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 thereisa problem.
—
WHEN WE FINISHthe 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’tthinkshe is, and she doesn’t want to beseenthat 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 ofBatson.”
James Batson was an African American man who was tried for burglary in Kentucky by an all-white jury. During the voir dire phase of the trial, when the jurors were being selected, the prosecutor used peremptory strikes against six potential jurors—four of whom were black. The defense tried to discharge the jury on the grounds that Batson was not being tried by a representative sample of the community, but the judge denied it, and Batson wound up being convicted. In 1986, the Supreme Court ruled in Batson’s favor, stating that a prosecutor’s use of peremptory strikes in a criminal case could not be based solely on race.
Since then, any time a black person gets bounced from a jury, any defense attorney worth his or her salt will cryBatson.
“Your Honor,” I continue, “the Sixth Amendment guarantees the right of a defendant to be tried by a jury of his or her peers.”
“Thank you, Ms. McQuarrie, I know very well what the Sixth Amendment says.”
“I didn’t mean to imply otherwise. New Haven is a very diverse county, and the jury needs to reflect that diversity, and right now this gentleman is the only black juror in this pool of fourteen.”
“You havegotto be kidding,” Odette says. “You’re sayingI’mracist?”
“No, I’m saying that it’s a lot easier for you to stack a jury in the State’s favor without being called on itbecauseof your race.”
