There were seventy of them left, and they had been in the courtroom for nine hours. Judge Higginbotham, still distant and commanding despite the many hours spent with his electorate, began bringing them in to the courtroom – groups of fourteen - for final qualification. Higginbotham was a large man, imposing from the bench, his black robe falling over the sides of his chair when he sat down. The first group of fourteen sat in the audience, nervous, fidgeting, some not daring to look up as the prosecutor, defense attorney, staff, and defendant stared them down. Trying to read their faces. Trying to look into their eyes and souls to see if they were strong enough to do what was asked of them, one way or the other. The judge leaned forward, clicked on his microphone at the front of the bench, and spoke.
“Now ladies and gentlemen of the jury, this is the portion of the trial where I will determine whether you are qualified to serve on the penalty phase of this capital case. You have heard the allegations. Fred Flowers is charged with kidnapping, felony child abuse, and capital murder. You have shown the court that you are capable of voting guilty if the evidence proves that guilt beyond a reasonable doubt. Now we must determine whether you are competent to serve as jurors in the penalty phase. I will ask you two questions. Your answers to these two questions will determine whether you can serve.”
The fat lady on the second row to the left shifted. The chair creaked under her.
"As I stated to you earlier in the proceedings, it may be necessary for you to make a determination in regard to the imposition of the death penalty or some other penalty. Remember, any penalty you consider should be done as if it is absolute and will be carried out in this case. Your conscientious, religious, or other objections to the death penalty are not grounds for you to be excused as a juror. Do you understand these statements?"
The jury silently affirmed.
"Are any of you religiously, morally, or otherwise against the imposition of the death penalty?"
A young white girl in glasses raised her hand. By her accent, flannel shirt, barely visible neck tattoo, sitting front row and center in a predominantly African American jury pool, she wasn’t from around here. Paleface proudly affirmed to the judge and the rest of the members on the jury panel that she was so against the death penalty. Probably one of those hipsters from the Midwest following the Mississippi Blues Trail and working off some white guilt.
I hate hipsters.
“Mr. Prosecutor, do you have any questions for this witness?”
“None, your Honor.”
“Mr. Walls?”
“Yes, your Honor, a few. Now ‘mam,….”
Walls leaned over the podium, paused for a minute in his very genteel way of commanding attention and setting the mood, and kindly looked into her green eyes.
“I am not going to ask you specifically why you are opposed to one of the potential sentences my client may get if he is convicted. That’s your decision. But I am going to ask you what it is based on. Are you basing your decision on religion?”
“Yes. My religion tells me that I shall not kill.”
My religion. As if she had her own special hipster brand.
“I understand that. I understand…. But do you also understand that religion, and I am assuming that you are a Christian….?”
“Yes.”
“I am too.” He straightened his back and his smile widened. Walls looked at the entire panel at this point, affirming to them that they were all members of the same club.
“….religion teaches us many things. Ms….Schable, do you read the good book?”
“Yes.” She was breaking a bit.
“The Bible teaches us that we must follow the laws of man. Are you familiar with 1 Peter 2:13 where he states ‘submit yourself to every ordinance of man’? Or Romans 13:1-2 which tell us to be in subjection to the superior authorities even as we are to God’? Are you familiar with that?”
“Sure.” But unconvincing.
“So are you telling me that, as a Christian and a reader of the good book, you can follow the laws of man?”
“Of course.”
“You can do that for me and for my client, Fred Flowers?”
“Yes.” She looked at Fred sitting there at the defense table, a cloth draped over the front so the pool couldn’t see his shackles chained to a steel bolt in the floor.
He grinned.
“Do you understand that one of the laws man created for the State of Mississippi
“Yes. I understand that.”
“Therefore, are you telling the court that you can follow the laws of the State of Mississippi
“Yes.”
“In fact, you will follow the law, won’t you?”
“Yes, sir.”
“And you pledge to do so throughout this trial?”
“Yes.”
“Thank you.” He turned to the judge. Walls never asked her if she could consider the death penalty. He didn’t have to. He had his magic words. The best attorneys knew when to stop before the dreaded one-question-too-many.
“May we approach the bench?”
“You may.” The prosecutor and Walls huddled in at the front of the bench, and the judge clicked off his mic.
“Your Honor, we ask that she remain on the jury and not be stricken for cause.”
“Judge we object. The first thing out of that girl’s mouth was that she could not vote for the death penalty. And if she can’t vote for it, she can’t serve.”
“Counsel, while that is true, Mr. Walls, through more detailed questioning made it clear for the record that she said she could follow the law in this case. And when a juror says he or she can follow the law, I have no reason to strike them off my panel. This juror remains.”
That was how Walls did it. The white girl with glasses, prospective juror number 93, was back on. There were several others who swore that they had religious or moral or convictions otherwise that would not allow them to vote to kill someone. Some proud about it, some rather meek yet outspoken. Four little black grandmas, two nurses from the hospital, one young white man. Walls walked through each systematically, surgically, with that grandfatherly smile and pleasant demeanor, convincing each one, whether through scripture or logic, that they could follow the law. That is, to say that they could vote to kill someone, when less than a minute earlier there was no way.
But this eventually begged the next question.
"To those of you who are not against the death penalty, are there any of you who are in favor of the death penalty in every case where a murder has been committed?"
One lone white male, surrounded by black faces, raised his hand. Late fifties, thinning but well-kept gray hair, oxford button-down and pressed kakis. Possibly a farmer.
“Well, I think that in general, if you kill someone, you should be killed too.”
My boss’s eyes shimmered for a split second. After the Judge gave a nod, the DA let into him.
“Now sir, are you telling this Court that you would have to vote for the death penalty?
“Well, no.”
“It’s not automatic in your mind, right”
“No, nothing is automatic.”
“That’s right. In fact, you will make sure this man gets a fair trial, wouldn’t you.”
“Of course.”
“You’re duty bound under the law to do that, aren’t you?”
“Yes.”
“And if you determine that he is guilty, and I’m not sayin’ he his, but if you find it so, then you can also consider both penalties, that is, life in prison or death, am I right?”
“Yessir.”
“Good. Then you can follow the law, right?”
And that is how the other side worked. The magic words. Each attorney worked the crowd, reeling every juror back into the middle when one would actually let known his or her beliefs for or against.
The death qualification lasted three more hours. And bit by bit, the women and minorities were stricken from the jury for cause, as they tended to be against the death penalty, despite efforts by Walls to rehabilitate them…to get them to say otherwise. And since they could not vote for death, they could not serve. They were clearly not qualified.
At 10:02 pm on November 11, in the Circuit Court of Coahoma County
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