In Middlesex County, judges were ostensibly assigned to trials at random. No one actually believed such a lottery existed. The same few judges were assigned high-profile cases over and over, and the judges who kept drawing the winning lottery tickets tended to be prima donnas—just the sort who would lobby for the gig behind the scenes. But no one ever complained. Bucking the entrenched routines of that courthouse was generally an exercise in pissing upwind, and anyway the self-selection of egomaniacal judges probably was for the best. It takes a healthy dose of ego to keep command of a contentious courtroom. That and it made for a better show: big cases need big personalities.
So it came as no surprise that the judge assigned to Jacob’s trial was Burton French. Everyone knew he would be. The hairnetted cafeteria ladies, the mental-patient janitors, even the mice that scratched around behind the ceiling tiles all knew that, if a TV camera was going to be in the courtroom, the judge on the bench would be Burt French. He was very likely the only judge whose face the public recognized, as he appeared often on the local news shows to dilate on matters legal. The camera loved him. In person he had a slightly laughable Colonel Blimp appearance—a wine-cask body supported uncertainly by two wiry legs—but as a talking head on the TV screen he projected the sort of reassuring gravity we like to see in our judges. He spoke in definitive declarations, none of the “on the one hand, on the other hand” that journalists rely on. At the same time he was never bombastic; he never seemed to be faking or provoking, manufacturing the “heat” that TV loves. Rather, he had a way of using his square, serious face, of tucking in his chin and leveling his eyes at the camera and saying things like “The Law does not permit [this or that].” You could hardly blame viewers for thinking, If The Law could talk, this is what it would sound like.
What made all this so unbearable to the lawyers who gathered to gossip before the First Session every morning or over lunch at the Cinnabon in the Galleria food court was that Judge French’s gruff no-bullshit attitude was itself pure bullshit. The man who presented himself in public as the embodiment of The Law, they thought, was in reality a publicity seeker, an intellectual lightweight, and in the courtroom a petty tyrant. Which made him the perfect embodiment of The Law, when you really thought about it.
Of course by the time Jake’s trial began I did not give a rat’s ass about Judge French’s failings. All that mattered was the game, and Burt French was an advantage to us. He was essentially conservative, not the sort of judge to go out on a limb for a novel legal theory like the Murder Gene. Equally important, he was the sort of judge who liked to test the lawyers who appeared before him. He had a bully’s instinct for weakness or uncertainty, and he loved to torment bumbling, unprepared lawyers. Throwing Neal Logiudice in front of a guy like that was chumming the water, and Lynn Canavan made a mistake by doing it in such an important case. But then, what choice did she have? She could not send me anymore.
But it began—as is often the case with an event you have anticipated too eagerly for too long—with a sense of anticlimax. We waited in the crowded gallery of courtroom 12B as the clock spun past nine o’clock, nine-fifteen, nine-thirty. Jonathan sat beside us, unfazed by the delay. He checked in with the judge’s clerk a few times, only to be told each time that there were delays in setting up the pool camera whose video feed the news stations, including Court TV, were to share. Then we waited awhile longer while the larger-than-usual jury pool which we had reserved was being organized. Jonathan reported these things to us, then opened up his New York Times and read peacefully.
At the front of the courtroom, Judge French’s clerk, a woman named Mary McQuade, fiddled with some papers; then, satisfied, she stood and surveyed the chamber with crossed arms. I always got along with Mary. I made it my business to. The court clerks were gatekeepers to the judges and therefore influential. Mary in particular seemed to enjoy the secondhand prestige of her position, the nearness to power. And the truth is, she did her job well, brokering between Judge French’s blustering and the lawyers’ constant jockeying for advantage. The word bureaucrat has a negative connotation, but we do need bureaucracies, after all, and it is good bureaucrats that make them go. Mary certainly made no apologies for her place in the system. She wore expensive, stylish eyeglasses and decent suits, as if to separate herself from the hacks in the other courtrooms.
