Before I can respond, the judge takes the bench. He looks from me—clearly in the middle of a charged conversation with my client—to Odette, across the room. “Are the parties ready to proceed?” he asks.
“Your Honor?” Ruth says. “I would like to get rid of my lawyer.”
I am pretty sure Judge Thunder thought nothing else in this trial could surprise him, until this moment. “Ms. Jefferson? Why on earth would you want to discharge your lawyer when the defense has rested? All that’s left is a closing argument.”
Ruth’s jaw works. “It’s personal, Your Honor.”
“I would strongly recommend otherwise, Ms. Jefferson. She knows the case, and contrary to all expectation, she has been very prepared. She has your best interests in mind. It is my job to run this trial, and to make sure it’s no longer delayed. We have a jury sitting in the box that has heard all the evidence; we don’t have time for you to go find another attorney, and you are not equipped to represent yourself.” He faces me. “Unbelievably, I am granting you another half-hour recess, Ms. McQuarrie, so you and your client can make nice.”
I deputize Howard to stay with Edison so that the press can’t get near him. Getting to our usual conference room will require running past the press, too, so instead I take Ruth out a back entrance and into the ladies’ room. “Sorry,” I say to a woman following us, and I lock the door behind us. Ruth leans against the bank of sinks and folds her arms.
“I know you think nothing’s changed, and maybe it hasn’t for you. But for me, ithas,” I say. “I hear you, loud and clear. I may not deserve it, but I’m begging you to give me one last chance.”
“Why should I?” Ruth asks, a challenge.
“Because I told you once I don’t see color…and now, it’sallI see.”
She starts for the door. “I don’t need your pity.”
“You’re right.” I nod. “You need equity.”
Ruth stops walking, still facing away from me. “You mean equality,” she corrects.
“No, I mean equity. Equality is treating everyone the same. But equity is taking differences into account, so everyone has a chance to succeed.” I look at her. “The first onesoundsfair. The second oneisfair. It’s equal to give a printed test to two kids. But if one’s blind and one’s sighted, that’s not true. You ought to give one a Braille test and one a printed test, which both cover the same material. All this time, I’ve been giving the jury a print test, because I didn’t realize that they’re blind. ThatIwas blind. Please, Ruth. I think you’ll like hearing what I have to say.”
Slowly, Ruth turns around. “One last chance,” she agrees.
—
WHENISTANDup, I’m not alone.
Yes, there is a courtroom waiting for my closing argument, but I’m surrounded by the stories that have blazed through the media but have mostly been ignored in courts of law. The stories of Tamir Rice, of Michael Brown, of Trayvon Martin. Of Eric Garner and Walter Scott and Freddie Gray. Of Sandra Bland and John Crawford III. Of the female African American soldiers who wanted to wear their hair natural and the children in the Seattle school district who were told by the Supreme Court that cherry-picking students to maintain racial diversity was unconstitutional. Of minorities in the South, who’ve been left without federal protection while those states put laws into effect that limit their voting rights. Of the millions of African Americans who have been victims of housing discrimination and job discrimination. Of the homeless black boy on Chapel Street whose cup is never going to be as full as that of a white homeless woman.
I turn toward the jury. “What if, ladies and gentlemen, today I told you that anyone here who was born on a Monday, Tuesday, or Wednesday was free to leave right now? Also, they’d be given the most central parking spots in the city, and the biggest houses. They would get job interviews before others who were born later in the week, and they’d be taken first at the doctor’s office, no matter how many patients were waiting in line. If you were born from Thursday to Sunday, you might try to catch up—but because you were straggling behind, the press would always point to how inefficient you are. And if you complained, you’d be dismissed for playing the birth-day card.” I shrug. “Seems silly, right? But what if on top of these arbitrary systems that inhibited your chances for success, everyone kept telling you that things were actually pretty equal?”
I walk toward them, continuing. “I told you when we started this case that it was about Ruth Jefferson being presented with an impossible choice: to do her job as a nurse, or to defy her supervisor’s orders. I told you that evidence would show Davis Bauer had underlying health conditions that led to his death. And that is true, ladies and gentlemen. But this case, it’s about a lot more than I let on to you.
“Out of all the people who interacted with Davis Bauer at Mercy–West Haven Hospital during his short life, only one of them is sitting in this courtroom at the defense table: Ruth Jefferson. Only one person is being charged with a crime: Ruth Jefferson. I spent an entire trial skirting a very important question:Why?
“Ruth is black,” I say flatly. “That rubbed Turk Bauer, a white supremacist, the wrong way. He can’t stand black people, or Asian people, or gay people, or anyone else who isn’t like him. And as a result, he set into motion a chain of events that would lead to Ruth becoming a scapegoat for the tragic death of his son. But we are not supposed to talk about race in the criminal justice system. We’re supposed to pretend it is merely the icing on the cake of whatever charge has been brought to the table—not the substance of it. We are supposed to be the legal guardians of a postracial society. But you know, the wordignorancehas an even more important word at its heart:ignore. And I don’t think it’s right to ignore the truth any longer.”
