immediate liking to her. My father brought me up to believe in the old school of trial lawyering, and jury consultancy is part of the new school. Marjorie is in her thirties, unpretentious in looks, dress, and attitude, and totally self- confident in her ability to help me pick a jury.
She explains what she calls the “science” of the process, which consists of conducting polls among sample jury pools, probing with sophisticated questions about attitude and lifestyle. The responses are then correlated with those people's attitudes toward information about the specific case. I'm not knocked out by what she has to say, but then again how many times can I be knocked out in one day? I hire her on the spot, and give her one week to get back to me. This is generous; jury selection begins in ten days.
I ask Laurie to join me for the Victor Markham deposition, and we head over to the office of one Bradley Anderson, Victor's lawyer. I bring Laurie with me because she's smart, and in this case two heads are better than one, especially since one has just recently been punched in.
Bradley Anderson is one of the few attorneys I've ever met for whom the moniker “Esquire” fits. His office is spacious and ornately furnished in an elegant prewar building in Ridge-wood. The conference room would seem more appropriate for a state dinner than for a criminal law deposition, but that is what we're here to conduct.
There is a fruit plate set out for us to sample, along with cheese and crackers, except they are so thin and delicate that they're probably called something a lot classier than “crackers.” There is also a silver coffee urn with cups smaller than your average test tube.
Victor feigns graciousness when we arrive, even expressing sympathy for my bruises. It is as if he has absolutely nothing better to do than have a little chat with us over coffee. Bradley is distant but polite, though my impression is that he feels like he's soiling himself by talking to us. Bradley explains that he does not usually do criminal law, but Victor is a dear friend, so if we can move this along …
Once the stenographer is ready, I ask Victor some preliminary questions about his business and family. Actually, I beat these questions to death with boring minutiae, and I can feel Laurie staring daggers at me, wondering what the hell I am doing.
What I am doing is trying to annoy Victor Markham, to get him out of his glossy little shell and dig under his skin. I accomplish this when I ask him for perhaps the fifth time about his son, Edward's, grades at Fairleigh Dickinson. Victor snarls his response and Bradley threatens to terminate the deposition. I threaten to bring Victor in front of Hatchet for unresponsive-ness. Now that I've achieved the warm tone I've been looking for, it's time to get to the matter at hand.
The goal of a deposition, at least one of an adversarial witness, is not necessarily to accumulate information, and certainly not to trip him up. Rather it is to get the witness under oath, and thereby lock him or her into answers. Those answers then serve as a basis for cross-examination, and the witness cannot come up with a new story when painted into a corner.
“How well did you know Denise McGregor?”
“I didn't know her very well,” Victor says. “But Edward hoped to marry her.”
“Were they engaged?”
“No, I don't believe so.”
“You don't know for sure whether your own son was engaged?”
“He was not engaged.” He's annoyed, snapping out his words.
“Do you know what story Denise was working on when she died?”
“Of course not.”
The questioning moves to the night of the murder. “Why did Edward call you from the bar?”
“As I would assume you can imagine, he was terribly upset. He always turned to his father in times of crisis. He still does. I encourage it.”
“Where were you at the time?”
“At the club.”
“Which club might that be?”
“Preakness Country Club. We have been members for many years.”
“How did he know you were there?”
“It was a Friday night. I am always at the club on Friday nights.”
“So when Edward called you, what did he say?”
“He told me where he was, and that his girlfriend had been murdered. He asked me to come there immediately.”
“And you did?”
He nods. “I did.”
I take out the picture that I found in my father's house. “Can you please point to yourself in this photograph?”
Bradley has obviously been primed for this. He jumps in instantly and advises Victor not to answer on the grounds that it is not relevant to the Miller case. No amount of badgering on my part, not even the threat of Hatchet, can get him to change his mind.
My last question for Victor concerns the current whereabouts of Edward, since Laurie has been unable to locate him.
Victor smiles. “He's in Africa, on one of those safaris. I'm afraid he's simply not reachable.”
I return the smile. “Then we'll just have to talk to him on the stand.”
TEN DAYSFLY BY AS IF THEY ARE TEN MINUTES, AND THE next thing I know the bailiff is intoning, “In the matter of the people versus William Miller, the Honorable Justice Walter Henderson presiding …”
“William” sits at the defense table in a new suit I had Edna purchase for the occasion, and he looks terrific. He also looks calm and collected; he's been a lot lower, and faced a lot tougher, than this and he thinks the momentum has turned upward. He's not thinking very clearly.
There is a special feeling, an excitement combined with queasiness, that hits me every time a trial is about to begin. The only thing I can liken it to is former Boston Celtics great Bill Russell saying that no matter how long he played, he still threw up in the locker room before every game. I don't think throwing up on the defense table is the right way to get on Hatchet's good side, so I control the impulse.
For me trials are about strategy and confrontations. Strategy is one of my strong suits, but in real life I don't do well with confrontations, so I have to deal with that in another way.
My father used to lecture me that a trial is serious business, not a game, but I have come to disagree. For me a trial and the investigation surrounding it is in fact a game. I turn it into one, so that I can handle and thrive in the midst of all these confrontations. In sports, every play between the participants is a confrontation, but I can deal with that because that is the purpose of the game. Once I can put trials into the same category, it becomes depersonalized and I'm home free.
Jury selection is especially difficult and dangerous for the defense in a capital trial. That is because each juror must be death-qualified, which is to say that he or she must be willing to vote for the death penalty if it seems warranted. Such juries are by definition more conservative and more favorable to the prosecution.
The first prospective juror is brought in for Wallace and me to question. Marjorie is at my side as we go through the tedious process, made more so by Hatchet's insistence on throwing questions in of his own.
Number one is a doorman who claims to know nothing about the case. He also claims to have an entirely open mind, to have no predispositions about the police or the justice system, and to be willing to consider capital punishment if called upon to do so. This is clearly a guy who'd rather sit in the jury box for a few weeks than open doors. Marjorie's okay with him, but Wallace challenges, and he's excused.
It takes us two days to empanel a jury of twelve and two alternates. There are seven whites, four blacks, and one Hispanic, five men and seven women. All twelve of them claim to have a completely open mind. I don't think I've met twelve people in my entire life with completely open minds, but I'm reasonably satisfied with this group. Marjorie is positively euphoric, but if she thought we had a bunch of turkeys, it would mean she did a poor job.
The real action in a trial begins with the opening statements. The prosecutor stands up and gives the jury a road map of the trial. He tells them what they are going to hear, what he is going to prove, and what it will all mean. His goal is to sound confident and to convince the jury that he has the goods on this guy, then his task will be to deliver a case that makes good on the promises he's made in the opening statement.
