So Help Me God

by Larry D. Thompson

  The last of the participants to arrive was Gloria McMahon, the director of the local Population Planning clinic. While she had nothing to do with the incident, it was important that the jury put a human face on Population Planning and hers' was ideal. A woman in her late forties, she was trim, attractive and prematurely gray. Additionally, she was well spoken, and if anyone called her to the stand, she could defend the role of Population Planning as well as anyone in the country. Jan greeted her and showed her to a seat behind the counsel table.

  The parties and lawyers were assembled. At nine o'clock, they were still missing twenty-five prospective jurors, not a surprise to the lawyers since it was the first day and a new location. Even with a well-drawn map, it was about par for the course. The lawyers bided their time by studying the jurors that were present. With a group of nearly two hundred, it was a reasonably accurate cross-section of the socio-economic and ethnic make up of Harris County. As Johnny Bob eyed them, he figured about fifty percent were Anglo with the balance split between blacks and Hispanics and a few Vietnamese mixed in. As to gender, it was close to fifty-fifty.

  At the other table, Jan and Wayne were studying their computer. One by one they would look at a panel member discretely trying to study the prospective juror's demeanor, and then analyze the computerized information they had received the night before.

  The lawyers' concentration was broken by the voice of Deputy Johnson. "Counsel, Judge O'Reilly would like to see you in her chambers."

  The five lawyers rose as one and followed the deputy through a door behind the bench that led to a small room that had been made into the judge's office. It contained a small desk and swivel chair for the judge and six hardback wooden chairs for counsel. Someone had found a United States flag and a Texas flag to place behind the judge

  "Welcome, Counsel, to my lavish chambers. Please have a seat and make yourselves comfortable, if that can be accomplished in those chairs. While we're waiting on the remainder of the jurors, let's see if we can eliminate a few by agreement. I've been through the questionnaires, as I'm sure that you have. I come up with twenty-eight that, near as I can tell, belong to an organization that is either pro-choice or pro-life. Does either side object to the Court removing them for cause? I figure that you guys will want to challenge them anyway and I'll have to go along."

  Tod spoke first, "Of course, Your Honor, I'd like to keep those who are on my side and I'm sure that Johnny Bob feels likewise. I'm in agreement with the court. At the end of the day, they're going to be gone. There's no point in wasting time with them."

  "We agree with Tod, Your Honor," Johnny Bob agreed. "Let's save our questions for the ones who have a chance of serving."

  "Next, according to our questionnaire we have ten women who have had abortions," the judge continued, "and another ten jurors who have a close family member who has had an abortion. Any suggestions?"

  "Your Honor," Jan answered, "whether they have a bias or prejudice for or against abortion is probably going to depend on a variety of factors, including their experience. I don't think we can excuse them for cause. I suggest that at an appropriate time they should be called to the bench for a private conference."

  "Sounds good to me, Judge," Johnny Bob agreed.

  "Aren't we all being agreeable today," replied the judge with a smile on her face. "Let's see how long we can keep it up. Okay, it's nine-thirty. If we're short a few jurors, let's chalk them up to missing-in-action. You guys and gals ready to get this show on the road? Go on back out to the courtroom. As soon as Deputy Johnson returns, we'll get started."

  When the attorneys returned to the courtroom, they barely had time to take their seats before Deputy Johnson commanded, "All rise." Judge O'Reilly followed the bailiff from her chambers, then took the two steps up to her bench where she stood and smiled at the trial participants, the audience and the TV cameras before she asked everyone to be seated. "I'll call for announcements in the matter of Brady versus Population Planning, et al."

  Johnny Bob rose to his full height and his best voice responded, "Your Honor, J. Robert Tisdale for the plaintiff, Lucy Baines Brady. We're ready, Your Honor."

  "Thomas O. Duncan for the defendant and third-party plaintiff, Dr. Mzito Moyo. Dr. Moyo is ready to proceed."

  "Your Honor, I'm Janice Akers, for the defendant and third-party plaintiff, Population Planning. My client is ready."

