Olivia began to weep, and almost immediately sat up in bed, angry at herself. She needed to sleep. She needed to look and feel well-rested for tomorrow. If the jury saw her looking haggard and wan, with black smudges under her eyes, they might feel sorry for her, but they wouldn’t like her. And Izaya said it was important that they like her. The jury was supposed to feel like she was one of them; that she was their daughter or sister or wife.
She rolled her legs off the bed with a grunt, and heaved herself to her feet. She pulled on the old flannel robe of Arthur’s that he’d given her when she’d grown out of her own and headed downstairs to make herself a cup of tea. She found Elaine sitting at the kitchen table, her small square hands wrapped around a steaming mug.
“What’s wrong? You can’t sleep either?” Olivia asked.
Elaine shook her head. “Tea?”
“Yeah, something that’ll help me sleep. Chamomile.” Olivia sat down and propped her feet up on a chair. “God, my ankles. They’re totally swollen. Look, I can make a dent.” She pushed her index finger into the swollen flesh. The indentation lingered long after she’d taken her finger away. “At this rate I’m going to have to wear bedroom slippers to the trial. Do you think they’ll let me put my feet up in court?”
“Here you go, honey.” Elaine put an oversized yellow mug in front of Olivia. “Some honey for you, honey?” she asked—the same joke she made every time she made Olivia a cup of tea.
Olivia spooned honey into her cup and stirred the water.
“I downloaded some stuff off the FAMM site,” Elaine said.
“Really?” Olivia murmured. Despite Elaine’s encouragement, Olivia had not bothered to look through the FAMM materials or explore their website. Reading about the plight of other incarcerated drug offenders provided her with none of the comfort it seemed to give Elaine; on the contrary, it made her even more anxious.
“There’s some amazing information here,” Elaine said, pushing a small stack of paper over to Olivia. “Things about national rates of drug use. That kind of thing. It’s just been such a colossal failure, this drug war.”
Olivia leafed through the documents without reading them. “Yeah,” she said.
The two sat in silence for a few moments. Then Olivia spoke. “I need to come up with a plan for the baby. Just in case.”
Elaine paused, her cup halfway to her lips. She set it down on the table without drinking. “I suppose that’s a good idea,” she said.
“I want the baby. I mean, I know I’m being selfish and everything, but even if I go to jail for ten years, I want it to be there waiting for me when I get out.”
Elaine nodded.
“Okay,” she whispered.
“And you can’t take it.”
“No.” Elaine voice was almost inaudible. “I wish I could help you, Olivia. I really do. If it were just me that would be one thing. But it’s not. Just me, that is.”
Olivia wasn’t surprised. She had not expected Elaine to change her mind. No, she wasn’t surprised, but she was angry. She was furious with her mother for refusing to help her, and, even worse, for pretending an ambivalence and a regret that she didn’t truly feel.
Elaine sipped her tea. “Do you need more tea?” she asked.
“I still have a full cup.”
“Okay.”
“I thought about maybe trying to find some kind of open adoption where the adoptive parents would agree to let me have visitation or even partial custody when I got out of jail.”
Elaine looked up, a glint of hope in her eye. “That sounds promising. Do you think you’ll be a able to find a couple who would agree to that?”
“I don’t know. Maybe. But it doesn’t matter. I decided that’s not what I want. I don’t want to be the ‘birth mother’ like that girl in group. I want to be my baby’s mother. In jail or out of jail, I want to be its mother.”
Olivia glanced at her mother to see how well she stifled her disappointment. Elaine held her cup to her face, blowing on the already cool tea.
It was time to tell her mother what she had decided.
“I’m going to ask Jorge’s family to keep the baby for me,” she said.
“What?” Elaine’s voice was suddenly loud in the night’s quiet. “Are you kidding, Olivia? You’re going to give the baby to the man who betrayed you?”
