ON MY SIXTH WEDDING ANNIVERSARY, Micah gives me the stomach flu.
It started last week with Violet, like most transmittable viruses that enter our household. Then Micah began throwing up. I told myself I did not have time to get sick, and thought I was safe until I bolted upright in the middle of the night, bathed in sweat, and made a beeline for the bathroom.
I wake up with my cheek pressed against the tile floor, and Micah standing over me. “Don’t look at me like that,” I say. “All smug because you’ve already been through this.”
“It gets better,” Micah promises.
I moan. “Wonderful.”
“I was going to make you breakfast in bed, but instead I opted for ginger ale.”
“You’re a prince.” I push myself upright. The room spins.
“Whoa. Steady, girl.” Micah crouches beside me, helping me to my feet. Then he sweeps me into his arms and carries me into the bedroom.
“In any other circumstance,” I say, “this would be very romantic.”
Micah laughs. “Rain check.”
“I’m trying really hard not to vomit on you.”
“I can’t tell you how much I appreciate that,” he says gravely, and he crosses his arms. “Would you like to have a fight now about how you’re not going into the office? Or do you want to finish your ginger ale first?”
“You’re using my tactics against me. That’s the kind of either-or I offer Violet—”
“See, and you think I never listen.”
“I’m going to work,” I say, and I try to get on my feet, but I black out. When I blink a moment later, Micah’s face is inches from mine. “I’m not going to work,” I whisper.
“Good answer. I already called Ava. She’s going to come over and play nurse.”
I groan. “Can’t you just kill me instead? I don’t think I can handle my mother. She thinks a shot of bourbon cures everything.”
“I’ll lock the liquor cabinet. You need anything else?”
“My briefcase?” I beg.
Micah knows better than to say no to that. As he goes downstairs to retrieve it, I prop myself up on pillows. I have too much to do to not be working, but my body doesn’t seem to be cooperating.
I drift off in the few minutes it takes Micah to come back into the bedroom. He’s trying to gently put the briefcase on the floor so he doesn’t disturb me, but I reach for it, overestimating my strength. The contents of the leather folio spill all over the bed and onto the floor, and Micah crouches to pick them up. “Huh,” he says, holding up a piece of paper. “What are you doing with a lab report?”
It’s wrinkled, having slipped between files to get wedged at the bottom of my bag. I have to squint, and then a run of graphs comes into focus. It’s the newborn screening results that I subpoenaed from the Mercy–West Haven Hospital, the ones that had been missing from Davis Bauer’s file. They came in this week, and given my lack of understanding of chemistry, I barely glanced at the charts, figuring I’d show them to Ruth sometime after her mother’s funeral. “It’s just some routine test,” I say.
“Apparently not,” Micah replies. “There’s abnormality in the blood work.”
I grab it out of his hand. “How do you know that?”
“Because,” Micah says, pointing to the cover letter I didn’t bother to read, “it says here there’s abnormality in the blood work.”
I scour the letter, addressed to Dr. Marlise Atkins. “Could it be fatal?”
“I have no idea.”
“You’re a doctor.”
“I study eyes, not enzymes.”
I look up at him. “What did you get me for our anniversary?”
“I was going to take you out to dinner,” Micah admits.
“Well,” I suggest, “take me to see a neonatologist instead.”
WHEN WE SAY, in America, that you have a right to be tried by a jury of your peers, we’re not exactly telling the truth. The pool of jurors is not as random as you’d think, thanks to careful scrutiny by the defense and the prosecution to eliminate both ends of the bell curve—the people most likely to vote against our clients’ best interests. We weed out the folks who believe that people are guilty until proven innocent, or who tell us they see dead people, or who hold grudges against the legal system because they were once arrested. But we also prune on a case-by-case basis. If my client is a draft dodger, I try to limit jurors who have proudly served. If my client is a drug addict, I don’t want a juror who lost a family member to an overdose. Everyone has prejudices. It’s my job to make sure that they work in favor of the person I’m representing.
So although I would never play the race card once the trial starts—as I’ve spent months explaining to Ruth—I’m damn well going to stack the odds before it begins.
