PART 35 (30 page)

“My feelings would be with the police.”

“I challenge this juror for cause, if Your Honor please,” said Sam.

“Overruled. I don't think sufficient cause has been shown,” said the judge. “Continue.”

“Mr. Randell, you are saying that you would believe policemen, merely because they are policemen, and you'd stick with those feelings, giving the policemen the edge, the benefit of the doubt?”

“Yes. After all, if we can't believe our policemen—”

“I press my objection,” said Sam.

“I don't think there's been any showing of cause, Your Honor,” Ellis said, rising.

“I'll excuse the juror,” the judge said. “Thank you. You're excused, Mr. Randell.” The juror rose and walked back. One of the two prospective jurors who had been brought closer took the witness stand, and another came up to take his vacated chair.

The man in the witness chair, a Negro, gave his name as Ralph Sanders. Before Ellis had a chance to ask more, Sanders leaned over and whispered something to the judge. The judge called all counsel to the bench, where the prospective juror repeated that he had been the victim of a crime of violence, and he didn't feel that he would be able to be objective. The judge excused him with the thanks of the court.

A postal clerk named Alan Stern was next. He had never been on a jury before, he answered Ellis. He was not a friend of any police or enforcement official, he would accept the court's view of the law, and he felt that he would be objective and fair both to the people and to the defendants. Ellis had no challenge for cause.

“You question this fellow, Sandro,” said Sam.

Sandro rose.

“You understand, Mr. Stern, that any effective verdict in this court must be unanimous.”

“Yes.”

“So, you understand that your vote would be
the
important vote on this jury, for without your vote there could be no verdict here?”

“I guess that's so. Yes, I do understand that.”

“Mr. Stern, do you understand the concept that the defendants are presumed to be totally innocent of the charges of which they are accused?”

“Yes, sir.”

“Do you understand that to mean that as he sits here in this court, my client is presumed to be as innocent of this crime as you are, or I am, or Mr. Ellis is?”

“Yes, sir. That's his Constitutional right.”

Sandro had mixed feelings about Stern's answer. It was good, because it meant Stern had brains in his head, he might understand the legal complexities of the case; it was bad because Ellis probably did not like Stern's reference to the Constitution.

“And do you understand further that the defendant does not have to prove anything in this court?”

“Yes, sir.”

“That he can just sit here, and if the district attorney doesn't, all by himself, convince you beyond a reasonable doubt of the defendant's guilt, you would be required to acquit the defendant?”

“Yes, sir, I understand that.”

“You don't find that too burdensome a requirement for the district attorney, do you? You don't resent it, so that you'd give the D.A. a little edge in this trial, do you?”

“Not at all.”

“Would you promise that if you were picked as a juror in this case, you would hold the district attorney to that burden of proof, that is, make him prove the defendant's guilt to you beyond a reasonable doubt?”

“Yes, sir.”

“Now in so holding the D.A. to his burden of proof, do you further understand that there are several elements to the crime charged here, and that you have to be convinced of the defendant's guilt beyond a reasonable doubt regarding each and every one of those elements before you can vote for conviction?”

“Yes.”

“Mr. Stern, should you be convinced beyond a reasonable doubt that the defendant is guilty of say four elements of a crime, but there were five elements, and after deliberating you were not convinced about the fifth element beyond a reasonable doubt, would you hesitate to acquit?”

Stern studied Sandro for a moment. “No, sir.”

“Do you understand that at the end of the case you do not have to be convinced of the defendant's innocence beyond a reasonable doubt?”

Stern was hesitant. “I'm not sure I get you.”

“In other words, you may be convinced about certain elements of the crime beyond a reasonable doubt, and there may be others about which you haven't been convinced beyond a reasonable doubt. At that point, you would be convinced, perhaps fifty-fifty, that the defendant was guilty, and the same percentage that he was innocent. At that point you wouldn't be convinced beyond a reasonable doubt he was guilty, right?”

“Right.”

