Both Hardy and his client found this stereotyping odious. Especially in San Francisco, it went against the social and personal grain. It was a cliché to say so, but two of Hardy’s best friends were, in fact, the ‘mulatto’ Abe Glitsky and Pico Morales, who was not of northern European ancestry. But they also felt they had to develop some criteria. They were looking, they hoped, at professions, affiliations, attitudes – if they ignored race and gender they weren’t doing themselves any favors.
‘I hate this,’ Fowler whispered. ‘I hated it before from behind the bench. I still do.’
Each side had twenty peremptory challenges, where they could dismiss a prospective juror with no reason given. Hardy and Fowler had decided to use a diagram of the twelve jury seats in the pool, and to cross out those they wanted to challenge. With their legal pad in front of and between them this was a relatively subtle approach, chosen so they wouldn’t have to confer and risk antagonizing the jurors who remained. People didn’t like to feel they were being judged, even if they weren’t challenged personally.
The jurors were sworn in, and Chomorro started talking to them, or rather reading to them. ‘Andrew Bryan Fowler has been charged with murder in the first degree in an indictment returned by the grand jury for the State of California.’
Fowler, Hardy noticed, did not hang his head or show any outward signs of guilt or embarrassment while the indictment – again – was read in full.
Judges addressing juries, or prospective jurors, could be friendly and avuncular or tight and businesslike. Hardy thought Chomorro – relatively new to the process -struck a tone of studied affability. It was as though an effort to appear friendly to jurors had appeared on the job description. If he kept it up, it might be good for Andy, whose breezy geniality was, Hardy felt, genuine.
‘I’m going to ask a series of questions to all of you.’ He addressed himself both to the panel of twelve on the courtroom side of the rail and to the sixty or so other prospective jurors waiting in the gallery. ‘If you answer yes to any of them I ask those of you up here’ – he gestured to the jury box – ‘to raise your hand. Those of you in the gallery pool, please listen carefully, and if you are called up here and would have answered yes to any of these questions, inform us immediately.’
Among the questions Hardy had submitted for Chomorro to ask, the most important was the most obvious: based on anything they had read or seen in the media, had any of the prospective jurors already formed an opinion about the innocence or guilt of the defendant?
Chomorro did ask that question, a fairly routine one he would have asked anyway. There was a lot of looking around, but no one put his hand up. Chomorro didn’t let it go. ‘Let me rephrase that, or ask a related question. And you prospective jurors in the gallery, you may raise your hands directly here. How many of you have read about this case, or know about it from television or the radio?’
There was a scattered show of hands, eight in the jury box. Hardy swiveled to look back at the gallery. There were about ten more. In the two months he’d spent preparing for trial most of his ‘creative’ ideas had gone out the window. If a change of venue would have a better chance of getting Andy a fair trial he would have gone for it. But he’d hired a consultant who had taken a poll and discovered that only between twenty-three and thirty percent of adults in San Francisco had ever heard of this case. At first it had shocked him. He knew people read less and less, were too busy for most current events, but still…
‘Do any of you whose hands are up feel you know the issues in this case?’ A few hands went down.
‘You’re going to be hearing evidence that may or may not corroborate what you think you already know. Would any of those remaining have any problem accepting those new arguments or evidence?’ This was getting weaker than what Hardy had hoped for. Only four people, and none in the jury box, had their hands up. ‘All right, then, I think we can proceed.’
Chomorro then began the general winnowing process. Did anyone in the panel know the defendant? Had anyone known the victim? The prosecutor or defense attorney? Chomorro read the list of proposed witnesses and asked if anyone knew any of them.
The tedious procedure continued. Were any of the panel themselves or any members of their families peace officers or lawyers? Ditto, victims of violent crime? What about nonviolent crime? Had anyone been arrested?
Five of the twenty jurors raised their hands during this period of questioning, a large percentage. Chomorro followed up individually with each one and ended by dismissing all five. Five new prospective jurors took their seats.
When the general questions had finished, Chomorro began taking the panel one at a time. This was where, before June of ‘91, Hardy could have narrowed things down considerably, but now he was at the mercy of Chomorro’s questions.
Seat number one was a heavy-set woman of about forty. She gave her name as Monica Sellers. She had been married for seventeen years to the same man and had three children. For the past three years – after the children were old enough – she’d been employed as a part-time bookkeeper for a temp agency that worked out of the Mission district. Before that she’d been a housewife.
‘Now, Mrs Sellers – by the way, do you prefer Mrs or Ms?’
She laughed nervously. ‘Oh Mrs, definitely. I’m Mrs Sellers.’
‘All right Mrs Sellers, let me ask you this question, then. And would the rest of the panel please pay attention? I will be instructing you in certain matters of law, and one of the words you’re going to hear a lot in the next few weeks is going to be “evidence.” There are two basic kinds of evidence – direct evidence, for example, when an eyewitness sees something and swears to it. If you believe that witness, then his or her statement would be direct evidence. Circumstantial evidence might be, for example, a fingerprint -’
Hardy jumped up. ‘Objection, Your Honor.’
Chomorro, interrupted in his monologue, frowned from the bench. ‘Objection to what, Mr Hardy? I was about to say that a fingerprint on an object can be circumstantial evidence that the object had been touched by the person who had left fingerprints on it. Do you mean to object to that?’
‘No, Your Honor. Sorry.’ He sat down, and Fowler whispered that he ought to reel it in a little if he didn’t want the jury to start turning against him.
Chomorro turned back to the panel. The classic analogy related to direct versus circumstantial evidence is something we call the cherry-pie analogy.‘ Chomorro appeared a bit embarrassed by the homespun nature of his words. ’If you walk into your kitchen and see your child eating cherry pie, then you have direct evidence that he was eating the pie. If, on the other hand, you come in and see a half-empty pie plate and your child’s face and clothes covered with cherry pie filling, then you have circumstantial evidence that he’s eaten the pie. I need hardly add that both types of evidence can be pretty convincing.‘
The jury nodded appreciatively, and Chomorro, more relaxed at the positive reaction, continued. ‘Let’s take another example, since this evidence is central to what a trial is all about. How about lipstick on a cigarette, which can also be evidence? Mr Smith sees Mrs Jones smoking a certain type of cigarette and leaving a certain colored lipstick stain. Then let’s say he walks to another room in her house and sees a similar cigarette butt lying in an ashtray in another room. That second cigarette butt is circumstantial evidence that Mrs Jones has been in that room. She may have been in that room, but it is not a fact proved by direct evidence. I trust that’s clear.’