Which is why, before we begin voir dire to choose jurors, I march into my boss’s office and tell him I was wrong. “I’m feeling a little overwhelmed after all,” I say to Harry. “I was thinking I might need a cochair.”
He takes a lollipop out of a jar he keeps on his desk. “Ed’s got a shaken-baby trial starting this week—”
“I wasn’t talking about Ed. I was thinking of Howard.”
“Howard.” He looks at me, baffled. “The kid who still brings his meals in a lunchbox?”
It’s true that Howard is fresh out of law school and that so far, in the few months he’s been at the office, has only done misdemeanors—domestics and a few disorderlies. I offer my smoothest grin. “Yeah. You know, he’ll just be an extra pair of hands for me. A runner. And in the meantime, it would be good for him to get trial experience.”
Harry unwraps the lollipop and sticks it in his mouth. “Whatever,” he says, his teeth gripped on the stem.
With his blessing, or the closest I’m going to get to one, I head back to my cubicle and poke my head over the divider that separates me from Howard. “Guess what,” I tell him. “You’re going to second-chair the Jefferson case. Voir dire’s this week.”
He glances up. “Wait. What? Really?”
It’s a big deal for a rookie who is still doing scut work in the office. “We’re leaving,” I announce, and I grab my coat, knowing he will follow.
I do need an extra pair of hands.
I also need them to be black.
HOWARD SCRAMBLES AT my side as we walk through the halls of the courthouse. “You don’t speak to the judge unless I’ve told you to,” I instruct. “Don’t show any emotions, no matter what theatrical display Odette Lawton puts on—prosecutors do that to make themselves feel like they’re Gregory Peck in Mockingbird.”
“Who?”
“God. Never mind.” I glance at him. “How old are you, anyway?”
“Twenty-four.”
“I have sweaters older than you,” I mutter. “I’ll give you the discovery to read over tonight. This afternoon I’m going to need you to do some fieldwork.”
“Fieldwork?”
“Yeah, you have a car, right?”
He nods.
“And then, once we actually get the jurors inside, you’re going to be my human video camera. You’re going to record every tic and twitch and comment that each potential juror makes in response to my questions, so that we can go over it and figure out which candidates are going to fuck us over. It’s not about who’s on the jury…it’s about who’s not on it. Do you have any questions?”
Howard hesitates. “Is it true that you once offered Judge Thunder a blow job?”
I stop walking and face him, my hands on my hips. “You don’t even know how to clean out the coffee machine yet, but you know that?”
Howard pushes his glasses up his nose. “I plead the Fifth.”
“Well, whatever you heard, it was taken out of context and it was prednisone-induced. Now shut up and look older than twelve, for God’s sake.” I push open the door to Judge Thunder’s chambers to find him sitting behind his desk, with the prosecutor already in the room. “Your Honor. Hello.”
He glances at Howard. “Who’s this?”
“My co-counsel,” I reply.
Odette folds her arms. “As of when?”
“About a half hour ago.”
We all stare at Howard, waiting for him to introduce himself. He looks at me, his lips pressed firmly together. You don’t speak to the judge unless I’ve told you to. “Speak,” I mutter.
He holds out a hand. “Howard Moore. It’s an honor, Your…um…Honor.”
I roll my eyes.
Judge Thunder produces a huge stack of completed questionnaires, which are sent out to people who are called for jury duty. They are full of practical information, like where the recipient lives and where he or she works. But they also include pointed questions: Do you have any problems with the presumption of innocence? If a defendant doesn’t testify, do you assume he is hiding something? Do you understand that the Constitution gives the defendant the right to not say anything? If the State proves this case beyond reasonable doubt, would you have any moral qualms about convicting the defendant?
He splits the pile in half. “Ms. Lawton, you take this bunch for four hours; and Ms. McQuarrie, you take these. We’ll reconvene at one P.M., switch piles, and then voir dire begins in two days.”
As I drive Howard back to our office, I explain what we are looking for. “A solid defense juror is an older woman. They have the most empathy, the most experience, and they’re less judgmental, and they’re really hard on young punks like Turk Bauer. And beware of Millennials.”
“Why?” Howard asks, surprised. “Aren’t young people less likely to be racist?”
