David Kessler - No Way Out

“I’m referring to the clear statistical under-representation of African-Americans on the panel of veniremen. Alameda county is nearly fourteen percent black. On that basis there should be about twenty one or twenty two African-Americans on this panel. I can only see seven — sorry eight. This under-representation is clearly contra to Strauder versus West Virginia , 1880, upon which the previously cited Batson ruling was founded.”

“Ah yes Strauder ,” said Justice Wagner, with a wry smile. “The case that held that States have the right to exclude women from juries.”

Andi looked flustered.

“I believe that at the time, the Nineteenth Amendment had not yet been passed, whereas the Fifteenth had. So the ruling merely reflected the state of play with regard to the constitutional position on voting rights for blacks and women respectively. In any event, the ruling remains in force and has been cited in other rulings.”

“Yes Miss Phoenix, one of those rulings being Hoyt versus Florida in 1961, in which the Court ruled that making jury service compulsory for men and voluntary for women did not violate the Fourteenth Amendment.”

Andi gritted her teeth.

“With respect Your Honor, the Fourteenth Amendment has always been interpreted as referring to racial rather than gender discrimination. The fact is — ”

“The fact is, Miss Phoenix, that the Washington versus Davis case of 1976, held that the legal test to be applied is intention -based not effects -based. The issue that the Court must consider is therefore not whether the result of a practice is racial disproportionality in the jury per se , but rather whether there was a deliberate intent to wholly or partially exclude a particular ethnic group from the jury.”

An astute observer would have noticed a pained expression on Ellen Wagner’s face as she said these words. But they might not have realized that the reason for this was because her own, highly respected, Thurgood Marshall had dissented in Washington versus Davis .

Andi tried again.

“Your Honor, that precedent was set in a federal case under the fifth amendment, citing the due process clause. My citation is of the Fourteenth Amendment at the state level, referring not to its own due process clause but rather to its equal protection clause. It was the wording of the equal protection clause that was explicitly cited by the Court in Strauder .”

“Be that as it may, Miss Phoenix, the ratio decidendis for holding that disproportionality per se is not a constitutional violation is as applicable to the Fourteenth Amendment’s ‘equal protection’ clause as to its ‘due process’ clause.”

“In that case, Your Honor I would also cite my client’s Sixth Amendment right to trial by an impartial jury.”

“Are you saying that failure to ensure racial proportionality in the venire panel would negate the impartiality of the final jury?”

Andi paused. She knew she would have to be careful here because this was in the presence of the venire panel. She didn’t want to alienate them by accusing them of bias.

“Side bar, Your Honor?”

“Approach.”

She approached the bench with Alex, who didn’t trouble to hide the anger on his face. Sarah Jensen and Nick Sinclair also approached, but took their time in doing so. The judge switched off her microphone and Andi leaned forward as she spoke in a whispering voice, forcing herself to sound less strident and more appealing.

“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.”