Defending Jacob (30 page)

Over the years I had tried many cases before Judge French, and although I thought he was a bit of an empty suit, I liked him well enough. He had been a football player at Harvard, a defensive lineman. In his senior year he had fallen on a fumble in the end zone against Yale, and this singular brilliant moment had stuck with him. He kept a framed picture of it on his office wall, big Burt French in his crimson and gold uniform lying on his side on the ground, cuddling the precious egg he’d found. I suspect the picture struck me differently than it did Judge French. To me, he was the sort of guy such things happened to. Rich and good-looking and all the rest, no doubt opportunities had always presented themselves like so many footballs lying in his way and he had merely to fall on them, all the while presuming his good fortune was the natural product of his talent. One wonders how a charmed man like him would have been affected by a father like Bloody Billy Barber. All that ease, all that naturalness, all that credulous self-confidence. For years I had studied men like Burt French, despised them, copied them.

“Mr. Klein,” the judge said, slipping on a pair of half-glasses, “any preliminary motions before we begin the voir dire?”

Jonathan stood. “A couple of things, Your Honor. First, the defendant’s father, Andrew Barber, would like to enter an appearance in the case on the defendant’s behalf. With the court’s permission, he is going to second-chair me at the trial.”

Jonathan went to the clerk and handed her the motion, a single sheet announcing that I would be part of the defense team. The clerk handed the sheet to the judge, who frowned at it.

“It’s not really my decision, Mr. Klein, but I’m not sure it’s wise either.”

“It’s the family’s wish,” Jonathan said, distancing himself from the decision.

The judge scribbled his name on the sheet, allowing the motion. “Mr. Barber, you can come forward.”

I came around the bar and sat down at the defense table beside Jacob.

“Anything else?”

“Your Honor, I have filed a motion
in limine
to exclude scientific evidence based on an alleged genetic predisposition to violence.”

“Yes. I have read your motion and I am inclined to allow it. Do you wish to be heard further before I rule? As I understand it, your position is that the science has not been established and, even if it was, there is no specific evidence of a violent propensity, genetic or otherwise, in this case. Is that the gist of it?”

“Yes, Your Honor, that’s the gist.”

“Mr. Logiudice? Do you want to be heard or will you rest on your brief? It seems to me the defense is entitled to a hearing on that sort of evidence before it comes in. Mind you, I am not excluding such evidence definitively. I am merely ruling that, if you choose to offer evidence of a genetic tendency to violence, we will hold a hearing at that time, outside the jury’s presence, to decide whether it will be admitted or not.”

“Yes, Your Honor, I would like to be heard on that.”

The judge blinked at him. His face read plain as day,
Sit down and shut up
.

Logiudice stood and buttoned his suit coat, a slim three-button number that, when buttoned up this way, did not fit him properly. Logiudice’s neck craned forward slightly while the jacket stayed erect, which caused the coat collar to float an inch or two away from his neck like a monk’s cowl.

“Your Honor, the Commonwealth’s position—and we are prepared to offer expert evidence on this point—is that the science of behavioral genetics has made great strides and continues to advance every day, and it is already mature enough by far and away to be admitted here. We would submit that this is even the extreme case where to exclude such evidence would be improper—”

“The motion is allowed.”

Logiudice stood there a moment, unsure if his pocket had just been picked.

“Mr. Logiudice,” the judge explained as he signed the motion,
Allowed. French, J.
, “I have not excluded the evidence. My ruling is simply that, if you want to offer it, you will have to provide notice to the defense and we will have a hearing on its admissibility before you offer it to the jury. Understood?”

“Understood, Your Honor.”

“Let me be crystal clear: not a word of it until I rule it’s coming in.”

“Understood, Your Honor.”

“We’re not going to turn this into a circus.” The judge sighed. “All right, anything else before I bring in the jury venire?”

The lawyers shook their heads.