In a chair along the far wall was the court officer, an enormous fat man named Ernie Zinelli. Ernie was sixty-odd years old and three hundred–odd pounds, and if there was ever actually trouble in the courtroom, the poor guy would probably keel over of a heart attack. His presence as the judge’s enforcer was purely symbolic, like the gavel. But I loved Ernie. Over the years he had grown increasingly open with me about his opinions of defendants, which were generally unfavorable in the extreme, and about judges and lawyers, which were only slightly more positive.
That morning, these two old colleagues of mine barely acknowledged me. Mary glanced in my direction occasionally but gave no sign she had ever seen me before. Ernie risked a little grin. They seemed afraid someone might think that any friendly gestures were directed at Jacob, who sat beside me. I wondered if they had been instructed to ignore me. Probably they just figured I had joined the other team.
When the judge finally did take the bench a little before ten, we were stiff from sitting.
Everyone stood at Ernie’s recital of the familiar “Oyez, oyez, oyez, the Superior Court of the Commonwealth of Massachusetts is now in session,” and Jacob fidgeted right through to the end: “All ye having business before this court come forward and ye shall be heard.” His mother and I both put a hand on Jacob’s back to reassure him.
The case was called, Jonathan gestured to Jacob, and the two of them crossed the bar and took their seats at the defense table, as they would every morning for the next two weeks.
This would be Laurie’s view of the entire trial. From the front row of the gallery benches, she would sit impassively for hour after hour, day after day, staring at the back of Jacob’s head. Poised on that bench, my wife looked very pale and thin among the spectators, as if Jacob’s case was a cancer that she had to endure, a physical struggle. And yet, no matter how she withered, I could not help seeing in Laurie the ghost of her younger self, the teenaged girl with a lovely, full, heart-shaped face. I have an idea that this is what enduring love really means. Your memories of a girl at seventeen become as real and vivid as the middle-aged woman sitting in front of you. It is a happy sort of double vision, this seeing and remembering. To be seen this way is to be known.
Laurie was miserable sitting there. The parents of young defendants have been consigned to a peculiar purgatory in these trials. We were expected to be present but silent. We were implicated in Jacob’s crime as both victims and perpetrators. We were pitied, since we had done nothing wrong. We had just been unlucky, lost the pregnancy lottery, and been stuck with a rogue child. Sperm + egg = murderer—something like that. Can’t be helped. At the same time we were despised: somebody had to be responsible for Jacob, and we had created the boy and raised him—we must have done something wrong. Even worse, now we had the gall to support the killer; we actually wanted to see him get away with it, which only confirmed our antisocial nature, our bone-deep badness. Of course, the public view of us was so contradictory and jumped-up with emotion that there was no way to answer it, no right way to act. People would think what they wanted, they would imagine for us whatever sinister or suffering interior life they chose. And for the next two weeks Laurie would play her part. She would sit there at the back of the courtroom as still and expressionless as a marble statue. She would watch the back of her son’s head, trying to interpret the tiniest micromovements. She would react to nothing. It did not matter that once she had held that baby boy in her arms and whispered in his ear, “Sh, sh.” At this point, nobody gave a shit.
When he finally took the bench, Judge French scanned the room as the clerk read out the case: “Number oh-eight-dash-four-four-oh-seven, Commonwealth v. Jacob Michael Barber, a single count of murder in the first degree. For the defendant, Jonathan Klein. For the Commonwealth, Assistant District Attorney Neal Logiudice.” The judge’s handsome, grave face settled briefly on each of the players, Jacob, the lawyers, even us, conferring on each a momentary significance while we were in his gaze, which vanished as soon as his eyes swept on.