Olivia knew it wasn’t really a good solution. Unfortunately, however, it was the only one. A few days before, she’d gone online, searching for some organization that could help her. She found Legal Services for Prisoners with Children and had felt an intense jolt of hope that was quickly dashed by the kind woman who had answered her phone call. Olivia had explained her situation and asked the woman what normally happened in cases like hers.
“Well,” the woman had said, “generally a member of the family takes the child.”
“And if there’s no one who can do that?”
The woman paused. “Do you have a friend who can take it?” she asked gently.
“No.”
“Then the outlook is pretty bleak, I’m afraid. If you have the baby while you are incarcerated, Child Protective Services will take custody within seventy-two hours of its birth. That means they’ll come pick it up at the hospital. They’ll put it into foster care, and then there will be a series of hearings establishing the infant as a dependent of the court. How long of a sentence are you facing?”
“Ten years,” Olivia whispered.
The woman’s voice grew even more tender. “I’m sorry. Because it’s such a lengthy sentence, there will be no reunification plan. In California, a parent has only six months to reunify with a child who is removed from her physical custody before three years of age. Sometimes that’s extended to twelve months, and I’ve even had a case or two where a mother’s been given eighteen months. But not ten years. Not even two or three. I’m afraid the state will move to terminate your parental rights, and the rights of the father, and then place your baby up for adoption.”
The woman sat on the phone with Olivia for a long time, listening to her cry. She didn’t hang up, even when Olivia’s sobs came so hard and fast that she couldn’t speak. Only once Olivia had calmed down did she let her go. She made Olivia promise to call again if there was anything else she needed to know.
Olivia looked at her mother steadily and said, “I wouldn’t be giving the baby to Jorge. I’d be giving it to his parents. I know they’ll take care of it. They’re good people. It’ll have a good life with them. What’s really important is that I know they’ll give it back to me when it’s time. They’ll want the best for it. They’ll want it to come to America.”
“How can you be so sure? How do you know that they won’t keep the baby, or give it to Jorge? If you do go to jail, you could be there longer than he will. How can you be sure that he won’t go to Mexico and take the baby before you even get there?”
“I can’t be sure. But I trust his parents. I have to trust them. They’re the only option I’ve got.”
Olivia thought of Jorge’s mother, Araceli Rodriguez. Every time Olivia had seen the small woman, there was at least one grandchild on her hip or sitting in her ample lap. She would carry on a conversation, all the while tickling and kissing the child, tempting it with tidbits of food, wiping its nose and mouth. On Olivia’s last day in San Miguel, Araceli and Juan Carlos had made her an elaborate going-away party. They’d invited their entire family—aunts, uncles, cousins. They had all eaten until they were stuffed and lazy, then they’d played music and drank beer and tequila. After she’d served a homemade peanut butter flan that Olivia had devoured with something akin to ecstasy, Araceli had pulled a massive bag of pink and white marshmallows out of a cupboard. She began distributing them to the children, pushing the soft candy into their mouths as if they were baby birds. Olivia could still so clearly see her small brown hands and the pink Os of the children�
��s delighted mouths, sticky with the candy, solemn with love for their abuela.
At the end of the evening, Jorge’s parents had presented her with a dreadful painting of the city—all pink sunsets and oddly malformed donkeys walking next to peasants who looked like little more than sombreros with legs. When she’d wondered aloud how she would carry it on the plane, Juan Carlos had pulled a long, evil-looking blade out of his pocket, and sliced it from the frame. He’d rolled the painting and tied it with a bit of blue nylon string. He’d handed it to her and kissed her firmly on the forehead. She’d carried the painting under her arm all the way to Oakland. It was still tucked away in the back of a closet in the apartment for which she still paid rent, but to which she knew that, no matter what happened, she would not return.
“His parents are great people, Mom. They’re warm and loving. They would take good care of the baby. I’m sure of it. And I have no other choice. If the baby goes into foster care, they’ll terminate my parental rights within six months and give it away for adoption to whomever they choose.”
