Special Circumstances (28 page)

“Any lastminute issues?” she asks.
“No, Your Honor,” Skipper and I say almost in unison.
“Good.” She’s trying to set a businesslike tone.
“Let’s get started.”
To the great chagrin of the media, we will spend the first few days,and perhaps weeks, of the trial picking a jury. Like most triallawyers, I believe cases are won or lost during jury selection.Unfortunately, picking a jury is the most important and leastscientific part of the entire enterprise. Jury consultants get paidhundreds of thousands of dollars to identify personality traits andbiases gleaned from juror questionnaires that may not have beenanswered honestly. Some jury consultants claim they can help you picka sympathetic jury just by watching the body language of the potentialjurors. At the end of the day, you go with hunches and gut instinctsas much as demographics.
Picking a jury is more difficult than it used to be. In June of 1991,California voters passed Proposition 115, which gave judges, ratherthan the prosecutors and defense attorneys, the authority to questionprospective jurors during the voir dire. Before Prop. 115, juryselection in a capital case could take months. With the judges askingthe questions, the process tends to go much more quickly. Lawyers canstill give the judge a list of questions we want asked—which the judgeis free to ignore. Although Judge Chen has promised to give us someleeway, she reminds us that she’ll be asking the questions.
Skipper has hired one of the jury consultants from the Simpson trial,who’s appeared on CNN from time to time. My jury consultant, BarbaraChilds, has been on Ted Koppel’s show. I suspect the battle of theconsultants will end up about even.
The best thing about jury selection is that it tends to bore the mediato tears. The judge asks the same questions of a large group of peoplefor days on end. Occasionally, the lawyers get to stand up and make aspeech to try to have a juror excused. After a few preliminaries,Judge Chen tells Harriet Hill to bring in the first panel of potentialjurors.
Thursday, March 19. Three days later, we’re still at it. Thefirst-day media blitz has died down. Although the local TV stationsare still sending reporters to monitor the proceedings, we’ve beenrelegated to the third page of the Chronicle and the fourth story inthe local news broadcasts. We get a little more play on CNN everynight. Everybody will be back once we’ve picked the jury.
We must select twelve jurors and six alternates. So far, we’ve managedto select nine jurors. I’m having a tougher time than Skipper. He’slooking for people who hate lawyers. That includes about 99 percent ofthe population.
Skipper wants people who have had a bad experience with the legalsystem, who might take out their hostility on Joel. I’m trying toavoid anybody who’s ever been arrested, divorced or sued. That doesn’tleave much. I like his odds better.
According to my consultant, I should try to fill the jury with women,because they’re more open-minded. On the other hand, they tend to turnquickly in cases where a woman is a victim, especially if the accusedis a man. So much for statistics.
By three o’clock on Thursday, we’ve picked our twelve jurors and sixalternates. Judge Chen has kept the process moving. We’ve finishedsooner than I would have predicted.
The jury is a mixed bag. Eight women and four men. Two of the womenare Asian, one black. One man is Asian, another Hispanic. Seven aremarried and three have been divorced. Two are lawyers. The blackwoman is a supervisor for the phone company. I have a hunch she’ll beone of the leaders. I tried to get her excused because she wasdivorced. Judge Chen ruled against me. There are two homemakers, aretired Muni bus driver, a data-entry clerk, a hotel clerk and anaccountant. How they’ll react is anybody’s guess.
After the last juror is seated, Judge Chen looks at her watch and turnsto Skipper.
“I trust you’ll be ready to begin your opening statement tomorrow?”
“Absolutely, Your Honor.”
Back at the office the same evening, Barbara Childs congratulates mefor picking a terrific jury. Her words ring hollow. What else wouldshe say? After she leaves, I get a more realistic view from Rosie andMort.
“Could be worse,” Mort says.
Rosie agrees with him.
“We’ve done the best we could,” she says.
“It’s a crap shoot
She’s right. All the studies and all the empirical research gostraight out the window when you’re in a courtroom picking a jury. It’sa feeling you never get used to. Your client’s life is in the hands oftwelve strangers. You never know if you’ve picked twelve MotherTeresas or twelve Jack the Rippers.
“Which ones did you like the best?” I ask.
Mort clutches his cigar.
“You should get a pretty good shake from the two lawyers. I think theaccountant will be okay.” He shrugs.
“Tough to tell with the rest of them.”
Rosie adds, “I think the Asian women and the Hispanic man will beconscientious.”
“Anybody you didn’t like?”
They look at each other.
“I wasn’t happy with the phone company supervisor,” Rosie replies.