Over the years I had tried many cases before Judge French, and although I thought he was a bit of an empty suit, I liked him well enough. He had been a football player at Harvard, a defensive lineman. In his senior year he had fallen on a fumble in the end zone against Yale, and this singular brilliant moment had stuck with him. He kept a framed picture of it on his office wall, big Burt French in his crimson and gold uniform lying on his side on the ground, cuddling the precious egg he’d found. I suspect the picture struck me differently than it did Judge French. To me, he was the sort of guy such things happened to. Rich and good-looking and all the rest, no doubt opportunities had always presented themselves like so many footballs lying in his way and he had merely to fall on them, all the while presuming his good fortune was the natural product of his talent. One wonders how a charmed man like him would have been affected by a father like Bloody Billy Barber. All that ease, all that naturalness, all that credulous self-confidence. For years I had studied men like Burt French, despised them, copied them.
“Mr. Klein,” the judge said, slipping on a pair of half-glasses, “any preliminary motions before we begin the voir dire?”
Jonathan stood. “A couple of things, Your Honor. First, the defendant’s father, Andrew Barber, would like to enter an appearance in the case on the defendant’s behalf. With the court’s permission, he is going to second-chair me at the trial.”
Jonathan went to the clerk and handed her the motion, a single sheet announcing that I would be part of the defense team. The clerk handed the sheet to the judge, who frowned at it.
“It’s not really my decision, Mr. Klein, but I’m not sure it’s wise either.”
“It’s the family’s wish,” Jonathan said, distancing himself from the decision.
The judge scribbled his name on the sheet, allowing the motion. “Mr. Barber, you can come forward.”
I came around the bar and sat down at the defense table beside Jacob.
“Anything else?”
“Your Honor, I have filed a motion in limine to exclude scientific evidence based on an alleged genetic predisposition to violence.”
“Yes. I have read your motion and I am inclined to allow it. Do you wish to be heard further before I rule? As I understand it, your position is that the science has not been established and, even if it was, there is no specific evidence of a violent propensity, genetic or otherwise, in this case. Is that the gist of it?”
“Yes, Your Honor, that’s the gist.”
“Mr. Logiudice? Do you want to be heard or will you rest on your brief? It seems to me the defense is entitled to a hearing on that sort of evidence before it comes in. Mind you, I am not excluding such evidence definitively. I am merely ruling that, if you choose to offer evidence of a genetic tendency to violence, we will hold a hearing at that time, outside the jury’s presence, to decide whether it will be admitted or not.”
“Yes, Your Honor, I would like to be heard on that.”
The judge blinked at him. His face read plain as day, Sit down and shut up.
Logiudice stood and buttoned his suit coat, a slim three-button number that, when buttoned up this way, did not fit him properly. Logiudice’s neck craned forward slightly while the jacket stayed erect, which caused the coat collar to float an inch or two away from his neck like a monk’s cowl.
“Your Honor, the Commonwealth’s position—and we are prepared to offer expert evidence on this point—is that the science of behavioral genetics has made great strides and continues to advance every day, and it is already mature enough by far and away to be admitted here. We would submit that this is even the extreme case where to exclude such evidence would be improper—”
“The motion is allowed.”
Logiudice stood there a moment, unsure if his pocket had just been picked.
“Mr. Logiudice,” the judge explained as he signed the motion, Allowed. French, J., “I have not excluded the evidence. My ruling is simply that, if you want to offer it, you will have to provide notice to the defense and we will have a hearing on its admissibility before you offer it to the jury. Understood?”
“Understood, Your Honor.”
“Let me be crystal clear: not a word of it until I rule it’s coming in.”
“Understood, Your Honor.”
“We’re not going to turn this into a circus.” The judge sighed. “All right, anything else before I bring in the jury venire?”
The lawyers shook their heads.
