A Case of Redemption (28 page)

The second prospective juror was exactly the kind Kaplan wanted: sixty-two-year-old white male, middle management at Time Warner Cable. I thought hard about using one of our challenges to strike
him, but the sea of people who looked just like him in the jury pool caused me to conclude I'd better keep my powder dry.

He was seated as juror number 1. Eleven more to go, and judging from the potential jurors we had to choose from, we might lose the case before it had even begun.

As luck would have it, the only other African-American male was next up. I knew from the get-go he was a keeper, but to make something of a show of it, I asked about five questions before telling Judge Pielmeier that this juror was acceptable to the defense. Kaplan didn't even ask one before using her second peremptory to strike him.

That's when I opened my mouth and objected.

“Mr. Sorensen,” Judge Pielmeier said, sounding surprised, “what's the problem with Ms. Kaplan using one of her challenges to strike this prospective juror?”

In a very loud voice, I announced, “The prosecution is obviously eliminating jurors on the basis of their race. They are illegally preventing African Americans from serving on this jury.”

Judge Pielmeier shot me the disgusted look I deserved. An objection like that should have been done at sidebar, so as not to poison the entire jury pool. Of course, that was precisely why I didn't do it at sidebar. I needed to create some luck here or L.D. was finished.

After a sigh so loud the people in the back of the gallery undoubtedly heard it, Judge Pielmeier said, “Unfortunately, due to Mr. Sorensen's objection, which he knows very well that he should not have voiced in front of you all, and which Mr. Sorensen and I will discuss in just a moment, I have little choice but to dismiss all of you from consideration for serving on this case. Please go back to the general sitting room. Perhaps you'll be called for another case.” She looked down at the paper in front of her. “Mr. Anderson,” she said to the one juror who had already been seated, “I'm afraid I'm going to dismiss you as well.”

Kaplan looked positively horrified by this turn of events. “Your Honor, the prosecution does not believe the prejudice is sufficient
to justify dismissal of the entire jury pool,” she said in a pleading voice.

“I know this one hurts, Ms. Kaplan, and I sympathize. And believe me, Mr. Sorensen will
not
go unpunished for his conduct. But despite some of the nastier things being said in the court of public opinion”—she glared at the reporters in the gallery as she said this—“I will not allow race to play
any
part in this trial, and I'm not going to allow people to second-guess the verdict based on the racial composition of the jury like they did in the O.J. Simpson case.”

During the few minutes it took the first jury pool to file out of the courtroom, I tried not to make eye contact with Judge Pielmeier, but I knew she was bearing down on me. I had butterflies in my stomach, and it felt a lot like when I was a child awaiting my parents' punishment.

When the last member of the first jury pool had left, Judge Pielmeier finally had the opportunity.

“This is not going to happen again, Mr. Sorensen!” she thundered. “Do you understand me? If you are going to say anything—anything—that might even remotely prejudice . . . No, I'm not even going to assume you're capable of making that determination. From now on, all your objections shall be explained with only one word. So you'll say, ‘Objection—relevance' or ‘Objection—hearsay.' If you need more than one word, you are to ask for a sidebar, or by all that I hold holy, there will be dire consequences. Understood?”

“My apologies, Your Honor.”

“Save it for someone who believes you, Mr. Sorensen,” she said with a note of disgust so pronounced that had she not been in court I'm sure her words would have been laced with profanity. “Now put your
Batson
objection”—and with that she rolled her eyes—“on the record, so I can tell you, on the record, just how ridiculous I think it is. And, Mr. Sorensen, you'd be wise to remember who you're appearing before in this case.”

“Thank you,” I said, as if I had received an honor rather than a
tongue-lashing. “Put simply, in the
Batson
case, the United States Supreme Court held that, even though peremptory challenges can be made without cause, they cannot be racially motivated. In this case—”

“That's enough, Mr. Sorensen.”

I had more to say, but Judge Pielmeier had already heard enough. More than enough, I'm sure she would have said.

