“Friday’s fine with me,” says Tuchio.
I’m sure it would be. The fact is, I begin to wonder if there isn’t some design in this. Any lawyer I know, given a choice, would deliver his opening statement to the jury as the last order of business before a weekend, leaving them to ponder his every word for two days before confusing them with the evidence.
“So I take it you’ll be ready to go on Friday with the rest of us?” Quinn is once again looking at me.
“Barring any more surprises,” I tell him. “But the fact is, the prosecution goes first.” I deflect the question to Tuchio.
“Oh, we’ll be ready, Your Honor.”
“Good. That’s good. This then leaves the question of the jury,” says Quinn.
Our jury has already been picked and primed, seven women, five men, with six alternates. As in any case of this kind, it is probable that the most I can hope for are a few strong-willed individuals for whom the seed of doubt is always germinating in their minds, or at least easily planted-people who will fight for their convictions or, better yet, who might be easily insulted, digging in their heels if others try to push them. My jury consultant, after shaking her psychic bag of bones over the juror questionnaires and after my having questioned them in the selection process, believes that we may have two who could fit this bill. On the other hand, African Americans are potential anathema for us. We have three on the panel, one retired military, another a janitor from a local school, and last a female investment adviser from one of the big firms downtown. There is no way to keep them off the jury on racial grounds, even though it is a given that Tuchio is likely to play the race card, even if from the sidelines.
“Is there a problem with the jury?” I ask.
“Whether they should be sequestered,” says Quinn.
I had been halfway expecting this. It is clear that Tuchio and the judge have talked about this before my arrival, as the D.A. is already looking over at me for arguments.
“Not as far as I’m concerned, Your Honor. Not at this point at least.”
“I’m not so sure,” says Tuchio. “Letting the jurors go home at night with the paparazzi salivating, following them to their front doors,” he says. “We could easily end up with a costly mistrial. Besides,” he says, “if we’re not going to sequester, we’re likely to need more than six alternates on the panel.”
“Hmm…” This sets the judge to thinking.
“If the court wants more alternates, we should get them,” I say. “But I would strongly oppose any motion to sequester without some showing of cause, a reason in this particular case.”
The argument here may seem strange to the untutored, but it is holy writ that locking a jury up for the duration in hotel rooms with bailiffs to tuck them in at night has devastating consequences for the defense, particularly in a lengthy trial. Jurors come to resent the isolation from family and friends. They begin to see themselves as incarcerated, which in fact they are. They place the blame invariably on the defendant, who should be the one in jail, even though in this case he is. Tuchio may have a legitimate reason for wanting to avoid a mistrial, but he also has an underlying agenda: to subtly poison jurors against the defendant.
“It’s too late for more alternates,” says Quinn. “I’ve already released the jury pool. If we proceed unsequestered, I want it to be understood that we will be running on a very thin thread.” It becomes clear that this is the purpose for this discussion, to put me on notice that the court can pull the trigger at any time. “The first hint of anything inappropriate,” says Quinn, “any untoward communication with a juror, and they’re off to the Hilton. Is that understood?” He looks at me yet again.
I nod.
“Good. Next item,” he says. “Witness lists. I want them finalized and submitted before close of business on Friday.” He looks at both of us for a change.
“Your Honor, until we see all of the People’s experts, we won’t know who we’ll need to counter them.”
“We’ll work that out,” he tells me. “In the meantime I want to see witness lists in pretty much final form by Friday.”
“With some exceptions?” I ask.
“With a few reasonable exceptions,” he says. “And I emphasize the word ‘reasonable.’” He looks down at the sheet in front of him in the open file. “That’s everything on my list,” he says.
“There is one issue,” I say.
He looks up at me as he hadn’t planned on either of us having an agenda.
“There is the matter of the victim’s computer files,” I say. “To date we’ve received only partial material from these. We have reason to believe that there are voluminous materials that the state has not turned over pursuant to our discovery motion.”
Quinn looks at Tuchio. “What about this? I don’t want any delays,” he says.
“Your Honor, we’re doing the best we can. Counsel is right-the requested materials are massive. It appears that only a part of the requested items are in the actual computers. According to my experts, my IT guys, Mr. Scarborough made a habit of moving data from the hard drive of his computers into storage on external hard drives. Thus far we have identified only some of these. We know that there are probably more. Here’s the problem,” he says. “We took out six, eight boxes of materials from his place in Washington, the town house. We have yet to process all of these.”
“Well, get on it,” says Quinn. “You have more people. Put them on it.”
“We have other cases going, Your Honor.”
“Then hire outside help,” says Quinn. “I want these materials in the hands of the defense by next week, understood? No ifs, ands, or buts.”
“We’ll do the best we can,” says Tuchio.
“No, you’ll get it done,” says Quinn.
8
The framers of the Constitution may have been brilliant, but they weren’t perfect.
They lived in another age-lawyers, merchants, and gentlemen farmers-amateur politicians all. For their time the concepts they introduced were radical, but they were not unrestrained. The preamble may have been orchestrated for “We the People,” but the fine print kept the common fingers off the piano keys.
The founders were men of property, in an age when only men who owned property could vote. The concept of common suffrage, to say nothing of women voting, was alien to them, something they would have rebelled against as vigorously as they fought the British Empire.
Campaigning for election to office was an act of personal dishonor.
They could not conceive of their experiment falling into the hands of full-time politicians steered by armies of consultants, forming committees to suck millions in “donations” from those seeking favor from government; permanent officeholders who would wield the levers of power with the partisan ruthlessness of warlords.
A Congress routinely hijacking essential national legislation just to load it with amendments like tumors, hauling pork back to their districts to solidify their death grip on power-this would have been as alien to them as E.T.
When Lincoln sat in Congress for his single term, beginning in 1847, he considered himself lucky to have a desk with a drawer for his private papers and the privilege to borrow a book from time to time from the Library of Congress.
Only the insane of the eighteenth century could foresee that a bleak two lines added to the Constitution a century after its creation, authorizing the collection of a federal income tax, could result in a seventy-year rampage by government to mentally rape its own citizens with millions of pages of totally unintelligible tax laws, rules, regulations, and forms.
Today we have special federal tax courts because the law is so convoluted that ordinary federal judges are presumed too ignorant and unschooled to understand the complexities of laws and forms that every citizen down to the village janitor is required to understand, to obey, and to sign under penalty of perjury and threat of imprisonment.
Nor could it be possible in the Age of Reason to foresee a Social Security system that if run by a private business would result in their arrest, prosecution, and conviction for operating a Ponzi scheme. In the real world,