“You mean like Turk?” I point out. “The Millennials are the me generation. They usually think everything revolves around them, and make decisions based on what’s going on in their lives and how it will affect their lives. In other words, they’re minefields of egocentrism.”
“Got it.”
“Ideally we want a juror who has a high social status, because those people tend to influence other jurors when it comes to deliberations.”
“So we’re looking for a unicorn,” Howard says. “A supersensitive, racially conscious, straight white male.”
“He could be gay,” I reply, serious. “Gay, Jewish, female—anything that can help them identify with discrimination in any form is going to be a bonus for Ruth.”
“But we don’t know any of these candidates. How do we become psychic overnight?”
“We don’t become psychic. We become detectives,” I say. “You’re going to take half the surveys and drive to the addresses that are listed on them. You want to find out whatever you can. Are they religious? Are they rich? Poor? Do they have political campaign signs on the lawn? Do they live above where they work? Do they have a flagpole in the front yard?”
“What does that have to do with anything?”
“More often than not that’s someone who’s extremely conservative,” I explain.
“Where are you going to be?” he asks.
“Doing the same thing.”
I watch Howard leave, plugging the first address into his phone GPS. Then I wander the halls of the office asking other public defenders if they’ve had any of these folks on their panels—a lot of the jurors get recycled. Ed is about to head out the door to court, but he glances at the sheaf of papers. “I remember this guy,” he says, pulling one survey free. “He was part of my jury on Monday—grand larceny case. He raised his hand during my opening statement and asked if I had a business card.”
“Are you kidding me?”
“Sadly,” Ed says, “no. Good luck, kiddo.”
Ten minutes later, I’ve plugged an address into my GPS and find myself driving through Newhallville. I lock the doors for safety’s sake. Presidential Gardens, the apartment building between Shelton and Dixwell Avenues, is a lower-income pocket of the city, with a quarter of the residents living below the poverty line, and the streets that bracket the residences are rife with drug traffic. Nevaeh Jones lives in this building, somewhere. I watch a little boy run out the door of one building, not wearing a coat, and start jogging when the cold hits him. He wipes his nose on his sleeve in midstride.
Will a woman from this area see Ruth and think she’s being railroaded? Or will she see the socioeconomic difference between them and be resentful?
It’s a hard call. In Ruth’s unique case, the best juror may not be one with the same color skin.
I put a question mark at the top of the survey—this is one I’ll have to consider further. Driving slowly out of the neighborhood, I wait until I see children playing outside and then pull over to the curb and call Howard’s cell. “So?” I ask when he picks up. “How’s it going?”
“Um,” he says. “I’m sort of stuck.”
“Where?”
“East Shore.”
“What’s the problem?”
“It’s a gated community. There’s a low fence and I could look over it, but I’d have to get out of the car,” Howard says.
“Then get out of the car.”
“I can’t. See, back when I was in college, I kind of made a rule for myself—don’t get out of the car unless there’s a happy, living black person in sight.” He exhales. “I’ve been waiting for forty-five minutes, but the only people in this part of New Haven are white.”
That’s not necessarily a bad thing for Ruth. “Can’t you just go peek over the wall? Make sure she doesn’t have a Trump sign on her lawn?”
“Kennedy—there are neighborhood watch signs all over the place. What do you think is going to happen if they see a black man trying to peek over a wall?”
“Oh,” I say, embarrassed. “I get it.” I look out the window to where three kids are jumping into piles of leaves; I think of the little black boy I saw streaking away from Presidential Gardens. Ed told me last week that he defended a twelve-year-old involved in a gang shooting with two seventeen-year-olds, and that the prosecution was gunning to have all three tried as adults. “Give me an hour and then meet me at 560 Theodore Street in East End. And, Howard? When you arrive, it’s safe to get out of the car,” I say. “I live there.”
I LIGHTLY DROP the bag of Chinese food onto the desk of my home office. “I have goodies,” I say, taking out the lo mein and laying claim to it.
“So do I,” Howard says, and he points to a stack of papers he’s printed out.
It’s 10:00 P.M., and we’ve set up camp at my home. I left Howard there all afternoon to do online research while Odette and I swapped stacks of surveys. For hours, I’ve battled traffic, sussed out more jurors by neighborhood, and scanned the plaintiff and defendant lists at the courthouse to see if any of the potential jurors have been criminally prosecuted or have relatives that were criminally prosecuted.