Seeing it was her turn, Kaplan rose to respond, but Judge Pielmeier gestured that she should resume her seat. “Ms. Kaplan, there's no need for you even to waste your breath on this one.”

Then, turning back to me with anger still all over her face, Judge Pielmeier continued, “This is the ruling of the court. Defendant's
Batson
challenge is denied and deemed frivolous. I have, off the record, explained to Mr. Sorensen that this type of conduct will not be tolerated in my courtroom. But more than that, no one is more opposed to racial profiling than me. I have written opinions on the subject and testified before Congress about it. It does a disservice to allege racial profiling without any basis, which is precisely what this court believes the defendant's counsel has done. I understand that lawyers are duty bound to zealously advocate for their clients, but I do not believe that extends to a blatant attempt to contaminate what counsel believes to be a demographically unfavorable jury pool by yelling ‘Racism!' when there's absolutely no evidence to support such a serious charge. To erase any doubt that Ms. Kaplan acted in anything but a completely appropriate manner, I would have struck those jurors, too. Let the record therefore show that it was with serious reservations that I dismissed the first jury pool and the one already-seated juror, but I did so because continuing with a possibly tainted jury pool was not in the best interests of justice. I'm going to give the prosecution back their two peremptories, and I'm taking two peremptory challenges away from the defense as punishment. So the prosecution has their six back, and Mr. Sorensen and Ms. Harrington, you are now down to seven, and I'll keep chopping away at that if I have to. Now . . . we're
going to bring in a new pool, and we're definitely going to seat a jury today. Does everyone understand?”

“Yes, Your Honor,” Kaplan and I said in unison.

“I know
you
understand, Ms. Kaplan,” Judge Pielmeier said, “but I'm not sure that Mr. Sorensen does. So, Mr. Sorensen: let me be absolutely clear. This is when I might tell you that the next time you pull a stunt like that, I'm going to hold you in contempt, but that would suggest there might be a next time. Rather, I want you to understand, in no uncertain terms, that there will
not
be a next time. Is that clear, sir?”

“Yes, Your Honor,” I said, trying hard not to show even the hint of a smile.

And wouldn't you know, the next jury pool turned out to be as good for us as the previous pool had been bad. Even with our side having two fewer peremptory challenges, the jury that was seated was better than we could have hoped for. Seven of the twelve were African-American men under forty. Among the other five, there wasn't a single white male over fifty.

We actually had a shot now.

I
knew Nina disapproved.

She didn't say anything about it during the walk back to my apartment after court, beyond a cryptic comment that I “must be pleased with our jury,” but I could tell by her body language that she was unnerved by my conduct.

We ordered in Chinese food for dinner. One thing we had agreed upon was that we shouldn't be seen in restaurants during the trial. A photo of Nina and me smiling or canoodling over glasses of wine would undo our effort to portray ourselves as single-minded in our devotion to Legally Dead's innocence.

After a bite of steamed vegetable dumplings, Nina finally made reference to the elephant in the room.

“Just so I'm clear, Dan . . . is this one of those ‘we're going to do whatever it takes to win' kind of things? Or was today a onetime detour from the world of ethics?”

“We didn't have a chance with that jury pool, Nina.”

She frowned at me. “That's not an answer, and you know it. Besides, Kaplan now has as bad a jury for her as we originally had for us. Do you think she's got no chance? Did you hear her yelling ‘racism'?”

“Her client doesn't have a constitutional right to a trial by a jury of its peers. Our client does.”

She put down her chopsticks. It looked like she was debating with herself whether to let the issue go or take another stab at it.

Apparently she decided to give it one more try.

“It scared me a little bit. Seeing you that way.”

The sentiment surprised me. I had anticipated her saying that she was disappointed in me, claiming that I should have more faith in myself or the legal system than to feel like I needed to put my thumb on the scale.

But scared?

“I don't understand,” I said.

