William Bernhardt - Blind Justice

“Any other preliminary matters before we select a jury, gentlemen?”

“Yes, your honor,” Ben said. “I have a new motion.”

“You’ve got to be kidding,” Derek said. “Can there possibly be one you haven’t already made?”

“Yes, your honor. We move for a change of venue.”

“Based on what?”

“Based on the adverse pretrial publicity that has undeniably tainted the jury pool.”

Derek popped another tablet into his mouth and chewed it vigorously. “Care to elaborate, counsel?”

“Your honor, this trial has been discussed on all three local TV news programs and in both Tulsa newspapers every day for the past month. Usually as the lead feature or headline story. Furthermore, the reports are clearly slanted in favor of the prosecution—”

“Could that perhaps be because the evidence is slanted in favor of the prosecution, counsel?”

“It doesn’t matter, your honor. Criminal cases should be tried in the courtroom, not on TV or in newspapers. Even this morning, in this very courtroom, reporters were shouting statements that suggested my client must be guilty. Prospective jurors were likely within hearing range.”

Moltke rose to his feet. “May I respond, your honor?”

“I don’t think that’s necessary, Mr. Prosecutor. Counsel, can you show me a newspaper article that has unequivocally announced your client’s guilt?”

“No, of course not. That would set them up for a lawsuit.”

“Can you present any evidence specifically indicating that any of the citizens on today’s jury roll are biased?”

“No.”

“Well, that’s the standard, isn’t it? Convincing evidence of prejudice to prospective jurors?”

“This court has the discretion to do what it thinks is right.”

“And I shall, counsel,” Derek said, “believe me. But if I took your lamebrained recommendation, I’d have to transfer every noteworthy case that ever comes before my court. Motion denied. You, of course, may explore any potential prejudices during voir dire. Within reason.”

“Very well, your honor.”

Derek’s voice increased in volume. “And counsel, let me add that this court is weary of your relentless efforts to delay this trial and prevent justice from being done. I reiterate that any further frivolous motions may be considered grounds for contempt.”

Grandstanding for the press again? “Understood, your honor.”

“I hope so, counsel. For your sake. Now let’s proceed.”

Prior to trial, Derek had announced that due to the seriousness of the charges presented, contrary to the usual practice in federal court, he would permit the attorneys to directly question the prospective jurors. Ben wasn’t about to complain—he could learn a good deal more about the jurors than he would if Derek were asking the questions.

The bailiff called the first nineteen names on his list into the jury box. On cue, each of them introduced themselves and briefly described their occupations and marital statuses. Ben saw Myra furiously trying to scribble down each biographical detail. The jury pool appeared to be largely lower middle class, not well educated. The usual. Too often, people in the upper strata of society have means of avoiding jury duty, leaving it to those workaday sorts who are grateful to have a day off with pay. The same folks demographics indicated could be influenced by tabloid journalism and prosecution pleas for justice.

There were twelve women, seven men—a devastatingly unfavorable imbalance. Conventional wisdom dictated that Ben try to get rid of as many women as possible; women tended to be much harder on other women than men, particularly when sexual impropriety was involved. Unfortunately, the remaining jury pool was over two-thirds female; even if Ben used all twenty peremptory challenges, this jury was going to have a disproportionate share of women.

Derek introduced all the lawyers and asked if any of the jurors knew them. No one did. When he asked the same question about Christina, every hand in the box shot up. As became clear, most of the jurors either read the papers or watched the TV news, and many considered themselves very well informed about Tulsa’s Drug Princess. Then Derek asked the ultimate questions—whether they had already formed an opinion about the case, and whether they believed they could still evaluate the evidence fairly and without prejudice. Not surprisingly, they all did. Ben knew without a confession of prejudice he had virtually no hope of removing a juror for cause. That left him with a limited number of peremptories. Of course, even if he could remove more jurors, with whom would he replace them? The jury remainders sitting outside would be no different.

After Derek finished his preliminary questions, Moltke strolled to the podium. He made a little speech about the role of the prosecutor in protecting the commonwealth from lawlessness and anarchy. “But you jurors have one of the most important jobs in the entire world,” he said. “A job upon which the very fabric of our society is dependent.”

After he finished flattering them, Moltke began the voir dire. His first few questions were all softballs designed to continue cozying up to the jurors, and to suggest that he was a good ol’ hometown boy, just like them. After that, Moltke asked the usual questions, totally irrelevant to the legitimate purposes of voir dire, designed to preview the prosecution theory of the case and prejudice the jury in his favor. Finally, he made the jurors promise they would evaluate the evidence fairly, but not shy away from a conviction if the evidence convinced them the defendant was guilty.

“Now, let me ask you a question, Mrs. McKenzie.”

The elderly woman looked up, startled. Another venerable trial lawyer trick: memorize while the jurors are called, so later you can address them by name. Jurors, tended to be impressed by this showy display of attorney acumen.

“I believe you said you were married.”

“T-that’s right,” Mrs. McKenzie answered.

“You probably wouldn’t think very highly of it if your husband went off and had an affair, would you?”

“I should say not.”

“Adultery is a bad thing, wouldn’t you agree?”

“Well, of course I would.”

“And you probably wouldn’t think very much of the floozy he was with either.”

“I’d probably wring her neck,” Mrs. McKenzie said. The rest of the jury chuckled.

“And if this floozy got your husband involved in criminal activity, oh, let’s say drugs for instance, you probably wouldn’t be happy about that.”

Her neck stiffened. “No, I certainly wouldn’t.”

“And if that floozy actually killed your husband—”

“ Objection , your honor,” Ben said. “This has gone far beyond the bounds of permissible voir dire.”

Derek nodded. “I’m afraid I have to agree. Mr. Moltke, please confine yourself to rooting out areas of possible prejudice, without creating any yourself.”

“Yes, your honor,” Moltke said, seemingly chastised. “I certainly don’t want to prejudice anyone. And speaking of that, there’s some evidence I want to ask you jurors about, just to make sure you won’t be unfairly prejudiced by it.”

Very smooth segue, Ben thought. Under the cloak of obedience he’s going to do exactly what the judge told him not to do.

“Unfortunately, ladies and gentlemen, you’re going to hear some evidence in this trial of…well…” He paused and acted embarrassed. “Of a…sexual nature.”

Well, they’re all wide awake now, Moltke. Good technique. Trial by titillation.

“As I’m sure you all know, some people…well, darn it all, some people just don’t conduct themselves like you and me. I’m not saying their morals are worse than ours—”