or, as Doc Riggs say, non semper something or other.
So now, with Chrissy sitting next to me, appearing demure and nonlethal, I looked at the panel of several dozen prospective jurors. It was the usual collection of schoolteachers, government workers, Miami Herald pressmen, American Airlines mechanics, housewives, and retirees, with an occasional college student thrown in. I've had juries with a lobster pot poacher, a nipple ring designer, a santero who chanted prayers to Babalu Aye during recess, and a cross-dressing doorman from a South Beach club, so today's group looked pretty normal.
I went through the motions of asking personal questions that I assured the panel were not meant to embarrass them. After determining that nearly everyone had been the victim of a crime but very few admitted to seeing a psychiatrist, I started paying attention to body language, or kinesics, as Dr. Weiner calls it.
I watched for hands clasped in tension or arms crossed, closing me out. I watched for crossed ankles and hands squeezing the chair in a death grip. At the same time, I paid attention to my own gestures. 'Keep your palms open and friendly,' Dr. Weiner always reminded me. 'Watch your proxemics, your space usage. You're too tall to get close to the rail. Your vertical power will intimidate the jurors. And don't put your hands on your hips. Taking up too much horizontal space is simply too authoritarian.'
Thanks a lot. Before hiring the ponytailed, tinted-lensed Dr. Les Weiner, I was content just to know my fly was zipped up.
So I did my friendly big-guy act, not getting too close, not taking up too much space, smiling, shucking and jiving, and trying to find six honest, sympathetic souls who would hear us out, whatever we might have to say. In the front row of the gallery, Marvin the Maven sat impassively, frowning at me whenever I leaned over to talk to my expensive hired gun. As I questioned the jurors, Dr. Weiner took notes when he wasn't thumbing through the latest yachting catalog. He kept his trawler, a forty-two-foot Krogen named The Pleasure Principle, docked at Dinner Key Marina in what he called his Freudian slip. The Krogen is a lot like me, a widebody that is slow but steady in rough seas and high winds. It is finished in rich teak and impresses the doc's women companions, who tend to be young, blond, and susceptible to strong margaritas and salty breezes.
It took all day to seat a jury. Then Judge Stanger gave the group his spiel, telling them not to talk about the case with each other or anyone else. They all nodded knowingly. They'd seen it all on TV a thousand times. In our courthouse, we call it Ito-izing the jury.
I stood and bowed slightly, trying to make eye contact, as the jurors filed out of the courtroom. I would do the same at every recess and adjournment until the trial was over. Some looked at me and some didn't.
Then I took Chrissy Bernhardt by the arm and steered her out of the courtroom. I needed a drink, a good night's sleep, and a trial strategy, and at the moment I would have taken two out of three.
22
First thing in the morning, Judge Stanger gave his preliminary instructions, and the jurors leaned forward, listening intently. They're like that at the beginning. On edge, wanting to do their duty. As the surroundings become more familiar, as the lawyers wear out their welcome with repetitious questions and obstreperous objections, jurors kick back and daydream or doze. Sometimes I imagine them as cartoon characters, scenes of bass fishing or sexual liaisons filling little bubbles over their heads. Why not? That's what occupies my mind when Abe Socolow is strutting in front of the jury box or the judge is endlessly repeating his admonitions.
'The indictment is not evidence,' Judge Stanger said, 'and should not be relied on by you as evidence of guilt.'
He told the jurors that they were not permitted to infer guilt if the defendant didn't testify. It's a standard instruction, and many times I won't put a client on the stand, since most defendants will only muck it up. In one of my first trials as an assistant public defender, the prosecutor asked my client, 'You say you're innocent, yet five people swore they saw you steal a watch.'
'So what?' my saintly client said. 'I can produce a hundred people who didn't see me steal it.'
When your client remains silent, the prosecution isn't permitted to comment on the failure to testily, and the judge repeats his Fifth Amendment instruction after closing argument. Still, I wonder what the jurors think. Even if they don't discuss it, aren't they saying to themselves. If I was innocent, I'd sure as hell put my hand on the Good Book and tell the whole dang world?
The judge ordered the jurors not to speculate about why the lawyers make their objections and what the answers would have been if the objections had been overruled. So silly. Try not thinking of a pink elephant. Whoops, can't do it. He told them that opening statement was not evidence, but rather each lawyer's version of what the evidence would show. He advised them not to discuss the case with anyone, including their families, friends, and presumably their pets. And then Honest Abe got up to talk.
'This is a simple case,' Abe Socolow said. 'A man sits at the bar at the opening of a Miami Beach nightclub. His name is Harry Bernhardt, and he is minding his own business, enjoying the fruits of his labors. Harry is a hardworking man who has accomplished much with his life but has so much more to do. As he sips his drink, Harry has no idea it will be the last beverage he ever consumes.'
A little B-movie dialogue, I thought, and not strictly accurate if you count the Ringer's lactate IV at the hospital.
'Now, picture this, if you will,' Abe continued. 'A young woman enters the club, and in front of dozens of witnesses pulls a gun from her Versace handbag.'
Versace. Abe's way of saying 'spoiled rich bitch.'
'And as Harry sits there, here comes this woman with the gun, walking toward him.'
Harry. Humanizing the victim. Making the jurors hold their breath, waiting as Abe cuts back and forth cinematically between villain and victim.
'The woman aims the gun at Harry, a Beretta 950, which was hidden in her handbag. Hidden from the security guard outside, hidden from Harry, hidden from the world, so that she could carry out this premeditated assassination. Harry has had no time to put his affairs in order, to say good-bye to friends and loved ones. He has not lived his three score and ten, and no voice has asked him, as Job was asked, 'Hast thou seen the doors of the shadow of death?' '
Job? A reminder that the prosecution has God on its side.
'The woman, this woman sitting here…'
Abe approached the defense table and pointed, his index finger a foot from Chrissy Bernhardt's nose. She didn't blink. She just sat there in her three-piece Calvin Klein suit, a big-buttoned V-neck jacket in steel-blue crepe and matching skirt, and a gray washed-silk blouse.
'This woman, Christina Bernhardt, aimed the gun at Harry Bernhardt, her father, and with malice and premeditation, she pulled the trigger. Not once, not twice…'
Thrice?
'… but three times. Bang! Bang! Bang!'
Two jurors winced at the sound effects. The others didn't, perhaps because Abe's perpetual sinusitis muffled the shots like a silencer on a barrel.
'Harry was rushed to Mount Sinai Hospital, where heroic measures were undertaken to save his life. But two hours after surgery, he suffered cardiac arrest and died, his death the proximate result of the shooting. Unlike most trials, in this one there is no doubt as to any of this. You will hear testimony of eyewitnesses who will state under oath that Christina Bernhardt did, in fact, shoot her father. You will hear the testimony of the paramedic, the surgeon, a treating nurse, and the assistant medical examiner. You will hear that the cardiac arrest suffered by Harry Bernhardt was inextricably linked to and caused by the shooting, and therefore you will be compelled to find that Christina Bernhardt killed her father, and that she is guilty of murder in the first degree.'
Abe went on for a while, advising the jury to pay keen attention to the witnesses, to follow all of Judge Stanger's instructions, and to listen carefully to Mr. Lassiter when he stood up for his opening statement. By raising his eyebrows and his voice just a bit, Abe made 'carefully' sound like 'skeptically.' He thanked the good folks for their time, told them he'd move the case along quickly-implying that any delays were my fault-then sat down with a
