Other things were.
“There’s no Black people,” Michael whispered to Talon as the last member of the panel entered the courtroom and the bailiff closed the door to the hallway.
That wasn’t quite accurate. There were three African-Americans: a young man in the first row, wearing a long-sleeved shirt and jeans; a middle-aged woman in the third row, wearing a sweater and carrying a large purse; and an old man in the last row, with white hair surrounding a bald crown and glasses perched on his nose. Talon had already done the math: twelve jurors, plus two alternates, plus eight strikes each, equaled thirty jurors. The last half were there just in case someone in the first half had to be excused ‘for cause.’ Maybe they knew one of the attorneys, or had read about the case in the paper and already made up their minds. Or they really couldn’t miss that much work and needed to be excused. The young man was in the first twelve, so he’d be on the jury unless he got struck. The woman was Juror #29, so they might get to her if both sides used all of their strikes. But the old man was Juror #54. There was almost no way they would get to him.
“There’s three,” Talon answered.
“I thought I was supposed to get a jury of my peers,” Michael complained.
Talon nodded as the judge asked everyone to sit down again and began explaining the nuts and bolts of the jury selection process to the jurors.
“You are,” Talon answered, “but it doesn’t mean you get a jury made up of people who are exactly like you.”
“Well, I shouldn’t get a jury with no one like me either,” Michael responded. “Shouldn’t there be more Black people on the panel?”
Talon had anticipated this issue as well. According to the last census, Pierce County, Washington, was approximately 4% African-American. Three jurors out of sixty was 5%. She wouldn’t prevail on a motion for a new panel. And even if she did, and the numbers doubled for the next sixty, Michael would still only have six African-Americans on his jury panel; with two or three of them out of reach in the back row again.
“Maybe,” Talon whispered. “But there’s nothing I can do about it right now.”
Michael frowned at her. “What if I tell you that you have to do something?”
Talon smiled. She really did like him. “The trial has started now, Michael. Things are going to move fast. I can’t have every decision be a joint decision. You hired me for a reason.” She pointed around the courtroom. “This is the reason.”
When Michael didn’t immediately reply, she added, “Trust me. I know what I’m doing.”
And she did. Because she knew what Quinlan would do.
But first, they had to talk to the jurors.
Quinlan went first. Or rather, the prosecution—as always—went first, and Quinlan stood up to talk, not McDaniels. He was the man, after all. And he was White. Talon wondered whether he even realized he was tokenizing McDaniels. More importantly, she wondered if the jurors realized it. If Quinlan couldn’t even see the implicit bias in the White guy always getting to talk first, how many of the jurors might not see it either? After all, the D.A. is supposed to be a White guy in a suit.
And the defendant is supposed to be a Black man.
The questioning alternated in twenty-minute blocks. Quinlan wasted the prosecution’s first twenty minutes on icebreakers.
“How did you feel when you got your jury summons?”
“Has anyone served on a jury before?”
“What makes a good juror?”
When he was done, Talon stood up and cut to the chase.
“By show of hands,” she asked, “who walked into the courtroom, looked at my client, and thought, ‘I wonder what he did?’”
Only a few hands went up, and even those were tentative.
“Remember,” she reminded them, “you all took an oath to tell the truth.”
At that, almost all of the other jurors raised their hands too. Talon made note of the few who didn’t—they were liars. Then she started talking to the panel. She started with Juror #1.
“How can a criminal defendant get a fair trial,” she asked the young woman in the first seat, “if as soon as his jurors see him, they already assume he must have done something wrong?”
Talon knew there was no easy answer to her question. Juror #1 stumbled through a response about The System, and The Constitution, and Following the Law. But the answer didn’t matter. The import was the question. And how it set up the real question, posed to Juror #2.
“How,” Talon asked the middle-aged White man, “does a Black man get a fair trial when everybody assumes he’s guilty just for being here?”
