Fifteen minutes after we were supposed to have begun, a quarter of an hour after the defense, the prosecution, and everyone else who had a function to perform in the trial had avoided judicial wrath by appearing on time, the door at the side of the courtroom swung open. The honorable and vindictive James L. Thompson walked mechanically toward the bench, his eyes fixed on the floor in front of him as if at any moment he might reprimand his feet for taking him in the wrong direction. Swatting the air with his hand as he plopped down an armload of papers and books, he ordered the bailiff to bring in the pool of prospective jurors.
A few minutes later, the door at the back of the courtroom swung open and two dozen men and women were herded like baffled sheep onto the two benches directly behind the wooden railing that, in a manner of speaking, separated the spectators from the players and the play.
Like most judges, Thompson thought it was his particular burden constantly to be plagued by lawyers and fools, categories that he by no means considered mutually exclusive. And, like most judges, his view of jurors was much more favorable. Because they were strangers he had never met, he could invest them with all the classic virtues of public-spirited citizens, eager to be impartial and determined to be fair. There was the additional advantage that as jurors they were required to listen to whatever he wanted to say and never question anything he told them to do.
Thompson greeted those two dozen prospective jurors like long-lost friends. With bright-eyed courtesy and exhaustive patience, he explained the important responsibility they were about to assume. Summoned from the relative anonymity of their lives, they concentrated on each word he spoke like grade school children listening to their new teacher on the first day of class. With a benevolent smile, he informed them that they were there to decide a criminal case.
The smile vanished and a trace of sorrow edged its way onto his mouth when he announced, “The defendant is charged with the crime of murder in the first degree.”
Lingering over each word so they could grasp every nuance of meaning, Thompson read each word of the charging instrument. When he finished, he put down the document and, resting his arms on the bench, bent forward.
“The defendant has entered a plea of not guilty. That means that the defendant has denied the charge.”
The judge paused; his eyes narrowed down into a searching stare; the furrowed creases in his forehead deepened. When he began to speak, there was a certain sense of urgency in his voice, as if he could not overestimate the importance of what he was about to tell them.
“Whenever anyone charged with a crime enters a plea of not guilty, it becomes the obligation of the prosecution to prove the defendant's guilt—to prove it beyond a reasonable doubt.”
He gazed from one end of the front two rows to the other, his eyes boring in on first one juror, then the next.
“And that means,”he went on, “that after you have heard all the evidence in this case, you must—and I repeat: you must— find the defendant not guilty, unless you decide that the guilt of the defendant has been proven—not by a probability, not to a reasonable certainty, nor to any other lesser standard, but beyond a reasonable doubt.”
It was like the moment at the end of a service: that long, clean, still silence in which there is no confusion left about what is important and what is not; that one moment of perfect lucidity in which something eternal speaks directly to the soul.
The judge kept looking at them, a last reminder of the gravity of the words that had been entrusted to his care and that only he could speak at the commencement of a trial to determine whether someone had committed a crime. Gradually, his gaze began to lose its intensity and the way in which he held himself became less rigid. As if to tell them that the lesson was over, he nodded and drew back.
“Let me now introduce the parties.”
Introducing first the prosecution, then the defense, and finally the defendant, Judge Thompson asked if any of the prospective jurors were personally acquainted with any of us. No one raised a hand. No one knew Clarence Haliburton; no one knew me; and none of them had ever met the young man accused of murdering Jeremy Fullerton. The judge asked if any of them had formed any opinion about the case itself. No one said they had, and I wondered if any of them really believed they had not.
The clerk was directed to draw at random the names of twelve jurors. Each time a name was called, a man or a woman rose from their seat on the two front benches, gathered up their jacket or sweater or the book they had brought to help defeat the boredom of waiting every morning to see if they were going to be called, and made their way to the jury box. With slow, self-conscious movements each one took the chair next to the last one filled and then, with reluctant eyes, looked back at the room full of faces looking at them.
After the last name was called and the twelfth juror had taken the last seat left, the judge turned things over to the lawyers—but not before he made sure everyone knew whose side he was really on.
“The lawyers will now ask each of you some questions,”he said, like a friendly neighbor having a chat over the backyard fence. “This process is called 'voir dire.' Don't ask me to translate,”he said with a quick, self-effacing grin. “I don't know what it means, either.”
Several jurors nodded; several others smiled; all of them laughed silently.
“The lawyers get to ask you questions to see if there is any reason why any of you should be excused from serving in this case. The questions are not meant in any way to embarrass you.”Casting a sideways glance at the counsel tables, he added with a knowing grin, “And if they do ask you a question they shouldn't, I'll take care of it.”
Chins went up, heads tilted slightly to the side; a few of them shifted forward in their chairs; one way or another they all signaled back that they knew they could count on him—he didn't trust lawyers, either.
Thompson sat back in the tall leather chair. “Mr. Antonelli,”he remarked with casual indifference as he began to examine the contents of a thick folder he had carried into court.
I glanced at the makeshift chart on which I had written the names and numbers of each juror as the clerk had called them one by one to the jury box.
“Tell me, Mrs. DeLessandro,”I asked, looking up at a middle-aged woman with a thick neck and short stubby arms, “how long have you lived in San Francisco?”
Voir dire was an art form lawyers kept trying to turn into a science. Psychologists claimed a knowledge of human behavior and an ability to predict what people were likely to do in any given set of circumstances. Jury consultants were the latest sub species. Lawyers who thought there was more to be learned about the methods of persuasion from a thirty-second television commercial than from what used to be called forensic rhetoric paid small fortunes to have these supposed experts tell them what kind of people they should keep on a jury and what kind they should leave off. They wanted to rely on anything but their own judgment, but if they could not figure out for themselves whom they wanted as jurors, you had to wonder what business they had trying cases in a court of law.