“I'm worried that this case has made you desperate. You know, it isn't lost on me that our client—who may end up spending the rest of his life in prison—seems to be at peace with that, so long as he's true to himself. I worry sometimes that . . . well, that that's not the case for you. That you won't be at peace with yourself if we lose, and that's making you betray who you are.”

I dismissed the suggestion out with a shake of my head and a smile.

“No, that's not right,” I said. “Believe me. I'll be fine, win or lose.”

But even as I said this, I knew Nina was right. Although I had told myself repeatedly that L.D. could be found guilty, and I could go on to lead a very happy life, with Nina at my side, for some reason, I couldn't see it unfolding that way. The lesson I took away from Darrius Macy was that I'd been punished for my role in allowing a rapist to go free. To undo that required more than L.D. being found not guilty. He had to be truly innocent
and
he had to be acquitted.

This meant, when you parsed through it all, that Nina was right. There would be no peace for me if we lost.

•   •   •

Later that evening, as I worked on my opening statement, Nina appeared to be working just as hard on distracting me from working on my opening statement. I was hunched over my laptop while Nina was kissing my ear.

“Are you already bored with me, Dan? Is that where this relationship is going?”

“So you don't subscribe to the rule adhered to by football players—no sex the night before the big game?”

“I've dated more than my fair share of football players, and most of them claimed to have had the best games of their career
after
having sex with me. So, you may want to keep that in mind.”

She said this with laughter, but I had little doubt it was true. I also knew that, like with most issues pertaining to Nina, I was going to give in.

Afterward, we both dozed off. When I awoke about an hour later, Nina was breathing softly beside me. I decided to let her sleep, and turned back to the opening. I wasn't working long before she was awake.

“Hey. Come back to bed,” she cooed.

“Soon. I need to do a little more work.”

“How's it coming along?”

“Okay, but I'm struggling with that age-old debate about our SODDI guy. Do we go after Brooks in the opening or hold fire?”

“You know my view,” she said with a yawn. “It's just too risky.”

Nina was sitting up in bed. She held the top sheet over her breasts, like they do in the movies, a bit of modesty that seemed out of character for her.

“I'm just worried that we'll lose some of the jury from the get-go,” I said. “Once that happens, you never get them back. They're
expecting
us to argue that L.D. didn't do it, which means that someone else did, and so they're just going to glaze over when I make that point. What they're not expecting is for us to identify the murderer. If we name Brooks, then they'll be attentive for the whole trial, waiting for evidence linking to him.”

“That's the problem, though, isn't it?” she said, smoothing her hair. “We don't have that evidence. You may be right that if we pin our whole case on proving that Brooks did it, the jury won't jump to the conclusion that L.D. is guilty during the opening. But so what? When our case is over and we
haven't
proved that Brooks did it—or
offered much even to suggest that he did—the jury is going to feel bait-and-switched. Besides, even if you're right about needing to give the jury another person to blame, it doesn't mean that you have to give them a specific someone else in the opening. If you feel we need to go that way, leave the SODDI guy nameless. So, you'll say, ‘Ladies and gentlemen of the jury, Roxanne had another lover and he's the real killer.' ”

And if her logic weren't enough to persuade me, she let the top sheet drop, exposing her perfect, full breasts.

“Now you're playing unfair,” I said.

“All's fair,” she replied coyly. “Now, hear me out on this. You have to remember, we have no idea where Matt Brooks was the night of the murder. I bet his wife alibis him, whether he was with her or not. And if we go after Brooks in opening, we give Kaplan time to see if Brooks's prints match the ones left at Roxanne's house, and maybe she'll even have her expert do the match on the pubic hair.”

I shook my head in disagreement. “If we put L.D. on, Kaplan will call Brooks in her rebuttal case. And if she needs time to run tests on the pubic hairs, do you think Judge Pielmeier won't give it to her?”

Nina shrugged. “That's a good argument for keeping L.D. off the stand. But it's not a reason for going after Brooks in the opening.”