After Derek finished his preliminary questions, Moltke strolled to the podium. He made a little speech about the role of the prosecutor in protecting the commonwealth from lawlessness and anarchy. “But you jurors have one of the most important jobs in the entire world,” he said. “A job upon which the very fabric of our society is dependent.”
After he finished flattering them, Moltke began the voir dire. His first few questions were all softballs designed to continue cozying up to the jurors, and to suggest that he was a good ol’ hometown boy, just like them. After that, Moltke asked the usual questions, totally irrelevant to the legitimate purposes of voir dire, designed to preview the prosecution theory of the case and prejudice the jury in his favor. Finally, he made the jurors promise they would evaluate the evidence fairly, but not shy away from a conviction if the evidence convinced them the defendant was guilty.
“Now, let me ask you a question, Mrs. McKenzie.”
The elderly woman looked up, startled. Another venerable trial lawyer trick: memorize while the jurors are called, so later you can address them by name. Jurors, tended to be impressed by this showy display of attorney acumen.
“I believe you said you were married.”
“T-that’s right,” Mrs. McKenzie answered.
“You probably wouldn’t think very highly of it if your husband went off and had an affair, would you?”
“I should say not.”
“Adultery is a bad thing, wouldn’t you agree?”
“Well, of course I would.”
“And you probably wouldn’t think very much of the floozy he was with either.”
“I’d probably wring her neck,” Mrs. McKenzie said. The rest of the jury chuckled.
“And if this floozy got your husband involved in criminal activity, oh, let’s say drugs for instance, you probably wouldn’t be happy about that.”
Her neck stiffened. “No, I certainly wouldn’t.”
“And if that floozy actually killed your husband—”
“Objection, your honor,” Ben said. “This has gone far beyond the bounds of permissible voir dire.”
Derek nodded. “I’m afraid I have to agree. Mr. Moltke, please confine yourself to rooting out areas of possible prejudice, without creating any yourself.”
“Yes, your honor,” Moltke said, seemingly chastised. “I certainly don’t want to prejudice anyone. And speaking of that, there’s some evidence I want to ask you jurors about, just to make sure you won’t be unfairly prejudiced by it.”
Very smooth segue, Ben thought. Under the cloak of obedience he’s going to do exactly what the judge told him not to do.
“Unfortunately, ladies and gentlemen, you’re going to hear some evidence in this trial of…well…” He paused and acted embarrassed. “Of a…sexual nature.”
Well, they’re all wide awake now, Moltke. Good technique. Trial by titillation.
“As I’m sure you all know, some people…well, darn it all, some people just don’t conduct themselves like you and me. I’m not saying their morals are worse than ours—”
The hell you aren’t.
“—but they are certainly…different. Now, Mrs. Applebury, you wouldn’t hold a grudge against a woman just because she was having, um, relations without benefit of marriage, would you?”
There was nothing Ben could do. If he objected because there was no evidence of any, um, relations between the defendant and the victim, he would only appear defensive, which would ensure the jury would assume that there were some, um, relations…
Mrs. Applebury placed her hand against her chest. “I-I would try not to.”
“And how about you, Mrs. Bernstein?”
“Well, I always try to keep an open mind.”
“And you, Mr. Svenson? You wouldn’t assume a woman was guilty just because she engaged in sexual practices you don’t consider…normal.”
“Your honor!” Ben said. “This is outrageous. This is totally irrelevant to this case.”
“Well,” Derek said, “if it’s totally irrelevant, it can’t do your client any harm, can it?”
Ben had to hand it to him; Derek was pretty quick on his feet.
“That’s all right, your honor,” Moltke said. “I’m ready to move on. I have one last subject to discuss, again, with considerable regret. This case will touch upon the subject of illegal narcotics. I’m sure each of you knows what a serious problem this is in the United States today, with drags available on every street corner, even in decent, God-fearing neighborhoods. Even on grade-school playgrounds—”
“Objection, your honor.”
“Sustained.”
Moltke continued unperturbed. “I’m sure each of you knows there’s a war on—a war against drugs. Many of us in the government consider ourselves foot soldiers in that war. Perhaps many of you do, too. But I must remind you that this is a trial for murder in the first degree. Even though you may find the defendant was in possession of sizable quantities of illegal narcotics, you must not let that prejudice your decision on the larger issue. I’d like each of you to promise me you will view the evidence fairly, and that if you bring back a conviction against the defendant, it will be based upon the considerable evidence proving she committed murder, and not simply an understandable, if misguided effort to sever this link in the virulent chain that is destroying our fine nation—”
“Objection, your honor!” Ben said, practically screaming. “This is grossly prejudicial. Counsel is practically testifying.”
Derek nodded calmly. “The objection is sustained.”
“I also move to strike the prosecutor’s improper remarks from the record, and that the jury be instructed to disregard.”
“If you insist.”
Well, at least he didn’t say: Why bother?
Derek gazed impassively at the jury. “You are instructed to disregard any remarks of counsel that may have suggested criminal activity as yet unproven.” He peered down at Moltke. “Anything else, or are you about done?”
Moltke could take a hint. “I ‘m done, your honor.”
“Good. Counsel for the defense?”
Ben went to the podium and began running through the list of questions he had prepared in advance. He did it like they taught him in law school; he avoided questions intended to tarnish opposition witnesses, questions designed to preview opening statement, and questions designed to predispose the jury in his favor. The point of voir dire was to determine whether the jurors could be fair and impartial, and he stuck to it. That was the way it was supposed to work. Right?
Ben was barely halfway through his questions when he sensed the jury’s attention was beginning to wane. They kept peering over his shoulder, trying to size up Christina. The sad fact was that half of them would probably be more influenced by her personal appearance than any evidence they heard at trial.
“I noted that opposing counsel required you to make all kinds of promises during his voir dire examination,” Ben said in conclusion. “I’m only going to ask you to make one. Later in this trial, you will hear the judge use the phrases presumed innocent, and beyond a reasonable doubt, and he will instruct you on the meaning of those phrases. Please listen carefully to what the judge tells you, and bear in mind at all times that Christina McCall is presumed innocent, and that the burden of proving her guilt beyond a reasonable doubt is entirely on the prosecution. All I ask is that you hold them to that legal standard. Will each of you promise to do that?”