The second method of removal is the preemptory challenge, of which each attorney is given a limited supply, depending on the type of case and charges. Because this trial involved charges of murder, both the prosecution and defense would have up to twenty preemptory challenges each. It is in the judicious and tactful use of these preemptories that strategy and instinct come into play. A skilled attorney can use his challenges to help sculpt the jury into a tool of the prosecution or defense. A preemptory challenge lets the attorney strike a juror for no reason other than his instinctual dislike of the individual. An exception to this would be the obvious use of preemptories to create a bias on the jury. A prosecutor who continually removed black jurors, or a defense attorney who did the same with white jurors, would quickly run afoul of the opposition as well as the judge.
The rules of voir dire are designed to remove bias and deception from the jury. The term itself comes from the French phrase “to speak the truth.” But this of course is contradictory to each side’s cause. The bottom line in any trial is that I want a biased jury. I want them biased against the state and the police. I want them predisposed to be on my side. The truth is that a fair-minded person is the last person I want on my jury. I want somebody who is already on my side or can easily be pushed there. I want twelve lemmings in the box. Jurors who will follow my lead and act as agents for the defense.
And, of course, the man sitting four feet from me in the courtroom wanted to achieve a diametrically opposite result out of jury selection. The prosecutor wanted his own lemmings and would use his challenges to sculpt the jury his way, and at my expense.
By ten fifteen the efficient Judge Stanton had looked at the printout from the computer that randomly selected the first twelve candidates and had welcomed them to the jury box by calling out code numbers issued to them in the jury-pool room on the fifth floor. There were six men and six women. We had three postal workers, two engineers, a housewife from Pomona, an out-of-work screenwriter, two high school teachers and three retirees.
We knew where they were from and what they did. But we didn’t know their names. It was an anonymous jury. During all pretrial conferences the judge had been adamant about protecting the jurors from public attention and scrutiny. He had ordered that the Court TV camera be mounted on the wall over the jury box so that the jurors would not be seen in its view of the courtroom. He had also ruled that the identities of all prospective jurors be withheld from even the lawyers and that each be referred to during voir dire by their seat number.
The process began with the judge asking each prospective juror questions about what they did for a living and the area of Los Angeles County they lived in. He then moved on to basic questions about whether they had been victims of crime, had relatives in prison or were related to any police officers or prosecutors. He asked what their knowledge of the law and court procedures was. He asked who had prior jury experience. The judge excused three for cause: a postal employee whose brother was a police officer; a retiree whose son had been the victim of a drug-related murder; and the screenwriter because although she had never worked for Archway Studios, the judge felt she might harbor ill will toward Elliot because of the contentious relationship between screenwriters and studio management in general.
A fourth prospective juror—one of the engineers—was dismissed when the judge agreed with his plea for a hardship dismissal. He was a self-employed consultant and two weeks spent in a trial were two weeks with no income other than the five bucks a day he made as a juror.
The four were quickly replaced with four more random selections from the venire. And so it went. By noon I had used two of my preemptories on the remaining postal workers and would have used a third to strike the second engineer from the panel but decided to take the lunch hour to think about it before making my next move. Meanwhile, Golantz was holding fast with a full arsenal of challenges. His strategy was obviously to let me use my strikes up and then he would come in with the final shaping of the jury.
Elliot had adopted the pose of CEO of the defense. I did the work in front of the jury but he insisted that he be allowed to sign off on each of my preemptory challenges. It took extra time because I needed to explain to him why I wanted to dump a juror and he would always offer his opinion. But each time, he ultimately nodded his approval like the man in charge, and the juror was struck. It was an annoying process but one I could put up with, just as long as Elliot went along with what I wanted to do.
Shortly after noon, the judge broke for lunch. Even though the day was devoted to jury selection, technically it was the first day of my first trial in over a year. Lorna Taylor had come to court to watch and show her support. The plan was to go to lunch together and then she would go back to the office and start packing it up.
As we entered the hallway outside the courtroom, I asked Elliot if he wanted to join us but he said he had to make a quick run to the studio to check on things. I told him not to be late coming back. The judge had given us a very generous ninety minutes for the lunch break and he would not look kindly on any late returns.
Lorna and I hung back and let the prospective jurors crowd onto the elevators. I didn’t want to ride down with them. Inevitably when you do that, one of them opens their mouth and asks something that is improper and you then have to go through the motions of reporting it to the judge.
When one of the elevators opened, I saw the reporter Jack McEvoy push his way out past the jurors, scan the hallway and zero in on me.
“Great,” I said. “Here comes trouble.”
McEvoy came directly toward me.
“What do you want?” I said.
“To explain.”
“What, you mean explain why you’re a liar?”
“No, look, when I told you it was going to run Sunday, I meant it. That’s what I was told.”