“She looks like she has a chip on her shoulder.” Mort puts his cigarin his mouth.
“I wasn’t crazy about her, either,” he At eleven-thirty that night, I’mat home watching the legal analysts on CNN dissect our jury. Asalways, the panel of eight “experts” sits in two rows of bleacher seatson one side of the studio, fielding questions from the strident womanwith the bad hair and the wormy guy with the bad glasses. Theirprogram looks like a pregame show for a football game. You know you’vemade the big time when your trial has its own graphics and theme song.The voice of James Earl Jones intones that we’re watching coverage of“Special Circumstances: The Law Firm Murder Trial.”
After voting 6-2 in favor of Skipper’s juryselection acumen, thepeople in the bleachers turn to the TV monitor in the middle of thestudio and begin a heated discussion with a jury consultant from theMenendez case, who seems to have a television studio in her home. Thecamera pans back. It looks very odd to see the two hosts and the eightpanelists talking to the woman’s head.
“Mr. Gates clearly got the better of the juryselection process,” saysthe disembodied head.
“Asians are good prosecution jurors. They like order. On the otherhand, the Hispanic man has probably had trouble with the law. I’m surehe’ll be sympathetic to the defense.”
It’s frightening to observe how these people think. She should knowbetter. It was revealed in the voir dire that the Hispanic man is asenior vice president at Chevron and lives in the most expensive cornerof the ritzy Seacliff neighborhood. He’s a big contributor to theRepublican party.
“The black woman,” she continues, “will almost certainly favor thedefense. I’m sure she’s had friends or relatives hassled by the cops.She’s probably going to give the defendant a pretty fair shake.”
I’m not so sure. The woman’s husband is a cop. If the disembodiedhead had been paying attention during the voir dire, she would haveknown this.
The female host interrupts her.
“Don’t you think the jurors will be predisposed against Mr. Friedmanbecause he’s a lawyer?”
The consultant smiles.
“Absolutely. That’s the big wild card. Most people think lawyers getaway with murder every day.” Raucous laughter. They take another votebefore they go to commercial. This time it’s unanimous. The jury isclearly going to be on Skipper’s side.
I flip to CNBC. Marcia dark is lecturing on the strength of Skipper’scase. I turn off the TV and run through my opening statement one moretime.
Friday morning arrives with a driving rainstorm. The minicams arelined up on Bryant and umbrellas blanket the front steps of the Hall.We push our way through the crowd and march up to the courtroom.Reporters surround Skipper outside the door. We have barely enoughtime to take off our raincoats when Harriet Hill instructs us to rise.Judge Chen walks briskly to her chair. She asks Harriet Hill to bringin the jury. She greets them warmly and says they’ll have theprivilege of hearing opening statements today. Without another word,she turns to Skipper.
“You may begin your opening statement, Mr. Gates.”
He stands and buttons the jacket of his navy suit. He walks slowly butforcefully to the lectern, and places a stack of note cards just belowthe small light. He doesn’t look at them. The courtroom is silent.It’s like the moment at the symphony when the conductor raises hisbaton. He nods to the judge and turns to the jury. He scans theirfaces.
“May it please the court,” he begins, “my name is Prentice Gates. I amthe district attorney for the city and county of San Francisco. We arehere today to address a serious matter. A matter of life and death.”
The jurors shift uncomfortably. The phone company supervisor’s eyesmeet Skipper’s. Judge Chen watches intently. I focus on the jury.Joel swallows.
Skipper leaves the lectern and walks slowly toward the jury. They sizeeach other up. He takes his gold pen from his breast pocket and pointstoward enlarged color photos of Bob and Diana, which sit on an easelplaced in front of the jury box.
“We are here today because of these two people. Robert Holmes andDiana Kennedy. I knew both of them. They were colleagues of mine.They were my friends.”
I could stand up now and object because he’s supposed to stick to thefacts in his opening. On the other hand, it’s considered bad form tointerrupt. I stay quiet.
“We are here today because of that man sitting over there.” He pointsat Joel.
“We will show you evidence that the defendant knowingly and willfully,with malice aforethought, killed Diana Kennedy and Robert Holmes.”
McNulty has coached him well. Skipper is always going to refer to Joelas “the defendant.” It’s easier for the jury to convict a nameless“defendant.” I remind myself to refer to Joel by name.
