"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...?"