by D. W. Buffa
“Only in the most narrow sense.” A grin cut across his mouth. “The most literal sense, your Honor. My client cannot read or write, but I can’t think of anyone whom I would be less inclined to call illiterate. I believe I’ll leave it at that, your Honor. For the time being, anyway,” he added with a sly, cryptic glance.
“Yes, very well,” said Judge Pierce. With a sideways gesture of her hand, she let Darnell know she had heard all she needed. “Now, then, where were we? Yes, this is the case of People v. Adam. Mr. William Darnell is the attorney for the defense. Miss Hillary Clark is the attorney for the prosecution.”
Darnell glanced to his right, to the other counsel table, the one closest to the jury box. There was a time when he would have been afraid to look at Hillary Clark, afraid that the look would become a stare, and that, seeing it, the jury would think that he was not sufficiently interested in the case. Even now she almost took his breath away. Tall and angular, with dark, flashing eyes, aware of the effect she had on men and despising them because of it, she was at once sensual and detached. She was the kind of woman that any man would love to have and then, having her, learn to hate. The thought of it made Darnell want to laugh.
Evelyn Pierce was talking now to the crowd of prospective jurors that filled up the first few rows of the courtroom, explaining what was going to happen next. Twelve of them would be chosen at random. The lawyers would ask questions. When one was excused another one would be called to take his or her place in the jury box. Darnell kept looking at Hillary Clark, watching the way she concentrated on the jury questionnaires like a student cramming for a test, but a student, mind you, who did not have a doubt that she would pass with the highest grade in the class. It was part of the reason she could have such disdain for men who only noticed how she looked. They learned their failure soon enough, once she made them subject to that brittle smile that insisted she was light years ahead of them and that razor sharp tongue that seemed to prove it.
Darnell sighed. For just a moment, he wished he were younger, much younger, closer to her age, and he could teach her a lesson of his own. Logical, precise, and analytical, as well as arrogant and dismissive, Hillary Clark was the kind of woman who never read poetry and would stamp her foot with impatience at the first mention of anything as vague and meaningless as the mysteries of existence. Darnell did not like her; he did not like her one bit.
Slowly, one by one, twelve prospective jurors were called to the jury box. Judge Pierce tried to impress upon them the serious nature of their responsibilities.
“The defendant has been charged with the crimes of incest, rape and murder. He has entered a plea of not guilty to each of these charges. That means that you are to consider him innocent of all of them, unless and until the government has proven him guilty beyond a reasonable doubt. Let me be more exact. You are to consider him innocent no matter what the government proves and you are to consider him innocent when you enter the jury room to begin your deliberations. In other words, ladies and gentlemen, you are to consider him innocent until you have listened to all the witnesses, not just for the government but also for the defense; listened to the closing arguments of the attorneys for both sides; listened to the instructions I will give you on the law; and then listened carefully, each of you, to what each of the other jurors has to say during your discussions. Then, and only then, after you have weighed all the evidence, are you to decide whether the government has proven its case beyond that famous reasonable doubt you have so often heard mentioned.”
Evelyn Pierce paused, making sure they understood what she had said. She bent forward, emphasizing the importance of what she was about to say.
“This is not a question of probabilities. It is not a question of whether you think the defendant is likely to have been guilty. This is a question of certainty. The jury instruction, which I will give you at the end of the trial, says that you may find the defendant guilty if, but only if, the case against him has been proven ‘beyond a reasonable doubt and to a moral certainty’- a moral certainty, ladies and gentlemen, a moral certainty.”
The words, heavy enough on their own, were given more weight by the deadly earnest in her eyes. She held them with her gaze, binding them by the sheer presence of her authority to do exactly what she told them.
“Ms. Clark, you may examine the first juror.”
Darnell turned his chair so that instead of facing the judge he was looking directly at the jury box. The prosecution might be asking questions, but Darnell wanted everyone to know that he was interested in the answers. If years of practice had taught him nothing else, it was that everything that happened in a courtroom was important and that the smallest detail could make all the difference. It was the reason he always wore dark blue or gray pinstripe suits. The jury had to believe that he was someone they could trust, a man too respectable to tell them anything but the truth. He had always had an honest face and even as a young man had been able to stop a heated argument by the soothing quality of his voice. Moreover, anyone who looked at him, unless they were too caught up in themselves to notice, could see the wisdom in his eyes. Age, instead of diminishing, had only made the overall effect stronger and more prominent. What reason would someone of his advanced years have to lie? What prosecutor would dare suggest that the venerable William Darnell would ever do anything but tell the truth? Instead of a disability, his age had become, as he well understood, a very great advantage.
“Could you repeat the question?” he suddenly half-shouted. “I’m afraid I’m not quite sure I heard you right.”
Startled, Hillary Clark turned and looked at him, wondering if he was serious or was rather trying to throw her off balance.
“Would I…?”
“Repeat the question,” said Darnell calmly.
“I was asking Mrs. Arnold whether as the mother of a daughter she thought she could serve as an impartial juror in a case involving rape and incest.”
