the evidence, so I don't have an opinion at this point. And, in any
event,
U5
that's going to be a decision for the jury, not me. But I've been
involved in a lot of trials, both as a lawyer and a judge. And I've
read the papers filed in this case, and I have some idea of what's
coming around the corner."
He turned his attention back to me and Lisa. "I'll be frank with both
of you. From what I've read in the motions and the warrants, Ms.
Kincaid, you've charged the hell out of this case. Frankly, I'm
surprised you chose to present this to the grand jury as an attempted
murder."
Lisa was never one to pass up an opportunity to ingratiate herself with
the court. She jumped in to thank Lesh for telling me what she'd been
saying all along.
He stopped her cold. "Not so fast, there, Ms. Lopez. I've got even
more for you. You may not have noticed, but your client's alibi rests
on the word of his convicted felon brother who by all appearances has
lied for the defendant before. Your client also is on parole for an
offense that is strikingly similar to the one for which he now stands
trial. I hope you have advised him that he is gambling in a very big
way. I can tell you right now, if he loses, he won't be looking at a
year in the pen this time. He's looking at a very long sentence, with
a parole board that will remember that he burned them the last time."
Having reminded both of us of our weaknesses, Judge Lesh wanted to hear
our offers. I offered to dismiss the attempted murder and other
charges if Derringer would plead to the kidnapping and sodomy, with a
ten-year minimum sentence. I offered to reduce that to seven if he'd
flip on Suspect Number Two. Lisa wouldn't hear it. She wanted Assault
Three with eighteen months no cooperation. Lesh gave up when it became
clear we'd never agree, and the clerk called up a jury panel.
U6
Picking a jury can be the most difficult part of a trial. Most people
can be convinced of just about anything, and one dud can sway enough of
these sheep to yield very bad results.
One of my first trials in Oregon was a slam-dunk controlled buy. An
undercover used marked money for the drug buy; then the surveillance
officers who watched the deal followed the suspect, keeping track of
him by his distinctive two-tone spectator loafers. When the defendant
was popped in the men's room of a nearby restaurant, the marked drug
money was in his pocket. The dummy blew any theoretical chance at an
acquittal when he showed up on the second day of the trial wearing the
same two-tone spectator loafers that every police witness mentioned the
previous day when describing the suspect.
After three days of deliberations, the jury hung, 7 to 5, in favor of
guilt. The judge was so incredulous that he broke from the usual
procedure and permitted the lawyers to question the jurors before they
were dismissed. Turns out that one particularly headstrong guy
convinced four of the others that the defendant must be innocent,
because no one would be stupid enough to wear those shoes to court
under the circumstances. The four sheep found it difficult to defend
the decision, saying repeatedly, "We just don't think he did it." When
I asked the leader about the marked drug money, all he could say was,
"Now, that was a problem for him. I'll admit that." The seven sane
jurors looked like their heads were going to explode after spending
three days trying to argue with that kind of logic.
My case against Derringer was strong, but I needed to weed out any
jurors who might cut him loose on the most
H7
serious charges, thinking that the victim deserved what she got. In
the end, Lisa bumped two retired women who looked at Derringer like
they were already afraid of him. I bumped two men with previous
assault arrests and two who said they were surprised that a person
could be charged with raping a prostitute. The worse of the two said
it sounded more like theft, then suppressed a chuckle. I was glad he
said it, not only because I knew to bump him but also because I saw one
woman flinch in revulsion. Lisa apparently didn't see it, because she
left her on the panel. A definite keeper for me. By the end of the
day, we had picked our jury.
Deciding that personal safety required me to navigate even further into
the twenty-first century, I bit the bullet and had a top-of-the-line
home security system installed that night. I could tell by the way the
installation guy eyed my trashed house that he didn't think I'd be
needing it. I didn't bother explaining.
Just knowing that the system was there helped. I fell asleep the
minute I hit the bed and didn't wake until the alarm clock advised me
it was time to go to work. At least I'd be rested for the second day
of trial.
I walked into Lesh's courtroom prepared for my opening statement. On
the way in, I checked to make sure that my witnesses were there: Mike,
the EMTs, and the kids who found Kendra were subpoenaed for the
morning. I figured there was no way we'd get through opening
statements and all those witnesses before lunch.
I had decided not to ask Kendra to attend the entire trial. Her mother
could not miss enough work to accompany her, and I thought that the
sight of Kendra sitting without a parent would feed the impression that
she was something other than a victimized child.
Fortunately, Derringer wasn't going to be getting an upper hand in the
sympathy arena by packing the halls with loving supporters. The only
people in the spectator seats were a few curious court-watchers and Dan
Manning, a young reporter for the Oregonian who was always trying to
branch out beyond his normal neighborhood beat by picking up crime
stories that otherwise wouldn't get covered.
I liked Dan. He tried to give potential future sources people like me
good press as long as he could do it and still give the straight story.
He stopped me as I was walking in. "Do you have a few seconds for a
quote? I'm thinking about using this trial as a centerpiece for a
larger special-interest article about the dangers faced by teen
prostitutes. You know, hoping to ride the coattails of the renewed
interest about the Jamie Zimmerman murder, now that Taylor's back in
the news."
I prefaced my answer by explaining that the Rules of Professional
Responsibility prohibit prosecutors from going very far in their
statements to the media. I was relieved when he nodded; he knew the
drill. For a prosecutor, media interviews are like navigating a
minefield. Stay too safe within the lines, and your typical nitwit
reporter looking for a story will make it sound like you don't believe
in your case. Go too far, and you're looking at sanctions from the
court and the bar.
I told Dan I'd be happy to talk to him if he would assure me that he