Jodi Picoult - Small Great Things

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.