“I found three guys who were charged with domestics, a woman whose mother got convicted of arson, and a lovely little old lady whose grandson’s meth lab was busted last year,” Howard announces.
The screen reflects, glowing green around Howard’s face as he scans the page. “Okay,” he says, opening a plastic container of soup and drinking from the side without a spoon. “God, I’m starving. So here’s the thing: you can get some good dirt on Facebook, but it depends on privacy settings.”
“Did you try LinkedIn?”
“Yeah,” he says. “It’s a gold mine.”
He beckons me to the floor, where he’s spread out the surveys and has paper-clipped printouts to each one. “This guy? We love him,” Howard says. “He’s a social justice educator at Yale. And even better—his mother is a nurse.” I hold up my hand, he high-fives. “This is my second favorite.”
He passes me the survey. Candace White. She’s forty-eight years old, African American, a librarian, mother of three. She looks like someone who could be friends with Ruth, not just rule in favor of the defense.
Her favorite TV show is Wallace Mercy.
I may not want Reverend Mercy messed up in Ruth’s case, but the people who watch him are definitely going to have sympathy for my client.
Howard is still listing his finds. “I’ve got three ACLU memberships. And this girl ran a whole tribute to Eric Garner on her blog. A series called I Can’t Breathe Either.”
“Nice.”
“On the other end of the spectrum,” Howard says, “this lovely gentleman is the deacon of his church and also supports Rand Paul and advocates the repeal of all civil rights laws.”
I take the survey from his hand and put a red X through the name at the top.
“Two people who posted about reducing funding for welfare,” Howard says. “I’m not sure what you want to do about that.”
“Put them in the middle pile,” I reply.
“This girl updated her status three hours ago: Jesus Christ some chink just sideswiped my car.”
I place her survey on top of the Rand Paul advocate’s, as well as someone whose profile pic on Twitter is Glenn Beck. There are two candidates Howard has nixed because they liked Facebook pages for Skullhead and Day of the Sword. “Is that some Game of Thrones thing?” I ask, baffled.
“They’re white power bands,” Howard says, and I am pretty sure he blushes. “I found a group called Vaginal Jesus too. But none of our potential jurors listen to them.”
“Thank God for small mercies. What’s the big pile in the middle?”
“Indeterminate,” Howard explains. “I have a few pictures of people making gun gang signs, a handful of stoners, one idiot who took a video of himself shooting up heroin, and thirty selfies of people who are rocked-off-their-gourd drunk.”
“Doesn’t it just warm the cockles of your heart to know that we entrust the legal system to these folks?”
I’m joking, but Howard looks at me soberly. “To tell you the truth, today’s been a little shocking. I mean, I had no idea how people live their lives, and what they do when they think no one’s looking—” He glances at a photo of a woman brandishing a red Solo cup. “Or even when they are.”
I spear a Peking ravioli with my chopstick. “When you start to see the seedy underbelly of America,” I say, “it makes you want to live in Canada.”
“Oh, and there’s this,” Howard says, pointing to the computer screen. “Do with it what you will.” He reaches across me for a Peking ravioli.
I frown at the Twitter handle: @WhiteMight. “Which juror is it?”
“It’s not a juror,” he says. “And I’m pretty sure Miles Standup is a fake name.” He clicks twice on the profile picture: a newborn infant.
“Why have I seen that photo before…?”
“Because it’s the same picture of Davis Bauer that people were holding up outside the courthouse before the arraignment. I checked the news footage. I think that’s Turk Bauer’s account.”
“The Internet is a beautiful thing.” I look at Howard with pride. “Well done.”
He looks at me, hopeful, over the white lip of the paper carton. “So we’re finished for the night?”
“Oh, Howard.” I laugh. “We’ve only just begun.”
ODETTE AND I meet the next morning at a diner to cross-check the survey numbers of the potential jurors that we each want to decline. In the rare occasion when our numbers match (the twenty-five-year-old who just got out of a psychiatric hospital; the man who was arrested last week) we agree to let them go.