With a series of nods—the judge to the clerk, the clerk to the court officer—the potential jurors were fetched from one of the lower floors. They shuffled in, rubbernecking the courtroom like tourists wandering through Versailles. The chamber must have disappointed them. It was a grungy courtroom in the modern style: high boxy ceilings, minimalist furnishings of maple wood and black laminate, muted indirect lighting. Two flags drooped from listing flagpoles, an American flag to the judge’s right and the flag of Massachusetts to his left. The American flag at least had its original vivid colors; the state flag, once pure white, had faded to a dingy ivory. Otherwise there was nothing, no statue, no chiseled Latin inscription, no portrait of a forgotten judge, nothing to relieve the Scandinavian austerity of the design. I had been in this courtroom a thousand times, but the jurors’ disappointment made me look at it, finally, and realize how exhausted it all appeared.

The jury pool filled the entire gallery at the back of the courtroom, leaving only the two benches that had been reserved for the defendant’s family, reporters, and a few others whose courthouse connections entitled them to remain. The potential jurors were a mix of working people and housewives, kids and retirees. Jury pools usually skewed slightly blue-collar and underemployed, since these were the people more likely to respond to a summons. But this jury pool had a vaguely professional look to it, I thought. Lots of good haircuts, new shoes, BlackBerry holsters, pens sticking out of pockets. This too was good for us, I decided. We wanted smart, coolheaded jurors, people with the brains to understand a technical defense or the limitations of scientific evidence, and the balls to say
Not guilty
.

We began the process of voir dire, the question-and-answer process by which juries are chosen. Jonathan and I each had our jury seating charts, a table of two rows, six columns—twelve places in all, plus two extra boxes on the right side of the sheet—matching the chairs in the jury box. Twelve jurors, plus two alternates who would hear all the evidence but would not take part in the deliberations unless one of the jurors dropped out. Fourteen candidates were called forward, fourteen chairs were filled, we scribbled the names plus a few notes in the boxes on our scorecards, and the process began.

Jonathan and I conferred on each potential juror. We had six peremptory challenges, which we could use to eliminate a juror without stating a reason, and an unlimited number of challenges “for cause,” meaning challenges based on some explicit reason to think the juror would be biased. For all the strategizing, jury selection has always been something of a shot in the dark. There are pricey experts who claim to remove some of the guesswork using focus groups, psychological profiling, statistics, and so on—the scientific method—but predicting how a stranger will judge your case, especially based on the very limited information in a jury questionnaire, is frankly more art than science, the more so in Massachusetts where the rules severely limit how extensively jurors may be questioned. And yet, we tried to sort them. We looked for education; for suburbanites who might sympathize with Jacob and not hold his comfortable background against him; for dispassionate professions like accountant, engineer, programmer. Logiudice tried to load up on working folks, parents, anyone who might be outraged at the crime and who would have little problem believing a boy could kill even on scant provocation.

Jurors came forward, sat, were dismissed, and new candidates came forward and sat, and we scribbled details about them in our seating charts—

And two hours later we had our jury.

We gave each juror a nickname so we could remember them. They were: the Schoolteacher (forewoman), Glasses Girl, Grandpa, Fat Somerville Guy, Recording Studio Guy, Urkel, the Canal (a woman born in Panama), Waltham Mom, the Waitress, Construction Guy (properly a wood-floor installer, a surly squinty-eyed piece of work whom we worried about from the start), Concord Housewife, Truck Driver (actually a delivery guy for a commercial food-supply company), Braces Woman (alternate), and the Bartender (alternate). They had nothing in common except their glaring lack of qualifications for the job. It was almost comical how ignorant they were of the law, of how trials worked, even of this case, which had been splashed all over the newspapers and evening news. They were chosen for their perfect ignorance of these things. That is how the system works. In the end, the lawyers and judges happily step aside and hand the entire process over to a dozen complete amateurs. It would be funny if it were not so perverse. How futile the whole project is. Surely Jacob must have realized it as he looked at those fourteen blank faces. The towering lie of the criminal justice system—that we can reliably determine the truth, that we can know “beyond a reasonable doubt” who is guilty and who is not—is built on this whopper of an admission: after a thousand years or so of refining the process, judges and lawyers are no more able to say what is true than a dozen knuckleheads selected at random off the street. Jacob must have shivered at the thought.

