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.”
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 at demographic statistics for other juries. Alex had given her use of the conference room as her temporary office, for the duration of the case. She felt rather guilty about this, considering that Alex’s own office was considerably smaller and had no natural light on its own, let alone a stunning view of the Bay. Juanita, whose reception desk was in the large open area of the office, had told her in confidence that the conference room had once been used by a legal intern and that it had some painful memories for Alex. She had decided not to push for more information, realizing that Juanita had said more than she intended and that it was something Alex certainly didn’t want to talk about.
/> Clicking on one link after another as she pursued the chain of data, she didn’t really expect to find anything. She knew that blacks were under-represented in juries for a variety of reasons. But she suspected that the results of her labors would be to find a high degree of variation from cases to case – proving the common opinion of the judge, the prosecutor and even Alex, that it was just a statistical blip in this case with no significance whatsoever.
And yet, part of her was still hoping.
“Would you like a cup of coffee?” asked Juanita.
“Thanks,” said Andi, barely looking up. Juanita had seemed hostile when Andi first started working here, and Andi couldn’t escape the feeling that it might have something to do with their differing sexuality. But after less than a day, Juanita seemed to be much nicer – almost suspiciously kind – and Andi even began to have doubts whether her initial assessment of Juanita’s sexuality had been correct. At any rate, Juanita was a gentler soul than Alex… and certainly a gentler soul than Gene.
While she waited for the coffee, Andi returned her attention to the computer screen and thought about the issue that had been bugging her in court. Yes it was true that many blacks didn’t register to vote. But that was precisely why the State didn’t rely solely on the voting register, but used driver registration too. The one type of ownership that was impervious to socio-economic discrimination was car ownership. The widespread availability of cheap used cars meant that all but the most poverty-stricken members of society could afford one. And even if they didn’t own a car, most adult Americans could drive. And all of those drivers were included in the jury pool.
That was why it was so troubling to Andi. In a small panel, one might sometimes get uneven or disproportionate results. But this was a panel of 150. An imbalance of this size was quite an anomaly. Could it have been just a random accident? Contra to what Sarah Jensen had assumed, she did understand statistics – having taken a course in the subject as part of her psychology studies – and was fully conversant with such concepts of Standard Deviation and Mean Standard Deviation. But she wasn’t satisfied that the small number of blacks on the panel was the result of such random deviation.
And she was determined to find out for sure.
The door opened and Juanita came in with the coffee and a smile. Andi returned the smile, but quickly gave her attention back to the computer monitor, making it clear that she had no time for small talk.
The first thing to do was log on to the census bureau and pull up the jury records for the various voting districts. Then she started looking at the statistics for jury composition. It was a slow and tedious procedure, getting the statistics from the various districts in a series of downloadable computer files and then cutting and pasting them into the statistical software package that she was using. But it had to be done. Finally, after several hours of painstaking work, she had enough data to build some graphic display charts, showing the demography of the populations and the corresponding average jury pools.
When she looked at the results it was frightening. There was a statistical imbalance. But it wasn’t just this one county. It was quite a few others too!
And it went back five years.
Monday, 17 August 2009 – 18:10
“Once again, the case of Elias Claymore for the rape of Bethel Newton has managed to produce a surprise,” said Martine Yin. “And still before the trial has even started.”
The television flickered as the young man sat with his eyes practically glued to the screen.
“This time it was the defense making the surprises when this morning in court, Alex Sedaka’s co-counsel Andi Phoenix stood up to challenge the entire panel of prospective jurors. In a move that was quite unprecedented – or at least that hasn’t been seen since Sam Leibowitz’s celebrated defense of the Scottsboro boys – Ms Phoenix told the court that blacks were under-represented on the jury panel and moved that the panel be dismissed.”
The young man smiled with amusement as he pondered the irony of what was happening. He had been surprised when he heard about Andi Phoenix and her relationship with the woman who worked at the rape crisis center. It was a complete and utter coincidence. But an amusing coincidence nevertheless.
“However, the judge threw out the motion after some heated debate, culminating in a brief side bar.”
The young man considered going to the trial and sit there in the spectator’s section. But he realized that might be pushing his luck. There was however one aspect of the case that he wondered about. He had read a rumor on the web that this reporter and Alex Sedaka were in a relationship.
Monday, 17 August 2009 – 18:20
Alex was reading through the jury selection notes when he heard a knock on the door.
