Lassiter 07 - Flesh and Bones (23 page)

I sat in the cushioned chair in front of Judge Myron Stanger's desk. Freshly shaved, my hair still wet from the shower, packaged in my sincere blue suit and burgundy power tie, I almost looked like a lawyer, even with my neck bulging out of my collar. Abe Socolow sat in the leather chair next to me, his sallow complexion set off nicely by his funereal black suit. A young woman sat next to the judge, perched over her stenograph, awaiting the words of jurisprudential wisdom, or at least semigrammatical English, that are occasionally spoken in chambers.

On the sofa behind us all, beneath dozens of plaques proclaiming His Honor's civic high-mindedness, sat Chrissy, her legs demurely crossed. She was dressed in a charcoal-gray suit over a white silk blouse that she had once wore in a TV commercial while playing a business executive with intestinal gas.

"Let me get this straight, Jake," Judge Stanger said. "A hundred prospective jurors are cooling their heels in the courtroom right now and you're asking to withdraw from the case."

"That's correct, Your Honor."

"And you will not state the grounds for your motion to withdraw?"

"I cannot, Your Honor, without prejudicing my client's case."

The judge fingered the latch on a cedar cigar box that occupied a prominent position on his desk. At Christmas, trial lawyers with spirit of giving delivered smuggled Cuban cigars to the judge. "That's not good enough, Jake."

"All I can say is that my client and I have irreconcilable differences as to the handling of the case."

"Hell, Jake, my wife and I have had irreconcilable differences for thirty years, but neither of us has cut and run."

Next to me, Abe Socolow tried to suppress a smile. He enjoyed seeing me squirm.

"It's not in the best interest of my client for me to represent her," I argued.

"That so?" The judge removed his yellow-tinted glasses from his bulbous nose and looked toward Chrissy Bernhardt. Myron Stanger had been a personal injury defense lawyer, representing the Southeast Railroad Company, which had an unfortunate habit of hiring alcoholic and color-blind engineers. After thirty-five years of wrongful-death and quadriplegia cases from railroad crossing collisions, Stanger, an avid Democratic party fund raiser, had called in a marker from the governor and been appointed to the bench. Trial lawyers generally liked him because he let them try their cases without too much interference. "How about it, Ms. Bernhardt? Would you be better off with a new lawyer?"

Chrissy seemed to pout, or was that her usual look? "No, Your Honor. I want Mr. Lassiter. I can't imagine anyone else defending me."

"Well, that's that," the judge announced, turning to the court reporter. "Motion to withdraw denied. Anything else before we pick a jury?"

"The defendant moves for a continuance," I said. "There is newly discovered evidence which I have not had an opportunity to fully investigate."

The judge scowled. "You really don't want to try this case, do you, Jake?" Without waiting for an answer, he turned to Socolow. "What's the state's position?"

"I don't know what can be so new," Socolow said with his barracuda's smile. "There is no issue as to the identity of the killer. Mr. Lassiter's had several months to prepare his psychobabble defense, and—"

"I resent that! Your Honor, would you admonish—"

The judge waved me off. "C'mon, Jake, you know that's just Abe's way of saying good morning. Now, why can't you try the case today?"

"Again, Your Honor, I cannot be more specific without prejudicing my client's case. I'll simply say that our main expert witness is . . ." I searched for the right word. "Unavailable."

Socolow snorted. "Unavailable or unhelpful?" He was enjoying this so much, I wanted to strangle him with his black silk tie.

"If forced to go to trial today," I said, "we may call Dr. Schein as an adverse witness because of his hostility to the defense. This is a new development, and we need time to prepare for this turn of events."

I hadn't seen Socolow smile so broadly since the last time one of the miscreants he had prosecuted was strapped into the hot seat at Raiford. "Sounds like Jake hasn't done his trial prep," he said, "but that's no grounds for a continuance."

"That's not fair, Your Honor," I protested. I hated displaying my wounds prior to trial, but I didn't have any choice. Besides, Socolow's case was so straightforward, it wouldn't matter. He'd put on the bartender and a couple of witnesses to the shooting, then a forensics guy who would discuss the prints on the gun and the powder marks on Chrissy's hands, the paramedics who'd taken Bernhardt to the hospital, the surgeon, the nurse, and an assistant medical examiner as to cause of death.

