At Tyson's behest, Mike did his bailiff thing and brought in more juror candidates. The last 60 were struck for cause because some twisted sister left hateful notes and inflammatory news articles in the ladies room shared by the prospective female jurors. Tyson and I could finally agree on something else: We would have loved to have tag-teamed that psycho mama and flushed her down the toilet, but we didn't know who she was.
As the 60 new unsuspecting citizens were being seated in preparation for abuse, Tyson shuffled the papers on his desk for no apparent reason. Old dogs can still hunt, so he knew what those photographers wanted. They had film and he had papers to move around. Let's face it, they both wanted footage.
While I waited for the last few juror candidates to find their seats, I checked out the pep rally of reporters and TV cameras. They were a noisy bunch, these media folks. I found it especially interesting that they didn't even try to muffle the sounds they made. It was as though they felt they were too important to be hushed. Maybe they got to be prima donnas because people were often sucking up to them to get on the news, making them feel like rock stars. A pencil-necked geek could carry a camera and all of a sudden become a player. All the women would flirt with him, but if he lost the equipment, they'd walk by him as if he were invisible.
As usual, there in the second row on the defense side was Neli, accompanied by Gil's mom and dad. Gil occasionally smiled and winked toward Neli and his parents, only to turn and work the courtroom again with his eyes. I instructed him to steal a glance now and then at the judge or the prosecutors, which was what I would do if I were the one on trial. And he was good at following my instructions. Hell would freeze over before you could read Gil's poker face.
“Gil,” I urged, “look at the jurors for only a few milliseconds, and make sure your eyes look soft and sensitive. Try to appear relaxed, casual and polite. And never stare, OK?”
“You mean, lose ‘the look’?” Gil replied, teasing me.
I had to admit, his sense of humor was keeping me relaxed. “You know what I mean.”
“What, I don't look soft and sensitive to you?” he said in mock defensiveness, pretending I had hurt his feelings.
“Don't stare at them. But don't look away too quickly, either, as though you'd done something wrong,” I continued.
“I got it. Look at ‘em but don't look at ‘em. Those directions are real clear. I can't screw that up.”
He was having fun with me. I was glad one of us was enjoying himself. He was amazingly light-hearted, given the circumstances. Having his family sitting in the second row probably contributed to that. It meant a lot to him, for obvious reasons. He was blessed to have had people there to support him. Then a bomb was dropped:
“Judge,” Jim Lewis began, “the state requests that Your Honor order the defendant's wife, Marianela Fernandez, to be removed from the courtroom. She's a potential witness in this case. Pursuant to the rule of witness sequestration, she is not to hear the testimony of the other witnesses and must therefore be excluded from the proceedings.”
“Listen to this guy,” Gil remarked disdainfully, shooting me a look. “He's getting real cute now.” He and Neli exchanged looks of genuine sadness, born of love, frustration and fear.
“That's a bunch of nonsense, Judge. This is Mr. Lewis’ own personal pretext to keep her out of the courtroom. He doesn't want the jury to feel for her or see her support her husband. She's not a witness to anything. He knows it and I know it. Besides, Doug Molloy already represented to me that he'd never call her as a witness in this cause.”
“There has been no specific agreement…”
Interrupting Lewis, I pointed and angrily replied, “Doug's right there; just ask him. He specifically said, just after he took her deposition, that if he could elicit the same sort of testimony from someone else, he'd excuse her. You're not that slippery, Mr. Lewis, so don't play that game.”
“I don't play games. I resent your implication, Mr. Contini.”
Lewis then ignored me and pitched it again to Tyson by saying, “I believe Mrs. Fernandez is in possession of some material knowledge in this case, including an issue that may or may not come up at the trial—a reference to muddy sneakers that we allege defendant Fernandez gave her on the night of the murders. Inasmuch as these murders were committed in a muddy area, these shoes could be direct evidence in this case.”
Tyson then asked Lewis, “Are you requesting that all witnesses be removed during jury selection?”
“Yes, Your Honor,” replied Lewis, “for the reasons stated.”
“Then it will be granted,” Tyson decreed.
My reaction was immediate, angry and disrespectful. “It's my statement to Your Honor that Mrs. Fernandez will not be a witness. She's indicated that she won't testify, no matter how many subpoenas are thrust upon her. She would sit in jail on her head before she'd help the state convict her husband. She's already said this to me, so I don't think she's going to be a witness.
“If she's willing to do jail time to prevent the state from convicting, then why the heck should she be excluded from supporting her husband in the courtroom? We have victims’ families here day after day.”
“Is she listed as a possible witness?” Tyson asked.
Lewis responded by saying, “She is and has been from the beginning of this case.”
“Then any listed witnesses should be excluded from the selection process,” the judge said.
“Your Honor, this doesn't make any sense. She heard about muddy sneakers during pretrial hearings. What difference does it make if she hears about them again?” I asked.
“I'm not going to make an exception,” Tyson said. “I'm very sorry. It's been requested by the state and I've granted it. Prospective witnesses will be excluded from the jury selection process.”
Just then, Neli stood up and said, “Your Honor, may I say something?”
“Yes, ma'am,” Tyson responded.
“Doug Molloy promised that he wasn't going to keep me out of the courtroom and out of my husband's trial. He made this promise in front of other people when he took my deposition. This is my husband on trial!” she said emphatically.
