Now in court, she pushes back her chair. Its wood feet scrape the Jackson County courtroom’s rose and black tile.
Six men, eight women, two of them alternates, stare back at her in silence from the jury box.
“Members of the jury,” she begins. “There was no one to protect Jessica…”
Fluegel paces as she speaks, laying out her opening in The State of Missouri v. David A. Brake. The 29-year-old defendant is accused of raping his former girlfriend’s daughter, Jessica, when she was 9 years old.
“The people who were instilled with the responsibility to protect and keep her safe failed,” Fluegel says.
The prosecutor is relieved that this trial is finally under way, but nervous, too. She knows that if she fails over the next few days to convince every single one of these jurors of Brake’s guilt, he will walk free. And she will have failed Jessica, the child, now 12, whose life and loneliness have come to haunt her.
Most worrisome has been the last day and a half. Jury selection. Vital and never easy, this one turned more dramatic and emotional than any Fluegel had ever seen.
It started yesterday, May 20. Fifty-five potential jurors filed into the courtroom.
“The questions will start out easy,” Fluegel told them. “Then they’ll get harder.”
The jury panel took in the scene: Judge Kelly Moorhouse, 48, a mother and veteran of child sex cases, at the bench. Fluegel for the prosecution. For the defense: Curt Winegarner — a deliberate, careful and, to his opponents, laboriously thorough professional with the Missouri Public Defenders Office.
Fluegel began, pressing the jury panel for hours, filtering it down with more than 100 questions geared to uncover biases that could tilt the trial. As promised, she started slowly.
Does anyone here know the defendant, the judges, the lawyers or each other?
Then: Is there anyone here who believes a teenager is less honest or more untruthful than an adult?
Hands slowly rose.
“I’ve come to believe a teenager of that age lies at the drop of a hat,” one juror with a daughter said.
“Can you be fair and impartial?” Fluegel asked. The litmus test for every juror.
“I’m unsure,” he said.
Fluegel’s questions soon turned graphic, a clue to what lay ahead.
Anyone who requires the presence of semen to find a rape has occurred? Does anyone require more than slight penetration to find that a rape has occurred?
Then she asked the most deeply personal question of all. Fluegel had no doubt what would happen, because it always does, in every child sex case. National figures estimate as many as 20 to 25 percent of girls and five to 10 percent of boys experience some form of sexual abuse, from fondling to rape, before age 18. In Fluegel’s experience, one-fourth to one-third of every jury panel is wiped out with this single question.
Is there anyone here who has been a victim of — or who has had a friend or relative who has been a victim of — rape, sodomy or sexual assault?
More than 15 hands crept into the air.
“In high school, my best friend was raped,” said Juror No. 33.
To reach Eric Adler, call 816-234-4431 or send e-mail to eadler@kcstar.com
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