Bum Rap (21 page)

-50-

The Vulture and the Chicken

I
t was our last visit to the jail before trial, and my client and my cocounsel were both furious with me.

“
Lassiter, you two-hundred-thirty-pound sack of shit!” Solomon yelled at me.

“Two forty-five,” I corrected him.

“Whatever. You can’t do this,” Solomon said. “Vic and I have talked, and we think it’s a huge mistake.”

Victoria nodded in agreement. “If you make Nadia look like
La Femme Nikita
, the wicked assassin, she’ll never help us.”

“She
can’t
help us.”

“You don’t know that! I gave Hostetler a plan that might work.”

“Did he ever get back to you?” I asked.

Victoria shook her head, and her shoulders slumped. “He’s not returning my calls.”

“Then we have to assume Nadia can’t—or won’t—do what you asked. You took a helluva risk, Victoria, and I admire that. If Hostetler had ratted you out to Pincher—if he’d told him what you asked Nadia to do—you’d have been indicted for obstruction.”

“I’m always amazed by the actions you admire,” she said.

“Anyway, Nadia’s help is just whiskey under the bridge. Pincher’s going for felony murder, and if we claim accident, he’ll probably get a compromise verdict of manslaughter. We all know it. We have to go all in.”

“Which is? Say it aloud, Jake. Just the way you’ll tell the jury.”

“Solomon didn’t shoot Gorev. Nadia did. Pincher, the dumb ass, gave immunity to the murderer.”

“You might want to leave out the ‘dumb ass’ in your opening statement,” Solomon suggested.

“Jake, have you considered this?” Victoria asked. “If you don’t attack Nadia in opening, maybe she’ll walk into the courtroom, take a look at Steve and me, and—”

“What? Feel sorry for you? I can’t rely on that. Here’s the way it’s gonna be. I lay down a barrage of artillery on Nadia in opening. On cross, I force her to admit every crime she ever committed and a few she’s only thought about. Then we use Solomon’s taped statements to the cops to bolster our theory while keeping him off the stand.”

“Seriously, Lassiter,” Solomon said, “what are the odds that’ll work?”

I shrugged. Clients always want you to give a prediction like a meteorologist forecasting the chance of rain. “If I had to guess, I’d say we have one chance in four of acquittal.”

“One in frigging four! I told you from the beginning, Vic. This guy’s a loser. A burnout. Jesus, he told me he’s gonna take down his shingle and teach high school in New Hampshire.”

“Coach prep school football in Vermont.”

“You need a rest home, dude.”

Actually, I didn’t feel like a burnout. The adrenaline rush was starting. It always comes with a murder trial. Tomorrow morning, we would pick a jury. Today, I felt like a knight, slipping into my brigandine vest. Now, where the hell was my sword?

“Jake, have you thought this through?” Victoria asked calmly. “Your strategy is so risky. It’s all or nothing.”

“Exactly,” I said. “It’s just like life. Breathe it in.”

“Breathe what in?”

“The pure air of a windswept beach or a mountain peak.”

“You’re starting to worry me a bit.” Her tone was gentle, as if trying to coax a cat down from a tree.

“No worries. Jump off the bridge without a bungee cord,” I said.

She considered that a moment. “Okay, I get it. Take risks. Is that what you’re saying?”

“Face your greatest fears. Indiana Jones in a pit of rattlesnakes. Donald Trump on food stamps. Sugar Ray Pincher hitting you below the belt. It’s all the same thing. Win or die.”

“It’s my life, not yours!” Solomon snapped. “You said one chance in four, and I’m supposed to be happy?”

“Forget the odds! One in four or nine in ten. What difference does it make? They’re just numbers, Solomon. Meaningless predictions. Who can tell where lightning will strike?”

Victoria appeared baffled. To her, I must have looked like Tarzan, swinging on a vine, screaming like an ape.

Very softly, she said, “Do you feel okay, Jake?”

“Spectacular. Do you know those black vultures that fly circles around the courthouse?”

“Of course. They’re supposed to be the souls of lawyers doing endless penance. Or maybe it’s judges.”

“I saw one today. As ugly as sin, as dark as Dracula’s heart.”

“Not possible, Jake. The vultures don’t come until November, just like the tourists.”

“This one wasn’t flying. He was on the banks of the river by the Justice Building. Devouring a chicken.”

Victoria’s eyebrows arched. “A chicken on the river bank?”

“I figure it was a Santeria offering from a defendant’s family.”

“Okay, so you saw an out-of-season vulture . . .”

“It was a message, a sign.”

“So which one are you?” Solomon asked. “The vulture or the chicken?”

I shook my head. “It’s not that literal. The vulture represents a dragon, and that would be Pincher, who thinks you’re dead meat.”

Victoria and Solomon exchanged worried looks. After a moment, she said, “Jake, are you grounded enough to take on the pressure of a murder trial?”

“Relax, Victoria. When I walk through the swinging gate into the well of the courtroom, I’ll be wielding a sword in one hand and an axe in the other. Just like the Vikings in old Norse tales, I’ll either slay the dragon, or they’ll carry me out on my shield.”

-51-

The Collective Genius

I
have a confession to make.

I hate voir dire.

I despise prying into other people’s lives because I wouldn’t want them prying into mine. But it’s damned necessary. If your client is charged with murder, you
must
ask prospective jurors if they have had any family members murdered. In
every
case, you have to ask jurors if they’ve ever been a victim of a crime. Essentially, you must force these poor schnooks—already peeved at having been summoned to the courthouse—to relive the worst moments of their lives.

