No Way Out (14 page)

“Your Honor, my point here is that with blacks so severely under-represented on the venire panel we have no
chance
of getting a truly representative jury. In a case such as this, with all its ramifications, it is
vital
that the jury be a true cross-section of the community. It is
inevitable
that there will be strong feelings all around in a case like this. All I’m asking is that we get at least a fair shot at an ethnically diverse jury to represent a true cross-section of the community.”

The judge looked over at the prospective jurors. It was obvious that there were indeed only eight blacks there. And based on what Andi had said, this was indeed a statistical aberration to say the least. Ellen Wagner’s next words were spoken in a more sympathetic tone than she had used until now.

“I can understand your concerns Miss Phoenix. But there’s no constitutional requirement that juries be ethnically balanced or diverse. Even
venire
panels can sometimes be imbalanced. It means nothing in the broader scheme of things.”

“But there
is
a constitutional requirement that there be no
systematic
exclusion on grounds of race, Your Honor. The fact that blacks are so
grossly
under-represented in the panel – and I can give you the statistics to back that up – means that they are effectively being excluded from the final jury. If they’re not on the venire panel in the first place then they can’t possibly get onto the jury.”

Justice Wagner looked over at the panel again, as if for reassurance.

“But jurors are summoned at
random
, Ms Phoenix. Do you have any evidence that blacks have been deliberately excluded from this panel?”

“No Your Honor. But it is statistically unlikely –
extremely
unlikely – that in so large a sample, blacks would be so
grossly
under-represented. For this reason there must be a
prima facie
assumption that something has gone wrong in the selection procedure.”

Sarah Jensen – who had been content to leave it to the judge to shoot down Andi in flames – now decided that it was time to enter the fray.

“Your Honor this is ridiculous. Statistical aberrations happen all the time. With such a large number of trials, it’s only natural that in some cases there should be a disproportionate number of one race or another. Has Ms Phoenix ever heard of mean standard deviation? Does she actually know anything about statistics? Or is the defense merely trying to cherry-pick the jury?”

The judge looked at Andi, addressing her in a tone that was firm, but not aggressive.

“Ms Phoenix, do you have any statistical evidence that a deviation of this size is statistically dubious, given the large number of jury cases that take place altogether?”

“No, Your Honor,” replied Andi sheepishly.

“Do you have any
causal
evidence that blacks were intentionally excluded from
this
venire panel?”

“No Your Honor.”

“Then your objection is overruled.” Ellen Wagner leaned back and looked at all of them. “You may return to your places.”

“What the fuck were you trying to do!”

It was the lunchtime adjournment, after they’d spent the morning on the not yet completed voir dire. Alex had barely waited to put some distance between himself and the reporters who had followed them out of the courtroom before letting rip at Andi. They were out of earshot of the press pack, but only just.

“I found a discrepancy in the jury panel and I had a duty to act on it.”

“You don’t have a duty to do anything without
my
permission!”

“If I hadn’t put our objection on the record before the voir dire, we might have lost the chance to invoke it on appeal!”

“ ‘
Our
objection’? ‘
we
might have lost’? Let me tell you something Andi. There’s no
we
and no
our
in this case. You’re not here to fight the case. That’s
my
job. Your job is to provide the softening, humanizing touch.”

“You’re evading the issue. If I hadn’t spoken up, we’d’ve been fucked.”

“That’s bullshit! We could have said we didn’t notice at the time.”

“Didn’t notice? It was practically reaching out and hitting you in the face. And if you didn’t notice until I pointed it out to you,
then you must have been blind!”

“Look I don’t think you’re hearing me too good – too well. You don’t do anything in there without my say so.”

“I told you the problem, but you just ignored me.”

By now Alex was on the verge of shouting, a rare occurrence for him.

“And you think it’s good tactics to stand up in front of the people who are going to make up then jury and say to the judge; ‘I don’t want any of this lot, I think they’re biased!’ Look, let’s get this straight once and for all.
I’m
running this show. You’re just here for the ride.
Got it
?”

“I thought you wanted my help on this case.”

Her voice was weak, the self-confidence all gone.

“Look, I know you want to help,” he said more quietly. “But if you’re going to work with me, you have to play it according to my game plan. I picked you for my team because you look good and having Claymore sitting next to you makes him look non-threatening.”

“I told you back then, I’m not a prostitute.”

Alex seemed to lose his patience again at this.

“We’ve already been through all that!”

Andi stormed away angry and frustrated.

They had finally concluded the voir dire at around 16:45 in the afternoon, with neither prosecution or defense using up all of their peremptories. Justice Wagner had made it clear that she would extend the session past the normal time to complete the voir dire, and faced with that prospect a kind of fatigue had set in amongst the lawyers, making them less acrimonious and more amenable to compromise. Ellen Wagner prided herself on having a stronger constitution than most of these “spring chicken lawyers” and today proved to be no exception.

Consequently, they managed to select twelve jurors whom they more or less were able to agree upon, even if the defense weren’t completely happy with them. Andi had been wary of leaving some of their peremptory challenges unused, as precedent suggested that this might block their prospect of appeal based on her objection to the panel. But she had been equally wary of incurring Alex’s anger any further and beside that she felt confident that the novelty of her objection based on the entire panel, meant it fell outside the scope of existing case law.

After the last juror was selected, the judge decided to adjourn the session and postpone the swearing in till tomorrow. So Alex and Andi returned to the office to get some of the paperwork done. The tension between them had mellowed somewhat, but had not disappeared in its entirety.