  "Your Honor, Claudia St. John Jackson, representing Reverend Thomas Jeremiah Luther, The City of Miracles and other third-party defendants. We're all ready."

  "Very well, Counsel, we shall proceed with jury selection. Mr. Tisdale, you may begin."

  Johnny Bob rose, turned to face the jury panel, unbuttoned his coat so that he might grasp his red suspenders with his thumbs and silently looked over the audience. When it seemed as if he would never begin, he cleared his throat and started. "Ladies and gentlemen, we are here because my little lady client, Lucy Baines Brady, is the victim of one of the most horrendous assaults and acts of medical malpractice."

  That was as far as he got before Tod bolted from his chair, "Objection, Your Honor. May we approach the bench?" Whether dramatic flair or real, Tod's anger was apparent as he stared at Johnny Bob and back to the bench.

  "Approach, please, Counsel."

  Tod moved to the front of the judge's bench and was joined by Johnny Bob and the court reporter.

  "Your Honor," Tod continued, "This is voir dire. That statement may or may not be relevant at time of argument, but it's absolutely improper and prejudicial at this time."

  "I agree, Counsel. Certainly didn't take long for you two to draw swords, did it? All right, Mr. Tisdale, I don't know how you try lawsuits up in East Texas, but that won't fly in my court. I'll let you make a brief, very brief, statement of the nature of your case as a preface to asking questions. That is all. And the flavor better be plain old vanilla. Save your arguments for later. Do I make myself clear?"

  Johnny Bob apologized to the judge and returned to his place in front of the jury panel, acting as if she had just given him an Academy Award for outstanding performance. "This is a medical malpractice case. I expect to prove that my client has sustained serious, permanent and life threatening injuries from an abortion that was performed by the defendant, Dr. Moyo, at the Population Planning Abortion Center down here on Space Shuttle Drive."

  This time it was Jan on her feet. "Objection, Your Honor. The Population Planning Center is not an abortion center."

  "Sustained."

  "…at the Population Planning Center where they do abortions. We expect to show that the defendants were negligent and performed an illegal assault on my client. Lucy, would you and your family please stand so that the jury panel can see you?"

  Lucy, Joanna, Jessie, Bo and Junior stood, turned and faced the audience. The TV cameras showed a family that was certainly all- American.

  "Now, Ms. Jackson here represents Reverend Thomas Jeremiah Luther, The City of Miracles, and a number of pro-life organizations. She has asked me to also explain, as a part of our voir dire that Dr. Moyo and Population Planning have sued her clients because of some remarks that Reverend Luther made from his pulpit on national TV. They claim that such remarks have slandered their clients and are seeking large sums of money from what I will call the pro-life coalition. Reverend Luther, would you stand and introduce yourself to the jury?

  T. J. stood, facing the audience and the TV camera with his broadest smile and said, "Good morning, ladies and gentlemen."

  Johnny Bob continued, "To start, how many of you have heard of this case?"

  From a panel of now one hundred and sixty five jurors, one hundred and sixty three raised their hands. The two that didn't were an elderly Hispanic woman and a young white man with long hair and a longer beard, dressed in jeans, a dirty tee shirt, and thongs. Johnny Bob suspected that the Hispanic woman did not speak English very well, and as to the young man, he could only assume that the bridge he must live under was not wired for electricity. />
  Next, came the question that the judge and lawyers expected would wipe out a large part of the panel. "Abortion is going to be a part of this case. We all recognize that many people have strong feelings about abortion, on both sides of the issue. Please let me see a show of hands of those persons who have strong opinions. We attorneys respect those opinions, and let me make it clear, none of us seeks to have you change your minds."

  One young lady on the first row raised her hand. Then, a black man on the second row. Next was an older white woman three rows back. The flood followed. Soon about half of the jury panel had a hand raised.

  "Thank you, ladies and gentlemen. If you will, please keep your hands up while we write down your juror numbers."

