“Yes. Repeatedly. And he’s refused to produce the documents. I was required to obtain them from…uh, an independent source. As a result, I don’t have a witness who can act as custodian of the documents and testify as to their authenticity.”
“How can I help?”
“I know Reynolds would refuse if I asked him to authenticate the documents. But you’re his client; if you ask, he’ll have little choice.”
“Oh. I…see.”
“Will you do it? My client’s life may be at stake.”
Margot hesitated. Her finger stroked her chin. “If my attorney didn’t want you to see the documents, he must have a reason.”
Ben’s jaw clenched.
“My financial situation is quite precarious at the moment.…If my attorney believes this is not in my best interest, I must trust his judgment.”
It was a familiar Catch-22: the lawyer blames the client and the client blames the lawyer. Disgusted, Ben returned to defendant’s table.
Moltke, of course, was playing the publicity to the hilt. He seemed ebullient; he clearly thought he had a win. He could already taste the victory, and the Senate seat beyond. And why not? Ben thought. A criminal jury trial was the prosecutor’s playpen. All that television hype about judges and lawyers making it impossible to lock up criminals was absurd. The reality was they could convict almost anyone if they wanted. Prosecutors, cops, forensic scientists—they were all players on the same team, and they all liked to win. Juries were the prosecutor’s Play-Doh. The hallowed principle of presumed innocent was a joke; most jurors presumed that if the defendant wasn’t guilty of something, he wouldn’t be sitting at defendant’s table.
Ben checked his watch; Derek was late again. Probably reading the eleventh-hour motions Ben had filed, trying to contrive reasonable excuses to deny them all. Ben hoped Derek would make a final pronouncement on his motion in limine to exclude any evidence relating to Lennie’s murder. Although Moltke insisted he had substantial evidence against Christina and expected to be filing charges against her on that murder soon, he hadn’t done so yet. And as long as no charges were filed, Ben insisted evidence of Lennie’s death didn’t help prove who killed Lombardi, so the matter shouldn’t be discussed. Derek, in a typical display of judicial cowardice, decided to reserve his ruling “until the issue was raised at trial.”
Ben nudged Christina and tried to sound jovial. “Too bad you don’t have a handsome, supportive husband in the first row. Juries eat that up.”
“Pardonnez-moi,” Christina said. “Would you like me to rent one? I think Burris stocks those.”
Ben smiled, but the smile was forced. Would this trial never begin?
At last, he saw some movement behind the bench. The bailiff called everyone to order and Judge Derek entered. He seemed healthy, well-scrubbed, unusually buoyant. Probably the thrill of displaying his vast judicial prowess to the packed gallery. Ben had always suspected the man was a ham actor at heart.
Derek popped a tablet out of a small box and tossed it into his mouth. “I’ve been thinking about your most recent spate of motions, Mr. Kincaid.”
This was about as welcome as an announcement that Herod had been thinking about babies. “Yes, your honor?”
“As far as I can tell, they’re just revamps of your prior motions. Consider them all denied.”
“Thank you, your honor.”
“Any other preliminary matters before we select a jury, gentlemen?”
“Yes, your honor,” Ben said. “I have a new motion.”
“You’ve got to be kidding,” Derek said. “Can there possibly be one you haven’t already made?”
“Yes, your honor. We move for a change of venue.”
“Based on what?”
“Based on the adverse pretrial publicity that has undeniably tainted the jury pool.”
Derek popped another tablet into his mouth and chewed it vigorously. “Care to elaborate, counsel?”
“Your honor, this trial has been discussed on all three local TV news programs and in both Tulsa newspapers every day for the past month. Usually as the lead feature or headline story. Furthermore, the reports are clearly slanted in favor of the prosecution—”
“Could that perhaps be because the evidence is slanted in favor of the prosecution, counsel?”
“It doesn’t matter, your honor. Criminal cases should be tried in the courtroom, not on TV or in newspapers. Even this morning, in this very courtroom, reporters were shouting statements that suggested my client must be guilty. Prospective jurors were likely within hearing range.”
Moltke rose to his feet. “May I respond, your honor?”
“I don’t think that’s necessary, Mr. Prosecutor. Counsel, can you show me a newspaper article that has unequivocally announced your client’s guilt?”
“No, of course not. That would set them up for a lawsuit.”
“Can you present any evidence specifically indicating that any of the citizens on today’s jury roll are biased?”
“No.”
“Well, that’s the standard, isn’t it? Convincing evidence of prejudice to prospective jurors?”
“This court has the discretion to do what it thinks is right.”
“And I shall, counsel,” Derek said, “believe me. But if I took your lamebrained recommendation, I’d have to transfer every noteworthy case that ever comes before my court. Motion denied. You, of course, may explore any potential prejudices during voir dire. Within reason.”
“Very well, your honor.”
Derek’s voice increased in volume. “And counsel, let me add that this court is weary of your relentless efforts to delay this trial and prevent justice from being done. I reiterate that any further frivolous motions may be considered grounds for contempt.”
Grandstanding for the press again? “Understood, your honor.”
“I hope so, counsel. For your sake. Now let’s proceed.”
Prior to trial, Derek had announced that due to the seriousness of the charges presented, contrary to the usual practice in federal court, he would permit the attorneys to directly question the prospective jurors. Ben wasn’t about to complain—he could learn a good deal more about the jurors than he would if Derek were asking the questions.
The bailiff called the first nineteen names on his list into the jury box. On cue, each of them introduced themselves and briefly described their occupations and marital statuses. Ben saw Myra furiously trying to scribble down each biographical detail. The jury pool appeared to be largely lower middle class, not well educated. The usual. Too often, people in the upper strata of society have means of avoiding jury duty, leaving it to those workaday sorts who are grateful to have a day off with pay. The same folks demographics indicated could be influenced by tabloid journalism and prosecution pleas for justice.
There were twelve women, seven men—a devastatingly unfavorable imbalance. Conventional wisdom dictated that Ben try to get rid of as many women as possible; women tended to be much harder on other women than men, particularly when sexual impropriety was involved. Unfortunately, the remaining jury pool was over two-thirds female; even if Ben used all twenty peremptory challenges, this jury was going to have a disproportionate share of women.
Derek introduced all the lawyers and asked if any of the jurors knew them. No one did. When he asked the same question about Christina, every hand in the box shot up. As became clear, most of the jurors either read the papers or watched the TV news, and many considered themselves very well informed about Tulsa’s Drug Princess. Then Derek asked the ultimate questions—whether they had already formed an opinion about the case, and whether they believed they could still evaluate the evidence fairly and without prejudice. Not surprisingly, they all did. Ben knew without a confession of prejudice he had virtually no hope of removing a juror for cause. That left him with a limited number of peremptories. Of course, even if he could remove more jurors, with whom would he replace them? The jury remainders sitting outside would be no different.