Back in the office in the Embarcadero Center, Andi took the opportunity to spend the rest of the day looking at demographic statistics for other juries. Alex had given her use of the conference room as her temporary office, for the duration of the case. She felt rather guilty about this, considering that Alex’s own office was considerably smaller and had no natural light on its own, let alone a stunning view of the Bay. Juanita, whose reception desk was in the large open area of the office, had told her in confidence that the conference room had once been used by a legal intern and that it had some painful memories for Alex. She had decided not to push for more information, realizing that Juanita had said more than she intended and that it was something Alex certainly didn’t want to talk about.

Clicking on one link after another as she pursued the chain of data, she didn’t really expect to find anything. She knew that blacks were under-represented in juries for a variety of reasons. But she suspected that the results of her labors would be to find a high degree of variation from cases to case – proving the common opinion of the judge, the prosecutor and even Alex, that it was just a statistical blip in this case with no significance whatsoever.

And yet, part of her was still hoping.

“Would you like a cup of coffee?” asked Juanita.

“Thanks,” said Andi, barely looking up. Juanita had seemed hostile when Andi first started working here, and Andi couldn’t escape the feeling that it might have something to do with their differing sexuality. But after less than a day, Juanita seemed to be much nicer – almost suspiciously kind – and Andi even began to have doubts whether her initial assessment of Juanita’s sexuality had been correct. At any rate, Juanita was a gentler soul than Alex… and certainly a gentler soul than Gene.

While she waited for the coffee, Andi returned her attention to the computer screen and thought about the issue that had been bugging her in court. Yes it was true that many blacks didn’t register to vote. But that was precisely why the State didn’t rely solely on the voting register, but used driver registration too. The one type of ownership that was impervious to socio-economic discrimination was car ownership. The widespread availability of cheap used cars meant that all but the most poverty-stricken members of society could afford one. And even if they didn’t own a car, most adult Americans could drive. And all of those drivers were included in the jury pool.

That was why it was so troubling to Andi. In a small panel, one might sometimes get uneven or disproportionate results. But this was a panel of 150. An imbalance of this size was quite an anomaly. Could it have been just a random accident? Contra to what Sarah Jensen had assumed, she did understand statistics – having taken a course in the subject as part of her psychology studies – and was fully conversant with such concepts of Standard Deviation and Mean Standard Deviation. But she wasn’t satisfied that the small number of blacks on the panel was the result of such random deviation.

And she was determined to find out for sure.

The door opened and Juanita came in with the coffee and a smile. Andi returned the smile, but quickly gave her attention back to the computer monitor, making it clear that she had no time for small talk.

The first thing to do was log on to the census bureau and pull up the jury records for the various voting districts. Then she started looking at the statistics for jury composition. It was a slow and tedious procedure, getting the statistics from the various districts in a series of downloadable computer files and then cutting and pasting them into the statistical software package that she was using. But it had to be done. Finally, after several hours of painstaking work, she had enough data to build some graphic display charts, showing the demography of the populations and the corresponding average jury pools.

When she looked at the results it was frightening. There
was
a statistical imbalance. But it wasn’t just this one county. It was quite a few others too!

And it went back five years.

“Once again, the case of Elias Claymore for the rape of Bethel Newton has managed to produce a surprise,” said Martine Yin. “And still before the trial has even started.”

The television flickered as the young man sat with his eyes practically glued to the screen.

“This time it was the defense making the surprises when this morning in court, Alex Sedaka’s co-counsel Andi Phoenix stood up to challenge the entire panel of prospective jurors. In a move that was quite unprecedented – or at least that hasn’t been seen since Sam Leibowitz’s celebrated defense of the Scottsboro boys – Ms Phoenix told the court that blacks were under-represented on the jury panel and moved that the panel be dismissed.”

The young man smiled with amusement as he pondered the irony of what was happening. He had been surprised when he heard about Andi Phoenix and her relationship with the woman who worked at the rape crisis center. It was a complete and utter coincidence. But an amusing coincidence nevertheless.

“However, the judge threw out the motion after some heated debate, culminating in a brief side bar.”

The young man considered going to the trial and sit there in the spectator’s section. But he realized that might be pushing his luck. There was however one aspect of the case that he wondered about. He had read a rumor on the web that this reporter and Alex Sedaka were in a relationship.

Alex was reading through the jury selection notes when he heard a knock on the door.

“Come in,” he said, not looking up.

The door swung open and Andi came stumbling into the room holding a computer print-out, unable to conceal the excitement on her face.

“I’ve got something that’ll knock your socks off!”

Alex looked up, responding to her mood as much as her words.

“Surprise me.”

“It’s about the representation of blacks on the jury.”

“You’re not still going on about that are you?”

“There’s been a new development.”

She was gushing now. Alex’s face remained skeptical, but he put his pen down to show that he was giving her his undivided attention.

“What about it?”

“I’ve checked the figures for jury selection in California for the last five years and guess what? The pattern holds. Blacks are under-represented on venire panels in
many
counties, not just Alameda.”

Alex thought to himself for a moment.

“What does that mean?”

“It means that jury panels in many counties have consistently under-represented blacks by a statistically significant amount. I can show you some charts to prove it.”

Over the next few minutes she showed Alex how blacks were under-represented not only on juries but also on venire panels before the voir dire. To Alex it was quite convincing, but he wasn’t ready to go off half-cocked – not yet at least.”

“Okay now let’s slow down here. First of all there are certain somewhat mundane factors that might have the effect of reducing the number of blacks on jury panels.”

“Such as what?” Andi challenged.

“For example, rightly or wrongly, a disproportionate number of blacks are incarcerated in penitentiaries and corrections institutes and jails. They’re ineligible to vote.”