Judge Le had not ruled on the prosecution’s motion to preclude all mention of Esperanza and the adoption petition at trial. He certainly wasn’t going to remind her. He wondered if the motion had slipped Jazlyn’s mind because she had so much to worry about, or whether making the motion had been a gesture, something designed to make a point, rather than something she actually planned to pursue.
Judge Le had the option of conducting the jury examination herself, based upon questions suggested by counsel, but happily, given the gravity of the charges, she let the attorneys handle it themselves, sacrificing speed but giving the defense one less potential error to gripe about on appeal.
He and Maria considered hiring a jury consultant to advise on the selection. That was trendy these days, particularly in high-stakes cases, and Mr. K said he would pay for it. But ultimately, they opted against it. He didn’t think they could find a jury consultant who knew anything he didn’t know already. That might sound egotistical, and maybe it was, but he still thought it was true. They could study their charts and statistics all night long, but it was no substitute for the knowledge he had gained representing desperate, low-income clients, fighting tooth and nail against the government, spending hours on his feet in the courtroom.
Besides, he knew what the jury consultant would say. The general wisdom was, on the defense, you want African-American females, as many as possible, so you can get a hung jury. Maybe in this case a Hispanic female would do as well. But he didn’t want a hung jury. Given the high profile of this case, the prosecution would almost have to retry it. He wanted to win, and he wanted to win the first time around. Otherwise, Esperanza would not remain in this country.
More general jury consultant wisdom: white middle-class men convict ninety-seven percent of the time. That was actually supported by some statistical evidence. And you could probably increase that when the defendant was a minority group member. He didn’t need a jury consultant to tell him that the more diversity on the jury, the better.
He would let the prosecution do the overt political questioning. He preferred more subtle approaches. Instead of asking the jurors, Who did you vote for in the last election?—which might offend them—he asked, What television shows do you like? If they watched Fox News, or cop shows like Blue Bloods, they likely tilted conservative. Other shows, like Will and Grace, or Last Week Tonight with John Oliver, tended to lean liberal. Anyone who admitted they didn’t believe in the death penalty would be removed from the jury quickly. He was looking for people who might accept the death penalty in theory but balk at actually implementing it, or who might be suspicious of law enforcement, or who might be more likely to sympathize with minority defendants. He wanted jurors who might actually apply “beyond a reasonable doubt” as the stiff standard it was meant to be.
The first eighteen called to the box were all familiar with the so-called Tragedy at the Trademark. Only a handful were foolish enough to admit that they had already formed opinions about who did what—and they were immediately removed. It would be his job to root out anyone who kinda sorta thought they knew what happened but wouldn’t admit it, plus anyone who might think that one Hispanic was much like another, or all Hispanics were members of gangs. He didn’t think rooting out racial bigotry would be that difficult, but you can never be sure. No one was going to admit it.
The hardest moment was his frustrating conversation with prospective juror number thirteen, a man who appeared to be in his mid-sixties, retired, in a white dress shirt with rolled-up sleeves and a white undershirt beneath.
He asked the juror, “How much do you know about this incident?”
The man shrugged. “Bunch of thugs shot at each other and one of them died.”
“And when you say thugs, you mean—what?”
“Them gangs.”
“How do you know gangs were involved?”
“They’re always shooting themselves down on the Southside, right?”
“But the Trademark isn’t on the Southside. It’s in a tourist district.”
“But those people came from the Southside.”
“Actually, the victim was from El Salvador.” He had to dismantle stereotypes whenever possible. “Visiting the country for reasons that are unclear.” Out the corner of his eye, he saw Jazlyn rocking a little, wondering if she should object.
“Doesn’t matter what country they come from. Still Hispanics.”
“I gather you don’t like Hispanics.”
“I don’t like murderers.”
“Please answer my question. Do you dislike Hispanics?”
“I don’t like or dislike people. I just want them to stay out of the way and stop ruining everything for real Americans.”
He did a slow pivot toward the judge. “Your honor, I move that this juror be removed for cause.”
Jazlyn rose. “Objection. He said he wasn’t prejudiced.”
“He said a great deal more suggesting that he is. My client can’t get a fair trial from people like this.”
The judge thought for a moment before responding. “The prosecutor is correct. He denied having any prejudice. If you hadn’t asked the question, Mr. Pike, we might have cause to speculate. But since you did ask the question, and his answer was in the negative, I cannot say that you’ve established the existence of any inappropriate prejudice.”
“Seriously? You’re going to let this man remain on the jury?”
The judge gave him a stern look. “We’ve got a long trial ahead, counsel, and I can make your life miserable for every day of it, so I would advise you to respect the dignity of this court. I’m not going to remove this juror for cause.”
“Then I will use one of my peremptory challenges.”
“That you may do.” She made a mark on her roster. “Juror Thirteen, you are excused. Please follow the bailiff out of the courtroom. And the defense has only two peremptory challenges left. Don’t squander them.”
