‘This is good,’ Fowler whispered. Hardy nodded, agreeing, and glanced at Pullios. Her mouth was set tightly. She looked straight ahead.
‘However,’ Chomorro went on, ‘that said, if I tell you as a matter of law that an abundance of circumstantial evidence, under certain conditions, can be sufficient to establish guilt beyond a reasonable doubt, would you have a problem with that?’
Mrs Sellers looked thoughtful. ‘No, I don’t think so.’
Pullios looked to be suppressing a smile. Hardy put an ‘X’ through seat number one (he didn’t want to run through his challenges, but there was no option here) as Chomorro nodded to Mrs Sellers. ‘Would any of you have a problem?’
First one, then two other prospective jurors, wanted some clarification. Chomorro took them one at a time, getting names, marital status, occupations – beginning to fill in the blanks. They were all men, two in their fifties, one, a black man of about thirty. Finally they all agreed they could accept Chomorro’s instructions although there might have to be a lot of circumstantial evidence.
Which brought Chomorro to a pedantic discussion of quality versus quantity of evidence. A small amount of direct evidence might outweigh an abundance of circumstantial evidence, or vice versa.
Seat number two was Shane Pollett, cabinetmaker, a relic of the sixties with graying long hair and a tie-dyed t-shirt, a medium-length beard, an expression of amused tolerance. He was forty-four years old, in his second marriage, second family, three young kids. Two already grown up.
Hardy was beginning to understand Chomorro’s technique. He would move quickly through the panel, asking a technical question or making a legal point or two to each member, opening it up to the rest. If his goal was to keep things moving along, it would work. For Hardy’s purposes, it wasn’t nearly enough.
‘Mr Pollett, let me ask you this.’
‘Sure,’ Pollett said.
Clearly, the informality, irreverence, rankled Cho-morro, but he forced a smile. ‘If the state didn’t have someone come in and say, “This happened, I saw it,” would you accept that there’d be another way they could prove something happened? To use my example?’
‘Sure, why not?’
Hardy leaned over and whispered to Fowler. ‘Why do I like this guy?’
Fowler shrugged. ‘Wrong answer for us but the right tone. Gives one pause. Keep your eyes open.’
Jane brought sandwiches into the room they’d been assigned on the second floor of the Hall. It was a little after one o’clock on the first day, and seven jurors were already empaneled – Chomorro wanted a jury in two days, max, and by God, they were going to have one.
‘How are we doing?’ she asked.
‘Knocking ’em dead,‘ her father answered brightly. He pulled a submarine and a soda from the bag Jane had brought in. ’No chips?‘
Jane smacked her forehead. ‘Sorry, I forgot the chips.’
Hardy pulled the bag toward him. He realized the banter was in the ‘brave-front’ department, but his patience was worn thin. ‘Let’s chat some more about chips, chips are real important right now.’ He started unwrapping his own sandwich. ‘Okay, I’ve got it four to three, slightly toward us.’
‘Is there anybody you hate?’ Jane asked, her face serious.
‘Anybody I hate, I challenge, but there’s damn little to go on.’
‘I know,’ Fowler said, ‘to call this a voir dire is a little misleading. I don’t think Leo knows that much what he’s doing.’
‘What’s he leaving out?’ Jane asked.
‘It’s not so much that,’ Fowler said.
Hardy spoke up. ‘He’s not getting anybody to open up. Who are these people? What do they think about? What movies do they like? Hobbies? Anything. When he gets done we’re not going to know anybody better than we do now. You look at what they’re wearing, if they got a nice face, if they don’t stare at us like they hate your father, that’s about it. That and his so-called explanations of law.’
‘He does favor the leading question,’ Fowler admitted. ‘But he’s a politician, what do you expect?’
‘He’s what I expect, all right, but I’m let down on so many other expectations, why couldn’t we get lucky here? He’s going awful light on the burden of proof, don’t you think?’
‘Well, we knew that going in.’
Hardy chewed a moment. ‘There must be a rebuttal to consciousness of guilt.’
‘Not that I know of,’ Fowler said. ‘You can’t prove a negative.’
‘If he’d only make a nod toward due process. I gave him twenty questions on the investigation, the indictment, the grand-jury process, all of that.’
‘What was that?’ Jane asked.
‘Jesus, everything,’ Hardy said. ‘Everything these people should know and probably won’t – that an indictment is essentially a minimum showing of cause for trial, that no defense people can be present during the grand-jury proceedings, that basically it’s the prosecutor’s ballgame. These prospective jurors out there are intimidated enough. Then you tell them that another jury, a grand jury no less, thinks your father killed Owen Nash, what are they supposed to think?’ Hardy turned to his client. ‘He’s got to bring up some of that. Put it in context.’
Fowler shook his head. ‘He won’t, you can bet on it. He’s telling us it’s not relevant.’ Fowler smiled grimly. ‘What a judge thinks has a way of making it into the courtroom. Believe me, I know. Your due-process argument might make the appeal, but you’re going to have to get clever and lucky to get it introduced here.’
Jane tapped her bottle of soda on the table a few times. ‘Gosh, you guys are heartening to talk to,’ she said.
Chomorro finished his questioning and asked if either side would like to exercise a challenge. Hardy decidedly did not want to dismiss the first person interviewed – it would not enamor him to the jury – but since Mrs Sellers had come down so strongly for believing in the accumulation of circumstantial evidence, he had no choice. He could tell it both surprised and hurt her as if she’d failed a test. He looked at the eleven faces to his left, most of them fixed solemnly on Mrs Sellers as she walked back through the swinging door that separated the gallery from the courtroom. The clerk called a name to fill the vacancy.
By 4:25 they had empaneled a jury and two alternates. There were seven men and five women, four blacks – two men and two women – and, despite Hardy’s initial misgivings, one Oriental – a fifty-five-year-old bespeckled Vietnamese shopkeeper named Nguyen Minh Ro. Fowler had crossed him off on their schematic almost as soon as he’d started talking, but then Ro, not perfectly understanding the laws of his new country, had asked the very question that Hardy had wanted to get in – just how was it that Mr Fowler was to be considered innocent when the grand jury had already said he was guilty? Hardy could have kissed the man. He still might have dismissed him, but there was something in his body language toward Chomorro as the indictment process sunk in that looked promising for the defense. Surprisingly, Pullios didn’t challenge, and he was in.
They could break it down demographically any number of ways – seven men, five women; seven whites, five non-whites. They did have a fortunate break with their hope for scientific/engineering types – three of the jury worked to some degree with computers. Additionally, one middle-aged black woman, Mercedes Taylor, was an architect.
There were no secretaries. They had kept Pollett, the cabinetmaker. Three computer jocks, an architect, two salesmen, one housewife, two small-business people (including Ro), a construction person and a high-school teacher.
Chomorro had put on reading glasses as the day progressed, his affability fading along, apparently, with his eyesight. By the time he began questioning the alternates at four o’clock, he was as clipped as a drill sergeant, asking them if they’d heard anything in the questioning and instructions to the other jurors that they felt ought to disqualify them. No? Okay, then. He finished them both in under twenty minutes.