Epidemiologists have a term they use in describing how a pathogen that has previously been confined to one host species, such as mice, suddenly and inexplicably begins to spread to another, like monkeys or humans. The way they say it is that it jumped.
And there in that courtroom, right before everyone's eyes, the hand-raising jumped. It jumped from the back row to the front, and from there it spread out to either side. By the time the outbreak had peaked, no fewer than eleven of the sixteen people were sitting with one hand raised in the air. There was a veritable epidemic of jurors who were willing to admit they'd heard enough.
'All right,' said Justice Hinkley. 'Let me explain a few things.'
The twelfth hand in the air was Jaywalker's.
'Yes?' said the judge.
'May I give it a try?'
She seemed to think for a moment, before nodding and saying, 'Go ahead. But the first time you misstate the law, you're done.'
To Jaywalker, no green light ever looked better.
He spent the next forty-five minutes explaining to the jurors why their reactions, as understandable as they might be, would unfairly deny his client a fair trial. Not that he lectured them. The rules, and his own better judgment, prohibited him from doing that. Instead, he wove his points into a question-and-answer format that eventually had them nodding their heads and agreeing with him.
There were three distinct reasons why, in spite of the things Jaywalker had earlier conceded-that his client had been the driver, that his actions had led directly to nine deaths, and that he'd been drinking-the case was far from over. The first was the presumption of innocence, which remained with a defendant throughout the trial and up to the moment a unanimous verdict was reached. Certainly none of the jurors were for dispensing with that, were they? The second was the burden of proof, which never, ever shifted from the prosecution to the defense. No argument about that, was there? And finally, the constitutional right to remain silent, and its logical corollary that a defendant's silence was proof of nothing and could never be used against him in any way. No one was for stripping away that protection, were they?
Halfway into the discussion, most of the hand-raisers were trying to apologize for their haste to judge the case. 'Don't be silly,' Jaywalker told them. 'I would have answered the question the same way. But now we see how I would have been wrong, too.'
'Might this be a good time,' the judge asked, 'to take our midmorning recess?'
'It would be a perfect time,' Jaywalker agreed.
'Now,' said Jaywalker, once they'd resumed, 'I want you to forget about everything I said before.'
There was a bit of uncertain laughter in the jury box, and a lot of confused expressions. But nobody looked bored. Every eye was on Jaywalker, waiting to see what he had in store for them next.
'Not r eally forget about, of course. Presumption of in nocence, burden of proof never shifting from the prosecution, and no inference to be drawn from a defendant's not testifying. That's all the law, as Justice Hinkley has explained to you and will explain again at the end of the case. And it's all terribly, terribly important. But just for now, just for a few moments, I want you to forget about it.
'Remember,' he said, singling out the timid-voiced woman who'd been the first to raise her hand. 'Remember when you said the case would be over for you unless he-' and here he pointed at Carter Drake '-were to tell you something else?'
She nodded, and opened her mouth to defend herself. But Jaywalker held up a hand to stop her. He wasn't looking for apologies.
'Well,' he said, 'you're going to get your wish. Forget the presumption of innocence. Forget who has the burden of proof. Forget that the defendant doesn't have to testify or call a single witness, and that his not doing either of those things can't be used against him in any way. Because here's the thing. He is going to testify. We are going to call witnesses. And if you can just keep your mind open, you're going to learn e xactly what happened in the seconds leading up to the crash, and precisely what caused it. Because you know what?'
'What?' came a collective murmur.
'Because he's the only one who knows. He's the only one who can tell you. Will you keep an open mind and wait for that?'
Sixteen prospective jurors promised they would.
Not that it meant much. But at least he'd given them something to think about, something to wait for. And if he'd accomplished anything, it was to drive out into the open the notion that drinking, driving and death were enough. They weren't. There had to be more. There had to be causation. Which left a tiny bit of daylight. Just enough for a bug to crawl into. A wasp, say.
Before it was over, jury selection took four full days. Because it was a murder trial, each side was allowed the maximum number of peremptory challenges, twenty, to eliminate jurors for no particular reason. Jaywalker ended up using every one of his, Firestone only fourteen. In addition, the court removed another thirty-some for cause, as she had earlier for Ms. Napolitano's fiance. No less than six times, Jaywalker renewed his motion for a change of venue, pointing to the large number of jurors familiar with the case and ready to convict the defendant.
'This case made the New York Times, ' said the judge after the jurors had been excused once again. 'Hell, I'm told it made the London Times. Where would you propose we try it?'
No, she told him, Saskatchewan was out of the question. 'Besides which, I think you handled that very well in your voir dire.
'
'Flattery will get you everywhere with me,' said Jaywalker. 'But it won't get my client a fair trial.'
'Why don't you leave that to me,' said the judge. 'Haven't I given you plenty of leeway so far?'
Jaywalker could only smile. Leeway became a funny thing in a criminal trial, he'd learned. About the only time a judge gave a defense lawyer leeway was when she was confident there'd be a conviction and wanted to make sure it would stand up on appeal.
It was nearly five o'clock on Tuesday when Jaywalker muttered a final 'Satisfactory to the defense' for Alternate Juror Number 4, completing the selection process. Not that Alternate 4 was really satisfactory. She was a retired parole officer, her husband a retired FBI agent, her son a state trooper. But he'd run out of challenges. The clerk swore in the juror, and the judge excused everyone until the following morning.
Carter Drake's jury would have twelve regular jurors and four alternates. Of the twelve, seven were women, five men. There were two computer technicians, two schoolteachers, a psychologist, an accountant, a teacher's aide, a bank teller, an unemployed actress working as a barmaid and three homemakers. There were no racial or ethnic minorities of any sort represented. None. Six of the twelve were identifiably Jewish from their names, with at least three others Jaywalker considered likely. The youngest was twenty-seven, the oldest sixtyeight. The average age came out to just under fifty-five. All twelve had not only heard about the case but had followed it 'closely or with some significant degree of attention' on television, in the newspapers, or both. Eight of them subscribed to, or were regular readers of, the Rockland County Register, the local paper that had crusaded against the 'Audi Assassin' in the weeks following his arrest.
All twelve promised that they could be absolutely fair and impartial.
Jaywalker had picked a lot of juries in his day. With the possible exception of a case over in Cayuga County, where several farmers had showed up for jury duty chewing tobacco and wearing overalls but no shirts, this one had to rank as his worst ever.
16
If the media circus had died down a bit for the Wade hearing and jury selection, it was back up to three rings Wednesday morning, with Carter Drake's trial about to begin for real. Outside, an extra parking lot had been opened to the public, and three enormous trailers set up in front of the courthouse to accommodate the press, additional