“Is that true?” Elaine gasped. “Are you sure?”
Olivia nodded.
“Look, probably none of this will end up being necessary. I’m going to be acquitted. I know I am. But I need to have a plan. Just in case something goes wrong.”
“Just in case,” Elaine repeated and poured more tea into Olivia’s cup.
***
On their way into the courtroom, Izaya explained to Olivia and Elaine that he would try to pack as many black people onto the jury as he could. That was marginally easier to do in Oakland than in San Francisco, although since the East Bay federal court drew its juries from both Alameda and Contra Costa counties, the pool was still heavily white, weighed down with military retirees and Walnut Creek matrons. Izaya liked his own people on the jury because he knew that they were more willing to cast a cynical eye on police testimony; they were all too familiar with the ways of lying cops. Izaya warned, however, that the prosecutor would be working just as hard to keep black jurors off the panel. Legally, neither side was allowed to consider race in exercising their preemptory challenges; in reality, it was one of their primary concerns.
In federal court, voir dire, Izaya explained, was the purview of the judge—he asked the questions. What someone looked like was truly all Izaya and his opponent had time to pay attention to as the judge hurriedly grilled the members of the jury pool about their capacity for impartiality. Race, the element the Constitution precluded them from considering, was one of the few things they actually could rely on in selecting a jury.
True to his word, every time the AUSA tried to dismiss an African-American, Izaya would rise to his feet and proclaim, “I’m making a Batson objection.” He had explained that he wasn’t allowed to shout, “She’s a racist pig and she’s trying to keep the black folks off the jury.” Instead, he was limited to intoning the name, Batson, after the case in which the Supreme Court had ruled that an attorney could not exclude jurors based on their race, and hoping the judge would see things his way.
The morning passed slowly, with Izaya doing his best to make sure there were no middle-aged Asians selected—too “law-and-order,” he explained—and the prosecutor making a preemptory challenge every time an older man came off the least bit fatherly.
One woman who looked to be in her mid-thirties, with chinlength curly hair dyed an orange-red and an expression at once compassionate and intelligent, caught Olivia’s eye. She smiled, the corners of her eyes crinkling slightly, and Olivia was taken aback by the sheer normalcy of the moment they shared. When the woman announced her profession as a former defense attorney, now stay-at-home mother, the prosecutor used a preemptory challenge to dismiss her. Olivia noticed the swell of her belly as she made her ungainly way down the steps and out of the jury box.
A middle-aged African-American man seemed to cause both Izaya and the prosecutor a moment’s hesitation. The man informed the judge that he had a nephew in prison for assault stemming from a failed drug transaction. Amanda Steele was quite obviously about to dismiss him when he disclosed his service as a military police officer. She nodded once, and Olivia looked at Izaya. He tapped his pencil against his teeth and narrowed his eyes at the man. Finally, he too nodded, and the ex-military cop took his place on the jury.
Finally, it all came down to one pinched spinster with a sour expression, wearing a dingy white blouse buttoned high on her neck. She held a misshapen pink purse on her lap; it was too sweet a color for a woman who looked so bitter.
“Shit,” Izaya whispered.
“What?” Olivia whispered back, leaning towards him. They were sitting together at the defense table. Olivia wore one of the outfits her mother had given her. The black skirt ended at her knee and the top was cut in a generous A-line. She had tied a black-and-white-checked scarf around her neck. Her swollen feet were crammed into a pair of the sensible flat pumps that Elaine wore to work, and the puffy flesh of her feet bulged out from the tops of the shoes. Elaine, dressed in a conservative navy blue suit and a pale blue blouse, sat in the first observers’ row.
“I used up my last challenge getting rid of that guy whose sister-in-law was engaged to an FBI agent.”
“But you want to dismiss this one, too?”
He nodded. “Shh. Your honor?”
“Mr. Feingold-Upchurch?” the judge said.
“I’d like to have this juror dismissed. For cause.”