T
hat night, over dinner, in the safety of our kitchen, we chattered excitedly. Words came tumbling, grumbles, boasts, fears. We were working off nervous energy more than anything else.

Laurie did her best to keep all the talk going. She was evidently exhausted from a sleepless night and a long day, but she always believed that the more we talked, the better off we would all be. So she posed questions and confessed her own fears and kept passing dishes of food, inviting us to talk and talk. In these light moments, I glimpsed the old effervescent Laurie—or rather, I heard her, for her voice never aged. In every other way Laurie withered during Jacob’s crisis: her eyes looked sunken and haunted, her peaches-and-cream complexion became sallow and cracked. But her voice was gloriously untouched. When she opened her mouth, out came the same teenage girl’s voice I had first heard nearly thirty-five years before. It was like a phone call from 1974.

At one point Jacob said of the jury, “I don’t think they liked me, just the way they were looking at me.”

“Jacob, they’ve only been in the box one day. Give them a chance. Besides, so far all they know about you is that you’ve been accused of murder. What do you expect them to think?”

“They’re not supposed to think anything yet.”

“They’re human, Jake. Just don’t give them any reason to dislike you, that’s all you can do. Stay cool. No reactions. None of your faces.”

“What faces?”

“You have a face you make when you’re not paying attention. You scowl.”

“I don’t scowl!”

“You do.”

“Mom, do I scowl?”

“I haven’t noticed it. Sometimes your father gets carried away with the strategy.”

“You do, Jake. It’s like—” I made the scowling face.

“Dad, that’s not a scowl. You just look constipated.”

“Hey, I’m serious. That’s what you look like when you’re not paying attention. It makes you look angry. Don’t let the jury see that face.”

“That’s my face! What can I do?”

“Just be your handsome self, Jacob,” Laurie said sweetly. She gave him a broken little smile. Her sweatshirt was on backward. She seemed unaware of it, though the tag rubbed against her throat.

“Hey, speaking of my handsome self, did you guys know there’s a Twitter hashtag about me?”

Laurie: “What does that mean?”

“It’s a way for people to talk about me on Twitter. And what they’re saying? It’s all like:
Jacob Barber is gorgeous. I want to have his baby. Jacob Barber is innocent
.”

Me: “Yeah, what else are they saying?”

“All right, there’s
some
bad things, but mostly it’s positive. Like seventy percent.”

“Seventy percent positive?”

“About.”

“You’ve been following it that closely?”

“It only happened today. But yeah, of course I read it. You’ve got to check it out, Dad. Just go to Twitter and search for ‘pound sign Jacob Barber,’ no spaces.” He wrote it on his paper napkin:
#jacobbarber
. “I was a trending topic! Do you know what that means? Usually that’s like Kobe Bryant or Justin Timberlake or people like that.”

“That’s, um, great, Jacob.” I gave a skeptical look to the boy’s mother.

This was not the first time our son’s Internet celebrity had come up. Someone—probably a school friend—had put together a website, JacobBarber.com, to support him. The site featured a message board where people could declare Jacob’s innocence or wish him well or expound on his saintly character. Negative messages were filtered out. There was a Facebook group supporting him too. The consensus online was that Jacob was a little odd, possibly homicidal, definitely attractive, conclusions that were not unrelated. He also got occasional text messages on his cell phone from strangers. Most were vicious, but not all. Some were from girls who told him he was cute or made sexual propositions. He claimed these messages ran about two to one negative versus positive, and this seemed to be enough for him. He knew he was innocent, after all. Anyway, he did not want to change his cell phone number.

Laurie: “Maybe you should stay off Facebook and all that, Jacob. At least until this is over.”

“I just read, Mom. I never write anything. I’m a lurker.”

“A lurker? Don’t use that word. Do me a favor, just stay away from the Internet for a while, will you? You could get hurt.”

“Jacob, I think what your mother is saying is that the next couple of weeks may go easier if we just try to stay on an even keel. So maybe we should all just close our ears a little bit.”