lawyers get the full complement of twenty peremptory challenges.
Unlike challenges for cause, peremptory challenges may be exercised for any reason, or for no particular reason at all, so long as they're not motivated by a demonstrable attempt to exclude members of any particular race or other legally recognized minority.
Burke, as the prosecutor, had to go first. With two of the prospective jurors in the box having been removed for cause, he now used five of his peremptory challenges. Jaywalker, reviewing his notes, had concerns about almost all of the re maining eleven. But he also had a finite number of chal lenges, and he didn't want to fall seriously into a hole. That would give Burke too much of a hand in shaping the jury.
Some jurisdictions allow the jurors, once all have been selected, to vote on who becomes their foreperson, or spokesman. Others draw lots, or leave it to the judge to decide. In New York, the rule is simple: the first juror to be called, selected and sworn in automatically becomes the foreperson. Knowing this, Jaywalker now used his first two peremptory challenges on jurors who, unless challenged, would have fit the bill. That left a barely acceptable, though certainly not truly desirable, cabdriver as the foreman. Men, Jaywalker had decided some time ago, even if they might be inclined to identify more closely with Barry Tan nenbaum, would at least react positively to Samara's looks. Women, unless they themselves had just climbed out of the pages of a V ictoria's Secret catalog, could hardly be expected to.
Jaywalker used six more of his challenges, leaving him with twelve to Burke's fifteen. The three jurors who hadn't been challenged were sworn in, including the cab driver foreman. Then they were excused for the balance of the process.
Jaywalker checked his watch, saw it was almost four o'clock. They'd been at it most of the day and had three sworn jurors to show for it.
The clerk, going to her bingo drum, filled the box with eighteen new jurors, and the process started all over again, beginning with the judge's questions. And that was as far as they got that day.
'God, it takes forever, ' complained Samara on the way out of the courtroom. 'And talk about boring. '
Jaywalker agreed with her on both counts. Jury selec tion was time-consuming and repetitive, especially with his own insistence on hammering home the twin concepts of burden of proof and reasonable doubt. It was, as a result, by far the most neglected portion of the trial. But he knew that it was also one of the most critical. Approached prop erly, it presented a unique opportunity to condition jurors to be receptive to arguments they might otherwise reject out of hand. And handled skillfully, it could set the stage for winning all but the most difficult of trials.
What worried Jaywalker right now, as he rode the ancient elevator down to the ground floor, were those two little words in the caveat: all but.
They were back in court the following morning, with Tom Burke addressing the new group of prospective jurors, followed by Jaywalker. This time there were three chal lenges granted for cause. Burke used four of his peremp tories, leaving him with eleven. Jaywalker used six of his twelve. The remaining five jurors were sworn in, bringing the number selected to eight.
On the third round, four were knocked off for cause. Burke peremptorily challenged six, Jaywalker five. But the numbers were still working against him. With one regular juror still to be picked, Burke had five challenges left to Jaywalker's one.
Jaywalker used his remaining challenge on the final round as best as he could, but Burke took advantage of the numbers to cherry-pick the twelfth juror, a retired marine colonel, muscles bulging beneath a skin-tight, mustardcolored turtleneck. Jaywalker had caught him looking at Samara at one point with nothing short of firing- squad contempt in his eyes.
From the remaining jurors, they picked six alternates who would hear the testimony but join in the deliberations only if one of the twelve regulars became incapacitated. It was almost five-thirty by the time they broke for the day.
But they had their jury.
Stanley Merkel, the cabdriver and foreman: white, balding, fortyish. Leona Sturdivant, a retired school admin istrator: white, prim, sixty-something. Vito Todesco, an importer-exporter: white, Italian-American, fiftyish. Shir ley Johnson, a nurse's aide at a Catholic hospital: black, God-fearing, seventy. David Wong, an engineering student: Chinese-American, late twenties. Mary Ellen TomlinsonMarchetti, an investment counselor: fortyish, white, Pro testant, evidently married to an Italian-American. Leonard Schrier, a retired shopkeeper: white, late sixties, either a sympathetic Jew inclined to forgive Samara or a former storm trooper ready to herd her into the ovens. Carmelita Rosado, a kindergarten teacher: Hispanic, very quiet, thirtysomething. Ebrahim Singh, a speech therapist: Indian or Pakistani, fiftyish. Angelina Olivetti, an out-of-work actress waiting tables: white, Italian-American and cute. Theresa McGuire, a self-described homemaker: white, Irish-American, ageless. George Stetson, the Colonel Mustard whom Burke had settled on when Jaywalker ran out of challenges: sixtyish, ramrod-straight, and very, very white.
Six men, six women. Eight white, one black, one His panic, one Asian, one Middle Eastern. Six Catholics, two Protestants, one likely Buddhist, and three question marks. No one with anything more than a master's degree, if that.
Backed up by six alternates of assorted sizes, shapes, colors and religious backgrounds, these were the jurors who would ultimately decide Samara Tannenbaum's fate. On a scale of ten, Jaywalker might have given them a collective two or three, at very best. But the truth was, he wasn't interested in who they'd been when they'd first walked into the courtroom. He'd had his two minutes with each of them since then-his chance to condition them, to desensitize them to the worst Tom Burke could possibly throw at them. And, yes, his chance to brainwash them. If he'd failed, the fault was his, and no one else's.
Though the consequences would be Samara's.
18
When he'd begun trying cases, more than twenty years ago, Jaywalker had been schooled in the Legal Aid Meth od. Whatever you did, they'd taught him, never commit to any single defense or trial strategy, lest something happen in the middle of the trial to turn you into a fool and your client into a convict. Keep your options open at all times. Play things close to the vest. Adopt a wait-and-see attitude. Avoid unnecessary risks.
The first way you put those guiding principles into action, they explained, was to refrain from making an opening statement. Or, if you absolutely insisted upon making one, you were to keep it short, general and non committal. Talk, if talk you must, about maintaining an open mind, waiting until all the evidence was in before drawing any conclusions, and keeping your eyes and ears open, and your nose to the grindstone.
To Jaywalker's way of thinking, it made no sense at all. As far as he was concerned, about all you got by keeping your nose to the grindstone was a smaller nose.
Still, he'd given it a try. And what he'd gotten for being a good soldier were convictions. Not always, but a good half of the time out. 'Fifty percent acquittals?' said his supervisor. 'That's fabulous! '
Not to a perfectionist, it wasn't. Not to Jaywalker.
So over time he gradually abandoned the Legal Aid Method in favor of the Jaywalker Method. By the time he went out on his own two years later, he was committing to a particular trial strategy long before jury selection even began. He knew precisely what his defense would be, whether or not his client was going to testify, what he would say when he did, and how he would say it. And he told the jurors, at the very first opportunity.
He discovered that the opening statement, long avoided as nothing but a death trap by the mavens at Legal Aid, pre sented the perfect opportunity to shape the course of ev erything that followed. Why wait for a poorly educated, inarticulate defendant to haltingly tell his story from the witness stand, interrupted by questions, objections and rulings until it came out like some jerky, stop-and-go amateur home movie, when Jaywalker himself could present it to the jury in free-flowing, wide-screen, threedimensional, stereophonic, living color?
Almost immediately, his acquittal rate jumped to seventy-five percent. And while he continued to work on