“Yes, thank you. I did hear it correctly.” He waited until she turned back to the juror and started to ask her next question. “I heard it correctly, but I still don’t understand it.”
Hillary Clark spun around, glared at him and rose from her chair.
“Your Honor, I protest! This is voir dire. I’m entitled to ask my own questions in my own way without interruption by counsel.”
Judge Pierce did not hesitate.
“She’s right, Mr. Darnell. You’re not to interrupt.”
“I’m sorry, your Honor,” said Darnell as he got to his feet. He looked from the bench to the jury box. “Sometimes my hearing isn’t as good as it used to be and I wanted to make sure that I hadn’t misunderstood the question Ms. Clark was asking. I’ll try harder to follow what she says – difficult as that may sometimes be.”
“That will do, Mr. Darnell. If you have difficulty hearing, advise the court instead of interrupting. Ms. Clark, please continue.”
Darnell watched the way he had before, with complete attention, listening intently to every word. Or so it would have seemed to anyone, including those among that group of prospective jurors who let their own attention stray from Hillary Clark to glance across at him. In fact, his mind was already racing ahead to the questions he was going to ask, questions that would serve a purpose far beyond the answers they might elicit.
Hillary Clark asked the usual, predictable questions, questions that, in one form or another, tried to discover any latent reluctance to punish, any potential resistance to the idea that everyone should be made to pay for the wrongs they commit or the injuries they inflict. Then she asked the question that distinguished this trial from all the others.
“And do you feel that way – that people should be held accountable for what they do – even if they happen to live in a place where the laws against things like rape and murder haven’t been written out in some kind of legal code?”
Claudia Arnold hesitated. She was not certain how she should answer a question like that and said so.
“What I me
an, Mrs. Arnold, is that there are certain things we know are wrong, things that are wrong in themselves. In this country we drive on the right side of the road; in England they drive on the left. A choice has to be made and it doesn’t matter what that choice is, so long as there is a rule everyone can follow. But no one would say that about murder, would they?”
Mrs. Arnold, a decent woman, had to agree: Murder was always wrong.
“And so the question, again, is whether even without a formal code, even without written laws, someone can commit murder and not have to face punishment for what they’ve done.”
The question seemed to answer itself, but Darnell, when it was his turn, asked it again himself. He asked it, moreover, in a way much more extreme than the prosecution had dreamed of doing.
“I imagine we would both agree, Mrs. Arnold, that if a husband killed his wife, or a father killed his daughter, and then defended what he had done on the ground that the woman had been raped, he ought to be punished with at least life in prison if not the death penalty, and that whatever was done to him it would not be punishment enough. You would agree with that, wouldn’t you?”
The poor woman was shocked to the depths of her soul. Speechless, she could only stare at Darnell, who now nodded emphatically.
“Yes, we agree, absolutely! That’s exactly what should be done about it. He ought to be executed, boiled in oil - made to suffer all the torments of hell!”
A soft, sympathetic smile - barely discernible, but no less effective for that -drifted across Darnell’s lips. His eyes moved down the line of jurors, down the first row, then back across the six faces in the second. He let them think about the awful thing he had just described and the just severity of what he had said should be done about it.
“But there are places in the world - countries in the Middle East, for example – where the family of a woman who has been raped has what they believe a moral, and a religious, obligation to have her killed. What we find barbaric – what we call murder – they think the only way to save their honor and win the grace of God.”
Mrs. Arnold’s eyes grew wider. There was no answer for this.
“And so the question I have, Mrs. Arnold, is whether you think you can put aside, for purposes of this trial, what you normally believe about what is and what is not murder – or for that matter, any crime – and follow instead whatever instructions Judge Pierce may give you about what the prosecution needs to prove to convict the defendant of murder or the other crimes with which he has been charged?”
Put that way, there was only one answer Mrs. Arnold could give. There was no reason to think that she understood the question in all its implications, no reason to believe that she had any very clear idea how much she was being asked to give up of her own common sense view of things, but she knew – everyone called to jury duty knew – that whatever else they did, they were supposed to do what the judge told them to do. Still, she had her doubts.
“Are you asking me whether in the situation you describe I wouldn’t think it murder?”
“No, Mrs. Arnold. I only used that as an example, an extreme example, of how the law in one place can be completely different than it is in another place. Sometimes,” he added as if it were a commonplace observation, known to everyone who had ever thought about it, “the law in the same place can change and be completely different than what it was.”
Voir dire started on a Monday morning and lasted all week. Everyone lied about what kind of juror they would be. They seldom did it consciously; to the contrary, they almost always thought they were telling the truth when they said they could base their verdict on the evidence and on nothing else. The lie was more insidious than that, a belief that though they had probably never acted that rationally before - pushed aside all their emotions and based a decision solely on the facts – they could do it now, and do it easily, because that was what they had been taught from childhood the members of a jury were supposed to do. He asked those questions about whether they could be fair - whether they would follow the instructions of the judge, whether they would return a verdict of not guilty if guilt had not been proved - not because he thought they would do this on their own, but to make them understand that the law applied as much to them as it did to the defendant. He wanted to bind them to a promise, a promise made in public, so that whatever they believed privately, they would, despite themselves, do in the presence of each other what they thought they were supposed to do.