Doug was looking guilty now but I got the distinct impression he couldn't honor the deal even if he wanted to. I think he'd have stood behind his word if it were left up to him. Because Melanie Hines had Lewis calling the shots now and Jim didn't care what promises Molloy made. If he could get rid of the wife and keep her from view of the sympathetic female jurors—especially with Gil's baby in tow—he was going to do it. He wanted to win, period.
“Ma'am, I totally understand why you want to be in the courtroom,” said Tyson, getting a bit crabby now. “It's been requested that witnesses be excluded during the selection process. This request is granted for all witnesses. This is a serious case to the state and the defense, and to many, many people. All witnesses—without exception—will be excluded,” Tyson said adamantly.
Neli responded with controlled anger, “I'm not a witness! I'll leave, but I'm not a witness. I won't testify in this trial. You're not going to make me go against my husband.”
“That's up to you,” Tyson said. “You are listed as a witness.”
“I'm not a witness!” Neli said stubbornly.
“If they call her, they'll be surprised at what she has to say,” I added.
“The motion is granted,” the judge said with finality. “I'm sorry. That's what rulings are about.”
I started to say, “I appreciate your ruling, but…” when Tyson interrupted me.
“Some people like them, some people don't. If everyone were happy with all rulings, we'd never have any problems in the judicial system. I made the ruling. I'm sorry some people are unhappy with it,” Tyson said.
I couldn't let this drop. The ruling made no sense and it was imperative that I got Tyson to see that. Now it was my turn to be slippery. “I'm not going to argue with your ruling, but do I have to list the victims’ family members as witnesses to keep them out of the courtroom? That's the logic of the ruling. Anybody on the list is out. I can list whomever I want under that logic. It doesn't matter whether they're called or not, as long as they're on the list.”
“Then they're excluded, unless an exception has been made by either side,” Tyson said.
This comment made Jim Lewis jump back into the argument. “They can't do that without good faith. If he can proffer to this court any possible testimony that the victims’ family might have in this case, I would ask him to do so. To put people on the witness list solely for the purpose of invoking the rule…”
I countered his argument by saying, “But Your Honor, they're not moving in good faith here…”
Then Tyson said, “Wait a minute, have all the witnesses been excluded?”
“Yes,” Jim responded.
Lewis’ response apparently settled the matter in Tyson's mind, so he said abruptly, “Thank you. Now the next matter is…”
It was clear the judge was done playing. I was angry as I watched Neli being escorted out of the courtroom by Bob. But there was nothing else we could do, except get back to the game of “make pretend.” The jurors were pretending to be honest with us; Tyson was pretending to be objective, neutral and detached; and the prosecutors and I were pretending to want only fair and impartial jurors.
Sixty more jurors filed into the courtroom. At times, the monotony of repeatedly asking the same old tired questions, and then listening to people drone on with their guarded answers, made even the most seasoned among us a little punch-drunk. Occasionally, we got some much-needed comic relief.
While questioning what seemed like juror candidate number 3,000, Jim Lewis asked her, “If you could be anyone in the world, past or present, who would that be and why?”
I tried not to look surprised because at first this question seemed bizarre. When I thought about it, though, it was actually a good question, designed to give us a reading on whether this person was a leader or a follower.
The female juror replied, “Cleopatra.”
“And why?” Lewis queried.
“Egyptian times, I guess.”
“OK. So you could have both power and beauty?”
“Right.”
Louie chimed in at this point and pointed out the irrelevance of this line of questioning. Tyson shut him down but then turned to me and asked if I had anything to add.
“Just one thing, Your Honor,” I said as I turned to the juror. “Does this have anything to do with Richard Burton?”
In spite of the laughter that came from the prospective jurors, Tyson said with thinly veiled anger, “Please gentlemen. It's late in the day.”
I thought, “Lighten up, Napoleon. Why do you think those guys on MASH are always yucking it up while they cut people open? It's because a little humor goes a long way to maintain sanity. Trial lawyers are no different. We keep from going crazy by finding humor wherever we can. You'd know that Judge, if you weren't such a hemorrhoid.”
On a roll, I couldn't help but get one more shot in at Jim's expense.
“OK, I have to ask one more question. Do you have allergies?” I asked the juror candidate.
“Yes, sir,” she responded.
“I saw that you started to sneeze. I was wondering if you're as allergic to Mr. Lewis as I am.”
Lewis shot me a dirty look, inviting my insincere grin in return. I enjoyed the prospective jury members’ laughter at Jim's expense. Then I thought, “That was a cheap shot, John.” I felt bad because I was starting to suspect that Jim might not be as bad as I originally made him out to be.
After the snickering by the jury pool and court personnel died down, we got back to the business of pretending to find impartial jurors. The questions and answers went on for a record five weeks as we tried to find a qualified panel. The majority of candidates were dismissed because they had vacation plans, were opposed to the death penalty or because they knew something about the case. This last reason in particular angered me because of the inappropriate leaks and prejudicial comments that kept on coming, in spite of all my attempts to keep them out. Who on earth, after all that media hype, hadn't heard about the case?
I couldn't help but think, “We're either going to be left with 12 idiots who never watch the news and want to fry people, or a few who do watch the news, and then lie to us and say they don't.”
The Fernandez case still holds the record for the longest jury selection proceedings in the history of Broward County. An unbelievable 316 prospective jurors were drilled before we found the 10 women and two men who were chosen to sit on the jury, plus the three women and one man who served as alternates.
For all of us, including these 16 people, the hard work was only about to begin.