Joseph Teller - The Tenth Case

MR. JAYWALKER: Mrs. O'Sullivan, you heard the judge tell you this morning that the burden of proof rests entirely upon the prosecution, that they're the ones who have to prove guilt, and have to prove it beyond all reasonable doubt. You also heard him tell you that the defense doesn't have to prove any thing, doesn't have to disprove anything, doesn't have to call a single witness. That the defendant her self doesn't have to testify, and that if I elect to not put Samara on the stand, you may draw no inference from that whatsoever.

Nevertheless, I tell you right now that in this trial, Samara Tannenbaum is going to testify. She's going to take the stand, and she's going to tell you in her own words what she did the evening of her husband's death-and what she didn't do.

Now, I suspect that you may end up not liking Sa mara very much. She's done some things in her life that she's not particularly proud of. For example, she's slept around. She's accepted gifts, including money, in exchange for sex. She's gotten by on her looks. In fact, she'll tell you she married Barry Tannenbaum, in large part, for his money. After marrying him, she didn't live with him very long. And she cheated on him. What's more, unlike you and most of your fel low jurors, she hasn't worked for a number of years. She's what we sometimes call a gold digger.

But do you understand, Mrs. O'Sullivan, that this trial isn't about whether you end up liking Samara or not? That this trial is about one thing, and one thing only? That at the end of the day, this trial is about whether or not the prosecution, which contin ues to have the only burden of proof, e ven when Sa mara takes the stand and tells her story, can meet and exceed that burden of proof? And that that burden re quires them to convince every last one of you that Sa mara is guilty of murder, and convince you of it beyond all reasonable doubt?

Mrs. O'Sullivan assured Jaywalker that she understood all that and could follow the judge's instructions. Jaywalker wasn't fooled for a minute. No red-faced, two-hundred pound Irish-American housewife, the mother of eight children and the wife of a former cop now working as an armed security officer at a bank, could be counted on to give Samara Tannenbaum the time of day, let alone a fair trial. But it didn't matter. The important thing was that Jay walker had effectively taken away Tom Burke's crossexamination of Samara. And he'd so lowered the jurors' expectations of her that no matter how she came across, she couldn't possibly seem as bad as he'd painted her.

He thanked the jurors and sat down.

The term jury selection is something of a misnomer. The lawyers don't really get to select the jurors they want. The process might better be called jury rejection, or jury deselection. The way it works is that jurors with admitted or identifiable biases get challenged for cause, or upon the consent of the opposing lawyers. There's no preset limit as to the number who can be removed in that way.

Once challenges for cause or consent have been made and ruled upon, the lawyers take turns exercising their pe remptory challenges, of which they have a limited number. That number increases along with the severity of the charges, as defined by the maximum sentence allowable under the law. Thus, in a lowly petit larceny case, each lawyer is allotted only three peremptory challenges. In a robbery or burglary trial, the number rises either to ten or fifteen, depending upon the degree of the crime charged. Only in murder cases and other class A felonies do the lawyers get the full complement of twenty peremptory challenges.

Unlike challenges for cause, peremptory challenges may be exercised for any reason, or for no particular reason at all, so long as they're not motivated by a demonstrable attempt to exclude members of any particular race or other legally recognized minority.

Burke, as the prosecutor, had to go first. With two of the prospective jurors in the box having been removed for cause, he now used five of his peremptory challenges. Jaywalker, reviewing his notes, had concerns about almost all of the re maining eleven. But he also had a finite number of chal lenges, and he didn't want to fall seriously into a hole. That would give Burke too much of a hand in shaping the jury.

Some jurisdictions allow the jurors, once all have been selected, to vote on who becomes their foreperson, or spokesman. Others draw lots, or leave it to the judge to decide. In New York, the rule is simple: the first juror to be called, selected and sworn in automatically becomes the foreperson. Knowing this, Jaywalker now used his first two peremptory challenges on jurors who, unless challenged, would have fit the bill. That left a barely acceptable, though certainly not truly desirable, cabdriver as the foreman. Men, Jaywalker had decided some time ago, even if they might be inclined to identify more closely with Barry Tan nenbaum, would at least react positively to Samara's looks. Women, unless they themselves had just climbed out of the pages of a V ictoria's Secret catalog, could hardly be expected to.

Jaywalker used six more of his challenges, leaving him with twelve to Burke's fifteen. The three jurors who hadn't been challenged were sworn in, including the cab driver foreman. Then they were excused for the balance of the process.

Jaywalker checked his watch, saw it was almost four o'clock. They'd been at it most of the day and had three sworn jurors to show for it.

The clerk, going to her bingo drum, filled the box with eighteen new jurors, and the process started all over again, beginning with the judge's questions. And that was as far as they got that day.

"God, it takes forever, " complained Samara on the way out of the courtroom. "And talk about boring. "

Jaywalker agreed with her on both counts. Jury selec tion was time-consuming and repetitive, especially with his own insistence on hammering home the twin concepts of burden of proof and reasonable doubt. It was, as a result, by far the most neglected portion of the trial. But he knew that it was also one of the most critical. Approached prop erly, it presented a unique opportunity to condition jurors to be receptive to arguments they might otherwise reject out of hand. And handled skillfully, it could set the stage for winning all but the most difficult of trials.

What worried Jaywalker right now, as he rode the ancient elevator down to the ground floor, were those two little words in the caveat: all but.

They were back in court the following morning, with Tom Burke addressing the new group of prospective jurors, followed by Jaywalker. This time there were three chal lenges granted for cause. Burke used four of his peremp tories, leaving him with eleven. Jaywalker used six of his twelve. The remaining five jurors were sworn in, bringing the number selected to eight.

On the third round, four were knocked off for cause. Burke peremptorily challenged six, Jaywalker five. But the numbers were still working against him. With one regular juror still to be picked, Burke had five challenges left to Jaywalker's one.

Jaywalker used his remaining challenge on the final round as best as he could, but Burke took advantage of the numbers to cherry-pick the twelfth juror, a retired marine colonel, muscles bulging beneath a skin-tight, mustardcolored turtleneck. Jaywalker had caught him looking at Samara at one point with nothing short of firing-squad contempt in his eyes.

From the remaining jurors, they picked six alternates who would hear the testimony but join in the deliberations only if one of the twelve regulars became incapacitated. It was almost five-thirty by the time they broke for the day.

But they had their jury.

Stanley Merkel, the cabdriver and foreman: white, balding, fortyish. Leona Sturdivant, a retired school admin istrator: white, prim, sixty-something. Vito Todesco, an importer-exporter: white, Italian-American, fiftyish. Shir ley Johnson, a nurse's aide at a Catholic hospital: black, God-fearing, seventy. David Wong, an engineering student: Chinese-American, late twenties. Mary Ellen TomlinsonMarchetti, an investment counselor: fortyish, white, Pro testant, evidently married to an Italian-American. Leonard Schrier, a retired shopkeeper: white, late sixties, either a sympathetic Jew inclined to forgive Samara or a former storm trooper ready to herd her into the ovens. Carmelita Rosado, a kindergarten teacher: Hispanic, very quiet, thirtysomething. Ebrahim Singh, a speech therapist: Indian or Pakistani, fiftyish. Angelina Olivetti, an out-of-work actress waiting tables: white, Italian-American and cute. Theresa McGuire, a self-described homemaker: white, Irish-American, ageless. George Stetson, the Colonel Mustard whom Burke had settled on when Jaywalker ran out of challenges: sixtyish, ramrod-straight, and very, very white.