| |
Dan knew jury interrogation would take hours, possibly all day. He’d seen cases in which it took several days, but he hoped this wouldn’t be one of those. He could help this proceed expediently—as long as no one tried to game the system. Take advantage of the judge’s inexperience. Resort to trickery.
Unfortunately, he had a hunch Kilpatrick was likely to attempt all three.
While the bailiff read some preliminary instructions to the potential jurors, he had a chance to talk with his associates.
“You need to be more realistic about your situation.” Cooper Fisk had been hired to consult on jury issues. Portly, ill-fitting suit, corner square that matched his tie. A New England manner of speaking that almost approached a British accent. Exactly the kind of egghead he couldn’t stand. Technically, Fisk worked for them, but you couldn’t tell that from his attitude. “Kilpatrick has been hired for a reason.”
“I get that. The DA wants to win.”
“It’s more than that.” Fisk held up a finger. If he pointed, Dan was going to slap him. “The DA wants to play dirty. But he doesn’t want any blowback, so he hires a ringer. ‘Gosh, we didn’t know he was going to do that. He’s a loose cannon.’ Etcetera.”
“You don’t know that.”
“I’ve dealt with Kilpatrick before.” He supposed that made sense. There could only be so many trials big enough to command the fees these guys charged. “His reputation is built upon two things. Always winning. And making his DAs happy. He’ll be trying hard to do both.”
Maria inched forward. “Maybe you should explain to Dan what you told me earlier. Your strategy for jury selection.”
Fisk shrugged. “Some of it is obvious. We have an African-American defendant. So we want African-American jurors.”
“You can’t assume jurors will always vote along racial lines.”
“No. Just 93% of the time.”
He frowned. “Age is also a factor. And prosperity. Wealthy African-Americans may not empathize with someone they perceive as an upstart. Or a criminal.”
“But realistically,” Fisk said, “rich people can get themselves excused from jury duty. You won’t see any African-American CEOs on this panel. You’ll see housewives and blue-collar employees, primarily. And that’s good—those are the jurors you want.” He paused. “And those are the jurors Kilpatrick will rigorously remove.”
“You’re aware that the Supreme Court has barred juror dismissal based upon race.”
“I'm sure Kilpatrick can assert some other reason. But he’ll get as much color off the jury as he can. Probably will remove Hispanics as well.”
“Actually,” Maria said, “in some neighborhoods, there’s a lot of tension between Hispanic and African-American communities.”
“I’m aware of that. But at the end of the day, color will be the driving force. You follow me, Mr. Pike?”
“Is it impossible to imagine that some jurors will listen to the evidence and try to render a fair verdict?”
Fisk smiled, almost patronizingly, as if he were speaking to a naïve child. “Your last two capital defendant clients were both Hispanic, right?”
Why was their jury consultant investigating him? “True.”
“Did you consider race when you questioned the jurors?”
“Of course, but—”
“This community saw a major gangland shootout not long ago. Got huge publicity.”
“True.”
“And many people felt the cops went after their targets based on race.”
“Also true.”
“They may be looking for payback.”
“You can’t assume that.”
“You’re familiar with the OJ case?”
He almost rolled his eyes. Here it came. Everyone’s go-to trial. “Of course, but—”
“At least two of the OJ jurors have admitted that they acquitted, not based upon the evidence, but because they saw this as payback for the Rodney King incident. Not just the initial beating, but the fact that the LA court exonerated the cops involved.”
In the legal world, there was a saying—tough cases make for bad law. Similarly, ridiculously high-profile incidents like the OJ case made for bad examples. They were too atypical be instructive for any remotely normal case. “You think these jurors will want to punish the prosecutors because law enforcement has harassed people of color?”
“We can hope. Does your client feel he has been harassed by cops based upon his color?”
“Yes. To be fair, he was fleeing arrest.”
Fisk raised a hand to stop him. “Never mind that. Use it.”
“I don’t want to play the race card unless I think race actually has something to do with it.”
“Do you want to win the case?”
“Well, of course I want to—”
“Use it.”
