by Paul Levine
We were standing in the corridor outside the courtroom in recess. In ten minutes, we would start selecting a jury. Or rather, de-selecting. That’s what I do, strike from the panel anyone with obvious bias. Or anyone giving my client the evil eye.
“Speidel loved his job with the Agriculture Department,” she said. “Someday, when we’re in chambers and he’s relaxed, he’ll tell you about it. He wore cowboy boots, chewed tobacco, and stood there admiring the cattle, one foot propped up on the lower rail of the fence.”
“I’m having trouble with the image of Speidel as a Marlboro Man.”
“My bet is that he sees you as the embodiment of that. He told his law clerks as much. You’re a rugged gunslinger.”
“Which he hates. He disparaged lawyers who shoot from the hip.”
“That’s his cognitive dissonance at play.”
I gave her a look, and she explained, “I was a psychology major undergrad.”
“Okay, analyze away.”
“Speidel’s job requires dealing with deep-carpet lawyers who file briefs with footnotes asking for permission to take a leak. But he admires the guys who walk into court with a blank legal pad and say, ‘I’m ready for trial.’”
“As I did before the magistrate.”
“Speidel read the transcript of your client’s initial appearance. He always reads the transcripts.”
“Where are you going with this, Margaret?” I took a sip of my coffee. “Or can I call you Margie, like Cowboy Speidel?”
“Margaret will do. The judge admires strength. He bulldozes lawyers he perceives as weak. You impressed him this morning.”
The corridor was quiet, neighboring courtrooms dark. If we’d been in the state justice building, bailiffs would be clattering down the hall yelling lawyers’ names, hustling their late asses into court, keeping the conveyor belt of so-called justice rolling.
“My advice, just keep doing what you’re doing,” Bolden said.
That made me laugh. “You’re gaming me. You want me to go mano a mano with His Majesty, who’ll behead me, or at least hold me in contempt.”
She shook her head. “Think about it, Jake. Do I want to try this case twice?”
I didn’t answer, so she kept going. “Trust me, I really don’t want you to have any viable appellate issues.”
“So, you’re doing what, giving me free advice on how to beat you in court?”
“No way. You have an unwinnable case. Your client did everything he’s accused of doing. He has no legal defenses. I’m just trying to be as fair with you as I expect you to be with me.”
She seemed sincere, but I never believe a lawyer unless she’s under oath, passes a polygraph, and has two corroborating witnesses. Hey, they don’t call us sharks for our ability to swim. Still, there was nothing to lose in listening.
“Okay, thanks. What else do you have for me?”
“Just be your own combative self. You’ll occasionally win an argument. But choose your battles carefully and don’t challenge him personally.”
“Like I did this morning. Basically, calling him a liar about ‘when’ and ‘if.’”
“Big mistake. But he’s giving you more slack than I’ve ever seen from him. Just don’t push your luck.”
I finished my coffee and picked up my trial bag. “I owe you one, and I’m gonna reciprocate by teaching you how to pick a jury.”
She chuckled softly. “I’ve been picking juries for nineteen years.”
“But not the Lassiter way.”
“Oh, brother.”
“I assume you watch the jurors file into the box. Pay attention to their bearing, see who looks like a leader and who’s a follower?
“I do all of that. And in the old days, I used to see what books they were carrying. Now, it’s just iPads and cell phones.”
“Okay, listen up. I’m not gonna give away the secrets of my craft, but if you watch closely when we get started, you’ll see I accomplish three goals.”
“Why do I think you’re gonna number them for me?”
“One, I’ll get a few who will actually hold the government to its burden of proof. They’re not gonna believe that where there’s smoke, my client’s ass is necessarily on fire.”
“Two . . .?”
“Two, I will establish the theme of my defense, which is quite simple. The government is attempting to criminalize that which is not a crime. The U.S.A. has kidnapped justice and is hiding it inside the law.”
“If you’re talking about jury nullification, Judge Speidel might order the marshals to kidnap you.”