“Do you understand that you would then have to vote to acquit under your oath as a juror?”

“I got it. Right.”

“Do you have any quarrel with that concept?”

“None.”

“In other words, Mr. Stern, anything short of being convinced of guilt beyond a reasonable doubt requires an acquittal. Do you accept that?”

“Right.”

“Would the fact that the defendant might have been in trouble before in his life, might have been convicted of using narcotics, would that make him in your judgment a totally useless person, capable of every sort of crime? Do you think a person could get in trouble with drugs and yet not be a murderer?

“I accept that as a possibility, that the fellow needn't be a murderer.”

Sandro walked back to the counsel table. “Do you think I should go further into the narcotics bit?”

“No. I'd keep this guy,” Sam said, “but I don't think Ellis will.”

“I have no challenge for cause,” Sandro announced, sitting down.

Siakos stood and asked Stern about testimony by policemen. Stern said he would not accept a policeman's word merely because he was a policeman. He believed a policeman could make mistakes, even lie. Siakos had no challenge for cause. He sat.

Ellis half-rose in place. “The people excuse the witness, Your Honor.”

“That's one peremptory challenge for Ellis,” said Sam, marking it in his notes. “Twenty-nine to go.”

The next prospective juror was a woman named Edna Santangelo, a retired secretary. She was about sixty-five years old, from Sam's guess.

“I don't like her,” said Sam as Ellis was questioning. “She lives alone and is probably scared to death of crimes of violence. She'd vote everybody guilty just to get them off the street.”

“You want to challenge without wasting time?” Sandro asked.

“No, you can't do that. The rest of the jurors might take offense that you cut her short without giving her a fair chance. Question her, Sandro, drive home the bits about not having to be convinced beyond a reasonable doubt of innocence in order to acquit. If no one gets her for cause, we'll challenge her peremptorily.”

Sandro questioned Miss Santangelo at some length. After he sat, Siakos questioned her. Ellis said she was satisfactory to the people. The defense challenged, and she was excused.

The judge took a luncheon break at this time, telling the panel to return to the courtroom at two fifteen.

The first prospective juror after lunch was an electrical engineer named Howard Munchen. Ellis found him without challenge for cause.

Sandro rose and asked the usual questions about the burden of proof and reasonable doubt. Munchen's answers were satisfactory.

“Mr. Munchen, I assume you've heard, read about, probably seen on television some things relating to narcotics and narcotics addiction.”

“I haven't made a study of it. I've some familiarity with it.”

“And do you find a person who may be addicted to narcotics loathsome per se, or would you put him in the same category as anyone else who has given in to a temptation of the flesh, such as someone addicted to alcohol, or someone addicted to gambling?”

“I would imagine they all have their start in the same place, some kind of weakness.”

“Can you accept as a possibility that a person might be addicted to narcotics, just as others might be addicted to alcohol or gambling, and still hold a job, earn money?”

“Yes, I'm sure there must be people like that.”

“And, Mr. Munchen, can you accept the idea that an addict might be employed, might have sufficient money to afford to buy narcotics, and not have a propensity to commit crimes?”

“I'm sure that's also possible.”

“So that, Mr.Munchen, you would accept the concept that it is not addiction to narcotics, but the need for funds to buy narcotics, that might cause a person to commit a crime?”

“Yes, surely.”

Sandro was pleased with Munchen's answers. He was going to use him as a sounding board to hammer home the idea for the other prospective jurors.

“And also, Mr. Munchen, that a person
not
addicted to narcotics or anything else, might have a need for funds—to buy a car, to pay for his wife's operation, to impress a new girl friend—and might commit a crime to obtain money?”

“Sure.”

“Would you accept the idea that a person might have been convicted of a crime relating to narcotics at one time in his life and still not be a murderer?”

“Yes.”

“And would you be able to hold off judgment of such a person until all the evidence was presented, and if you were not convinced beyond a reasonable doubt, would you have any hesitation to acquit?”

“None.”

