When it was my turn to question the artist, I walked to the lectern and told the judge I accepted her on the jury at this time without further questioning. I asked to be allowed instead to make further inquiries of juror number eight, and the judge allowed me to proceed.
“Juror number eight, I just want to clarify a couple of your views on things. First, let me ask you, at the end of this trial, after you’ve heard all the testimony, if you think my client might be guilty, would you vote to convict him?”
The tree trimmer thought for a moment before answering.
“No, because that wouldn’t be beyond a reasonable doubt.”
I nodded, letting him know that he had given the right answer.
“So you don’t equate ‘might’ve’ with ‘beyond a reasonable doubt’?”
“No, sir. Not at all.”
“Good. Do you believe that people get arrested in church for singing too loud?”
A puzzled look spread across the tree trimmer’s face, and there was a murmur of laughter in the gallery behind me.
“I don’t understand.”
“There’s a saying that people don’t get arrested in church for singing too loud. In other words, where there’s smoke there’s fire. People don’t get arrested without good reason. The police usually have it right and arrest the right people. Do you believe that?”
“I believe that everybody makes mistakes from time to time – including the police – and you have to look at each case individually.”
“But do you believe that the police usually have it right?”
He was cornered. Any answer would raise a flag for one side or the other.
“I think they probably do – they’re the professionals – but I would look at every case individually and not think that just because the police usually get things right, they automatically got the right man in this case.”
That was a good answer. From a tree trimmer, no less. Again I gave him the nod. His answers were right but there was something almost practiced about his delivery. It was smarmy, holier-than-thou. The tree trimmer wanted very badly to be on the jury and that didn’t sit well with me.
“What kind of car do you drive, sir?”
The unexpected question was always good for a reaction. Juror number eight leaned back in his seat and gave me a look like he thought I was trying to trick him in some way.
“My car?”
“Yes, what do you drive to work?”
“I have a pickup. I keep my equipment and stuff in it. It’s a Ford one-fifty.”
“Do you have any bumper stickers on the back?”
“Yeah… a few.”
“What do they say?”
He had to think a long moment to remember his own bumper stickers.
“Uh, I got the NRA sticker on there, and then I got another that says, If you can read this, then back off. Something like that. Maybe it doesn’t say it that nice.”
There was laughter from his fellow members of the venire, and number eight smiled proudly.
“How long have you been a member of the National Rifle Association?” I asked. “On the juror information sheet you didn’t list that.”
“Well, I’m not really. Not a member, I mean. I just have the sticker on there.”
Deception. He was either lying about being a member and leaving it off his info sheet, or he wasn’t a member and was using his bumper sticker to hold himself out as something he was not, or as part of an organization he believed in but didn’t want to officially join. Either way it was deceptive and it confirmed everything I was feeling. Favreau was right. He had to go. I told the judge I was finished my questioning and sat back down.
When the judge asked if the prosecution and defense accepted the panel as composed, Golantz attempted to challenge the artist for cause. I opposed this and the judge sided with me. Golantz had no choice but to use his last preemptory to remove her. I then used my second-to-last challenge to remove the tree trimmer. The man looked angry as he made the long walk out of the courtroom.
Two more names were called from the venire and a real-estate agent and one more retiree took seats eight and eleven in the box. Their answers to the questions from the judge put them right down the middle of the road. I coded them black and heard nothing that raised a flag. Halfway through the judge’s voir dire I got another text from Favreau.
Favreau: Both of them +/- if you ask me. Both lemmings.
In general, having lemmings on the panel was good. Jurors with no indication of forceful personality and with middle-of-the-road convictions could oftentimes be manipulated during deliberations. They look for someone to follow. The more lemmings you have, the more important it is to have a juror with a strong personality and one who you believe is predisposed to be for the defense. You want somebody in the deliberations room who will pull the lemmings with him.
Golantz, in my view, had made a basic tactical error. He had exhausted his preemptory challenges before the defense and, far worse, had left an attorney on the panel. Juror three had made it through and my gut instinct was that Golantz had been saving his last preemptory for him. But the artist got that and now Golantz was stuck with a lawyer on the panel.
Juror number three didn’t practice criminal law but he’d had to study it to get his ticket and from time to time must have flirted with the idea of practicing it. They didn’t make movies and TV shows about real-estate lawyers. Criminal law had the pull and juror three would not be immune to this. In my view, that made him an excellent juror for the defense. He was lit up all red on my chart and was my number-one choice for the panel. He would go into the trial and the deliberations that come after it knowing the law and the absolute underdog status of the defense. It not only made him sympathetic to my side but it made him the obvious candidate as foreman – the juror elected by the panel to make communications with the judge and to speak for the entire panel. When the jury got back in there to begin deliberations, the person they would all turn to first would be the lawyer. If he was red, then he was going to pull and push many of his fellow jurors toward a not-guilty. And at minimum, his ego as an attorney would insist that his verdict was correct, and he would hold out for it. He alone could be the one who hung the jury and kept my client from a conviction.
It was a lot to bank on, considering juror number three had answered questions from the judge and the lawyers for less than thirty minutes. But that was what jury selection came down to. Quick, instinctual decisions based on experience and observation.
The bottom line was that I was going to let the two lemmings ride on the panel. I had one preemptory left and I was going to use it on juror seven or juror ten. The engineer or the retiree.
I asked the judge for a few moments to confer with my client. I then turned to Elliot and slid my chart over in front of him.
“This is it, Walter. We’re down to our last bullet. What do you think? I think we need to get rid of seven and ten but we can get rid of only one.”
Elliot had been very involved. Since the first twelve were seated the morning before, he had expressed strong and intuitive opinions about each juror I wanted to strike. But he had never picked a jury before. I had. I put up with his comments but ultimately made my own choices. This last choice, however, was a toss-up. Either of the jurors could be damaging to the defense. Either could turn out to be a lemming. It was a tough call and I was tempted to let my client’s instincts be the deciding factor.
Elliot tapped a finger on the block for juror ten on my grid. The retired technical writer for a toy manufacturer.