I look right at juror number 12, the teacher. “Finish this sentence,” I say.“I am…?”I pause at the blank. “Maybe you’d answer:shy.Orblond. Friendly. Nervous, intelligent, Irish.But the majority of you wouldn’t saywhite. Why not? Because it’s a given. It’s identity that is taken for granted. Those of us who were lucky enough to be born white are oblivious to that good fortune. Now, we’re all blissfully unmindful of lots of things. Probably, you did not give thanks for showering this morning, or for having a roof over your head last night. For eating breakfast and having clean underwear. That’s because all those invisible privileges are easy to take in stride.
“Sure, it’s so much easier to see the headwinds of racism, the ways that people of color are discriminated against. We see it now when a black man is accidentally shot by the police and a girl with brown skin is bullied by classmates for wearing a hijab. It’s a little harder to see—and to own up to—the tailwinds of racism, the ways that those of us who aren’t people of color have benefited just because we’re white. We can go to a movie and be pretty certain that most of the main characters will look like us. We can be late for a meeting and not have it blamed on our race. I can go into Judge Thunder’s chambers and raise an objection and not be told I’m playing the race card.” I pause. “The vast majority of us do not come home from work and say,Hooray! I didn’t get stopped and frisked today!The vast majority of us did not get into college and think,I got into the school of my choice because the educational system really works in my favor.We don’t think these things, because we don’t have to.”
By now, the jury is getting uneasy. They shift and shuffle, and from the corner of my eye I see Judge Thunder regarding me narrowly, even though a closing argument is mine alone to give, and theoretically, if I wanted to readGreat Expectationsout loud, I could.
“I know you’re thinking:I’m not racist. Why, we even had an example of what we thinkrealracism looks like, in the form of Turk Bauer. I doubt there are many of you on the jury who, like Turk, believe that your children are Aryan warriors or that black people are so inferior they should not even be able to touch a white baby. But even if we took every white supremacist on the planet and shipped them off to Mars, there would still be racism. That’s because racism isn’t just about hate. We all have biases, even if we don’t think we do. It’s because racism is also about who has power…and who has access to it.
“When I started working on this case, ladies and gentlemen, I didn’t see myself as a racist. Now I realize I am. Not because I hate people of different races but because—intentionally or unintentionally—I’ve gotten a boost from the color of my skin, just like Ruth Jefferson suffered a setback because of hers.”
Odette is sitting with her head bowed at the prosecution table. I can’t tell if she is delighted that I am building my own coffin out of words or if she is simply stunned that I have the balls to antagonize the jury at this late stage of the game. “There is a difference between active and passive racism. It’s kind of like when you get on the moving walkway at the airport. If you walk down it, you’re going to get to the other end faster than if you just stand still. But you’re ultimately going to wind up in the same spot. Active racism is having a swastika tattoo on your head. Active racism is telling a nurse supervisor that an African American nurse can’t touch your baby. It’s snickering at a black joke. But passive racism? It’s noticing there’s only one person of color in your office and not asking your boss why. It’s reading your kid’s fourth-grade curriculum and seeing that the only black history covered is slavery, and not questioning why. It’s defending a woman in court whose indictment directly resulted from her race…and glossing over that fact, like it hardly matters.
“I bet you feel uncomfortable right now. You know, so do I. It’s hard to talk about this stuff without offending people, or feeling offended. It’s why lawyers like me aren’t supposed to say these things to juries like you. But deep down, if you’ve asked yourself what this trial isreallyabout, you know it’s more than just whether Ruth had anything to do with the death of one of her patients. In fact, it has very little to do with Ruth. It’s about systems that have been in place for about four hundred years, systems meant to make sure that people like Turk can make a heinous request as a patient, and have it granted. Systems meant to make sure that people like Ruth are kept in their place.”
I turn to the jury, beseeching. “If you don’t want to think about this, you don’t have to, and you can still acquit Ruth. I’ve given you enough medical evidence to show that there’s plenty of doubt about what led to that baby’s death. You heard the medical examiner himself say that had the newborn screening results come back in a more timely fashion, Davis Bauer might be alive today. Yes, you also heard Ruth get angry on the stand—that’s because when you wait forty-four years to be given a chance to speak, things don’t always come out the way you want them to. Ruth Jefferson just wanted the chance todo her job. To take care of that infant like she was trained to do.”
I turn, finally, toward Ruth. She breathes in, and I feel it in my own chest. “What if people who were born on Monday, Tuesday, or Wednesday were never the subjects of extensive credit checks when they applied for loans? What if they could shop without fear of security tailing them?” I pause. “What if their newborn screening test results came back to the pediatrician in a timely manner, allowing medical intervention that could prevent their deaths? Suddenly,” I say, “that type of arbitrary discrimination doesn’t seem quite so silly, does it?”
