The Lawyer's Lawyer

CHAPTER Fifty-Eight



Monday, June sixteenth, was a cloudy gray morning. Magnificent storm clouds were looming in the distance. Flashes of lightning could be seen and vague rumbles of thunder could be heard—omens of trouble to come.

“I love days like this,” Jack told Henry. They were standing outside the condo looking toward the horizon. “Cloudy skies are so complicated, as if secrets are hidden within them.”

Henry slid into the driver’s side of his vehicle. Jack settled next to him.

“Let’s hope there’s no secrets hidden in that courtroom today,” Henry said as they pulled out of the driveway.

“It’s just jury selection.”

“Jurors don’t have secret agendas?” Henry asked.

“You’ve got a point, Henry. Let’s hope there are no hidden secrets today.”

They picked up Ron in front of The Swamp. He had his hands full. He handed a bag to Jack, got in the back, and started handing out cups of coffee.

“Henry, you’re black, no sugar. Right?”

“Are you insulting me? Of course I’m black,” Henry said. “But I’m sweet.”

It wasn’t all that funny but it was good enough. This was a serious day and they all needed a little levity.

“Could have fooled me,” Ron said as he handed Jack his coffee. “I thought you were Jamaican. Jack, there’s bagels in your bag—one for each of us. I already toasted them and loaded them with cream cheese. Who knows if they’re going to give you breakfast.”

“Thanks, Ronnie. I appreciate that.”

Ten minutes later, Henry pulled the car up in front of the jail.

“It’s six thirty, Jack. You’re early. Wanna just hang out in the parking lot for a while?”

“No, let’s get it over with.”

The three men exited the car. Thunder could still be heard in the distance.

“It’s moving this way,” Jack said.

“It’s going to kill my business,” Ron added, which made both Henry and Jack laugh out loud.

“What?” Ron asked. “That’s funny?”

“You’re funny,” Jack said as he gave his friend a hug. “I’ll see you in a few days.”

“I’m counting on it,” Ron said.

Then Jack turned to Henry.

“I was thinking we haven’t been fishing much lately.”

“Yeah,” Henry said. “I miss our days out on the lake waiting for the fish to jump in the boat.”

Jack smiled. The two men hugged.

“We’ll do it soon,” he said.

“Soon,” Henry replied.

Jack turned and walked toward the jail.



Two hours later, Tom faced the crowds and the reporters on his own. The crowds were much larger today although there were still no signs or placards. And the media were there in full force—newspaper and television reporters. Microphones were set up on the courthouse steps. As he walked toward the courthouse, Tom could see Merton standing in front of them pontificating as if he were a college professor and the reporters were his eager students.

I wish the storm hadn’t passed by, Tom thought to himself.

Merton was walking away when he reached the steps so he decided to say a few words. What the hell. I’m not going to let him try his case out here. He could see the surprise on some of the reporters’ faces as he stepped to the microphones.

He waited, as a good trial lawyer always does, until he had their undivided attention.

“I know it is often forgotten these days but one of the foundations of our democracy is that a man is presumed innocent until he is found guilty by a jury of his peers in a court of law—not the court of public opinion. Cases are tried in there, not out here.” Tom pointed to the courthouse behind him. “That’s the way it has always worked, folks. It’s the one thing that hasn’t changed much. This trial won’t be long. The facts are pretty straightforward. I represent a good man who has dedicated his life to the law. When this trial is over, if he so chooses, he may stop and say a word or two to you on his way home.”

Tom turned and walked into the courthouse with reporters shouting questions at his back.



The courtroom was empty. Reporters weren’t allowed in for jury selection. Merton was already there with his files spread out on the table. Tom went to the opposing table and took a yellow pad out of his briefcase, laid it on the table, and sat down. The fans were churning, the air conditioners rattling. The old courthouse sounded like a factory. At exactly nine o’clock, Judge Holbrook walked in. The two lawyers started to stand but he motioned them to stay seated. There were no spectators and no reason for the pomp and circumstance. That would come soon enough.

“This is the case of the State of Florida versus Jack Tobin, Case Number 03-CI-759. Counsel, are we ready to proceed?” the judge asked in a loud voice.

Both lawyers stood up.

“The State is ready, Your Honor.”

“The defendant is ready, Your Honor.”