"You know, Jake, I tried a lot of cases in my day," the judge began. Like a lot of jurists, Myron Stanger enjoyed reminding the lawyers that, before he became Caesar, he'd been a gladiator. "And I know everything doesn't go the way you plan it. Hell,
nothing
goes the way you plan it. So you've got to prepare for the unexpected."

I nodded my deep appreciation of the old fart's hoary cliché.

"Witnesses disappear, die, or change their minds," the judge continued. "But I can't let the jury venire sit out there on its collective ass while I try to scrape up another trial for today. Now you boys were specially set, and—"

"But, Your Honor—" I interrupted, sounding whiny even to myself.

"No, listen up, both of you. When you two walk into the courtroom and see the venire, you're thinking jurors. But when I hand them certificates for doing their constitutional duty, do you know what I see?"

"Voters," I suggested.

The judge gave me a cautionary look. "Neighbors. Good honest citizens with a sense of values. I'm not going to mistreat them. Motion for continuance denied. Gentlemen, let's pick a jury."

Juries.

I've read books on how to pick them. I've hired psychologists, sociologists, and psychics. I've relied on Marvin the Maven, a retired shoe store owner from Pittsburgh, who told me to avoid men in polished wing tips—too conservative and respectful of authority—and go for women in sandals with red-painted toenails. "Their minds will be as open as their shoes," Marvin advised.

For Chrissy's case, I hired a psychologist to run a community attitudes survey. Without revealing the name of the case, Dr. Lester (Les Is More) Weiner mailed a questionnaire to several hundred demographically correct households. We learned to stay away from parents, especially those estranged from their adult children. We learned that accountants, marine biologists, meteorologists, and other scientific types would scoff at our defense. Not surprisingly, we learned that jurors who had gone through therapy would be preferable to ones who ridiculed mental health treatment. Anyone who derided psychiatry was out. Dr. Weiner advised that women would be more sympathetic to our case, but I disregarded the advice. Call me a chauvinist pig, but in my experience, women jurors are unkind to younger, thinner, sexier women litigants.

I wanted men who would fall in love with my client. In other words, I wanted me.

I am a regular guy. I don't wear an earring or a gold chain. I don't carry a pager or a purse. I don't belong to a private club or a mystic cult. I don't go to La Voile Rouge to smoke fancy cigars, and the next time some overweight stockbroker in suspenders and French cuffs drops ashes on me at a bar, I will jam his stinking stogie down his throat. There is no one so intolerant as a reformed sinner.

I consider myself a decent judge of character and knowledgeable in human relations, but I am constantly surprised in jury selection. I have a standing bet with the old bailiff, Clyde Thigpen—a pot of his conch chowder for a jar of Granny's swamp cabbage—as to the foreperson. I always pick the guy in the dark suit, but Clyde has seen thousands of trials, and he doesn't rely on clothing. He can sense the authority figure.

Sometimes prospective jurors are nervous. Just this morning, a member of the panel sought to be excused from our case. "My wife is about to become pregnant," he told the judge.

"I think he means she's about to deliver," I said.

"You're excused," Judge Stanger said. "Either way, you should be there."

Of course, we don't really select jurors. We try to eliminate those we don't want. Once, in a civil case, I ran out of peremptory challenges and couldn't evict a young guy with a Fu Manchu mustache who glared at me all through voir dire. He cleaned septic tanks for a living, which was the only thing we had in common. Whenever I looked at him, he cupped his chin in his hand with the middle finger extended. For a week, every time I glanced at the jury box, there he was in a work shirt emblazoned WE'RE THANKFUL FOR YOUR TANKFUL, shooting me the bird. When the jury came back in and he stood up as foreman, I started planning my appellate brief. But then the jury ruled for us, and when I shook his hand on the way out of the courtroom, I noticed the finger was frozen stiff. A construction accident, he said, when he caught me looking down at his hand. Things are not always as they seem, or, as Doc Riggs say,
non semper
something or other.