Skipper spends twenty minutes expressing his outrage and disappointmentthat a member of the legal profession and his former colleague wouldhave taken the lives of two respected attorneys. Joel stares straightahead. Skipper holds up his right index finger melodramatically andsays, “I want you to remember these two pictures. Bob Holmes and DianaKennedy can’t speak for themselves. We can’t undo the pain suffered bytheir families. But we can bring their killer to justice. We have tospeak for them.”
I stand slowly.
“Excuse me, Your Honor,” I say.
“Would you please remind Mr.
Gates that opening statements should stick to the evidence? There willbe time at the end for closing arguments.”
She looks at Skipper.
“Mr. Gates,” she says, “please keep to the facts.”
“Yes, Your Honor,” he replies. He turns back to the jury.
“Ladies and gentlemen,” he continues, “we’re going to show youincontrovertible evidence that places the defendant at the scene of thecrime.” He goes on to describe the physical evidence for about fortyminutes. The jurors sit quietly. He’s finding his rhythm.
“In addition,” he says, “we will present evidence that the defendantwas having an affair with Diana Kennedy.” Murmuring in the back of thecourtroom. I glance at Naomi. Our eyes meet.
“When the relationship soured and the defendant found out that Ms.Kennedy was romantically involved with Mr.
Holmes, he became enraged.
“The defendant was also angry at Mr. Holmes because the defendant waspassed up for election to the partnership at the Simpson and Gates lawfirm.” He clears his throat.
“Imagine. He killed another human being because he didn’t makepartner.” Rabbi Friedman looks down. Joel remains stoic.
“Finally,” Skipper says, “I realize there are many people who aren’tparticularly enamored of members of the legal profession.” A couple ofjurors nod.
“But,” he continues, “I want to make something clear to you. The legalprofession is not on trial here. The defendant is. It’s my job toshow you enough evidence to give you the tools that you need toconvict. I will give you those tools.
“You’ll be hearing today from Mr. Daley, who is the defendant’sattorney. It’s his job to try to confuse you. It’s his job to try toput doubts in your mind.
I’m saying this not as an indictment or criticism of Mr. Daley. It’sjust the way our system works.”
That’s not entirely true. He is, in fact, saying it as an indictmentand a criticism of me.
“I ask you to use your common sense.” He points to the pictures of Boband Diana.
“Above all, I want you to keep these pictures in mind. I need yourhelp to find justice for Bob and Diana.”
He makes eye contact with each of them. He walks past the easel andlooks at the pictures of Bob and Diana. He unbuttons his jacket andsits down.
Judge Chen turns to me.
“Mr. Daley, will you be making an opening statement today?” We havethe option of deferring our opening statement until after theprosecution has completed its case. If I wait, I can tailor my openingto address issues raised in Skipper’s case. On the other hand, it maybe several weeks before the jury hears me say anything of substance.We’ve agreed that if Skipper opens strong, I’ll make our opening today.I glance at Rosie and Mort.
They both nod.
“Your Honor,” I say, “we’ll be giving our opening statement today.”
I stand up and button my jacket. I walk toward them and look each onein the eye, one at a time. I move almost to the edge of the jury box.I like to start close to them. In a quiet, conversational tone, Ibegin by saying, “My name is Michael Daley. I represent Joel Friedman,who has been unjustly accused of a terrible crime he didn’t commit.”
Skipper could leap up right now and demand that I stick to theevidence.
Fortunately, McNulty’s told him to stay in his chair. I’m going totake advantage of it while I can.
“Joel Friedman is an honest, hardworking man with a wonderful wife andtwo young children. His life has been turned upside down because hehappened to be at the office doing his job on the night two peopledied. Imagine what it must be like when the police come to your houseand arrest you in front of your wife, your parents and your childrenfor two murders you didn’t commit. What do you tell your wife? Whatdo you tell your parents?” I pause.
“What do you tell your kids?
“That’s why we’re here. Mr. Gates is absolutely right that this is avery serious matter. It isn’t the slightest exaggeration to say it isa matter of life and death. I need your help. I need you to sort outwhat happened. I need you to sift through the evidence so we canfigure out the truth—together.
In our system, Mr. Gates is required to prove his case beyond areasonable doubt. That’s a tough standard.” I pause.
“After you hear the evidence you’re going to come to a simpleconclusion. He can’t do it.”
I get the hint of agreement from the accountant.
“You’ll hear Joel was in the office that night. You’ll find out hephoned Diana Kennedy and asked her to return to the office. You’llhear he left an angry voicemail message for Bob Holmes. All of thesethings are true.” I describe the fingerprints on the gun. I arguethat they got there when Joel unloaded the gun. I claim they can’tprove he pulled the trigger.