“Okay. Mr. Wylie has expressed a preference for examining one juror at a time so that is what we are going to do. What I would like to do is examine twelve jurors and then we’ll have a conference and see where we are. Then we’ll do another twelve and touch base again until we have a panel. Is that agreeable?”

Tom stood up. “The procedure is agreeable, Your Honor. I just want to make sure back striking is allowed.”

Back striking was a procedure that allowed each lawyer to strike a potential juror at any time until the panel was finally selected and ready to be sworn in, even though that juror had already been passed over.

“Back striking is allowable, Mr. Wylie. However, I hope that you lawyers do not abuse the process. Is that understood?”

Both lawyers nodded.

“While we’re on the subject of procedure, let me tell you how I want objections handled both during jury selection and throughout. You will stand and make your legal objection. If I want argument, I will have you approach sidebar. There will be no speaking objections. Is that understood?”

Speaking objections occurred when the lawyers stood and made arguments in front of the jury. Often it was a tactic to try to influence the jurors.

“Yes, Your Honor.”

“Yes, Your Honor.”

“Are there any other questions?”

“No, Your Honor.”

“No, Your Honor.”

The judge turned to the bailiff who was standing to his right by a closed door.

“Bring in the defendant.”

The bailiff disappeared through the door and minutes later he came back in, followed by Jack and two uniformed police officers. Jack wore a blue suit, white shirt, and maroon tie. He walked over to where Tom was standing and stood next to him. The two officers stood by the wall directly across from him, maybe ten feet away. The bailiff went back to his position by the door.

The judge addressed Jack.

“Mr. Tobin, I’m pretty sure I don’t need to tell you what is going to transpire during jury selection or how I expect you to conduct yourself. Am I correct in that assumption?”

“Yes, you are, Your Honor.”

“Okay then, let’s proceed.”



Jury selection was one of the topics that Jack and Tom had spent a considerable amount of time on during their three weeks of preparation.

“We need to get into the nitty-gritty with each potential juror,” Jack had said at the time. “So we need to question them individually outside of the presence of the other jurors.”

But what was the nitty-gritty? They both believed that each juror had to be asked whether he or she believed that Tom Felton was a serial killer.

“When they say yes, then we’ve got to ask them if they know who you are,” Tom said. “If they say yes to that question, which most of them probably will do, we have to ask them what they know about you. And when they tell us that you got Felton set free, we have to ask them how they feel about that. And then we have to ask them what they know about this case, or what they have heard.”

Jack had agreed with Tom’s assessment. They wanted jurors who thought Felton was a serial killer because they would be less inclined to convict Jack for killing him although that inclination might not trump their anger for getting him set free in the first place. That was the heart of it, and the two men would have to gauge each individual juror as they listened to the answers and watched the body language.

“It’s a fine line we’re walking here,” Tom said.

“I’m not sure I understand.”

“Well, we have to hammer home at every opportunity the notion that every man, especially you, is cloaked with a presumption of innocence and, at the same time, we have to hope and pray each juror does not extend that presumption to Thomas Felton. Remember, the Florida Supreme Court had freed him and the State of Florida chose not to prosecute him.”

“I wonder if Mr. Merton will be bringing up the presumption of innocence that Felton enjoyed at the time I shot him,” Jack said.

“Everything I’ve heard about Merton tells me he’s not that stupid,” Tom said. “Everybody knows Felton was guilty and everybody knows Merton chose not to prosecute him for the attempted murder of Stacey Kincaid. Merton’s not going to try and play that card.”

“He needs some emotional impact, though, to get the jury on his side. Without a victim, he’s only got me and their anger at me for representing Felton.”

“Maybe he figures that’s enough.”

“Well then, I guess jury selection is going to come down to finding the jurors who are least angry at me for helping to get Felton released.”

“I think that sums it up, Jack.”



Jury selection was surprisingly short. Both Jack and Tom had expected it to take a week, but it only took two days. Oakville was a small town. Every potential juror believed Felton was a serial killer and every juror knew Jack’s role in getting him set free. Still, most asserted that they could decide this case on its facts alone and would not let their opinions about Jack’s representation of Felton influence their decision.

“I’m never inviting Mr. Tobin over to my house for dinner,” one woman said. “And I don’t think we will ever be friends, but I can still hear the facts of this case and decide it on its merits. If that means setting Mr. Tobin free, then so be it.”

Tom and Jack decided to keep her. Robert Merton disagreed.