Some lawyers think that jury selection is the most important part of trial. More than opening statement, cross-examination, or even closing argument. I don’t know if that’s true because jury selection is such a crapshoot.

Deep-carpet law firms hire psychologists to interview jurors after cases are over, and the results are scary. Most jurors forget about 70 percent of the judge’s instructions on the law. In deliberations, jurors spend about half their time discussing their personal experiences.

Jury consultants lay down all sorts of rules. If a blue-collar worker puts on a suit to come to court, it shows respect for the judicial system, which translates to a pro-prosecution juror. Aw, I don’t know. Maybe he’s just trying to con a lady juror into going out with him, a slick move that translates to a defense juror.

I often violate the unwritten rules about what kind of juror will favor one side over the other. Once, I left the wife of a cop on a jury—an absolute no-no—in a case I couldn’t win unless I proved that the arresting officer lied. I cross-examined the officer relentlessly until he sweated so profusely that his hands stripped the varnish off the rails of the witness box. The cop’s wife turned out to be the foreperson, and I won an acquittal. Why? I had sensed in voir dire that she was immensely proud of her husband, who had won a basketful of commendations, and I hoped she would be offended by a perjurious cop. It worked . . . that time, anyway. My point is, you just never know.

In Florida, we only have six jurors. The legislature wanted to save time and cut costs . . . and to hell with justice! The smaller panel makes my job tougher. It’s much easier to hang a jury with one holdout if you’re dealing with twelve citizens. Maybe you remember the stage play made into the hit movie about a jury that starts out eleven to one for conviction and ends up acquitting. Well, it wasn’t called
Six Angry Men
.

In capital cases, we still get a dozen jurors, just like a carton of eggs. Because the state was seeking a maximum of life imprisonment in Solomon’s case, we were seating the usual six-pack.

In theory, jurors are supposed to go through a four-step process. They assimilate the facts gleaned from the evidence, weigh those facts, learn the law from the judge, then apply the law to the facts. In reality, they determine if the defendant looks guilty and guess which witness is telling the truth. Okay, I’m overstating my cynicism. My point is that jurors can’t help themselves. They’re swayed by their life experiences as much as the evidence and the law. Still, with all my bellyaching, here’s the strange thing.

Juries usually get it right!

Honestly, I don’t know how. Maybe film director Billy Wilder said it best. He was talking about movie audiences, not juries, but the point holds true: “Individually, they’re idiots. Collectively, they’re a genius.”

At the defense table, my client and cocounsel, despite hating my trial strategy, were nonetheless working peacefully with me on voir dire. Solomon scribbled notes on a legal pad while Victoria used her color-coded three-by-five note cards.

Having lost weight, Solomon’s neck didn’t fill out the collar of his white dress shirt, and he had that jailhouse pallor. As the venire filed into the box to be questioned, he locked a maniacal grin into place. Frankly, the Joker in
Batman
had a more natural smile.

“Relax,” I told him. “You look like an axe murderer.”

“The panel looks stupid,” he said.

“Shhh,” Victoria said.

“I mean, how smart can they be?” Solomon continued. “They couldn’t even get out of jury service.”

State Attorney Ray Pincher stood, smiled at the prospective jurors, and told them, “All I want, and all Mr. Lassiter wants, is a jury that’s fair and impartial.”

Speak for yourself, Sugar Ray.

I want a jury that will rule in my favor, even if a dozen eyewitnesses saw my client shoot a nun on Ocean Drive at high noon. Failing that, I’d take jurors who truly believed in the presumption of innocence and would hold the state to its burden of proving guilt beyond every reasonable doubt.

Whereas Pincher wanted jurors who believed the old canard “Where there’s smoke, there’s fire.” Meaning, if Steve Solomon was sitting in the dock, by golly, he must have done something shitty . . . be it murder or manslaughter.

Voir dire
is a two-lawyer job. One asks the questions; the other listens to the answers and observes. I did the talking and Victoria the observing. She watched, not just the person answering but the others in the box, too. Assessing body language is an essential tool of the practice.

In a day and a half, we had our six jurors and two alternates. Th
ree men and three women on the active panel, all presumably citizens, good and true. It was a fairly typical Miami jury, which is to say, it had a lot of hyphens. Two Cuban-Americans, one Colombian-American, one Haitian-American, one African-American, and one plain old Caucasian.

Judge Melvia Duckworth gave her preliminary instructions. In addition to the age-old admonitions against discussing the case with family and friends, there were a few new ones. No texting, tweeting, blogging, or Facebooking about the case. No Instagrams, Pinterests, or Googling to look up information.

I’d tried cases before Judge Duckworth and I liked her. She was an African American woman of about fifty-five who had been a captain in the Army Judge Advocate General Corps. Most of our trial judges these days seem to come out of the state attorney’s office, and many are prosecution oriented. In the military, JAG lawyers switch sides. One day a prosecutor, the next day a defense lawyer. Maybe they should make civilian prosecutors do the same thing. Many are plagued with a disease I call emotional scurvy. Instead of lacking vitamin C, they’ve been shortchanged of empathy.

In the past, on motion calendars when the judge was being particularly stern with me, I would call her “Captain Duckworth,” instead of “Your Honor.” She generally smiled and responded by calling me “Buck Private Lassiter.” I always appreciated a judge with a sense of humor. Plus she always gave the defense bar a fair shake, and not all judges do.

Now, with the jurors having taken their oaths and ready to do justice, or a reasonable facsimile thereof, the judge said, “We’ll stand down for fifteen minutes, folks. That’s a recess. Then the state will present its opening statement.”