“And three, I will make friends with the jury. Not all of them. Maybe only two or three. But all I need is one for a hung jury. Shall I tell you how I make friends with strangers who are naturally suspicious of slick-talking shysters?”
“If you must.”
“It’s not easy. Voir dire requires experience and people skills. You should just watch me, maybe take notes if you wish.”
“Oh. My. God.” She said it deliberately, emphasizing each word. “It just occurred to me, Jake. I’m being mansplained to by a man with brain damage.”
CHAPTER THIRTY-EIGHT
The Ideal Juror
Some lawyers think you win cases in closing argument, jack-hammering the cracks in the prosecution’s case into giant crevasses. Some say opening statement, when you tell your story in compelling terms. Me? I don’t care if you’re a better orator than Abe Lincoln. If you empanel a jury biased against your client by background or experience, or a jury filled with the vindictive and heartless, well, you will lose. To win any case, you must win voir dire.
I stood exactly five feet from the rail of the jury box—not so close as to invade the jurors’ space—and inquired, “Ms. Dixon, would you agree that’s it’s wrong to cheat in school?”
“Why, yes, of course I would.”
“So, if I’m a student, if I look over at my neighbor’s exam and copy the answers, that would be morally wrong.”
“Yes, certainly.”
“But should it be a federal crime?”
Dorothea Dixon pursed her lips and thought about it. She was a 44-year-old mail carrier for the postal service. Most defense lawyers are skeptical about seating civil servants who are roughly on the same side as government prosecutors. My view is different. Government employees know the incompetence, inefficiency, and sometimes pure venality of bureaucrats.
“No, sir. I think that would be a waste of time and money,” Ms. Dixon answered.
I nodded and gave her a small, friendly smile. Sending the message: You got that right, Ma’am.
“Now let’s say I’m the smart student in this story,” I said, “hard as that may be to believe.” Ms. Dixon smiled back at me, and a couple other prospective jurors chuckled.
Oh, what a warm and friendly puppy of a lawyer.
“I purposely let my friend copy my answers on the test,” I continued. “Should I be charged with a federal crime?”
“Same answer, sir,” Ms. Dixon replied. “Doesn’t seem like that big a deal.”
“One more. I’m that same smart student working my way through school. The kid next to me has rich parents, and he offers me money, a lot of money, to copy my answers. What now, Ms. Dixon? Should I be charged with a federal crime for taking money to let him cheat?”
She thought about it. I felt movement behind me, petite Margaret Bolden in her stylish navy pumps, changing position so that my bulk didn’t block her view. It’s as important to watch jurors’ faces and body language as to listen to their answers. I shifted two steps to the left, forcing Margaret to bunny-hop back the other way. Just one of the million games lawyers play.
“The money doesn’t change my answer,” Ms. Dixon said. “I think both students should be expelled, but neither one should be charged with a federal crime.”
“Exactly!” I congratulated her. “What if the government charges me, the smart, poor student, for taking that money? But they don’t charge that rich kid who
paid me to let him cheat?”
“That’s just plain wrong,” Ms. Dixon concluded.
“And yet that’s the government’s case. The United States of America has turned student codes of conduct into criminal statutes. They’ve chosen to criminalize students’ mischief but only charge one of the two mischief-makers.”
“Objection!” Bolden sang out.
“Sustained,” Judge Speidel replied. “Save that for closing argument, Mr. Lassiter.”
“Thank you, Your Honor,” I said, as if I had won the objection. Another game we play.
The judge shot a look at the wall clock. “And speed it up, please.”
“Of course, Your Honor,” I answered, like a good boy.
Margaret Bolden was crisp and to the point when she questioned Dorthea Dixon, my favorite letter carrier of all time. “Ms. Dixon, do you understand that it will be Judge Speidel and not Mr. Lassiter who will instruct the jury on the law?”
“Of course.”
“Will you follow the law as instructed by the judge as applied to the facts in this case?”
“Yes.”
