Steve Martini - Shadow of Power

That he has selected Arnsberg to prosecute is not a good sign for our side. Tuchio will be heavily invested in the case, particularly on the eve of his rise to power. The last thing he needs is a loss under the glare of television lights as a prelude to his coronation.

“I thought it would be good if we all sat and talked. Sit down.” Quinn gestures with his hands toward the two client chairs across from his tufted throne on the other side of his massive mahogany desk. This is littered with files, one of which is ours. The judge slides this toward him, opens the cover, and begins to look at notes that he has apparently made for this meeting.

We sit, Tuchio to the right, me to the left.

“I don’t want any misunderstandings when we get to court,” says the judge. What Quinn means when he says we should talk is that he will do the talking and we will do the listening.

“First order of business,” he says. “I don’t want any gamesmanship. I know that the stakes are high here. A lot of the media is watching. That doesn’t mean a goddamn thing as far as I’m concerned. They already asked for cameras in the courtroom. I already said no.”

Quinn looks at me as if this were a major concession for which he is now free to plant land mines in the courtroom with some roadside bomb for the defense.

“Gag order is in effect, as you both know,” he tells us.

“That’s good, Your Honor, because someone has already violated it,” I tell him.

“What are you talking about?”

I tell him about Smidt outside in his courtroom asking questions about witnesses and theories of the case to which only those who are trying it and their agents are privy.

The judge’s gaze has not even fallen on him, and Tuchio is already in denial mode. “Didn’t come from my office. I issued a memo last week. Anyone violating your order will be fired and prosecuted. And I mean it.”

This is the boilerplate that is issued in every case where the media operatives are digging for dirt. It may as well be printed on little squares of toilet tissue for all the good it does.

“So you can tell us sitting here today that it didn’t come from one of the cops working the case?” I ask.

“You tell me which one,” says Tuchio, “and I’ll nail his ass.”

Now, there’s the rub.

“Do you have a name?” asks the judge.

I look at him and smile. A good lawyer, he knows the answer before he asks the question.

“Maybe we should invite Mr. Smidt to join us,” I tell him. “You could put him under oath and ask him.”

This sets a little crease in the judge’s forehead at the thought of going to war with the media, holding Harvey in contempt for refusing to reveal a source.

“Why? Make him media martyr of the month?” says Quinn. “For what?”

“It’s your gag order,” I tell him.

The judge swallows some pride. “I’ll talk to him later. Privately,” he says.

“Is that off the record?” I ask.

He shoots me a glance to kill.

“Next item,” he says. “Friday morning I want everybody to be up and running, ready to go. Understood?” He glances quickly at Tuchio, then spends a good long time looking at me. “No continuances. The jury is ready to go. Is that understood? Are you ready?” He directs this at me.

“One question, Your Honor. Why are we starting on Friday?”

“You have something better to do?”

“Why not Monday?” I say.

“Because my court is available on Friday,” says Quinn.

“Friday’s fine with me,” says Tuchio.

I’m sure it would be. The fact is, I begin to wonder if there isn’t some design in this. Any lawyer I know, given a choice, would deliver his opening statement to the jury as the last order of business before a weekend, leaving them to ponder his every word for two days before confusing them with the evidence.

“So I take it you’ll be ready to go on Friday with the rest of us?” Quinn is once again looking at me.

“Barring any more surprises,” I tell him. “But the fact is, the prosecution goes first.” I deflect the question to Tuchio.

“Oh, we’ll be ready, Your Honor.”

“Good. That’s good. This then leaves the question of the jury,” says Quinn.

Our jury has already been picked and primed, seven women, five men, with six alternates. As in any case of this kind, it is probable that the most I can hope for are a few strong-willed individuals for whom the seed of doubt is always germinating in their minds, or at least easily planted-people who will fight for their convictions or, better yet, who might be easily insulted, digging in their heels if others try to push them. My jury consultant, after shaking her psychic bag of bones over the juror questionnaires and after my having questioned them in the selection process, believes that we may have two who could fit this bill. On the other hand, African Americans are potential anathema for us. We have three on the panel, one retired military, another a janitor from a local school, and last a female investment adviser from one of the big firms downtown. There is no way to keep them off the jury on racial grounds, even though it is a given that Tuchio is likely to play the race card, even if from the sidelines.

“Is there a problem with the jury?” I ask.

“Whether they should be sequestered,” says Quinn.

I had been halfway expecting this. It is clear that Tuchio and the judge have talked about this before my arrival, as the D.A. is already looking over at me for arguments.

“Not as far as I’m concerned, Your Honor. Not at this point at least.”

“I’m not so sure,” says Tuchio. “Letting the jurors go home at night with the paparazzi salivating, following them to their front doors,” he says. “We could easily end up with a costly mistrial. Besides,” he says, “if we’re not going to sequester, we’re likely to need more than six alternates on the panel.”

“Hmm…” This sets the judge to thinking.

“If the court wants more alternates, we should get them,” I say. “But I would strongly oppose any motion to sequester without some showing of cause, a reason in this particular case.”

The argument here may seem strange to the untutored, but it is holy writ that locking a jury up for the duration in hotel rooms with bailiffs to tuck them in at night has devastating consequences for the defense, particularly in a lengthy trial. Jurors come to resent the isolation from family and friends. They begin to see themselves as incarcerated, which in fact they are. They place the blame invariably on the defendant, who should be the one in jail, even though in this case he is. Tuchio may have a legitimate reason for wanting to avoid a mistrial, but he also has an underlying agenda: to subtly poison jurors against the defendant.

“It’s too late for more alternates,” says Quinn. “I’ve already released the jury pool. If we proceed unsequestered, I want it to be understood that we will be running on a very thin thread.” It becomes clear that this is the purpose for this discussion, to put me on notice that the court can pull the trigger at any time. “The first hint of anything inappropriate,” says Quinn, “any untoward communication with a juror, and they’re off to the Hilton. Is that understood?” He looks at me yet again.

I nod.

“Good. Next item,” he says. “Witness lists. I want them finalized and submitted before close of business on Friday.” He looks at both of us for a change.

“Your Honor, until we see all of the People’s experts, we won’t know who we’ll need to counter them.”

“We’ll work that out,” he tells me. “In the meantime I want to see witness lists in pretty much final form by Friday.”

“With some exceptions?” I ask.