So now, with Chrissy sitting next to me, appearing demure and nonlethal, I looked at the panel of several dozen prospective jurors. It was the usual collection of schoolteachers, government workers,
Miami Herald
pressmen, American Airlines mechanics, housewives, and retirees, with an occasional college student thrown in. I've had juries with a lobster pot poacher, a nipple ring designer, a
santero
who chanted prayers to Babalu Aye during recess, and a cross-dressing doorman from a South Beach club, so today's group looked pretty normal.

I went through the motions of asking personal questions that I assured the panel were not meant to embarrass them. After determining that nearly everyone had been the victim of a crime but very few admitted to seeing a psychiatrist, I started paying attention to body language, or kinesics, as Dr. Weiner calls it.

I watched for hands clasped in tension or arms crossed, closing me out. I watched for crossed ankles and hands squeezing the chair in a death grip. At the same time, I paid attention to my own gestures. "Keep your palms open and friendly," Dr. Weiner always reminded me. "Watch your proxemics, your space usage. You're too tall to get close to the rail. Your vertical power will intimidate the jurors. And don't put your hands on your hips. Taking up too much horizontal space is simply too authoritarian."

Thanks a lot. Before hiring the ponytailed, tinted-lensed Dr. Les Weiner, I was content just to know my fly was zipped up.

So I did my friendly big-guy act, not getting too close, not taking up too much space, smiling, shucking and jiving, and trying to find six honest, sympathetic souls who would hear us out, whatever we might have to say. In the front row of the gallery, Marvin the Maven sat impassively, frowning at me whenever I leaned over to talk to my expensive hired gun. As I questioned the jurors, Dr. Weiner took notes when he wasn't thumbing through the latest yachting catalog. He kept his trawler, a forty-two-foot Krogen named
The Pleasure Principle
, docked at Dinner Key Marina in what he called his Freudian slip. The Krogen is a lot like me, a widebody that is slow but steady in rough seas and high winds. It is finished in rich teak and impresses the doc's women companions, who tend to be young, blond, and susceptible to strong margaritas and salty breezes.

It took all day to seat a jury. Then Judge Stanger gave the group his spiel, telling them not to talk about the case with each other or anyone else. They all nodded knowingly. They'd seen it all on TV a thousand times. In our courthouse, we call it Ito-izing the jury.

I stood and bowed slightly, trying to make eye contact, as the jurors filed out of the courtroom. I would do the same at every recess and adjournment until the trial was over. Some looked at me and some didn't.

Then I took Chrissy Bernhardt by the arm and steered her out of the courtroom. I needed a drink, a good night's sleep, and a trial strategy, and at the moment I would have taken two out of three.

First thing in the morning, Judge Stanger gave his preliminary instructions, and the jurors leaned forward, listening intently. They're like that at the beginning. On edge, wanting to do their duty. As the surroundings become more familiar, as the lawyers wear out their welcome with repetitious questions and obstreperous objections, jurors kick back and daydream or doze. Sometimes I imagine them as cartoon characters, scenes of bass fishing or sexual liaisons filling little bubbles over their heads. Why not? That's what occupies my mind when Abe Socolow is strutting in front of the jury box or the judge is endlessly repeating his admonitions.

"The indictment is not evidence," Judge Stanger said, "and should not be relied on by you as evidence of guilt."

He told the jurors that they were not permitted to infer guilt if the defendant didn't testify. It's a standard instruction, and many times I won't put a client on the stand, since most defendants will only muck it up. In one of my first trials as an assistant public defender, the prosecutor asked my client, "You say you're innocent, yet five people swore they saw you steal a watch."

"So what?" my saintly client said. "I can produce a hundred people who didn't see me steal it."

When your client remains silent, the prosecution isn't permitted to comment on the failure to testily, and the judge repeats his Fifth Amendment instruction after closing argument. Still, I wonder what the jurors think. Even if they don't discuss it, aren't they saying to themselves.
If I was innocent, I'd sure as hell put my hand on the Good Book and tell the whole dang world?