“The jury should make its decision based upon the evidence, not—”
“You hired me to help, so I will. If the jury makes a decision based on the evidence, you’re toast. You need to muddy the water with everything you can. Like race. Like hostility toward law enforcement. Make them believe this is a massive frame. The cops can’t stand the thought of a black punk getting rich, so they tried to make sure he wouldn’t inherit. And that should be your go-to theory for jury selection. Keep everyone of color. Keep everyone who appears to suspect cops, or prosecutors, or the justice system.”
“People who don’t believe in the justice system are routinely removed.”
“Only if they admit it. You need to find the people who don’t admit it because they’re hoping to throw a wrench in the works. And while you’re at it, keep everyone who hates rich people.”
“I’m not sure that’s even a thing.”
“Are you joking? Have you not seen the t-shirts around town? ‘Kill the rich.’ Have you not noticed the growing trend toward socialism? Some people deeply resent anyone who has more than they do—even people like Zachary Coleman, who worked his way up from nothing. In fact, sometimes that’s worse—because theoretically anyone could have done it. Rather than admit they didn’t have the right stuff or do the work, some prefer to blame the system and resent successful people.”
“I don’t see how this helps us.”
“We live in the era of the greatest wealth disparity in history. The upper 1% have more wealth than the lower 90%. When you’re struggling to pay the bills, there’s nothing worse than hearing about some tech billionaire who just bought an island.”
“I still don’t see—”
“The prosecution is planning to tell the jury it’s all about the money, right? I read Maria’s strategy notebook. It’s all relatives squabbling over a huge inheritance?”
“Sort of...”
“Great. That plays well into the ‘kill the rich’ sentiment. Make your client the underdog. He suffered in poverty and degradation for fourteen years, and then when he’s finally about to come into his own, the family tries to stop him, aided by the bigoted white law enforcement community. Make the other relatives your super-villains.”
“Wait,” Ossie said. “I don’t like that.”
He turned his head. He didn’t even realize Ossie was listening to this.
“My grandfather is sick and fragile. He doesn’t need—”
Fisk completely ignored him, as if his opinion were of no import, or worse, as if he weren’t even there. “You also want to remove any self-made successes, not that you’ll get many, and anyone with money, not that you’ll get many. You might see some doctors’ wives. Society matrons.”
“So basically, we want an all-poor, all-black jury.”
“You won’t get anything that perfect. But if you get a majority of desirable jurors, or even a plurality, you’ll be in good shape. For that matter”—he tilted his head to one side—“it only takes one determined juror to hang the jury.”
“I don’t want a hung jury,” Ossie said. “I don’t want to do this all over again a year later.”
“A hung jury is better than a conviction.”
Dan spotted the bailiff holding a bowl full of names. They needed to wrap this up. He didn’t like being the old fogey who objected to new ideas, but he thought this jury consultant was a waste of time. He was far more likely to trust his own observations and instincts than to listen to this amalgamation of clichés.
And his back was killing him. Sitting in one place too long reminded him that he had two broken ribs that hadn’t healed. But he didn’t say anything. Let them think his discomfort was just because he didn’t agree with Fisk.
He noticed Maria watching him closely. He thought she was about to speak, but Fisk cut her off.
“What is your theory of jury selection, Mr. Pike?”
He shrugged. “The prosecution wants soldiers. People who will overlook the flaws in the case and do their patriotic duty. The defense wants thinkers. Because if you take seriously the requirement of finding guilt beyond a reasonable doubt, almost no prosecution case meets the standard.”
Fisk made a tsking sound. “I think you may have made the tragic error of starting to believe your own BS.”
His back stiffened.
“Listen to me, Pike. The defense does not want thinkers. You get a jury full of thinkers and you’re dead in the water. Maybe you haven’t read the forensic reports and witness affidavits, but I have.” He glanced at Ossie. “No disrespect intended. But ninety-nine juries out of a hundred would convict on this evidence. And this jury will too unless you start getting way smarter about the process. Jury selection may be the most important thing you do.”
“Of course, you would say that, since you’re getting paid a small fortune to advise on jury selection.”
“Yes, I advise,” Fisk said, folding his arms across his chest. “But I do not, unfortunately, have the power to make people listen.”