“And where did you live before you moved to San Francisco?”I asked.
I had now begun the long, sometimes tedious march toward … I did not know what. I never knew, when it started, where it would go. I would ask them where they lived, what kind of work they did, where they had grown up, where they had gone to school, whether they were married, whether they had children—the same kind of questions strangers who happen to sit next to each other at a dinner, at a party, or on a plane might normally ask. One question led to another, and another after that—the same way it happens in every conversation, when two people start to get to know each other.
I was asking Mrs. DeLessandro questions, but we were actually talking to each other, back and forth. Her demeanor changed: Instead of that self-conscious reserve with which we typically address ourselves to people we have only just met, she became more relaxed, as if she had forgotten that there were several hundred spectators listening to everything we said.
I had a secret, which I only seldom shared, about the kind of juror I wanted to have. I was not particularly interested in people who might be thought to feel some sympathy toward the defendant; I was far more interested in jurors who would never dream of doing anything wrong. I wanted them willing to take the equivalent of a blood oath that they would never break the law, even if—or especially if—the law was one they did not happen to like. I wanted jurors who would vote to acquit someone they thought was guilty because the law said they had to.
“Have you served on a jury before?”I asked, smiling at her.
She smiled back and indicated that she had. I asked her if it had been a civil or a criminal case. She did not know which it was, only that it had been about an automobile accident in which someone who had been hurt brought suit against the driver.
“A civil case,”I told her. “Perhaps you'll remember that in a civil case—when one person is suing another—both sides put on evidence. Whichever side has the better evidence, even if it's just by a little—what they call a 'preponderance of the evidence'—that side wins. Is that the way you remember what happened in that case?”
My eyes never left her as she told me that it was exactly the way she remembered it. We might as well have been the only two people in the room. We concentrated only on each other.
“Just a little while ago,”I reminded her in the conversational tones used by people who are well acquainted, “Judge Thompson spoke about the burden the prosecution has to prove guilt beyond a reasonable doubt. That means the prosecution has to prove everything—we don't have to prove anything. This isn't like that civil suit you were involved with. They have to prove the defendant's guilt; the defendant doesn't have to prove his innocence.”I threw up my hands, shook my head, and laughed. “We don't even have to put on a case. We can just sit here and watch the prosecution put on its case. We don't have to call a witness; we don't have to offer any evidence. The prosecution has to do all the work. I don't have to do anything. Now, the question I want to ask you is this: Do you think it's unfair to place this burden—this very heavy burden—on the prosecution? In other words, do you think it's unfair that the prosecution has to prove guilt beyond a reasonable doubt?”
There was only one answer she could give; there was only one answer anyone could give; but then, it was not the answer that was important—it was the question itself, because the question began to teach her the standard it was going to be her responsibility to enforce.
“Now, Mrs. DeLessandro, let me ask you a question that I'm going to ask all the other jurors as well.”
For the first time since we had begun to talk, I took my eyes off her. I glanced slowly from one juror to the next until I had looked at them all. Then I leaned forward, my arm on the table.
“At the end of the case,”I asked, searching Mrs. DeLessan-dro's trusting eyes, “after you've heard all the evidence—after you've deliberated with all the other jurors—if, after all that, you believe the defendant is probably guilty, but you don't think the prosecution has proven that guilt beyond a reasonable doubt, would you then return a verdict of not guilty?”
It was what the judge had told her; it was what I had told her; it was what the law required. Barely literate, a citizen for less than a third of her life, she believed—like nearly everyone believes—in the utter sanctity of the law. It was beyond reason: No one could decently argue against it. There was nothing else she could do, nothing else, now that she understood it, that she wanted to do. She agreed, willingly, eagerly, that if there was any doubt—any reasonable doubt—the defendant should go free.
By this time we were practically old friends. With relaxed self-assurance, I glanced at her jury questionnaire.
“I see from the form you filled out that you have three children. Are they still in school?”
Clarence Haliburton had apparently had enough. I had wondered how long it was going to take before he decided to object.
“You object?”Judge Thompson asked, a puzzled expression on his heavily lined face.
Turning away from Mrs. DeLessandro, I looked up, waiting to see what Thompson would do.
“What is it you object to, Mr. Haliburton?”he asked in a gruff, curious voice.
Haliburton was standing up, his feet spread apart and his hands on his hips. “I object to the way counsel is conducting voir dire.”
Thompson bent forward. “You'll have to formulate a more specific objection.”
Grinding his teeth, Haliburton looked down at the floor.
“I object to the last question,”said Haliburton finally, raising his eyes just far enough to return Thompson's hostile stare with one of his own.
The judge almost laughed. “Whether her children are still in school?”
“Yes, your honor,”Haliburton replied with a sneer. “The question has nothing to do with her qualifications as a juror,”he went on, his voice rising, “and Mr. Antonelli knows it.”
He waited for a response, but Thompson continued to stare.
“It's all part of a pattern,”Haliburton complained. “He's simply trying to cultivate a relationship with this juror—and I've no doubt he'll try to do the same thing with all the others as well—because that way they might ignore the evidence in the case. I mean,”he added with a sideways glance at me, “he's already spent half the morning talking to just this one juror. If he talks to her any longer,”he suggested, turning toward the spectators behind the bar, “they'll have been together almost long enough for a common-law marriage!”
“Unfortunately for me,”I shouted loud enough to cut him off, “Mrs. DeLessandro is already married.”
Laughter swept over the courtroom and Thompson picked up his gavel. Then he changed his mind and instead of gaveling the crowd into silence let the noise die out of its own accord. When it was quiet again, he arched his eyebrows and looked at me.
“Do you wish to make any response?”