As it turned out, he didn’t have another dramatic need for them. He used them, just the same, to remove two more white middle-class men. But they still dominated the jury. He had seven white males somewhere between twenty-five and sixty years of age, two white females, one African-American male, and two Hispanics, a man and a woman. The composition of the jury did not remotely reflect the composition of the community, but that was almost always the case.
He never felt he handled juror examinations well and constantly second-guessed himself. But he knew that in capital cases sometimes this went on for days, and he was finished by early afternoon, so he considered that a success.
He expected the judge to call it quits for the day and start the actual trial first thing in the morning, but to his surprise, she did not. Instead, she allowed them a thirty-minute recess to gather their thoughts. “Looks to me like we ought to be able to get in opening statements, which by the way will be limited to thirty minutes per side, and you’re encouraged to speak less. We can do those and perhaps even cover a few preliminary witnesses today.”
Unexpected, but fine with him. They were on a tight deadline.
DAN SPENT MOST OF THE half hour in a quiet consultation room near the courtroom, gazing at the marble walls. Everyone left him alone, probably assuming he was deliberating, contemplating, planning his opening, meditating, whatever. Something productive. But it wasn’t true. Mostly he was just worrying, trying not to feel overwhelmed. He felt this way every time he was immersed in a lengthy, complex trial. It was as if he had been ripped out of the real world, submerged, buried, isolated in some remote polar outpost, with wind and snow howling and separating him from the rest of humanity. All his normal activities, contacts, and habits dropped off the map. Nothing existed but him and the trial.
Saving Gabriella was paramount, but so was saving Esperanza, and they had to get this murder case resolved before she was deported. He didn’t want a Pyrrhic victory. He had to save that girl. She was depending upon him.
What was happening here?
He caught his reflect
ion in the window and gazed at the eyes he saw peering back at him. Something had changed, something inside. He had always cared about justice, about curtailing government bullying, preventing what happened to his father from happening to others. But this time there was more. Everything was different. Like this firm, these people who kept calling him part of a team. He never meant to be part of a team. He never wanted to be part of a team. He wanted to be Daniel Pike, the rebel, the lawyer in the Air Jordans with the backpack, doing things his own way but always getting the job done. And putting his surfboard in the water in time to catch the best wave. That was who he wanted to be. He didn’t need anybody else to be happy.
Or so he always thought.
Maria was right about one thing. That little girl had gotten to him. He could see those big brown eyes even when he closed his.
“I knew you would be the one who saved me.”
He wasn’t sure he could trust Gabriella. Every new thing he learned about her made him worry more. Made their case seem increasingly impossible.
But he had to win this. He felt that in the core of his soul. He needed to win this.
What was happening here?
Could there possibly be more in that reflection than the lawyer who always pulled a rabbit out of his hat?
Chapter 29
Apparently word got out that the trial was beginning this afternoon, because by the time he returned to Judge Le’s courtroom, it was packed. He spotted his two rent-a-cops on opposite sides of the courtroom in the middle of the gallery. He was glad they had managed to maintain their seats. Sometimes, for high-profile trials like this one, seats were assigned by lottery or random luck.
Just after he stepped in, he noted Crenshaw near the back of the courtroom.
Crenshaw stood to greet him. “Ready to ride out, cowpoke?”
He smiled a little. “You’re the cowboy. I’m just a worker bee.”
“Looks like you got your work cut out for you today.”
He did not disagree.
“Look, I came by because I wanted to tell you—I’ve got everyone at the detention center on high alert. We’re not gonna let anyone but you and your staff visit Esperanza Coto. We’ll make sure that girl stays safe.”
“Thank you. That makes me feel much better. As hard as that probably is on her, I think it’s safer to keep her isolated from the other internees.”
“You’re afraid she might get picked off by another little girl?”
“You never know. Some of the girls detained there aren’t that little. Some of them are drug addicts. Some of them never had five dollars in their hands. They may be readily susceptible to influence and bribery.”
“I suppose you have a point. We’ll keep her to herself as much as possible.”
“Thank you. I appreciate it.”
“I appreciate you.” Crenshaw stepped a little closer. “I understand what you’re doing here.”
“I’m defending a woman falsely accused of murder.”
“I mean with this over-the-top speedy trial. Trying to get it done as soon as possible. Trying to prevent Esperanza from being deported.”
He didn’t comment.
“You’re putting your neck on the chopping block for that girl.”
“Because you’re about to deport her.”
“We both have roles to play in this drama.” His voice dropped. “But that doesn’t mean I or any member of my staff relishes the prospect of sending Esperanza to El Salvador. I just can’t stop it.” He paused. “But I think maybe you can.”
“Cross your fingers.”
The bailiff opened the back door and let the jurors into the gallery. They started with the twelve primary jurors, plus six alternates, so that regardless of what happened, they would never fall short of having twelve people who had seen the entire trial. If the alternates were not needed, they would be dismissed when the jury retired to deliberate.