With a series of nods—the judge to the clerk, the clerk to the court officer—the potential jurors were fetched from one of the lower floors. They shuffled in, rubbernecking the courtroom like tourists wandering through Versailles. The chamber must have disappointed them. It was a grungy courtroom in the modern style: high boxy ceilings, minimalist furnishings of maple wood and black laminate, muted indirect lighting. Two flags drooped from listing flagpoles, an American flag to the judge’s right and the flag of Massachusetts to his left. The American flag at least had its original vivid colors; the state flag, once pure white, had faded to a dingy ivory. Otherwise there was nothing, no statue, no chiseled Latin inscription, no portrait of a forgotten judge, nothing to relieve the Scandinavian austerity of the design. I had been in this courtroom a thousand times, but the jurors’ disappointment made me look at it, finally, and realize how exhausted it all appeared.
The jury pool filled the entire gallery at the back of the courtroom, leaving only the two benches that had been reserved for the defendant’s family, reporters, and a few others whose courthouse connections entitled them to remain. The potential jurors were a mix of working people and housewives, kids and retirees. Jury pools usually skewed slightly blue-collar and underemployed, since these were the people more likely to respond to a summons. But this jury pool had a vaguely professional look to it, I thought. Lots of good haircuts, new shoes, BlackBerry holsters, pens sticking out of pockets. This too was good for us, I decided. We wanted smart, coolheaded jurors, people with the brains to understand a technical defense or the limitations of scientific evidence, and the balls to say Not guilty.
We began the process of voir dire, the question-and-answer process by which juries are chosen. Jonathan and I each had our jury seating charts, a table of two rows, six columns—twelve places in all, plus two extra boxes on the right side of the sheet—matching the chairs in the jury box. Twelve jurors, plus two alternates who would hear all the evidence but would not take part in the deliberations unless one of the jurors dropped out. Fourteen candidates were called forward, fourteen chairs were filled, we scribbled the names plus a few notes in the boxes on our scorecards, and the process began.
Jonathan and I conferred on each potential juror. We had six peremptory challenges, which we could use to eliminate a juror without stating a reason, and an unlimited number of challenges “for cause,” meaning challenges based on some explicit reason to think the juror would be biased. For all the strategizing, jury selection has always been something of a shot in the dark. There are pricey experts who claim to remove some of the guesswork using focus groups, psychological profiling, statistics, and so on—the scientific method—but predicting how a stranger will judge your case, especially based on the very limited information in a jury questionnaire, is frankly more art than science, the more so in Massachusetts where the rules severely limit how extensively jurors may be questioned. And yet, we tried to sort them. We looked for education; for suburbanites who might sympathize with Jacob and not hold his comfortable background against him; for dispassionate professions like accountant, engineer, programmer. Logiudice tried to load up on working folks, parents, anyone who might be outraged at the crime and who would have little problem believing a boy could kill even on scant provocation.
Jurors came forward, sat, were dismissed, and new candidates came forward and sat, and we scribbled details about them in our seating charts—
And two hours later we had our jury.
We gave each juror a nickname so we could remember them. They were: the Schoolteacher (forewoman), Glasses Girl, Grandpa, Fat Somerville Guy, Recording Studio Guy, Urkel, the Canal (a woman born in Panama), Waltham Mom, the Waitress, Construction Guy (properly a wood-floor installer, a surly squinty-eyed piece of work whom we worried about from the start), Concord Housewife, Truck Driver (actually a delivery guy for a commercial food-supply company), Braces Woman (alternate), and the Bartender (alternate). They had nothing in common except their glaring lack of qualifications for the job. It was almost comical how ignorant they were of the law, of how trials worked, even of this case, which had been splashed all over the newspapers and evening news. They were chosen for their perfect ignorance of these things. That is how the system works. In the end, the lawyers and judges happily step aside and hand the entire process over to a dozen complete amateurs. It would be funny if it were not so perverse. How futile the whole project is. Surely Jacob must have realized it as he looked at those fourteen blank faces. The towering lie of the criminal justice system—that we can reliably determine the truth, that we can know “beyond a reasonable doubt” who is guilty and who is not—is built on this whopper of an admission: after a thousand years or so of refining the process, judges and lawyers are no more able to say what is true than a dozen knuckleheads selected at random off the street. Jacob must have shivered at the thought.