“Come in,” he said, not looking up.
The door swung open and Andi came stumbling into the room holding a computer print-out, unable to conceal the excitement on her face.
“I’ve got something that’ll knock your socks off!”
Alex looked up, responding to her mood as much as her words.
“Surprise me.”
“It’s about the representation of blacks on the jury.”
“You’re not still going on about that are you?”
“There’s been a new development.”
She was gushing now. Alex’s face remained skeptical, but he put his pen down to show that he was giving her his undivided attention.
“What about it?”
“I’ve checked the figures for jury selection in California for the last five years and guess what? The pattern holds. Blacks are under-represented on venire panels in many counties, not just Alameda.”
Alex thought to himself for a moment.
“What does that mean?”
“It means that jury panels in many counties have consistently under-represented blacks by a statistically significant amount. I can show you some charts to prove it.”
Over the next few minutes she showed Alex how blacks were under-represented not only on juries but also on venire panels before the voir dire. To Alex it was quite convincing, but he wasn’t ready to go off half-cocked – not yet at least.”
“Okay now let’s slow down here. First of all there are certain somewhat mundane factors that might have the effect of reducing the number of blacks on jury panels.”
“Such as what?” Andi challenged.
“For example, rightly or wrongly, a disproportionate number of blacks are incarcerated in penitentiaries and corrections institutes and jails. They’re ineligible to vote.”
Andi was shaking her head.
“I got the stats for that and used the statistical analysis software to hold constant for it.”
“Hold constant?”
“Factor it in. The imbalance is still there when you take it into account. Don’t forget I have the figures from the voting register as well as census data.”
“Wait a minute, you have to be careful how you handle the data. The voting register excludes people incarcerated for felony convictions, but those serving time for misdemeanors can still vote. However, they can’t serve on juries.”
Andi folded her arms and pursed her teeth.
“Please give me credit for a modicum of common sense. I held constant for all incarcerations, including pre-trial detention. The pattern still holds.”
“Pattern?”
“I don’t mean the size of the imbalance stayed constant. Obviously it was reduced when I held constant for those variables. But a statistically significant discrepancy remained.”
“Meaning in plain English that it was too big to be a –”
“Random deviation? Exactly.”
“Okay but you base that on the assumption that the use of driver’s license records would be sufficient to plug the gap left by under-representation of blacks on the voting register. But not everybody drives. Some people use the bus.”
“The DMV also issues non-driver IDs.”
“But only to those who request them.�
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“Come off it! There isn’t an eighteen-year-old in the State who doesn’t want to buy smokes or booze. And once they’ve got the ID, they’re registered at the DMV. And that makes them eligible for jury service.
Alex shook his head, not to argue but merely as he struggled to take it all in.
“Okay, hold on a minute, let’s rewind. First of all how are juries chosen?”
“We’ve been through that over and over: from voting registers and car license records. I think they use property tax records too.”
“No what I mean is, once they’ve got the records how do they make the actual selection?”
“Well nowadays it’s done by computer.”
“And how does the computer actually do it?”
“What do you mean?”
“I mean, according to what criteria does the computer make its decision?”
“It’s random! That’s the whole idea!”
“Yes,” Alex persisted, “but how does something as deterministic as a computer make a random decision?”
He was remembering a discussion with David not long ago. David had tried to explain to him about “pseudo-random behavior in deterministic systems.” Of course David’s area of interest was cosmology and sub-atomic particles. But the discussion had fascinated Alex, even if he hadn’t entirely understood what David had painstakingly set out to explain to him.
“Okay let’s say the Court needs 200 prospective jurors for that week,” Andi began. “And there are a 50,000 eligible people in the district or county. The computer divides a 50,000 by 200 and gets 250. That means they need to summon one person for every 250 in the district. So the computer chooses every 250th name on the list.”
“That’s it?”
“Well no, not quite. If the computer just did that, then it would always choose the first person on the list and then all the other people at fixed intervals. So instead, what the computer does is it creates what’s called a ‘random offset.’”
“Random offset?” Alex repeated.
“Yes. What that means is that it picks a random number between one and 249. Then it counts that number in and picks that person as the first juror. So let’s say it picks the random number 187 as the random offset. What it does then is pick the 187th person on the list as its first selection and then pick every 250th person thereafter, until it gets to the end of the list.”
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