The judge, in his early seventies with a shock of bright white hair over each ear and an otherwise entirely bald head, shook his head. “And why would that be, Mr. Feingold-Upchurch?”
“Side bar, your honor?” Izaya asked.
The judge shrugged. “By all means, counsel.” He raised one pinkish hand and waved Amanda Steele over. She rose to her feet and made her unhurried way towards the bench.
“What are you going to say?” whispered Olivia, as Izaya gathered up the pad on which he’d been making his notes.
“I’m going to beg,” he replied, and winked at her. It was obvious to Olivia that her attorney was enjoying himself. She wondered why she didn’t resent his high spirits. She supposed it was because she knew that he cared what happened to her. If the drama of the courtroom gave him a visceral pleasure, so much the better. His obvious comfort and confidence behind the defense table and up at the podium could only help her. The jury would think he was sure of her innocence and secure in the inevitability of acquittal. They couldn’t help but take their cues from him. She certainly couldn’t.
Olivia watched as Izaya whispered to the judge. Judge Horowitz gripped one hand over his microphone. Olivia could hear nothing, but she could read the disgust in Amanda Steele’s face as she whispered in reply to whatever it was that Izaya was saying. Finally, after a few minutes, the judge waved the attorneys back to their seats.
“Motion denied,” he said.
Later, after the judge had dismissed the impanelled jury for lunch and had left the courtroom, Elaine joined Izaya and Olivia at counsel table. They waited until Amanda Steele had left the room, which she did without glancing in their direction. Then Elaine and Olivia looked expectantly at Izaya.
“So,” Elaine said, “what do you think of the jury?”
Izaya nodded his head. “Overall, I think we did okay. The best we could. We scored with that acupuncturist from Berkeley.”
“Why do you say that?” Elaine asked. “She seemed pretty adamant about never having tried drugs. They all did.”
“Yeah, well, did you notice the pin she was wearing on her blouse? It’s an AA medallion. She might not be a drug user, but she’s certainly a recovering alcoholic. I’m pretty sure Steele didn’t notice that.”
“Do you think that’s good for us?” Elaine asked. “She might be really negative about drugs.”
“Yeah, but she’s also liable to understand how people get themselves into situations d
espite their best intentions. She’ll be sympathetic to Olivia. I’m sure. Also, I’m willing to bet she’s a lesbian. She won’t have any sympathy for a lying boyfriend.”
“And the others?” Olivia interrupted.
“They’re a mixed bag. I like the brother—the one who works for PeopleSoft. That young Asian girl who just graduated from Cal seems okay. The rest are the usual crowd of retirees and housewives—what you get on most juries.”
“What do we do now?” Elaine asked.
“We get some lunch. I wish I could join you, but I want to work on my opening statement while I eat,” Izaya said.
Elaine and Olivia wandered through the streets of downtown Oakland, passing greasy coffee shops and the ubiquitous McDonald’s. Finally, they settled on a Vietnamese pho shop.
“Do you think the jury noticed I was pregnant?” Olivia asked as they sat waiting for their food.
Elaine smiled. “It’s kind of hard to miss, honey.”
“I thought some of the women looked sort of sorry for me.”
Elaine nodded. “I think so. Especially the two older women on the far left. The one from Sonoma and the other one with the denim shoulder bag.”
“The acupuncturist, too. I think it was smart to keep her on the jury. She seems nice.”
Elaine nodded. “I hope she won’t be too upset about missing work. I was sort of surprised she didn’t ask to be excused, what with running her own business and all.”
“Is that okay for you, Mom? To miss work?”
“It’s fine. Warren’s glad of the extra hours. He sends his regards. And Ralph says to tell you he wishes he could be here.”
Olivia smiled. “I wish he were here, too. He could hand me a milk shake whenever I got hungry.”
Elaine smiled and then looked down at her hands as if she were ashamed of allowing herself the moment of levity.
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