I don’t know Odette very well. She is tough, no-nonsense. At legal conferences, when everyone else is getting drunk and doing karaoke, she is the one sitting in the corner drinking club soda with lime and filing away memories she can use to exploit us later. I’ve always thought of her as an uptight piece of work. But now I’m wondering: when she goes shopping, is she, like Ruth, asked to show her receipts before exiting the store? Does she mutely hand them over? Or does she ever snap and say she is the one who puts shoplifters on trial?
So, in an attempt to offer an olive branch, I smile at her. “It’s going to be quite a trial, huh?”
She stuffs her folder of surveys into her briefcase. “They’re all big trials.”
“But this one…I mean…” I stumble, trying to find the words.
Odette meets my gaze. Her eyes are like chips of flint. “My interest in this case is the same as your interest in this case. I am prosecuting it because everyone else in my office is overworked and maxed out, and it landed on my desk. And I do not care if your client is black, white, or polka-dotted. Murder is remarkably monochromatic.” With that she stands up. “I’ll see you tomorrow,” Odette says, and she walks away.
“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 résumé 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.”
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 cry Batson.
“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 have got to be kidding,” Odette says. “You’re saying I’m racist?”
“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 it because of your race.”
The judge turns to Odette. “What’s your reason for exercising your peremptory strike, Counselor?”
“I found him argumentative,” she says.
“This is the first group of jurors,” Judge Thunder warns me. “Don’t get your knickers in a twist.”
Maybe it’s the fact that he is so blatantly favoring the prosecution right now. Maybe it is that I want to show Ruth I am going to bat for her. Maybe it’s just because he used the word knickers and it made me remember my steroid rant against him. For whatever reason, or maybe all of them, I straighten my spine and take this opportunity to unbalance Odette before we even get started. “I want a hearing on this,” I demand. “I want Odette to produce her notes. We had other argumentative people on this panel, and I want to know if she documented that characteristic for the other jurors.”
Rolling her eyes, Odette climbs into the witness box. I have to admit, there’s enough public defender pride in me to love seeing a prosecutor in there, effectively caged. She glares at me as I approach. “You indicated that juror number two was argumentative. Did you listen to the responses of juror number seven?”
“Of course I did.”
“How did you find his demeanor?” I ask.
“I found him friendly.”
I look down at Howard’s excellent notes. “Even when you asked him about African Americans and crime and he came out of his seat and said you were implying he was a racist? Is that not argumentative?”
Odette shrugs. “His tone was different than juror number two’s.”
“Coincidentally, so was his skin color,” I say. “Tell me, did you make any notes about juror number eleven being argumentative?”
She glances down at her chart. “We were moving quickly. I didn’t write down everything I was thinking, because it wasn’t important.”
“Because it wasn’t important,” I clarify, “or because that juror was white?” I turn to the judge. “Thank you, Your Honor.”
Judge Thunder turns to the prosecutor. “I’m not going to allow the peremptory challenge. You’re not getting me into a Batson situation this early in the game, Ms. Lawton. Juror number two remains on the panel.”
I slide into my seat beside Ruth, pretty damn pumped. Howard is blinking at me like I’m a goddess. It’s not every day you get to school a prosecutor. Suddenly Ruth passes a note to me. I unfold it, read the two simple words: Thank you.
WHEN THE JUDGE dismisses us for the day, I tell Howard to go home and get some sleep. Ruth and I leave the courthouse together; I peek outside first to make sure that the coast is clear of media. It is—but I know that will change as soon as we start the trial.
When we reach the parking lot, however, neither one of us seems to be in a great hurry to leave. Ruth keeps her head ducked, and I know her well enough by now to know that something’s on her mind. “You want to go grab a glass of wine? Or do you have to get back to Edison?”
She shakes her head. “He’s out more than I am these days.”
“You don’t sound thrilled about that.”
“Right now I’m not exactly his role model,” Ruth says.
We walk around the corner to a bar that I’ve been to many times before, celebrating victory or drowning defeat. It’s full of lawyers I know, so I squirrel us into a booth way in the back. We both order pinot noir, and when the glasses arrive, I toast. “Here’s to an acquittal.”
I notice that Ruth doesn’t lift her glass.
“Ruth,” I say gently, “I know this was the first time you’ve been in court. But trust me—today went really, really well.”