She had one more question. You could see it coming from the last row of the bleachers.
“Even if you disagree with the law, will you nonetheless follow the judge’s instructions?”
“Well, I believe if I’m chosen, I have to take an oath to do that, right?”
“You do.”
“There’s your answer. I don’t swear falsely.”
Fine with me. Any other answer, and the government could remove Ms. Dixon for cause. The woman had a heart. I felt it beating when she looked at Kip and I heard a gentleness in her voice when she answered my questions. She was a keeper. And because she was an African American woman around the same age as Ms. Bolden and answered exactly as she should, I doubted the government would exercise a peremptory challenge to remove her.
I turned my attention from Ms. Dixon in chair number four to Manuel Castillo next door in number five. Thirty-seven years old with a shaved head, he wore a black T-shirt and every square inch of each arm was covered in tattoos. For a moment, I wondered if he was a customer of juror number nine, a Sunny Isles tattoo artist. I am old enough to remember when only sailors, prison inmates, and corpses in the morgue sported tattoos.
“Mr. Castillo,” I began, “I note on your questionnaire that you are a molecular gastronomy chef. The fusion of chemistry and cooking, right?”
“Yes, changing the form of food for artistic presentations and unique tastes.”
“And where do you cook?”
“Catalania on South Beach.”
“Aha! One of my favorites. The chicken croquetas have such an unusual burst of flavor.”
He nodded, appreciatively. “We inject them with seawater.”
“That’s it!” I cried out. “Such palatal chaos.”
I heard Kip snicker at the defense table. I would have to remind him to clam up when I’m on center stage.
“It’s my homage to Chef José Andrés,” the chef said.
“Ah yes, at his wonderful Bazaar. Who, in turn, credited Ferran Andriá. Such ingenuity. Gazpacho with no liquid. Ice cream with salt instead of sugar. Chocolate-infused with wasabi. But as far as croquetas go, yours are más deliciosas.”
The chef beamed at me. People who love their work equally love being told that it’s very good work, indeed. I retreated from my position at the jury box to the podium. Not to find my notes because I wasn’t using any. I needed to prop myself up.
Vertigo.
It had come on quickly, the jury box tilting to and fro like a dinghy in a storm. The asymmetrical ceiling with its odd-shaped panels spun overhead, resembling animated versions of the Milky Way galaxy. I grabbed the podium with two hands and hung on like a drowning man clinging to a log.
“Mr. Lassiter, please speed it up,” the judge told me, his voice echoing so that I heard him twice.
“Of course, Your Honor.”
The spinning slowed enough for me to continue. “Mr. Castillo, have you read We Fed an Island, José Andrés’ book about Puerto Rico after the hurricane?”
His eyes lit up. “I helped him cook there, and I’m reading the book now. In Spanish.”
“Of course. Alimentamos Una Isla: Una Historia Verdadera Sobre la Reconstrucción de Puerto Rico.”
Maybe I was ladling on the sauce too thick, but the chef smiled at me.
“Mr. Lassiter,” Judge Speidel said, “your linguistic skills are duly noted, but please move it along.”
“Of course, Your Honor.” I moved out from behind the podium and returned to my position in front of the jury box. “Mr. Castillo, based on your experience in Puerto Rico, it seems to me that you want to help other people.”
“That is true.”
“And would it be true, too, that you appreciate those qualities in others?”
“Yes.”
I turned to the defense table and gestured toward Kip. “Then I hope you will carefully listen to all that is said in the coming weeks about my client, Kip Lassiter.”
“I will.”
When I sat down, Margaret Bolden returned for another round of questioning.
Maybe she correctly guessed that I had never eaten the chef’s chicken croquettes. I know as much about molecular gastronomy as I do about nuclear fission, which might actually be involved in some of these modern dishes. My pal, Shifty Steve Solomon, patrolled the jurors’ parking lot this morning, surveilling incoming cars. Solomon told me that the chef’s Volvo had a parking sticker for Catalania, which gave me his employment, and Señor Google told me about the croquetas on the menu. Clearly visible on the passenger seat was a copy of the Puerto Rico book.