“I have no challenge for cause, if Your Honor please.” Sandro walked back to the counsel table, as Siakos stood to examine.

“What do you think of him, Sam?” Sandro asked.

“I like him. He's a professional man, he's educated, he's an engineer, he can handle figures, make sure everything is supported, stands up properly. He's outspoken. I like him. What about you?”

“I agree.”

“What about you, Luis?” Sam asked Alvarado.

Alvarado shrugged. “It's up to you. You know more about those things than me.”

“Do you have any particular dislike of him. Is he all right?”

“He sounds okay to me. I leave it to you.”

Siakos finished with his questioning. He had no challenge for cause.

Ellis rose. “The people will excuse the witness.”

“You're excused. Thank you,” said the judge. “Next.”

“That's two for Ellis,” said Sam, making another notation.

By the end of the first day they had examined nine prospective jurors and selected none.

The next morning an attorney from the police department legal bureau was in court with a copy of Sandro's subpoena of police documents. The subpoena was three pages long and covered every imaginable piece of paper and record in the file. The police attorney argued that the range of the subpoena was far too broad. Judge Porta disagreed. This was, he said, a capital case, and he wanted to permit the defendants every possible opportunity to uncover the truth and defend themselves. The police attorney countered that the material would take at least three days to assemble because it was widely scattered.

“At the rate we're picking jurors here, you can have five days if you want,” the judge told him.

Jury selection resumed. Prospective jurors continued to walk up to and away from the witness chair. Not one was selected that morning either. By lunchtime, each side had used three more of its thirty peremptory challenges.

During that afternoon, an advertising agency account executive in his late thirties named Richard Haverly took the stand. He seemed to be fair and objective. Sam kept questioning him, giving him much the same treatment he would have given to a prospective juror he thoroughly detested.

After Siakos finished questioning, it was the consensus that Haverly was acceptable. He was sworn in as the foreman of the jury and took his place in the jury box.

No other juror was selected during the remainder of that day.

Haverly, as a member of the jury, was segregated from the rest of the panel still sitting in the spectators' section. He went to the jury room during cigarette breaks, and was admonished upon leaving court at the end of the day not to talk to anyone concerning any aspect of the case.

In the middle of the third morning of questioning, after four more prospective jurors had been examined and refused, a Negro cashier with the city's housing authority, who spoke proudly of having sent his three children to college, was selected as juror number two. His name was Roscoe Anderson.

Toward the end of the afternoon, a widow of about fifty-five, whose husband had worked for the New York Central Railroad, was selected. Sam seemed to regard women jurors with deep misgivings. Nevertheless, she had answered all the questions objectively and seemed otherwise to be a fine selection. Sandro thought she looked motherly, a little overweight, inclined to mirth and goodwill.

“At this rate, Sam,” Sandro said at the end of the third day, “it'll take us two and a half weeks just to impanel a jury.”

“You haven't counted the four alternates, in case some of the regulars get sick,” Sam corrected. “That makes it a smidge better than three weeks.”

On the fourth day, they picked three more jurors. The number four juror was an older man, short, chubby. His name was George Simkin. He was a salesman for a shoe company. He had been active in civil rights and mentioned having been in the march on Washington with the Reverend Dr. Martin Luther King, Jr. The number five juror was a telephone repairman named Arthur Youngerman. He had just married, after returning from army service in Vietnam. The number six juror was a man in his forties, bald on top, named Anthony Fresci. He was an insurance salesman, who at one time had been a prizefighter.

In the middle of the morning of the fifth day, Sandro was questioning a young bookkeeper who seemed a good prospect. Sandro was sure Ellis would challenge him peremptorily, and he decided to try the tactic Sam had used for getting Haverly, the foreman, through. Sandro kept asking questions, looking dissatisfied with the prospective juror, as if probing for some flaw that only he knew was there. To his amazement, he found one. The man was fair and objective about everything, but he refused to consider the possibility that a narcotics addict could perhaps not be a dangerous criminal.