyers to submit, in writing, proposed questions that he would put to the potential panel himself, if he felt they were proper.

  “So, Mr. Campanella, you really want me to inquire of those folks over there”—the judge tipped his head toward the jury box—“whether any of them has ever looked at pornography of any kind, legal or illegal? You really want me to ask them that?”

  “Yes, Your Honor, it’s important to know whether …”

  “Have you ever looked at pornography, Mr. Campanella?”

  “Excuse me?”

  “Have you ever looked at pornography?”

  “Well … I … When I was … It’s been a long time, and …”

  “I’ll withdraw my question, but I note for the record that you looked darned uncomfortable just now, which is exactly how the jurors over there would feel facing that question. Prying into this topic will either humiliate them or turn them into liars.”

  “Very good, Your Honor, but there’s one other thing.”

  “Besides, how am I supposed to define pornography? The Supreme Court gave up trying forty years ago. My advice? Just assume that everyone has, at some time, looked at or read something that someone somewhere would call pornographic. Very good. We’ll resume.”

  Norcross reached to turn off the white noise, but Campanella still wouldn’t give up. “I understand, Your Honor, but there’s just one other thing.”

  Norcross made a face. “There’s always one more thing.”

  Campanella moved closer to the bench. Without knowing exactly what she was going to say, Ames prepared herself to indignantly oppose whatever Campanella wanted.

  Campanella leaned forward, dialing up the intensity of his voice. The other issues clearly didn’t matter as much to him as this one. “Many jurors, when they first see child pornography, find the experience very upsetting.”

  Norcross sighed. “Okay. What am I supposed to do about that?”

  Ames broke in. “I’d object to this strenuously.”

  Campanella pushed on, talking more quickly. “I want to play a short excerpt from the DVD, Judge, before we start formal selection. If the jurors don’t see this material until they’ve already been picked, we could have some of them wanting to bail out after they’re sworn. It would be a mess, maybe even cause a mistrial. We need to sift out the people who can’t tolerate looking at this material now and pick our jurors from the remainder that can handle it.”

  “When do you want to do this?”

  Norcross’s question meant trouble. When a judge stopped asking whether something would happen and moved on to how or when, it was not good.

  “Judge,” Ames began, but Campanella plowed forward.

  “As soon as you’ve reviewed the charges here, I’d like to play approximately thirty seconds of the DVD to the jurors, just to give them an idea of what they’ll be in for.”

  Ames pushed her shoulder against Campanella, nudging him to the side. “I object, Judge. It will contaminate the jury from the get-go.­ ­We can’t even be sure at this point that the DVD is admissible. No foundation has been laid.”

  Norcross looked at Ames sharply. “You’ve never moved to suppress the DVD. It was legally seized pursuant to my warrant. The jurors are bound to see it some time.”

  “Your Honor, I …” Ames was rummaging for a persuasive argument but coming up empty.

  Norcross shook his head. “It’s a sensible idea. I know how shocking this stuff can be. We’ll do it.”

  Campanella said, “Thank you, Your Honor.”

  “Wait until I tell you it’s time.” Norcross switched off the white noise and returned back to his chair. The moment was gone.

  If some way had existed for Ames to head this off, she simply hadn’t been able to come up with the words fast enough. All she could do now was shake her head, feigning disbelief more than anger. She turned to the court reporter to be sure she was on the record and said in a fierce tone, “Please note my strenuous objection.”

  Actually, Ames reflected as she returned to counsel table, there might be advantages to Campanella’s suggestion. And at least she’d made a record of a possible error that could come in handy on appeal if Sid got convicted. It was a good thing to plant as many of these appellate hand grenades in the trial as possible.

  The mumble and rustle of the jurors died as soon as Norcross resumed speaking.

  “Let me move now to the topic that is probably foremost on all your minds: How long are we going to have to be here? The good news is that, for most of you, the torture will be over by lunchtime. Let me lay out our schedule for you.”

  As Ames resumed her seat, she patted Sid on the shoulder reflexively and turned her mind to the jurors. Their patience always amazed her. This random, voluntary gathering of the community, a miracle of civic commitment, was one of the things that drew her to trial work in the first place. As she shifted toward the gallery to observe the pool, Ames noticed only one or two with sour expressions. Just about everyone was listening to Norcross with open, attentive faces, willing to do their job if called upon—even if it was inconvenient, even if they’d had a long drive, and even in the dead of winter. It was hokey to admit this, but the scene was real, practical democracy in action, the United States of America actually working. Being a part of this always made Ames, basically a cynical person, proud.

  After his overview of the time schedule, Norcross moved to the darker topic.

  “The next thing I’m going to do is describe to you the charge against the defendant here, Sidney Cranmer. But, before I do this, I need to make three very important points.” He leaned forward and surveyed the room, pulling everyone into his gaze. “First, by describing the charge, I am only informing you of what the government here says the defendant did. I am not suggesting that he in fact did it or committed any crime at all. Please understand this clearly. I’m only informing you of the charge so that you will know what the government says, the government says, and what this trial will be about—in order to orient you.

  “Second, you must understand that the defendant, Sidney Cranmer, the gentleman sitting right there”—Norcross nodded at Sid—“is presumed innocent. This presumption of innocence is not a technicality. Mr. Cranmer is presumed to be as innocent as any of you, or me, or anyone. He comes here with a clean slate. The fact that I will be describing the charge a
gainst him, which is only a charge, does not alter that fact one bit.”

  This was always a difficult passage for a lawyer. On the one hand, Ames wanted to eyeball every single juror, to dig right into their brains to see how deeply this key point was penetrating. On the other hand, it was critical that she look relaxed, confident, and, above all, utterly trustful of the jurors’ intelligence and good faith. As her eyes moved over the assembled men and women, she was harnessing all her intuitions and already identifying or discarding certain candidates, all the while doing her best to appear cool as a cucumber.

  Norcross was winding up. “Third, and finally, you must understand that this presumption of innocence—the same innocence that cloaks us all—can only be overcome if the government carries its burden of proving Mr. Cranmer guilty”—and now Norcross emphasized each word by tapping his forefinger heavily on the bench—“beyond a reasonable doubt.” He repeated, tapping even harder, “Beyond a reasonable doubt. Mr. Cranmer has denied the charge I am about to describe to you, and he cannot be found guilty of anything unless and until the government proves its charge beyond a reasonable doubt. Now, here’s the charge.”

  In a few sentences, Norcross laid out the statutory language and the elements of the charge of knowingly and intentionally receiving child pornography. He promised that at the conclusion of the trial, he would be defining some of the terms he used in more detail, adding that if there was any inconsistency, they should be guided by his final instructions and not by the summary he was giving now.

  At the conclusion of this segment of his remarks, Norcross closed his folder and pushed it to one side. Ames could feel Campanella over at his table, shifting around, slipping his copy of the DVD out of his file, getting ready for his show-and-tell. The prospect of what everyone was about to see was making Ames feel slightly sick to her stomach.