No Way Out

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.”

Monday, 17 August 2009 — 13:00

“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.

Monday, 17 August 2009 — 17:30

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