"Nice chatting with you too," I mutter.
At that moment, Howard blusters in. His glasses are askew and his shirt is untucked in the back and he looks like he's already had about ten cups of coffee. "I was doing some background research," he begins, sitting down in the chair Odette just vacated.
"When? In the shower?" I know exactly when we stopped working last night, which leaves little room for free time.
"So, there was a study done by SUNY Stony Brook in 1991 and 1992 by Nayda Terkildsen, about how white voters assess black politicians who are running for office, and how prejudice affects that, and how that changes for people who actively try not to act prejudiced--"
"First," I say, "we are not using a defense based on race, we are using one based on science. Second, Ruth is not running for office."
"Yeah, but there are crossover implications in the study that I think could tell us a lot about the potential jurors," Howard says. "Just hear me out, okay? So Terkildsen took a random sample of about three hundred and fifty white people from the jury pool in Jefferson County, Kentucky. She made up three sets of packets about a fake candidate for governor that had the same biography, the same resume and political platform. The only difference was that in some of the head shots, the candidate was a white man. In others, it was Photoshopped to be a light-skinned black man or a dark-skinned black man. The voters were asked to identify if they were racially biased, and if they tended to be aware of that racial bias."
I motion with my hands to hurry him up.
"The white politician got the most positive responses," Howard says.
"Big surprise."
"Yeah, but that's not the interesting part. As prejudice increased, the rating of the light-skinned black man dropped quicker than the rating of the dark-skinned black man. But when prejudiced voters were divided into those who were aware of their racism and those who generally weren't, things changed. The people who didn't care if they looked prejudiced were harder on the dark-skinned black man than on the light-skinned black man. The voters who were worried about what people would think of them if they were racist, however, rated the dark-skinned black way higher than the light-skinned black. You get it, right? If a white person is trying extra hard to not look racist, they're going to overcompensate for their prejudice by suppressing their real feelings about the darker-skinned person."
I stare at him. "Why are you telling me this?"
"Because Ruth is black. Light-skinned, but still black. And you can't necessarily trust the white people in that jury pool if they tell you they aren't prejudiced. They may be a lot more implicitly racist than they show on the outside, and that makes them wild cards for the jury."
I look down at the table. Odette is wrong. Murder is not monochromatic. We know that from the school-to-prison pipeline. There are so, so many reasons the cycle is hard to break--and one of them is that white jurors come into a trial with bias. They are far more likely to make concessions for a defendant who looks like them than for one who doesn't.
"All right," I say to Howard. "What's your plan?"
--
WHEN I CRAWL into bed that night, Micah is already asleep. But then he reaches out and wraps his arm around me. "No," I say. "I am too tired to do anything right now."
"Even thank me?" he says.
I turn to face him. "Why?"
"Because," he says. "I found you a neonatologist."
Immediately I sit up. "And?"
"And we're going to see him this weekend. He's a guy I knew from med school."
"What did you tell him?"
"That my crazy lawyer wife is going all Lysistrata on me until I can get her an expert in the field."
I laugh, then frame Micah's face with my hands and kiss him, long and slow. "Go figure," I say. "I've gotten my second wind."
In one quick move he grabs me and rolls, so that I am pinned beneath him. His smile gleams in the light of the moon. "If you'll do that for a neonatologist," he murmurs, "what would you give me if I found you something really impressive, like a parasitologist? Or a leprologist?"
"You spoil me," I say, and I pull him down to me.
--
I MEET RUTH at the back entrance of the courthouse, just in case Wallace Mercy has decided that jury selection is worth his time and energy. She is wearing a plum suit that I went with her to buy at T.J.Maxx last week, and a crisp white shirt. Her hair is pulled back and knotted at the nape of her neck. She looks every inch the professional, and I would have assumed she is at court because she is an attorney if not for the fact that her knees are shaking so uncontrollably they are knocking together.
I take her arm. "Relax. Honestly, this isn't worth getting nervous over."
She looks at me. "It's just suddenly...very real."
I introduce her to Howard, and as they shake hands I see something almost imperceptible pass between them--an acknowledgment that it is surprising for both of them to be in this courthouse, for different reasons. Howard and I flank Ruth as we walk into the courtroom and take our seats at the defense table.
For all that Judge Thunder is an asshole to us attorneys, juries eat him up. He looks the part, with wavy silver hair and grave lines of experience bracketing his mouth, forming parentheses around whatever wisdom he has yet to speak. When our hundred potential jurors are jammed into the courtroom, he gives preliminary instructions.
"Remember," I whisper to Howard, leaning behind Ruth's back. "Your job is to take notes. So many notes that your hand cramps. If one of those jurors flinches at a certain word, I need to know the word. If they fall asleep, I want to know when."
He nods as I scan the faces of the potential jurors. I recognize some, from their Facebook photos. But even those I don't recall have expressions I am used to seeing: there are the faces of those I secretly call Boy Scouts, who are delighted to be performing this duty to their country. There are the Morgan Stanleys--businessmen who keep checking their watches because their time is clearly more important than spending the day in a jury box. There are the Repeat Offenders, who have been through this process before and wonder why the hell they've been called again.