“And here it is Thursday and no story in the paper, and when I’ve tried to call you about it, you don’t call me back. I’ve got other reporters interested, McEvoy. I don’t need the Times.”
“Look, I understand. But what happened was that they decided to hold it so it would run closer to the trial.”
“The trial started two hours ago.”
The reporter shook his head.
“You know, the real trial. Testimony and evidence. They’re running it out front this coming Sunday.”
“The front page on Sunday. Is that a promise?”
“Monday at the latest.”
“Oh, now it’s Monday.”
“Look, it’s the news business. Things change. It’s supposed to run out front on Sunday but if something big happens in the world, they might kick it over till Monday. It’s either-or.”
“Whatever. I’ll believe it when I see it.”
I saw that the area around the elevators was clear. Lorna and I could go down now and not encounter any prospective jurors. I took Lorna by the arm and started leading her that way. I pushed past the reporter.
“So we’re okay?” McEvoy said. “You’ll hold off?”
“Hold off on what?”
“Talking to anyone else. On giving away the exclusive.”
“Whatever.”
I left him hanging and headed toward the elevators. When we got out of the building, we walked a block over to City Hall and I had Patrick pick us up there. I didn’t want any prospective jurors who might be hanging around the courthouse to see me getting into the back of a chauffeured Lincoln. It might not sit well with them. Among my pretrial instructions to Elliot had been a directive for him to eschew the studio limo and drive himself to court every day. You never know who might see what outside the courtroom and what the effect might be.
I told Patrick to take us over to the French Garden on Seventh Street. I then called Harry Bosch’s cell phone and he answered right away.
“I just talked to the reporter,” I said.
“And?”
“And it’s finally running Sunday or Monday. On the front page, he says, so be ready.”
/> “Finally.”
“Yeah. You going to be ready?”
“Don’t worry about it. I’m ready.”
“I have to worry. It’s my—Hello?”
He was gone already. I closed the phone.
“What was that?” Lorna asked.
“Nothing.”
I realized that I had to change the subject.
“Listen, when you go back to the office today, I want you to call Julie Favreau and see if she can come to court tomorrow.”
“I thought Elliot didn’t want a jury consultant.”
“He doesn’t have to know we’re using her.”
“Then, how will you pay her?”
“Take it out of general operating. I don’t care. I’ll pay her out of my own pocket if I have to. But I’m going to need her and I don’t care what Elliot thinks. I already burned through two strikes and have a feeling that by tomorrow I’m going to have to make whatever I have left count. I’ll want her help on the final chart. Just tell her the bailiff will have her name and will make sure she gets a seat. Tell her to sit in the gallery and not to approach me when I’m with my client. Tell her she can text me on the cell when she has something important.”
“Okay, I’ll call her. Are you doing all right, Mick?”
I must’ve been talking too fast or sweating too much. Lorna had picked up on my agitation. I was feeling a little shaky and I didn’t know if it was because of the reporter’s bullshit or Bosch’s hanging up or the growing realization that what I had been working toward for a year would soon be upon me. Testimony and evidence.
“I’m fine,” I said sharply. “I’m just hungry. You know how I get when I’m hungry.”
“Sure,” she said. “I understand.”
The truth was, I wasn’t hungry. I didn’t even feel like eating. I was feeling the weight on me. The burden of a man’s future.
And it wasn’t my client’s future I was thinking of.
Thirty-five
By three o’clock on the second day of jury selection, Golantz and I had traded preemptory and cause challenges for more than ten hours of court time. It had been a battle. We had quietly savaged each other, identifying each other’s must-have jurors and striking them without care or conscience. We had gone through almost the entire venire, and my jury seating chart was covered in some spots with as many as five layers of Post-its. I had two preemptory challenges left. Golantz, at first judicious with his challenges, had caught up and then passed me and was down to his final preemptory. It was zero hour. The jury box was about to be complete.
In its current composition, the panel now included an attorney, a computer programmer, two new postal service employees and three new retirees, as well as a male nurse, a tree trimmer and an artist.
From the original twelve seated the morning before, there were still two prospective jurors remaining. The engineer in seat seven and one of the retirees, in seat twelve, had somehow gone the distance. Both were white males and both, in my estimation, leaning toward the state. Neither was overtly on the prosecution’s side, but on my chart I had written notes about each in blue ink—my code for a juror who I perceived as being cold to the defense. But their leanings were so slight that I had still not used a precious challenge on either.
I knew I could take them both out in my final flourish and use of preemptory strikes, but that was the risk of voir dire. You strike one juror because of blue ink and the replacement might end up being neon blue and a greater risk to your client than the original was. It was what made jury selection such an unpredictable proposition.
