When the buildup was finally finished, Judge Oswalt asked the prospective jurors if anyone was related by blood or marriage to either Dexter Bell or Pete Banning. No one moved. Next he asked if anyone considered himself a personal friend of Pete Banning’s. Two men stood. Both said they were longtime friends and they could not pass judgment on Pete, regardless of what the evidence proved. Both were excused and left the courtroom. Next he asked how many were friends with a member of the immediate Banning family and he named Liza, Florry, Joel, and Stella. Six people stood. One young man said he finished high school with Joel. One said his sister and Stella were friends and he knew her well. Another knew Florry from years back. Judge Oswalt quizzed them individually and at length and asked if they could remain fair and impartial. All six assured him they could and they remained in the pool. Three said they were friends with the Bells but claimed they could remain impartial. John Wilbanks doubted this and planned to challenge them later in the day.
With the war so recent and its memories still so vivid, Judge Oswalt knew he had no choice but to confront it head-on. Giving almost no background, he described Pete Banning as a highly decorated army officer who had been a prisoner of war. He asked how many veterans of war were in the pool. Seven men stood, and he called them by name and questioned them. To a man, each said he was able to set aside any bias or favoritism and follow the law and the orders of the court.
Eleven men from Ford County had been killed in the war, and Judge Oswalt and the circuit clerk had tried diligently to exclude those families from the pool.
Moving to the other side of the matter, Judge Oswalt asked if any were members of Dexter Bell’s church. Three men and one woman stood, and they were excused outright. Down to fifty. And how many were members of other Methodist churches scattered around the county? Five more stood. Three said they had met Dexter Bell; two had not. Judge Oswalt kept them all on the panel.
He had granted each side five peremptory challenges to be used later in the day. If John Wilbanks didn’t like the looks or body language of a certain Methodist, he could dismiss him for no reason. If Miles Truitt suspected an acquaintance of the Banning family might be sandbagging, he could invoke a challenge and the person was gone. The four lawyers sat perched on the edges of their chairs and watched every twitch, smile, and frown from the jury pool.
Judge Oswalt preferred to take control of the selection of his juries. Other judges gave the lawyers more leeway, but they usually talked too much and tried to curry favor. After an hour of skillful questioning, Oswalt had trimmed the panel to forty-five and he yielded the floor to Miles Truitt, who stood and offered a big smile and tried to seem relaxed. He began by repeating and emphasizing something the judge had already covered: If the State proved every element of its charge of first-degree murder, the jury would then be asked to impose the death penalty. Can you really do that? Can you really sentence Pete Banning to the electric chair? If you follow the law, then you have no choice. It will not be easy, but sometimes following the law takes a lot of courage. Do you have that courage?
Truitt paced along the bar and was quite effective at forcing each juror to consider the gravity of the task at hand. Some probably had doubts, but at that moment no one admitted to any. Truitt was concerned about the veterans and suspected they would be more sympathetic than they were willing to admit. He called on one, asked him to stand, thanked him for his service, and quizzed him for a few minutes. When he seemed to be satisfied, he moved on to the next veteran.
The selection process crept along, and at 10:30, the judge needed a break and a cigarette. Half of the courtroom lit up too as folks stood and stretched and quietly exchanged opinions. Some left for the restrooms; others went back to work. Everyone tried to ignore the jurors, pursuant to instructions from the bench.
* * *
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At 11:00 a.m., John Wilbanks stood and looked at the prospective jurors. So much of what he wanted to say had been taken away from him by his own client. His plan had been to sow the seed of insanity early in the jury selection process, and then follow it with testimony that would be shocking, sad, credible, and convincing. But Pete would have none of it. Pete had done nothing to help save his own skin, and John could not decide if his client carried some type of perverse death wish, or simply was so arrogant as to believe no jury would convict him. Either way, the defense was hopeless.
John had already seen enough and knew which jurors he wanted. He would try to avoid all Methodists and aim for the veterans. But he was a lawyer, and no lawyer onstage with a captive audience can resist saying a few words. He smiled and seemed warm and thoroughly honored to be there doing what he was doing, defending a fine man who had defended our country. He lobbed a few questions at the panel as a whole, then he zeroed in on a couple of Methodists, but for the most part his comments were designed not to uncover some hidden bias, but rather to convey warmth, trust, and likability.
When he finished, Judge Oswalt recessed court until 2:00 p.m. and asked everyone to leave the courtroom. It took a few minutes for the crowd to file out, and while they waited the judge informed the clerks and other curious insiders that it would be a good time to go find lunch. When the courtroom was practically empty, he said, “Mr. Wilbanks, I believe you have a matter that you would like to present, on the record.”
John Wilbanks stood and said, “Yes, Your Honor, but I prefer we do it in chambers.”
“We’ll do it here. It’s rather crowded back there. Besides, if we’re on the record it’s really not a confidential matter, is it?”
“I suppose not.”
Judge Oswalt nodded at the court reporter and said, “We’re now on the record. Please proceed, Mr. Wilbanks.”
“Thank you, Your Honor. This is really not a motion or a petition to the court, because the defense is not asking for any type of relief. However, I am compelled to state the following for the record so there will never be any doubt about my defense of my client. I had planned to pursue two strategies aimed at securing a fair trial for my client. First, I planned to ask the court for a change of venue. I was convinced then, as I certainly am now, that my client cannot receive a fair trial in this county. I’ve lived here my entire life, as has my father and his father, and I know this county. As we have already seen this morning, the facts of this case are well known to the friends and neighbors of Pete Banning and Dexter Bell. It will be impossible to find twelve people who are open-minded and impartial. After watching and studying the pool this morning, I am convinced that many are not exactly forthcoming with their true feelings. It is simply unfair to hold this trial in this courtroom. However, when I discussed a change of venue with my client, he strongly opposed such a move, and he still does. I would like for him to be on the record.”
Judge Oswalt looked at Pete and asked, “Mr. Banning, is this true? Are you opposed to a motion to change venue?”
Pete stood and said, “Yes, it’s true. I want my trial right here.”