  There were eighty-two with raised hands. So that their opinions would not poison the whole panel, the judge required that they approach the bench one by one for questioning. The young woman on the first row, a college student, said that no one could tell a woman what to do with her own body. An older white woman in a blue and white polka dot dress who lived in Pasadena, not far from Texas City, told the judge abortion was a sin. Thirty-five Catholics came to the bench, each to express their opinion that they had been taught since youth that their church condemned abortion. One young man offered the opinion that the only way to save the world from over-population was by abortion, that it should be encouraged as a means of birth control. Another twenty-seven women believed that it was a woman's decision and hers alone. There were a few, mostly businessmen, who saw the opportunity to get away from a four-week trial. They mentally crossed their fingers behind their backs as they lied about their opinions on abortion. Four weeks was just too much to give for a civic duty. For some of them, one day would have been too much. It took until the lunch break, but finally all eighty-two had expressed their opinions. The judge excused them all. She expected such a reaction and was actually surprised there were not more. Out of the remaining eighty-three jurors, there had to be a few who had strong feelings but hid them with the hope that they might get on the jury and strike a blow for their cause. The judge could only be optimistic that with such good lawyers, that they would be ferreted out before the end of the day.

  ***

  During the lunch break, Tod, Wayne and Jan adjourned to an empty classroom that had been reserved for their use where they huddled with their computer and notes while Marilyn went for sandwiches.

  "So, what's your assessment, so far?" Jan asked.

  "About what I figured. We've got enough jurors left. We'll get it done before the day is over. Boy, Johnny Bob didn't waste any time in taking the gloves off, did he? We'll have to be on our toes every time he opens his mouth. The minute we let our guard down just a little, he'll be aiming a blow somewhere just slightly below the belt. That's okay. I can play that game."

  Marilyn came in with lunch, and as they ate their sandwiches, they determined that there were fifteen jurors that they definitely did not want on the jury. It was their investigation that had assisted them in identifying the fifteen.

  ***

  In another classroom Johnny Bob, Claudia, and T. J. were going over their lists as Lucy and her family observed. "Claudia, don't take this personal, but we have too many blacks on this panel. I've got to try to get rid of a few of them."

  "Johnny Bob, this is not personal. It's war. I agree. Some of the brothers and sisters are going to start off putting a black doctor up on a pedestal. As I said before, some of them will be okay. Still, you take your best shot."

  Johnny Bob completed his analysis of the jury list and raised his nose up in the air, sniffing like an old hound dog that had just caught the scent of his prey on the wind. "I smell about a dozen that are hiding something. I'll see what it is." The others laughed at the large man in red suspenders, sniffing at the ceiling.

  Johnny Bob continued after lunch, this time to a smaller jury panel. They had been moved to fill in vacant seats, making room for a few more spectators and media types who had been standing outside the metal detectors, hoping for a place inside the tent.

  "Now, this is a case about medical negligence. Some call it medical malpractice. I know that some people just don't believe in such lawsuits. Let me see a show of hands of those who just couldn't award a verdict against a doctor, no matter what the facts?"

  Johnny Bob got rid of ten pro-doctor jurors with that question, including five African-Americans. An inquiry about people that just didn't believe in awarding damages for pain and suffering wiped out five more. When he mentioned that he was asking the jury to award five million dollars in actual damages and one hundred million in punitive damages, five more jurors bit the dust. There were eighteen black jurors that remained after lunch. In evaluating the panel, Johnny Bob reached a conclusion somewhat different from that of Claudia. He preferred to eliminate every black juror possible. He worried that they would not be able to get Dr. Moyo off that pedestal. Johnny Bob questioned each of them in detail and challenged each for cause. The judge excused eight. Then he thanked the remaining jurors and Claudia stepped up.

