already knew enough about each of them to make an informed guess as to whether he wanted them or not. That, along with the fact that anything additional he might now learn would help his adversary as much as it would help him, meant that he almost never asked questions aimed at seeking more information. What he set out to do instead was condition them. Actually, a more precise way of put ting it would have been to say he wanted to brainwash them. But that term, however apt, carried a decidedly negative, Manchurian Candidate connotation to it, even were one inclined to think of the process in its most thera peutic definition. brainwash (' brane 'wosh), v., to cleanse the mind so as to rid it of prejudices and other preconceived notions that have no goddamned business in a criminal trial in the first place.
The methods Jaywalker employed were twofold. First, in the guise of asking information-seeking questions, he would proceed to reveal to the jurors the most damning evidence against his client. Then, purely to avoid drawing an objection, he would ask them if, having heard that, they could still be fair and impartial. Second, again posed in question form, he would repeatedly hammer into them the magic words upon which they were ultimately going to base their acquittal of the defendant: that the prosecution, and only the prosecution, bore the burden of proof, a burden that not only required them to prove that the defen dant was guilty, but required them to prove it beyond all reasonable doubt. Over and over he would say those things, until the jurors could sense when the words were coming, knew them by heart and mouthed them along with him. They would take the words home with them at night, bring them back in the morning, and internalize them to the point that they were no longer just words but had become a refrain of sorts, a refrain that punctuated every line and every verse of the trial. A mantra.
And then Jaywalker would combine the two methods into one.
MR. JAYWALKER: Ms. Heywood, the evidence is going to show, not just beyond a reasonable doubt, but beyond all doubt, that when first confronted by the detectives, Samara Tannenbaum lied to them. Not only did she lie once, she lied twice. And she didn't just lie about silly stuff, but about stuff that turns out to look important. Hearing from me, her lawyer, that she lied like that, can you still give her a fair trial?
Now, it didn't matter a bit whether Ms. Heywood an swered that she could or thought she could, or that she'd try her best, or that it depended on the rest of the evidence. The important thing was that by bringing out the fact that Samara had lied before Tom Burke could establish the fact through the testimony, Jaywalker was defusing the issue, taking all the drama out of it. And by getting the jurors-for they were all listening, not just Ms. Heywood- to commit to being fair in spite of Samara's having lied, he was in effect getting them to discount it. If Ms. Heywood had answered no, she couldn't be fair, then Jaywalker wouldn't even have to waste a peremp tory challenge on her; he would get her excused for cause. MR. JAYWALKER: And when I say, 'give her a fair trial,' Mr. Monroe, you understand what I mean by those words. I mean that you must hold the prose cution to their burden of proof, and require them, if they can, to not only prove that Samara is guilty, but to prove it beyond all reasonable doubt.
And by placing great vocal stress on the word beyond, no one-not Tom Burke, not even Judge Sobel-caught the fact that Jaywalker had quietly changed the word im mediately following it from a to all. Not until the next day, at least, or the day after that. Not until it was too late, not until it had become part of the refrain, part of the jury's mantra. Not until Jaywalker's little sleight of hand had succeeded in raising the prosecution's burden of proof from 'beyond a reasonable doubt' to 'beyond all reason able doubt.'
Sound like a little thing?
Perhaps.
But experience had taught Jaywalker that it was pre cisely the kind of little thing that translated into the differ ence between winning and losing.
So he didn't just tell the prospective jurors about Sa mara's lies to the detectives. He also told them about her presence in Barry Tannenbaum's apartment shortly before the time of his death, about the items found hidden behind her toilet tank, about the overwhelming certainty that Barry's blood was present on them, even about the life insurance policy application with Samara's signature on it. And after each damning revelation, he asked the jurors if they still could give his client a fair trial and hold the prosecution to its burden of proving guilt beyond all reasonable doubt.
A few said no, they no longer could. Which was fine; they would be excused for cause.
But the vast majority said yes.
Jaywalker took a glance at his watch. He'd been on his feet for close to twenty-five minutes now. He had barely five minutes left. And he had a cardinal rule that he never broke. It was a rule that, like so much else he did, set him apart from just about all his colleagues. As early as the jury selection process, he made it a hard and fast policy to tell the jurors whether or not his client would take the stand.
MR. JAYWALKER: Mrs. O'Sullivan, you heard the judge tell you this morning that the burden of proof rests entirely upon the prosecution, that they're the ones who have to prove guilt, and have to prove it beyond all reasonable doubt. You also heard him tell you that the defense doesn't have to prove any thing, doesn't have to disprove anything, doesn't have to call a single witness. That the defendant her self doesn't have to testify, and that if I elect to not put Samara on the stand, you may draw no inference from that whatsoever.
Nevertheless, I tell you right now that in this trial, Samara Tannenbaum is going to testify. She's going to take the stand, and she's going to tell you in her own words what she did the evening of her husband's death-and what she didn't do.
Now, I suspect that you may end up not liking Sa mara very much. She's done some things in her life that she's not particularly proud of. For example, she's slept around. She's accepted gifts, including money, in exchange for sex. She's gotten by on her looks. In fact, she'll tell you she married Barry Tannenbaum, in large part, for his money. After marrying him, she didn't live with him very long. And she cheated on him. What's more, unlike you and most of your fel low jurors, she hasn't worked for a number of years. She's what we sometimes call a gold digger.
But do you understand, Mrs. O'Sullivan, that this trial isn't about whether you end up liking Samara or not? That this trial is about one thing, and one thing only? That at the end of the day, this trial is about whether or not the prosecution, which contin ues to have the only burden of proof, e ven when Sa mara takes the stand and tells her story, can meet and exceed that burden of proof? And that that burden re quires them to convince every last one of you that Sa mara is guilty of murder, and convince you of it beyond all reasonable doubt?
Mrs. O'Sullivan assured Jaywalker that she understood all that and could follow the judge's instructions. Jaywalker wasn't fooled for a minute. No red-faced, two-hundred pound Irish-American housewife, the mother of eight children and the wife of a former cop now working as an armed security officer at a bank, could be counted on to give Samara Tannenbaum the time of day, let alone a fair trial. But it didn't matter. The important thing was that Jay walker had effectively taken away Tom Burke's crossexamination of Samara. And he'd so lowered the jurors' expectations of her that no matter how she came across, she couldn't possibly seem as bad as he'd painted her.
He thanked the jurors and sat down.
The term jury selection is something of a misnomer. The lawyers don't really get to select the jurors they want. The process might better be called jury rejection, or jury deselection. The way it works is that jurors with admitted or identifiable biases get challenged for cause, or upon the consent of the opposing lawyers. There's no preset limit as to the number who can be removed in that way.
Once challenges for cause or consent have been made and ruled upon, the lawyers take turns exercising their pe remptory challenges, of which they have a limited number. That number increases along with the severity of the charges, as defined by the maximum sentence allowable under the law. Thus, in a lowly petit larceny case, each lawyer is allotted only three peremptory challenges. In a robbery or burglary trial, the number rises either to ten or fifteen, depending upon the degree of the crime charged. Only in murder cases and other class A felonies do the
