Jury selection also is known as “voir dire.” Roughly translated, these words are French for “to speak the truth.” The voir dire is arguably one of the most important phases of any trial because if it works according to design, in the end you'll have an unbiased jury. In real life, neither side actually wants an unbiased jury. They each want a jury that thinks like they do.
During voir dire, the lawyers for each side actually “pre-try” their cases under the pretext of picking a fair and impartial jury. Lawyers typically ask self-serving hypothetical questions designed to elicit sort-of commitments from the jurors as to how they might vote in certain scenarios. Lo and behold, these hypothetical questions coincidentally mirror the real-life facts and testimony involved in the case the jury is about to hear.
Some judges—especially the more controlling ones—attempt to limit lawyers from pre-trying cases in this way. But an aggressive trial lawyer will nonetheless keep trying every-which-way to get the jury thinking about real-life scenarios, even though the jurors haven't even reviewed any evidence in the case or heard any testimony. If a trial lawyer does his or her job, the jurors will indicate in advance how they think and even how they'd vote regarding certain scenarios. So, in truth, each side really wants a biased jury—contrary to whatever disingenuous arguments they make to the judge.
In the case of State of Florida v. Gilbert Fernandez, Jr., it was doubtful that we could ever find an impartial panel. By the time we got to this phase, there already had been an enormous amount of inflammatory and prejudicial pretrial publicity. I wondered whether there was anybody left in Broward County who didn't think Gil was a serial murderer, a cold-blooded hit man for the mob, and an extremely violent and dangerous person. Even I was guilty of thinking this after my initial reading of the sensationalized article on the cover of The Miami Herald. That chilling article, with all the photos of the victims and gruesome murder details, essentially was an indictment in itself.
To add insult to injury, the trial was to be held in Broward County, which was the home field for the murder victims’ families. Broward had been blanketed with daily news articles and TV coverage for what seemed like forever. There was no getting past that fact. Dade County hadn't been as poisoned by the daily press about the murders, which meant the entire pool of jury candidates would have been less informed about the case. Had the proceedings been held in Dade County, which is the largely Latino county where the men had actually been murdered, there was the possibility that we'd have a lot more Latinos on the jury. Had that happened, at least an argument could be made with a straight face that Gil had a jury of his peers. And truth be told, drug-related murders were more commonplace in Miami. This had the effect of desensitizing the entire county population, and therefore the potential venire, or panels of prospective jurors. Right or wrong, for all these reasons a trial based in Dade County would have been better for Gil.
Another problem of tremendous concern to me was the prejudicial effect the paramilitary atmosphere in the courtroom would have on the potential jurors. We filed additional motions to limit the number of law enforcement personnel in the courtroom, but with Tyson, that was an exercise in futility. I also filed yet another motion to have Gil's shackles removed, again to no avail. These motions ended up on the front pages of the local newspapers and the hearings were televised on the nightly news, but none of that moved Tyson to do anything but summarily deny the requests. Finding impartial people who were not intimidated to be in the courtroom, which had the vibe of a set for an episode of The Sopranos, was going to be an uphill battle, to say the least.
As important as these other issues were, my main responsibility was to find jurors who wouldn't push for the death penalty. Of course, I wanted to expose or even create reasonable doubt and pull off a not guilty verdict. But first things first. It was most critical that I hedge against the possibility of Gil being sent to the electric chair in the event he was convicted.
Reluctantly, I was forced to question the juror candidates about their feelings on the applicability of the death penalty in certain situations. It would be a delicate dance. I didn't want them thinking that I might be conceding some degree of culpability. Like every other defense lawyer on the planet, I wanted the potential jurors to remain totally open to the possibility that my guy was falsely accused. Yet, I knew if I even talked about the death penalty, it could suggest that this option would be very much germane and in play. If I didn't guard against this possibility by pre-trying the death penalty issue, however, I could end up with jurors who were predisposed to think in terms of death if Gil were convicted. It was a real Hobson's choice.
The bottom line was that I really had no choice but to question them on their feelings about the death penalty. I had to engage in the artful sport of mental gymnastics. Too many questions stated too aggressively and the jurors would think I knew something about my client's guilt that they didn't. And yet, if I said too little, Gil could fry if convicted.
Naturally, the prosecutors were looking for jurors who favored the death penalty. Though they wouldn't admit it, they didn't care whether a juror was biased by the pervasive and prejudicial media coverage that heralded Gil as a cold-blooded murderer. In fact, if they were brutally honest, they'd concede that they were indeed hopeful that the well had been sufficiently poisoned in Broward to ensure a jury predisposed to vote “guilty” and “death.”
There was no doubt in my mind that there had been a concerted effort by law enforcement and the prosecution to leak information about the other eight murders to the press. In spite of the noise I made over the media having access to the information about the other alleged murder victims, once the salacious and gruesome details were recorded in the clerk's office, the files became public record and the press could have a field day. Tyson's request that the media voluntarily monitor their own coverage was as useless as it was ridiculous.