The questions that were most important, however, were the questions he asked about them, what they did, where they had lived, what they liked to do. Other lawyers hired jury consultants, psychologists with an expertise in averages, what most people of a given background could be expected to do. Darnell would have none of it. He made his own judgments based on what he learned about each individual, on the sense he got about them, whether they were someone he could outside a courtroom respect and trust and whether, inside a courtroom, they were likely to think that way of him.
Of the twelve people first summoned to the jury box, eight were excused and half of those called to take their places were found unacceptable as well. Each side, the prosecution and the defense, had a limited number of challenges they could use to get rid of jurors they did not want. Darnell waited until eleven jurors had been selected and Hillary Clark had just finished her examination of the twelfth before he raised the issue on which he believed everything might depend.
“I wonder, Miss Wilkins, if you have ever had occasion to read the Supreme Court opinion in the famous case of Roe v. Wade.”
A short, round-faced woman in her late twenties, Sheila Wilkins was a college graduate who had listed on the jury questionnaire reading as her favorite hobby. She wore thick glasses and had a tendency to fidget with her hands when, as now, everyone was watching her. She seemed to relax a little when Darnell took over the questioning.
“I’m not asking your view on abortion, Miss Wilkins. That, of course, is none of my business. But assuming that, like most people, you haven’t read the court’s opinion, I only want to know whether you are aware that Roe v. Wade was the case that upheld what is sometimes called a woman’s right to have an abortion. May I assume that you know that?”
“Yes, I know what Roe v. Wade was about,” she said as she blinked several times. A smile started onto her lips and then fled behind an awkward mask.
“You’re doing fine, Miss Wilkins. There’s nothing to worry about,” Darnell assured her with a warm, benevolent glance. “It’s good to be a little nervous, all these people sitting here. I’m a little nervous, and I’ve spent most of my life in a courtroom.”
He paused to let her see that he meant it, that there was nothing to be afraid of, that everyone felt nervous when they had to speak in front of others.
“The reason I asked you whether you had read that famous Supreme Court opinion was because – and I know this will strike you as strange – I want to get at something that will be decisive in whether you, or anyone, can see the defendant with an unbiased eye. In Roe v. Wade the Supreme Court cites as one of its authorities on the question of abortion the Greek philosopher Aristotle. What the court doesn’t mention – what I suspect the court didn’t know – is that in the same place where Aristotle says that abortion is morally permissible he also approves of the killing of a newborn infant – infanticide – where the child is born diseased or deformed, or even as a necessary means by which to limit population. I mention this because, again, what may seem to us barbarous and wrong may not be seen that way by others. I mention this because you will hear testimony in this trial that may offend you, testimony that may go against everything you believe. All I am asking at this point, Miss Wilkins, - all that I am asking everyone on this jury – is whether you honestly believe that you can suspend judgment, wait until you have heard all the evidence, wait until you have heard closing arguments and the judge’s instructions before you even begin to make a final decision?”
He was looking at her as if they wer
e the only two people in the room, giving her all the assurance he could in that calm, reasonable voice of his that all he wanted was a promise that she would at least try to do the right thing. When Sheila Wilkins agreed that she would, that she would reserve judgment until the very end, she said it as if the keeping of that promise had now become a point of personal pride. There was a reason William Darnell almost never lost.
He was not finished. All through jury selection, without anyone becoming quite conscious that he was doing it, Darnell had challenged the everyday assumptions, the supposedly unshakeable standards, of civilized behavior. He had done it easily, with the relaxed authority of someone who studies history, not because he wants to condemn what happened in the past, but because he wants to learn from it. Whether reminding the first juror about the way rape and murder were seen in two different parts of the world, or telling the last juror that even infanticide had once been considered something other than a crime, he gave the appearance of someone who was only searching for the truth of things. Because of that, he could now, at the end of his questioning, make a remark that left little doubt that this was to be a trial like no other.
“I should tell you in advance,” he said to the no longer nervous Sheila Wilkins, “that you will hear things in this case that I dare say have never been said in an American court of law. In all the years I have been a lawyer, this is the strangest case I have ever seen.”
Chapter Four
William Darnell looked around the shuttered confines of his downtown office. His gaze lingered at the shelves filled with the voluminous reports of cases decided by the appellate courts, the cases that had settled what the law was supposed to mean, cases that had sometimes decided that the earlier decisions had been wrong and that what had once been settled law now meant something entirely different. He glanced at a large rectangular framed photograph of his law school class, all the men in suits and ties, the only two women dressed the way school teachers and librarians dressed in those days. The photograph had been taken seven years after he had left the service at the end of the war. He had spent four years as an undergraduate and then three years studying law across the bay in Berkeley, at Cal.
