MY ALARM JANGLED me awake at four on Tuesday morning. I rolled out of bed, turned on the coffeepot on Esther’s kitchen counter, took a quick shower, and dressed in a pair of shorts and a t-shirt. The air-conditioning system was in mortal combat with the unseasonably late April heat, and so far, cool seemed to be winning. Not by very much, but the temperature in the house was comfortable. I wouldn’t count on it being that way all day and I didn’t even want to think about August. On the other hand, by the time the dog days rolled around, I’d be back on Longboat Key.
I sat at the dining room table where my files were spread out in what could be described as organized chaos. I sipped my coffee and glanced over the transcripts of depositions that had been taken in the case. I wasn’t sure who Meredith would put on the stand as her first witness. I had to be prepared to cross-examine any number of people who had shown up on the state’s witness list, some of whom would never be called to testify. Still, I had to be ready if they were called. I had either talked to each of the people on the list or taken their depositions, but there were always surprises. Trying a case was a nerve-racking experience and the first day of testimony always stirred the butterflies in my stomach. I could only look forward to more of the same as the week wore on.
Monday had been spent picking a jury. Since the state had announced that it would not be pursuing the death penalty, we would only have six jurors and two alternates. If, for any reason during the course of the trial, one of the jurors could not continue to serve, the alternate would be substituted. Meredith and I both thought the trial could be finished in one week, so we felt safe with just two alternates. If we lost more than two jurors, the judge would have to declare a mistrial, and we’d start the trial all over. That was never a good outcome. For either side.
We’d taken all day to seat the jury, and in the end, we settled on three men and three women. Five of the members lived in The Villages and one man lived with his family in the small town of Coleman. The alternates, both retirees, lived near Bushnell. The man who lived in Coleman was a guard at the federal prison that stood on a patch of palmetto and scrub oak between Coleman and another little town called Sumterville. I’d taken a gamble on him. Typically, in a criminal trial, the defendant’s lawyer doesn’t want a law enforcement officer on the jury. Their jobs programed them to lean toward the idea that the defendant wouldn’t have been arrested if she hadn’t been guilty as charged.
Prison guards were often the most cynical of people. Every day, they watched the very worst people in our society go about their daily routines while locked up in the most brutal institutions in the nation. Of course, not all the prisoners were drawn from the most ruthless individuals that our society produced. Some were people who’d committed crimes of passion while in a rage, people who had never entertained a thought of hurting another human being. Yet, the crimes these otherwise upstanding citizens had committed were so egregious that they were sentenced to the same prisons that housed the worst people our tribe could spit out. The guards knew this and were able to differentiate between the worst ones and the ones who, except for a momentary lapse, might have lived out their lives in middle-class anonymity.
I decided that a prison guard would also be able to differentiate between a retired schoolteacher like Esther and a really bad guy, or even one who had slipped and found himself in a federal penitentiary. Maybe he’d give her a break.
Judge Gallagher swore in the jury and read them the charges describing their responsibilities, which included not watching TV or reading newspaper reports about the trial. He asked if the jurors had any questions, whether the lawyers had any issues to resolve, and recessed the court until nine the next morning.
Meredith and I walked out of the courtroom together and stood for a moment on the steps watching the traffic. We were both tired, our brains ready to quit for the day. The constant strain of the courtroom wears on the lawyers, and at the end of the day only a troubled sleep beckons. She looked up at me and said, “A prison guard, Matt? That’s some kind of a gamble.”
“He’ll be the foreman,” I said. “He’ll carry a lot of weight in the deliberations. If he’s with me, we walk.”
“And if he’s with me?”
“Then Esther’s up shit creek and I’m in big trouble with my sweetie. I’ll appeal immediately.”
“Did you ever hear the story about the young Atlanta lawyer many years ago who’d been sent down to South Georgia to try a murder case that nobody thought he could win? After a week of trial, much to everybody’s surprise, the jury acquitted the young lawyer’s client. He sent his boss in Atlanta a telegram that said, ‘Justice has prevailed.’ The boss wired back, ‘Appeal immediately.’”
I laughed. “We’ll see, Counselor. You have a good evening.”
“You, too, Matt. See you in the morning.”
My practice during a trial is to get as good a night’s sleep as possible. I don’t work in the evening. I might watch a movie on TV or one of the inane programs that pass as entertainment these days. I want to empty my mind of any thoughts of the trial or what I had to do the next day. If it worked, it made me sleep better. I’d get up at four a.m. and get a fresh start with a clear mind, and prepare for the day in court.
But it was a hit-or-miss proposition, and sometimes, like the previous night, I tossed and turned, dreaming of disturbing things I could not remember the next morning. I’d wake up with a sense of dread enveloping me like a dark fog and the only thing I could do to alleviate the anxiety was to throw myself into preparations for another day in court.
I’d tried a lot of jury trials, both civil and criminal, everything from real estate disputes to murder cases. Yet, even in the most mundane trials, the fear never leaves. I worry that I’ve missed something that my opponent didn’t, that there was some fact that would be sprung on me and ruin my carefully constructed trial plan. The nineteenth-century Prussian field marshal Helmuth von Moltke said something to the effect that no battle plan survives contact with the enemy. That is also true of a trial plan. Things change in an instant in the courtroom. Witnesses shade their testimony from what they said in pre-trial depositions, a witness you didn’t depose decides not to honor a subpoena and fails to show up, your opponent knows something about one of your witnesses that you failed to ferret out, and she lays into him on cross-examination, leaving you to do your best to rehabilitate him.
It’s a crapshoot, but I always tried to know everything about my case. I met with witnesses, took their depositions, spent the days just preceding the trial going over their testimony with them trying to make sure we were in sync when they got on the witness stand. The trial lawyer has to be nimble, ready for anything, prepared to fend off the surprise attack and in turn assault the witness in a calm demeanor that doesn’t anger the jury but will destroy the witness, his testimony, his credibility, and render his evidence useless.
I was up against a seasoned prosecutor and that was good. I’d always found trials to be easier when my opponent was competent and honest. I was convinced that justice was more likely to be reached under those circumstances than when the opponent was either unethical or incompetent or both.
I looked at my watch. I’d been at it for a little over three hours and had actually gotten some work done while cogitating on my plight as a trial lawyer. When I get in these moods, I always recall a time long ago when a wise old judge, named Bernard Muszynski, and several tired lawyers were sitting around in his chambers on a Saturday night waiting for a jury to return a verdict in a case we’d tried all week. We lawyers were complaining about working so late and on a weekend to boot. The judge chuckled and said simply, “This ain’t work, gentlemen. Hod carrying is work. And those boys do it outside in August.” I thought the judge was right, although I never did figure out what a hod was.
I dressed, poured coffee into a travel cup, and drove toward Bushnell and the courthouse. I rolled all the windows down, opened the sunroof, and let the warm breeze and the black coffee wake me up.