"Ladies and gentlemen, I'm Judge Thunder, and I'd like to welcome you to my courtroom."
Oh, good grief.
"In this case, the State is represented by our prosecutor Odette Lawton. Her job is to prove this case by reason of evidence, beyond a reasonable doubt. The defendant is represented by Kennedy McQuarrie." As he begins to list the charges that Ruth was indicted for--murder and involuntary manslaughter--her knee starts trembling so hard I reach under the table and press it flat.
"I will explain to you later what those charges mean," Judge Thunder says. "But at this moment, is there any member of the panel who knows the parties in this case?"
One juror raises his hand.
"Can you approach the bench?" the judge asks.
Odette and I move closer for the conference as a noise machine is turned on so that the rest of the jury cannot hear what this guy says. He points to Odette. "She locked up my brother on a drug charge, and she's a lying bitch."
Needless to say, he's excused.
After a few more blanket queries, the judge smiles at the group. "All right, folks. I'm going to excuse you, and the bailiff will take you to the jury lounge. We'll be calling you in one at a time so that the counselors can ask some individual follow-ups. Please don't talk about your experiences with your fellow jurors. As I told you, the State has the burden of proof. We haven't started to take evidence yet, so I urge you to keep an open mind and to be honest with your answers in front of the court. We want to make sure you are comfortable sitting as a juror in this case, just as the parties involved have the right to feel that their process can be judged by someone fair and impartial."
If only the judge were the same, I think.
Voir dire is a cocktail party without any booze. You want to schmooze your jurors, you want them to like you. You want to act interested in their careers, even if that career is
quality control at a Vaseline plant. As each individual juror is paraded before you, you rate him or her. A perfect juror is a 5. A bad juror is a 1.
Howard will list the reasons that a juror isn't acceptable, so we can keep them straight. Ultimately we'll wind up taking 3s and 4s and 5s, because we have only seven peremptory strikes we can use to kick a juror out of the pool without having to give a reason. And we don't want to use those all up at once, because what if there's a bigger problem juror yet to come?
The first man to take the stand is Derrick Welsh. He's fifty-eight and has bad teeth and is wearing an untucked plaid shirt. Odette greets him with a smile. "Mr. Welsh, how are you doing today?"
"All right I guess. A little hungry."
She smiles. "Me too. Tell me, have we ever worked on any cases together?"
"No," he says.
"What do you do for a living, Mr. Welsh?"
"I run a hardware store."
She asks him about his children and their ages. Howard taps me on the shoulder. He's been frantically sifting through the surveys. "This is the one whose brother is a cop," he whispers.
"I read The Wall Street Journal," Welsh is saying, when I turn back. "And Harlan Coben."
"Have you heard about this case?"
"A little bit. On the news," he admits. "I know the nurse was accused of killing a baby."
Beside me, Ruth flinches.
"Do you have any opinion about whether the defendant is guilty of that offense?" Odette asks.
"As far as I know, in our country everyone's innocent till they're proven guilty."
"How do you see your role as a juror?"
He shrugs. "I guess listen to evidence...and do what the judge says."
"Thank you, Your Honor," Odette says, and she sits down.
I rise from my seat. "Hi there, Mr. Welsh," I say. "You have a relative in law enforcement, don't you?"
"My brother is a police officer."
"Does he work in this community?"
"For fifteen years," the juror replies.
"Does he ever tell you about his job? What kinds of people he deals with?"
"Sometimes..."
"Has your store ever been vandalized?"
"We were robbed once."
"Do you think the increase in crime is due to an influx of minorities in the community?
He considers this. "I think it has more to do with the economy. People lose jobs, they get desperate."
"Who do you think has the right to dictate medical treatment--the family of the patient or the medical professional?" I ask.
"It's a case-by-case thing..."
"Have you or someone in your family had a bad outcome at a hospital?"
Walsh's mouth tightens. "My mother died on the operating table during a routine endoscopy."
"Did you blame the doctor?"
He hesitates. "We settled."
And a flag is on the field. "Thank you," I say, and as I sit down I look at Howard and shake my head.
The second potential juror is a black man in his late sixties. Odette asks him how far he went in school, if he is married, who he lives with, what his hobbies are. Most of these questions are on the survey, but sometimes you want to ask them again, to look the person in the eye when he tells you he does Civil War reenactments, for example, to see if he's just into history or if he's a gun nut. "I understand you're a security guard at a mall," she says. "Do you consider yourself a member of law enforcement?"
"I guess in a small sense," he replies.
"Mr. Jordan, you know we're looking for an impartial jury," Odette says. "It surely has not escaped your notice that you and the defendant are both people of color. Might that impact your ability to make a fair decision?"
He blinks. After a moment, he replies to Odette, "Is there anything about your color that makes you unfair?"
I think Mr. Jordan might be my favorite person in the world right now. I stand up as Odette finishes her questioning. "Do you think black people are more likely to commit crimes than white people?" I ask.
I already know the answer, so that's not why I'm asking.
I want to see how he reacts to me, a white woman, posing a question like that.
"I believe," he says slowly, "that black people are more likely to wind up in jail than white folks."