The latest addition to the box was the artist who took the opening in seat number eleven after Golantz had used his nineteenth preemptory to remove a city sanitation worker who I’d had down as a red juror. Under the general questioning of Judge Stanton, the artist revealed that she lived in Malibu and worked in a studio off the Pacific Coast Highway. Her medium was acrylic paint and she had studied at the Art Institute of Philadelphia before coming to California for the light. She said she didn’t own a television and didn’t regularly read any newspapers. She said she knew nothing about the murders that had taken place six months earlier in the beach house not far from where she lived and worked.
Almost from the start I had taken notes about her in red and grew happier and happier with her on my jury as the questions progressed. I knew that Golantz had made a tactical error. He had eliminated the sanitation worker with one challenge and had ended up with a juror seemingly even more detrimental to his cause. He would now have to live with the mistake or use his final challenge to remove the artist and run the same risk all over again.
When the judge finished his general inquiries, it was the lawyers’ turn. Golantz went first and asked a series of questions he hoped would draw out a bias so that the artist could be removed for cause instead of through the use of his last preemptory. But the woman held her own, appearing very honest and open-minded.
Four questions into the prosecutor’s effort, I felt a vibration in my pocket and reached in for my cell. I held it down below the defense table between my legs and at an angle where it could not be seen by the judge. Julie Favreau had been texting me all day.
Favreau: She’s a keeper.
I sent her one back immediately.
Haller: I know. What about 7, 8 and 10? Which one next?
Favreau, my secret jury consultant, had been in the fourth row of the gallery during both the morning and afternoon sessions. I had also met her for lunch while Walter Elliot had once again gone back to the studio to check on things, and I had allowed her to study my chart so that she could make up her own. She was a quick study and knew exactly where I was with my codes and challenges.
I got a response to my text message almost immediately. That was one thing I liked about Favreau. She didn’t overthink things. She made quick, instinctive decisions based solely on visual tells in relation to verbal answers.
Favreau: Don’t like 8. Haven’t heard enough from 10. Kick 7 if you have to.
Juror eight was the tree trimmer. I had him in blue because of some of the answers he gave when questioned about the police. I also thought he was too eager to be on the jury. This was always a flag in a murder case. It signaled to me that the potential juror had strong feelings about law and order and wasn’t hesitant about the idea of sitting in judgment of another person. The truth was, I was suspicious of anybody who liked to sit in judgment of another. Anybody who relished the idea of being a juror was blue ink all the way.
Judge Stanton was allowing us a lot of leeway. When it came time to question a prospective juror, the attorneys were allowed to trade their time to question anyone else on the panel. He was also allowing the liberal use of back strikes, meaning it was acceptable to use a preemptory challenge to strike out anybody on the panel, even if they had already been questioned and accepted.
When it was my turn to question the artist, I walked to the lectern and told the judge I accepted her on the jury at this time without further questioning. I asked to be allowed instead to make further inquiries of juror number eight, and the judge allowed me to proceed.
“Juror number eight, I just want to clarify a couple of your views on things. First, let me ask you, at the end of this trial, after you’ve heard all the testimony, if you think my client might be guilty, would you vote to convict him?”
The tree trimmer thought for a moment before answering.
“No, because that wouldn’t be beyond a reasonable doubt.”
I nodded, letting him know that he had given the right answer. “So you don’t equate ‘might’ve’ with ‘beyond a reasonable doubt’?”
“No, sir. Not at all.”
“Good. Do you believe that people get arrested in church for singing too loud?”
A puzzled look spread across the tree trimmer’s face, and there was a murmur of laughter in the gallery behind me.
“I don’t understand.”
“There’s a saying that people don’t g
et arrested in church for singing too loud. In other words, where there’s smoke there’s fire. People don’t get arrested without good reason. The police usually have it right and arrest the right people. Do you believe that?”
“I believe that everybody makes mistakes from time to time—including the police—and you have to look at each case individually.”
“But do you believe that the police usually have it right?”
He was cornered. Any answer would raise a flag for one side or the other.
“I think they probably do—they’re the professionals—but I would look at every case individually and not think that just because the police usually get things right, they automatically got the right man in this case.”
That was a good answer. From a tree trimmer, no less. Again I gave him the nod. His answers were right but there was something almost practiced about his delivery. It was smarmy, holier-than-thou. The tree trimmer wanted very badly to be on the jury and that didn’t sit well with me.
“What kind of car do you drive, sir?”
The unexpected question was always good for a reaction. Juror number eight leaned back in his seat and gave me a look like he thought I was trying to trick him in some way.
“My car?”
“Yes, what do you drive to work?”
“I have a pickup. I keep my equipment and stuff in it. It’s a Ford one-fifty.”
“Do you have any bumper stickers on the back?”
The Lincoln Lawyer Collection Page 62