Once the BSO Organized Crime Division produced their complete investigative files, they were essentially saying that the murder investigations into the eight additional murders were no longer “ongoing.” Under Florida Statute 119, there's an exception to the Public Records law, which allows the police to refuse to release files of “ongoing investigations.” So, through the release of the files they were saying, “We've got our men,” despite the lack of indictments for those murders. It certainly was in their best interest to use this technique to influence the court of public opinion, and therefore potential jurors, into believing that Gil was guilty.
Bailiffs Mike Ruvolo and Bob Behan brought an initial pool of 60 potential jurors—the usual number for a capital murder case—into the courtroom. After each juror answered the questions on the standard written questionnaire, Tyson gave the group the special instructions that were necessary when the death penalty is one of the possible punishments. He began by instructing the jury that even though they were being given information about the possibility of the death penalty, it didn't mean they should assume in advance that the defendants were guilty.
“That's OK,” I thought with a sinking feeling. “The media already took care of that.”
Tyson smiled charmingly while educating his students about the kinds of questions they'd be asked by the lawyers. He gave them a heads up that they'd be asked about their feelings on the death penalty and he encouraged them to be entirely candid in their responses.
“The fact that you have reservations or religious beliefs about capital punishment does not disqualify you to sit as a juror. It is entirely possible to have these beliefs while still honoring your juror's oath and the laws of the state. If you feel you would automatically reject or advocate for the death penalty based on your beliefs, however, you're not qualified to sit as a juror on this case.”
Juror candidate number 12 was shifting in her seat. I watched her, wondering whether the thought of capital punishment was bothering her or if she was just anxious to get the heck out of the courthouse and go back to work.
Molloy noticed her too, and he let me know that he noticed her. “That guy doesn't miss a beat,” I thought. There were times I wanted to tell the jury that Doug wore an earring after work, thinking that might turn them against him. But then I thought, “Wait a minute; that just might endear them to him.” But maybe I could tell them, “If he'll hide that earring from you, what else is he hiding?”
“Grow up, John,” I countered to the guy inside my head. “That would just backfire on you.” The silent trial in my head was already beginning. As I babbled inside my brain, Tyson wooed the jurors with a cocked head and a prom-date smile, and said, “If you are chosen as a juror and the jury reaches a guilty verdict, you would be called upon to make a sentencing recommendation. I'll make the final sentencing determination, but the opinion of the jury will carry great weight when I'm making the decision.”
“This little sideshow about the possible death penalty is getting really tiresome,” I complained to myself. “You can use fancy words and dress up this sow's ear like a silk purse, but we're still talking about frying people.”
Gil read my thoughts. He elbowed me and said, “Relax counselor. God's got it.”
Then I noticed a few of the jurors staring at him, wondering what he was saying to me.
“Man, these people won't let the guy sneeze without studying his every frickin’ move,” I thought.
“They're watching you, Gil, so look real nice. OK?”
“Whadaya mean? I don't always look nice?” He said sarcastically as he turned and leaned into me a bit, smirking.
“I didn't mean that,” I whispered.
“Then mean what you say and say what you mean,” he whisperingly teased me, whacking my knee with his under the skirted table. As he did, the shackles made a slight rattling sound.
I was in his ear now, whispering.
“Shhhhh!” I implored. “The jurors are going to hear the chains.”
“John, they know what time it is,” he said with cheerful resignation.
The whole death penalty thing was where the rubber hits the road for most people; at least I was hoping that was true. But I knew that unless these folks had a clear predisposition against the death penalty, they could be almost hypnotically desensitized into a cavalier nonchalance about it. With enough sing-songy, matter-of-fact judicial jargon, almost anyone could be lulled into complacency about the whole affair.
The death questions bothered Neli too much to just sit there and pretend she was fine about listening to them. So, she excused herself when we finished with the next juror. Gil just watched her leave before stealing a look at his parents. They'd been holding hands the whole time, but now they were almost sitting in each other's laps. It has to be a parent's worst nightmare to watch his kid face the death penalty. That is unless you compare it to the nightmare being experienced by the victims’ families on the other side of the courtroom, which had to be even more horrific.
At that moment I would have rather chewed tin foil than listen to the judge wax poetic about the electric chair. But I had no choice, so I busied myself with studying the jurors and pretending to be interested in the pearls of wisdom coming down from on high. I tried to remember whatever little I ever learned about neurolinguistic programming, body language and all that science junk, hoping to determine which of the candidates would be slick enough to communicate their alleged prejudice about the death penalty one way or the other. If they were like every other panel of prospective jurors, they would be as ingenious—or as disingenuous—as they could to get out of sitting on this jury.
You could almost expect to hear one of the jurors say, “Oh, I do believe in justice. A man should be put to death if he killed somebody.” I imagined my response to be, “Unless, of course, it's one of your loved ones on trial. Right ma'am? You want justice when it's someone else who stands accused. But justice is the last thing you want when it's your own loved one in the hot seat. Then you want mercy.”