The Reversal

She looked at Royce and then me, seeing if either of us was going to make a motion or a suggestion. Royce said nothing. My guess was that he had juror number ten pegged the same way that I did. But he might not have considered the leanings of the six alternates.

“I think the damage is done here, Judge,” I said. “She knows there was a previous trial. Anybody with any basic knowledge of the court system knows they don’t retry you if you get a not-guilty. So she’ll know Jessup went down on a guilty before. As much as that prejudices things in the prosecution’s favor, I think to be fair she has to go.”

Breitman nodded.

“Mr. Royce?”

“I would agree with Mr. Haller’s assessment of the prejudice, not his so-called desire to be fair. He simply wants her off the jury and one of those churchgoing alternates on it.”

I smiled and shook my head.

“I won’t dignify that with a response. You don’t want to kick her off, that’s fine with me.”

“But it’s not counsel’s choice,” the judge said.

She opened the door and invited the juror back in.

“Ms. Tucci, thank you for your honesty. You can go back to the jury room and gather your things. You are dismissed and can report back to the juror assembly room to check with them.”

Tucci hesitated.

“Does that mean-?”

“Yes, unfortunately, you are dismissed. That headline gives you knowledge of the case you should not have. For you to know that Mr. Jessup was previously tried for these crimes is prejudicial. Therefore, I cannot keep you on the jury. You may go now.”

“I’m sorry, Judge.”

“Yes, so am I.”

Tucci left the chambers with her shoulders slumped and with the hesitant walk of someone who has been accused of a crime. After the door closed, the judge looked at us.

“If nothing else, this will send the right message to the rest of the jury. We’re now down to five alternates and we haven’t even started. But we now clearly see how the media can impact our trial. I have not read this story but I will. And if I see anyone in this room quoted in it I am going to be very disappointed. There are usually consequences for those who disappoint me.”

“Judge,” Royce said. “I read the story this morning and no one here is quoted by name but it does attribute information to a source close to the prosecution. I was planning to bring this to your attention.”

I shook my head.

“And that’s the oldest defense trick in the book. Cut a deal with a reporter to hide behind the story. A source close to the prosecution? He’s sitting four feet across the aisle from me. That was probably close enough for the reporter.”

“Your Honor!” Royce blurted. “I had nothing to-”

“We’re holding up the trial,” Breitman said, cutting him off. “Let’s get back to court.”

We trudged back. As we went back into the courtroom I scanned the gallery and saw Salters, the reporter, in the second row. I quickly looked away, hoping my brief eye contact had not revealed anything. I had been her source. My goal was to manipulate the story-the scene setter, as the reporter had called it-into being something that gave the defense false confidence. I hadn’t intended it as a means of changing the makeup of the jury.

Back on the bench, the judge wrote something on a pad and then turned and addressed the jury, once again warning the panelists about reading the newspaper or watching television news programs. She then turned to her clerk.

“Audrey, the candy bowl, please.”

The clerk then took the bowl of individually wrapped sourballs off the counter in front of her desk, dumped the candy into a drawer, and took the bowl to the judge. The judge tore a page from her notebook, tore it again into six pieces and wrote on each piece.

“I have written the numbers one through six on pieces of paper and I will now randomly select an alternate to take juror number ten’s seat on the panel.”

She folded the pieces of paper and dropped them into the bowl. She then swirled the bowl in her hand and raised it over her head. With her other hand she withdrew one piece of paper, unfolded it and read it out loud.

“Alternate number six,” Breitman said. “Would you please move with any belongings you might have to seat number ten in the jury box. Thank you.”

I could do nothing but sit and watch. The new juror number ten was a thirty-six-year-old film and television extra named Philip Kirns. Being an extra probably meant that he was an actor who had not yet been successful. He took jobs as a background extra to make ends meet. That meant that every day, he went to work and stood around and watched those who had made it. This put him on the bitter side of the gulf between the haves and have-nots. And this would make him partial to the defense-the underdog facing off against the Man. I had him down as a red juror and now I was stuck with him.

Maggie whispered into my ear at the prosecution table as we watched Kirns take his new seat.

“I hope you didn’t have anything to do with that story, Haller. Because I think we just lost a vote.”

I raised my hands in a not me gesture but it didn’t look like she was buying it.