She swirls the wine in her glass. “My mama used to tell a story about how, once, she was pushing me in a stroller in our neighborhood in Harlem, and two black ladies passed her. One of them said to the other, She walkin’ around like that her baby. That ain’t her baby. I hate when nannies do that. I was light-skinned, compared to Mama. She laughed it off, because she knew the truth—I was hers, through and through. But the thing is, growing up, it wasn’t the white kids who made me feel worst about myself. It was the black kids.” Ruth looks up at me. “That prosecutor made it all come flooding back today. Like, she was out to get me.”
“I don’t know if it’s all that personal for Odette. She just likes to win.”
It strikes me that this is a conversation I have never had with someone who is African American. Usually I am so conscious of not being seen as prejudiced that I would be paralyzed by the fear of saying something that would be offensive. I’ve had African American clients before, but in those cases I was very clearly setting myself up to be the one with all the answers. Ruth has seen that mask slip.
With Ruth, I know I can ask a stupid white girl question, and that she will answer me without judging my ignorance. Likewise, if I step on her toes, she’ll tell me so. I think about the time she explained to me the difference between weaves and extensions; or how she asked me about sunburn, and how long it takes for blistered skin to start peeling. It’s the difference between dancing along the eggshell crust of acquaintance and diving into the messy center of a relationship. It’s not always perfect; it’s not always pleasant—but because it is rooted in respect, it is unshakable.
“You surprised me today,” Ruth admits.
I laugh. “Because I’m actually good at what I do?”
“No. Because half the questions you asked were based on race.” She meets my gaze. “After all this time telling me that doesn’t happen in a courtroom.”
“It doesn’t,” I say bluntly. “Come Monday, when the trial starts, everything changes.”
“You’ll still let me speak?” Ruth confirms. “Because I need to say my piece.”
“I promise.” I set my wineglass down. “Ruth, you know, just because we pretend racism has nothing to do with a case doesn’t mean we aren’t aware of it.”
“Then why pretend?”
“Because it’s what lawyers do. I lie for a living. If I thought it was going to get you acquitted, I could tell the jury that Davis Bauer was a werewolf. And if they believe it, shame on them.”
Ruth’s eyes meet mine. “It’s a distraction. It’s a clown waving in your face, so you don’t notice the sleight of hand going on behind him.”
It’s strange to hear my work described that way, but it’s not entirely untrue. “Then I guess all we can do is drink to forget.” I lift my glass.
Ruth finally takes a sip of her wine. “There isn’t enough pinot noir in the world.”
I run my thumb around the edge of my cocktail napkin. “Do you think there will ever be a time when racism doesn’t exist?”
“No, because that means white people would have to buy into being equal. Who’d choose to dismantle the system that makes them special?”
Heat floods my neck. Is she talking about me? Is she suggesting that the reason I won’t buck the system is because I, personally, have something to lose?
“But then,” Ruth muses, “maybe I’m wrong.”
I lift my glass, clink it against hers. “To baby steps,” I toast.
AFTER ONE MORE day of jury selection, we have our twelve plus two alternates. I spend the weekend holed up in my home office preparing for Monday’s opening arguments of the trial, taking off only Sunday afternoon to meet the neonatologist. Micah met Ivan Kelly-Garcia in his freshman orgo class, when—during the midterm—Ivan rushed in with only a half hour left during the exam, dressed like a giant hot dog, grabbed an exam booklet, and aced the test. The previous night was Halloween, and he’d passed out drunk in a sorority house, and woke up to realize he was about to forgo his entire future as a doctor. Ivan not only went on to become Micah’s study partner in orgo but also to go to Harvard Med and become one of the best neonatologists in the tristate area.
He’s thrilled to hear from Micah after so many years, and he’s even outwardly thrilled to host his insane lawyer wife and one very crabby four-year-old who should not have been awakened from her car seat nap. Ivan lives in Westport, Connecticut, in a sedate colonial, with his wife—a woman who managed to make homemade guacamole and salsa for us after her fifteen-mile morning marathon training run. They don’t have any kids yet, but they do have a giant Bernese mountain dog, which is currently either babysitting Violet or licking her to death.