  Claudia made a very short presentation on behalf of her clients. "Ladies and gentlemen, I can be very brief. I represent Reverend Luther, his church and the coalition of pro-life organizations who are being sued by Dr. Moyo and Population Planning. Dr. Moyo and the clinic claim that they have been damaged by alleged slanderous statements made on behalf of the coalition by Reverend Luther. Our defense is simple. If it's true, it's not slander, and we will prove that the words spoken by Reverend Luther were true in every respect."

  Claudia returned to her seat. T. J. leaped up to assist her, shaking her hand and beaming as he did so.

  Tod came next. Now there were only fifty-seven jurors left. While her face did not show it, Judge O'Reilly was becoming concerned. With nearly two hundred jurors a few hours before, to be down to fifty-seven was a number quite a bit lower than she had anticipated at this point in the trial. The last thing that she wanted was to start this process over.

  "Good afternoon, ladies and gentlemen. To refresh your memories after several hours, my name is Thomas Oswalt Duncan. You'll hear me called Tod from time to time during the trial. I represent Dr. Moyo. Doctor, would you and your family stand up?"

  Zeke and his family got up and turned to face the jurors. Zeke gave his best Marcus Welby smile. Marian managed a slight upturn of her mouth, and the two girls tried to hide behind their parents. The remaining prospective jurors liked what they saw.

  "Dr. Moyo is a Baylor-trained, board certified obstetrician and gynecologist."

  Johnny Bob started to object to the bolstering of the defendant on voir dire, then left it alone.

  "He is both a defendant in this case and a plaintiff. I see some confused looks on your faces; so, let me explain. He is accused by Mr. Tisdale and his client of failing to use ordinary care in performing an abortion on Ms. Brady. We will prove that his conduct was well above the standards of medical care in this community and he is not legally responsible for the unfortunate complications of the procedure that caused Ms. Brady such problems. Additionally, he is a plaintiff. He is seeking to recover damages to his reputation because of the slanderous remarks of this man, T. J. Luther." As he spoke, he pointed to the man in the white suit and sunglasses.

  "Some of you have undoubtedly heard of Reverend Luther. The evidence will show that he and a number of other pro-life organizations have backed this litigation and that Reverend Luther was directed by those organizations to attack Dr. Moyo on national television, not once, but on several occasions. As a result, Dr. Moyo's practice dried up and he has suffered enormous damages, both economically and to his reputation. We seek to recover those damages.

  "Since I mentioned Reverend Luther, let's start there. Which of you have heard of Reverend Luther, also known as The Chosen, or The City of Miracles before today?" Tod was not surprised when nearly every hand went up. "How many of you watch his television program, The Miracle Hour, on Sunday mornings?"

  About twenty han
ds were raised. The other lawyers quickly wrote down their juror numbers. "Now, who has made a donation to his ministry or subscribed to any of the Miracle publications?" Out of the twenty, there were six who admitted to having done so. It took only a few questions for Tod to disqualify the six. Juror Number 134 was Millard Jackson, a middle aged man who, according to their investigation, both donated to Operation Save-a-Life and subscribed to The Miracle Magazine.

  When asked about pro-life organizations, he had remained silent, but he raised his hand to Tod's last question. Tod wanted him off the panel. "Mr. Jackson?"

  A mousy little man, he sat slumped down in his seat, apparently trying to make himself invisible. Tod decided that Jackson wanted on the jury, and it wouldn't benefit his client. "Yes sir," Mr. Jackson replied.

  "In addition to watching The Miracle Hour, do you donate to The City of Miracles or subscribe to one of its publications?"

  "Uh, I occasionally read The Miracle Magazine, not very often. My wife is the one who usually reads it."

  "Fine, Mr. Jackson. I'm sure it's an excellent magazine." Tod appeared to go to another juror for questioning and Mr. Jackson relaxed.

  "Oh, one more question, Mr. Jackson, do you belong to or donate to any of the pro-life organizations that are involved in this lawsuit?"

  "Uh, I'm sorry, Mr. Duncan, but I've forgotten their names. Could you remind me?" Mr. Jackson could feel the trap door giving way beneath him. Tod very pleasantly rattled off the organizations.