My ideal juror is someone wanting to “stick it to the Man,” to use an old expression. I picture a guy driving a 14-year-old Honda with a dented fender and a missing taillight, a bumper sticker reading, “My kid can beat up your honor student,” a dozen parking tickets crumpled in the front seat with several Burger King wrappers. Lacking that, I’ll take the postal worker who believes cheating on tests shouldn’t be a crime and a chef who thinks I adore his cooking. I also like to know what television programs jurors watch. Law shows where defendants are often wrongfully accused are my favorite. And for this trial, I needed a couple of Star Trek fans for a gambit I wanted to try in closing argument.
Margaret Bolden kept to her protocol with the chef, speaking quietly and standing as tall as her five foot frame would allow. She’d had the chance to Google the man while I was on my feet.
“Mr. Castillo, you make an appetizer with ibérico ham from Spain, correct?”
The chef smiled. “Jamón ibérico de Bellota. Free-range, acorn-fed, cured four years in mountain air. The Beluga caviar of ham.”
“And you sell a small appetizer portion for $46, correct?”
“Yes, but one leg of such a ham imported from Spain costs more than a thousand dollars.”
“If your supplier, without your knowledge, substituted an inferior ham, an imposter, raised on scraps in a barnyard in Mississippi, would you be upset?”
“Upset! I would be enraged. It would be . . . a . . . a . . .”
“A fraud, perhaps?”
“Yes! And it could ruin my reputation.”
I knew the gist of Bolden’s next question, and I could object. But I would appear scared of the point she was making. Which I was, but why draw attention?
“So, Mr. Castillo, can you see why elite universities would be upset, even enraged, if they thought they had admitted the Beluga caviar of students and received canned tuna imposters instead?”
Damn, she was good.
“Yes, of course.”
The prosecutor thanked the chef, and the judge allowed as it was a fine time for the mid-afternoon recess. He had a hearty snack waiting in chambers. After the jury filed out, I sauntered over to the government table and whispered, “If this were a fencing match, this is where I would say, ‘Touché.’”
She gave me
a wry smile. “‘Palatal chaos?’ What the hell is that?”
“No idea. Pulled it from an incredibly pretentious restaurant review.”
“You still got game, you crafty son of a bitch.”
CHAPTER THIRTY-NINE
The Boiler without a Safety Valve
Melissa Gold . . .
Looking drained, Jake walked into the kitchen and plopped into one of the chairs at the counter.
“Hey, hon,” she said. “Drink?”
“In a second.”
Melissa was about to ask about the trial, but before she could, he announced, “I’ve got some background on the helmet guy.”
“Dr. Jeffries, the biomechanical engineer?”
“He’s an expert witness for the football helmet industry. Makes seven hundred bucks an hour testifying for the defense when they’re sued by high school players who’ve been injured.”
“I thought he was critical of the helmet industry. Isn’t that his claim to fame?”
“This is where it gets interesting.” Jake got to his feet, opened the fridge, pulled out a 16-ounce bottle of Grolsch, and sat down again. “Do you know Stuart Grossman?”
“I know of him. Big time plaintiff’s lawyer.”
“Stuart gave me access to this secret database that P.I. lawyers keep on expert witnesses. I was able to read Jeffries’s testimony in a dozen different cases. He always says the same thing. The helmet in every case is ‘state of the art,’ so it’s not defective. Now, get this. He’s working on a space-age helmet that will change the state of the art, but they’re not available yet.”
“I’m confused. What’s that have to do with the N.I.H. program, other than the fact that he’s unqualified to run it?”
“It took me a while to figure it out. NFL helmets cost between $1,000 and $1,500. He says his space-age helmet will cost double that. If he’s running N.I.H. study, it will identify helmets as the culprit in C.T.E. Then, he’ll make a fortune when the League throws out the old helmets and starts buying his product.”