"Thank you, sir," I say, and I turn toward Howard, nodding imperceptibly, as if to say: That is a ten.
There are several witnesses who fall somewhere in between horrific and perfect, and then juror number 12 takes the stand. Lila Fairclough is the perfect age for a juror, blond and spry. She teaches in the inner city in a racially integrated classroom. She's very polite and professional with Odette, but she smiles at me the minute I stand up. "My daughter's going to be in the school district where you work," I tell her. "It's why we moved there."
"She'll love it," the woman says.
"Now, here I am, Ms. Fairclough, a white woman representing a black woman, who's facing one of the most serious accusations that can be brought against a person. I have some concerns, and I'd like to talk about them, because it's just as critical for you to feel comfortable on this jury as it is for me to feel comfortable representing my client. You know, we all talk about prejudice being a bad thing, but it's a reality. For example, there are certain kinds of cases I could never be impaneled on. I mean, I love animals. If I see someone being cruel to them I can't be objective--I'm just so angry that my anger supersedes any rational thought. If that was the case, I'd have a hard time believing anything the defense told me."
"I totally get your point, but I don't have a biased bone in my body," Ms. Fairclough assures me.
"If you got on the bus and there were two seats available--one next to an African American man and one next to an elderly white woman, where would you sit?"
"In the first available seat." She shakes her head. "I know what you're getting at, Ms. McQuarrie. But honestly, I don't have a problem with black people."
That's when Howard drops his pen.
I hear it like a gunshot. I spin around, meet his eye, and start to fake an Oscar-worthy coughing fit. This was our prearranged signal. I choke as if I am hacking out a lung, and drink from the glass of water on the defense table, and then rasp at the judge, "My colleague will finish up here, Your Honor."
When Howard stands up, he starts swallowing convulsively. I'm sure that the judge is going to think the entire defense team has the plague, when I see the reaction on Lila Fairclough's face.
She freezes the minute Howard steps in front of her.
It's infinitesimal, the time between that and how fast she stretches her lips into a smile. But that doesn't mean I haven't witnessed it. "I'm so sorry, Ms. Fairclough," he says. "Just a couple more questions.
"What's the percentage of black children in your classroom?"
"Well, I have a class of thirty, and eight of my children are African American this year."
"Do you find that the African American children have to be disciplined more frequently than the white children?"
She starts twisting her ring on her finger. "I treat all my students equally."
"Let's step outside of your classroom for a moment. Do you think in general that African American children have to be disciplined more frequently than white kids?"
"Well, I haven't read studies on it." Twist, twist. "But I can tell you I'm not part of the problem."
Which, of course, means that she thinks there is a problem.
--
WHEN WE FINISH the individual questioning, and the first set of fourteen jurors are led back to the holding room, Howard and I huddle together and sort through who, if anyone, we want to strike for cause. "Are we ready to discuss excusals?" Judge Thunder asks.
"I'd like to excuse juror number ten," Odette says, "the one who indicated that a black person can't get a fair job, let alone a fair trial."
"No objection," I answer. "I'd like to excuse juror number eight, whose daughter was raped by a black man."
; "No objection," Odette says.
We excuse a man whose wife is dying, and a mother with a sick baby, and a man who supports his family of six and whose boss has told him he cannot miss a week of work without risking his job.
"I'd like to excuse juror number twelve," I say.
"No way," Odette says.
Judge Thunder frowns at me. "You haven't developed a challenge for cause, Counselor."
"She's racist?" I explain, but it sounds ridiculous even to me. The woman teaches black students and swore she wasn't prejudiced. I might know she has implicit bias based on her reaction to Howard and her nervous tic of twisting her ring, but if I explain our little experiment to Odette or the judge, I'll be in trouble.
I know if I call her in for further questioning, it won't do any good. Which means that I either have to accept her as a juror or must use one of my peremptory strikes.
Odette has exercised one strike against a nurse, and another against a community organizer who admitted that he can find injustice anywhere. I've dismissed a woman who lost an infant, a man who sued a hospital for malpractice, and one of the guys who--thanks to Howard and Facebook--I know went to a white power music festival.
Howard leans across Ruth so he can whisper in my ear. "Use it," he says. "She's going to be trouble, even if she doesn't look it."
"Counselor," the judge demands, "are we all invited to your little gossip session?"
"I'm sorry, Your Honor--a moment to consult with my co-counsel?" I turn back to Howard. "I can't. I mean, I have another eighty-six jurors to get through here, and only four more strikes. Satan could be part of the next pool, for all we know." I meet his gaze. "You were right. She's biased. But she doesn't think she is, and she doesn't want to be seen that way. So maybe, just maybe, it'll swing in our favor."
Howard looks at me for a long second. I can tell he wants to speak his mind, but he just nods. "You're the boss," he says.
"We accept juror number twelve," I tell the judge.
"I'd like to strike juror number two," Odette continues.
That is my black security guard, my perfect ten. Odette knows this, which is why she is willing to use a peremptory strike against him. But I am up like a shot before she even finishes her sentence. "Your Honor, sidebar?" We approach the bench. "Judge," I say, "this is a blatant violation of Batson."