“Look at us, bro,” Ivan says. “Married. Employed. Sober. Remember that time we dropped acid and I decided to climb a tree but forgot I’m scared of heights?”
I look at Micah. “You dropped acid?”
“You probably didn’t tell her about Sweden, either,” Ivan muses.
“Sweden?” I look between the two men.
“Cone of silence,” Ivan says. “Bro code.”
The thought of Micah—who prefers his boxer shorts ironed—as a bro makes me stifle a laugh.
“My wife’s trying her first murder case,” Micah segues smoothly, “so I apologize in advance if she asks you ten thousand questions.”
Under my breath I whisper, “I’m totally getting that whole story from you later.” Then I smile at Ivan. “I was hoping you could explain newborn screening.”
“Well, basically, it was a game changer for infant mortality. Thanks to something called tandem mass spectrometry, which is done at the state lab, we can identify a handful of congenital diseases that can be treated or managed. I’m sure your daughter had it done, and you probably were never the wiser.”
“What kinds of diseases?” I ask.
“Oh, a whole science nerd dictionary: biotinidase deficiency—that’s when the body can’t reuse and recycle enough free biotin. Congenital adrenal hyperplasia and congenital hypothyroidism, which are hormone deficiencies. Galactosemia, which prevents an infant from processing a certain sugar that’s in milk, breast milk, and formula. Hemoglobinopathies, which are problems with red blood cells. Amino acid disorders, which cause amino acids to build up in the blood or the urine; and fatty acid oxidation disorders, which keep bodies from turning fat into energy; and organic aciduria disorders, which are sort of a hybrid between the two. You’ve probably heard of some of them, like sickle cell, which affects a lot of African Americans. Or PKU,” Ivan says. “Babies who have that one can’t break down certain types of amino acids, and they build up in the blood or the urine. If you don’t know your kid has the disease, it leads to cognitive impairment and seizures. But if it’s flagged right after birth, it can be managed with a special diet and prognosis is excellent.”
I hand him the lab results. “The lab says there was an abnormality in this patient’s newborn screening.”
He flips through the first few pages. “Bingo—this kid has MCADD. You can tell by the spikes on the mass spectrometry graph here at C-six and C-eight—that’s the acylcarnitine profile.” Ivan looks up at us. “Oh, okay, yeah. English. Well, the acronym is short for medium-chain acyl-coenzyme A dehydrogenase deficiency. It’s an autosomal recessive disorder of fatty acid oxidation. Your body needs energy to do stuff—move, function, digest, even breathe. We get our fuel from food, and store it in our tissues as fatty acids until we need it. At that point, we oxidize those fatty acids to create energy for bodily functions. But a baby with a fatty acid oxidation disorder can’t do that, because he’s missing a key enzyme—in this case, MCADD. That means once his energy stores are depleted, he’s in trouble.”
“Meaning…?”
He hands me back the packet. “His blood sugar will tank, and he’ll be tired, sluggish.”
Those words trigger a flag in my mind. Davis Bauer’s low blood sugar was blamed on his mother’s gestational diabetes. But what if that wasn’t the case? “Could it cause death?”
“If it’s not diagnosed early. A lot of these kids are asymptomatic until something acts like a trigger—an infection, or an immunization, or fasting. Then, you get a rapid decline that looks an awful lot like sudden infant death syndrome—basically the baby goes into arrest.”
“Could a baby who arrests still be saved, if he has MCADD?”
“It really depends on the situation. Maybe. Maybe not.”
Maybe, I think, is an excellent word for a jury.
Ivan looks at me. “I’m guessing, if there’s a lawsuit involved, that the patient didn’t make it?”
I shake my head. “He died when he was three days old.”
“What day was the kid born?”
“Thursday. The heel stick was done on a Friday.”
“What time was it sent off to the state lab?” Ivan asks.
“I don’t know,” I admit. “Does that make a difference?”
“Yeah.” He leans back in his chair, eyeing Violet, who is now trying to ride the dog. “The lab in Connecticut is closed on Saturday and Sunday. If the screening sample was sent out from the hospital after, say, midday on Friday, it didn’t reach the lab till after the weekend.” Ivan looks at me. “Which means if this kid had been born on a Monday instead, he would have had a fighting chance.”