William Bernhardt - Dark Justice

“You’re kidding.”

“Yeah,” Sweeney said, “I am, actually. Had you going, though, didn’t I?”

The courtroom exploded with laughter. Ben felt his face burning. This was just great. He was barely getting started, and he’d already been made an object of ridicule by a sixty-seven-year-old juror.

Ben turned toward the bench, hoping Judge Pickens would bring the courtroom back to order and admonish Sweeney to cut out the high jinks. Unfortunately, Pickens was too busy guffawing himself.

No matter what he did, Ben realized, he would be the outsider. Everyone else in the courtroom belonged in Magic Valley; he didn’t. Ben had heard stories about lawyers being “hometowned” when they left the big city to try cases in rural districts. He just hoped he wasn’t about to experience it firsthand.

Ben tried a different approach. “Mr. Sweeney, have you ever been called to a jury before?”

Sweeney shook his head. “Not once in sixty-seven years. Guess my luck finally ran out.”

That one got an appreciative chuckle from some of the other jurors.

“Would you be pleased if you were chosen to serve on this jury?”

“Well, I’d be more pleased if it paid better.”

“Is being on this jury something you want to do?”

“Oh, I suppose if I’m called, I’ll do my duty and all that.”

“But is it something you want to do?”

“I don’t know. How much longer do you think you’re going to be asking these fool questions?”

Another explosion of laughter, even louder than before. Ben tried to get a grip on himself. He was playing straight man for a would-be comedian-not an ideal situation. He decided it was best to move on.

He shifted his attention to Marjorie Preston, a middle-aged woman with big hair and a print dress, both of which looked as if they might have come from the June Cleaver style book. She worked part-time as a checkout clerk at Canfield’s Grocery. “Mrs. Preston, can you tell me about your job?”

Her expression didn’t seem to change as she spoke. “Oh, it’s very boring.”

Ben smiled. “As boring as this voir dire?”

“Oh, heavens no. Not that boring.”

Well, he asked for that one, Ben thought, as once again he bathed in the laughter of the assemblage. “Mrs. Preston, do you understand that many witnesses will be called to the stand in the course of this trial?”

“I suppose it’s inevitable,” she sighed.

“Do you understand why witnesses are called before the jury?”

“So we can hear what they say and try to dope out whether they’re telling the truth.”

“Do you think you’ll be able to do that, Mrs. Preston?”

Her chin rose. “I’ve seen a liar or two in my time, if that’s what you mean.”

“Do you think it’s important to tell the truth?”

“I certainly do. You know where liars go.” She extended her thumb and pointed downward.

Ben didn’t even need to glance at Christina for this one. This lady was definitely off the jury.

He switched to the next man in line, Ken Whately, a farmer who lived about thirty miles outside Magic Valley. He was wearing scruffy blue jeans and cowboy boots. Ben assumed he checked his ten-gallon hat at the door.

Ben asked him a few preliminary questions about his farm. For once, the juror seemed not only cooperative, but garrulous. He took Ben through the whole planting season, crop by crop. He described all his machinery, down to the last tractor. He quoted the buy and sell prices for every harvest for the last five years.

“I can see you take your farming very seriously,” Ben said, the first time the man came up for air. “Are you going to be able to concentrate on this trial or will your mind be out in the field?”

Whately frowned. “It’s too hot for my mind to be out in the field.”

“Right.” Ben scanned the list Christina had given him of must address questions. Perhaps it was time he peeled one off the top. Whately might not be the ideal juror, but he was the best Ben had gotten so far.

The first was a delicate subject, one he preferred not to raise in voir dire. But since he wasn’t sure yet whether he would put Zak on the stand, it needed to be covered. “Mr. Whately, you’re familiar with the Fifth Amendment, aren’t you?

Whately appeared a bit uncertain. “That’s … one of those amendments to the Constitution. Isn’t it?”

“Right. You’ve probably heard about people taking the Fifth?”

“Oh.” His face brightened a bit. “That’s what crooks say when they don’t want to talk.”

Ben tilted his head to one side. “Not exactly. It’s important that you as jurors realize that everyone has a right to avoid self-incrimination. No one can be forced to testify against himself. And no one can infer anything good or bad from a party’s decision not to testify.”

Whately nodded slowly. “I guess that’s right.”

“So let me ask you a question. What would you think if the trial was over and the defendant had not taken the stand?”

“I would assume his lawyer had a damn good reason for not letting him testify.”

There was a sprinkling of chuckles. “Well, you see, sir, that’s what we can’t permit. As the judge will instruct you later in this trial, the jury is not permitted to draw any conclusion from the fact that the defendant has not testified. Not good or bad. Do you understand?”

“I … guess so.

“And do you think you can do it?”

“I’ll give it my best.”

“I’m sorry, Mr. Whately, but that isn’t good enough. The judge will require you to answer that you can, or he will have you removed. We must have a jury that will honor the law. And that means that no inference can be drawn from a defendant’s failure to testify. Can you go along with that?”

“I guess-I mean, yes. Sure.”

“Thank you. Is there anyone else in the jury who thinks they might have a problem with this?”

No one raised his or her hand, but Ben knew that didn’t mean much. He would have to ask each of them individually. No matter how long it took.

After he finished quizzing the jurors about the Fifth Amendment, Ben launched into the phase of his voir dire routine he knew by heart-because he got to deliver it every time. The discussion of the burden of proof.

This was a delicate subject. As a defense attorney, he wanted to impress upon the jurors what a stiff standard it was and how seriously it must be taken. At the same time, he wasn’t allowed to define or explain what beyond a reasonable doubt actually meant. Any attempt to do so would be grounds for an immediate mistrial.

“In order to find the defendant guilty,” Ben summed up, “you must find that, based upon the evidence presented at trial and nothing else, he is guilty beyond a reasonable doubt. Do you think you understand that, Ms. Taylor?”

Angel Taylor, a twenty-something blonde in the front row, nodded. “I think I’ve got the general idea.”

“Will you be able to honor this standard?”

“I believe so.”

“Do you understand everything this high standard of proof requires?”

“I believe so.”

“What do you think about it?”

She sighed. “I think you’ve about exhausted this subject. Could we move on to something else?”

Ben had to smile.

Ben spent the remainder of the afternoon exploring the jurors’ ties to the logging industry and the obvious tendency that might have to predispose them against Zak, and trying to assess the impact of pretrial publicity regarding the murder. As he soon learned, there wasn’t a soul in the jury box who didn’t know something about the murder. And it didn’t take a mind reader to deduce that most of them assumed George Zakin had done it. All Ben could do was ask the jurors if they believed they were biased (none of them did, of course), and whether they thought they could be open-minded and fair (all of them did, of course). Unless someone admitted to bias, he couldn’t get them removed for cause. He would have to use his precious peremptory challenges to root out the worst of them.