He returned to the defense table and sat between Maria and Gabriella. He smiled at Gabriella, took her hand, and kissed it. He couldn’t check, but he hoped the jury was watching. He felt certain that at least a few of them would notice. Of course, he genuinely cared about Gabriella. But the point of this exercise was to send a message to the jury, to tell them that he wasn’t afraid of her, didn’t dislike her, and didn’t think she was guilty.
A few moments later, Judge Le entered the room and called the court to order. “Please be seated.” She read the style of the case, gave some preliminary instructions to the jury, and then looked toward Jazlyn. “Let’s have opening statements. Madame Prosecutor, are you ready to begin?”
Jazlyn nodded and positioned herself squarely in front of the jury.
Her opening was powerful, obviously rehearsed but still effective. She ticked through the facts of the case, previewing what “the evidence will show." These were supposed to be statements, not arguments, but in actual practice there was little difference.
He noticed that she kept it as simple as possible, which was probably smart. Complicated cases put viewers to sleep. If you want a favorable verdict, keep it simple, stupid.
“Forensic evidence puts the defendant at the scene of the crime. Eyewitness testimony puts her at the scene of the crime. Her prints are on the murder weapon, which by the way, is her gun, which was found at her home. Let them explain that.” She pivoted. “As you will learn, she had a strong motive for killing Jorge Sanchez. And you will hear even more compelling evidence as the trial proceeds. This is a simple matter, really, and though I’m sure defense counsel will attempt to complicate it, the facts speak for themselves, clearly and without doubt. Gabriella Valdez should be convicted of murder in the first degree.”
Judge Le nodded. “Mr. Pike? Would you like to give your opening now, or wait until you present the defense case?”
“I’ll speak now, your honor.” As she knew he would. Because only an insane person, or a complete amateur, would let the prosecution opening weigh unrebutted on the jurors’ minds.
Jazlyn had remained motionless as she delivered her speech, so he made a point of moving. He didn’t know if that was better or worse, but at least they would know he was capable of walking and talking at the same time.
“Ladies and gentlemen of the jury. I will not bore you by previewing everything you’re about to see and hear. I will not tell you what to think. You can draw your own conclusions. But I will tell you this. Nothing about this case is simple. That’s not because I’m going to complicate it. That’s because cases of this magnitude are rarely as simple as the prosecutor just indicated. Suggesting that there can be no questions, no doubts, is frankly, absurd.”
He walked through the case as presented by Jazlyn, making it clear that he didn’t find the forensic or eyewitness testimony nearly as compelling as the prosecutor did. He still didn’t know if Emilio would be called to testify, but he had to assume that was a possibility, so he said a few words about the unreliable nature of snitch testimony, evidence from people who received rewards in exchange for talking. And he made sure they understood that the gun was not found in Gabriella’s yard until two days after the incident, and then in a location where only an idiot would leave the murder weapon.
“Whatever else you may conclude about my client, I can tell you with certainty that she is not an idiot. I hope you will pay close attention to the testimony offered by the agents of the government, law enforcement, the St. Petersburg police.” He recited almost word-for-word from Maria’s strategy notebook. “And I hope you realize how little investigation was ever conducted in this case. They assumed from the start that Gabriella was guilty, based on the word of an anonymous tipper, and they have never seriously investigated anyone else, although there are many gangland characters with far greater criminal records involved. You need to ask yourself, Why? Doesn’t that seem odd? Doesn’t that create doubt in your mind?” The word “doubt” of course being the million-dollar noun.
“Can you ever conclude that you know what happened, that you understan
d what went down, when the matter has not been thoroughly investigated? The police and the prosecutors were under intense pressure to charge someone, and now they’re under pressure to convict someone. They grabbed the first possible suspect and stopped looking. They’ll say they stopped looking because they found the culprit. But the fact remains—they stopped looking. Other avenues were never explored.”
He drew in his breath and strolled slowly to the other side of the jury box. “During the defense case, we will provide evidence pertaining to many of those other avenues. It will be for you to judge whether they should have been pursued. You will decide whether they create doubt in your mind.”
He provided a few more sneak previews of the case to come, but he didn’t want to bore them. Better to let them be pleasantly surprised later. All they needed to understand now was that this was not a slam dunk. They were going to have to pay attention and take this seriously. He knew people have short attention spans and the worst thing he could do was overstay his welcome. He wasn’t even going to use his full thirty minutes.
“One last note. The prosecutor used the phrase, ‘Let them explain that.’ Well—news flash. We do not have to explain anything. We do not have the burden of proof. The prosecution does. Before you go back to the deliberation room, the judge will give you many instructions, but the most important one is this: the prosecution must prove its case beyond a reasonable doubt. We don’t have to put on a single witness or present a single piece of evidence. We will, but even if we didn’t, it would still be the prosecution that must meet this extraordinarily high burden. Bear that in mind as you listen to the evidence and always remember that if they have not met their burden, if they have not proven Gabriella’s guilt beyond a reasonable doubt, you must acquit her. You are not being asked what you personally think probably happened. You’re being asked whether the prosecution has proven her guilt beyond a reasonable doubt.”
The Last Chance Lawyer Page 16
