No Way Out

to the press. Some of them “knew” that Claymore was guilty and wanted to “nail that bastard”. Others “knew” that he was the victim of a white man’s witch-hunt and wanted to save him from the clutches of a racist legal system. Yet others just wanted to tell their friends that they were on the Claymore trial jury.

Sarah Jensen was still on the case, in the prosecutor’s first seat. But now, she was assisted by Nick Sinclair, a short-bearded African-American lawyer in his mid-thirties, assigned to the case by the Alameda DA. The choice was not accidental. The DA wanted to show that this was a crime against women, but also to reassure society that it was not a race issue: hence the combination of Sarah Johnson from Ventura where the alleged crime was committed and Nick Sinclair from Oakland to create the right balance in the jury’s mind.

At the defense table, Claymore sat uncomfortably. Alex — a quintessential trial lawyer — was very much in his element. He leaned over and whispered a quiet last minute word to Andi.

“I don’t know this judge, but I she looks kind of tough, so I think we should set the program to assume that she won’t allow any of our challenges for cause.”

They were using a piece of software called JuryWizard. It allowed them to grade jurors according to how good or bad they were for their case and to prioritize who to cut or challenge without cause. If the judge allowed all or most of their challenges for cause, then they could use their “cuts” quite liberally to clear out the remainder of the undesirables. But if the judge was less accommodating, the peremptories had to be used more sparingly, to screen out the worst of the ones they didn’t want. They could set the software to allow for what percentage of the challenges for cause the judge would allow and it would flag and prioritise the ones they should cut.

The plan was that Alex would ask the questions and Andi would input the data.

“Something’s bothering me about this panel,” said Andi, her eyes glued to the prospective jurors.

“What?”

“There are hardly any blacks on it.”

“I know,” said Alex, “But we’ve agreed that it’s not necessarily a disadvantage.”

“Yes but it doesn’t make sense.”

“I guess it’s because they’re under-represented on the voting register. A lot of blacks still don’t register to vote.”

“You’re living in the past Alex. This is the Obama age. Besides, the jury’s also drawn from driver’s license registration.”

Alex waved his hand dismissively.

“It could just be a statistical blip. Let’s not make a mountain out of a hill of beans. There’s nothing we can do about it now. We’ve got bigger things to think about.”

“Is the prosecution ready?” asked the judge

“Yes Your Honor,” said Sarah Jensen. “I appear on behalf of the People. Mr. Nicholas Sinclair of the Alameda County DA’s office is my co-counsel.”

Alex rose.

“Your Honor I appear on behalf of the defense. My co-counsel is Miss Andromeda Phoenix.”

He sat down.

“The People may proceed.”

“Thank you Your Honor.”

Suddenly — and quite out of the blue — Andi rose, leaving Alex looking surprised if not downright terrified.

“Your Honor, may it please the court, before we begin voir dire, I wish to lodge an objection to the panel.”

They all looked at her in confusion, including Alex.

“The entire panel?” asked Justice Wagner, with measured composure.

“Yes Your Honor.”

“Your grounds Miss Phoenix?” asked the judge, her curiosity aroused.

“Fourteenth Amendment, Your Honor, systematic exclusion of jurors on grounds of race in clear violation of the principles of Batson versus Kentucky, 476 U.S. 79, 1986.”

Justice Wagner peered down her varifocals at Andi, somewhat bemused. Alex, in contrast, was struggling, not to show his irritation. The case Andi had cited involved the prosecutor’s abuse of peremptory challenges to systematically exclude blacks from the jury.

“I’m not quite sure I’m following you Miss Phoenix. The jury hasn’t been empanelled yet. The voir dire hasn’t even started.”

“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