Again, the answer didn’t matter. Not really. If someone had said something overtly racist, then yes, that would have been helpful to get them excused for cause. But no one was going to say that. Juror #2 agreed it was a concern, a challenge even, but assured Talon he could be fair. Same for Juror #3, another middle-aged White man. Then she got to Juror #4.
The young Black man.
“What are your thoughts on that?” Talon asked him.
The man took a moment to answer. He shifted in his seat and exhaled deeply. Then he glanced around at the jurors seated to either side.
“I think,” he started slowly, “that most of the people probably mean well, but they don’t know what it’s like to be Black in America. And certainly not what it’s like to be a young Black man.”
That sent a ripple of discomfort through the room. Talon knew already there was no way Quinlan was going to let Juror #4 on the jury—in fact, she was counting on it. But whatever jurors would eventually make it onto the jury were all sitting in that room, and they would all hear what Juror #4 had to say.
“What is it like?” Talon asked.
The young man paused again. Then he pointed toward where Michael was sitting. “It isn’t just sitting at the defendant’s table. It’s everywhere. It’s everything. It’s when you’re walking down the street and the person ahead of you keeps looking over their shoulder at you. It’s when you’re sitting on the bus and people choose to stand in the back instead of taking the empty seat next to you. It’s when you get pulled over for a defective taillight or some other made-up crap and you have to keep your hands visible at ten and two so you don’t get shot.”
Talon nodded thoughtfully at the response. “What did you think,” she asked Juror #4, “when the judge told you Mr. Jameson is charged with murder?”
The juror offered a pained smile. “I thought of all the cops who shoot unarmed Black men and don’t even get fired, let alone charged with murder.” He paused, then added, “And I thought, I don’t feel comfortable sitting on a jury where the defendant—the accused—is Black, I thought, I bet some of the White jurors feel too comfortable, because it fits the stereotype that all crime is committed by Black people and all Black people are criminals.”
Yep, no way Quinlan wouldn’t strike Juror #4.
Talon smiled inside. But only inside. Those were important concepts. Ones the other jurors needed to hear, and ones she couldn’t touch on so candidly once the trial started.
“Thank you, sir,” she said earnestly.
The room was still charged from the comments. Like the leftover tingle after the adrenaline rush subsides. Talon moved on to a few more areas, spoke to a few more jurors, but soon enough her twenty minutes were up and she sat down again.
Then, to her dismay, Amity McDaniels stood up to conduct the State’s second round of questioning.
“Good morning, everyone,” she started in a smooth, pleasant voice. “I’d like to start by thanking everyone for their honesty, and encouraging it to continue.”
She glanced briefly at Juror #4, then expanded her gaze to the rest of the panel. “Who’s ever heard the term ‘Black-on-Black violence’?”
Talon suppressed a wince. That was the one racial angle that could help the prosecution. Yes, Michael Jameson was African-American. But so was Jordy McCabe.
Several of the jurors raised their hands, including all
three African-Americans.
McDaniels pointed at Juror #12, a middle-aged White woman who’d raised her hand. “What’s Black-on-Black violence?” she asked.
“It’s when an African-American commits a crime against another African-American,” the juror answered, with that pleased expression the smart kid in school always had whenever they answered a question.
McDaniels nodded. She pointed at Juror #26, a young Asian man. “So what’s Black-on-White violence?”
The juror hadn’t raised his hand in response to McDaniels’s lead-in question, but he could figure out the answer. “It’s when an African-American commits a crime against a White person?”
McDaniels nodded again. “Right. So…,” she glanced over her audience, “which one is worse?”
Talon squeezed her pen tighter. McDaniels was good. Talon just hoped Quinlan’s ego would keep her mostly sidelined during the actual trial.
There was no right answer to McDaniels’ question, of course. So the jurors hesitated. Finally, someone in the third row mumbled, “They’re the same.” That was followed by a murmur of approval throughout the jury panel.
“They’re the same?” McDaniels repeated. “Or at least, they should be, right?”
“Right,” answered several jurors.
McDaniels raised a hand to her chin. She narrowed her eyes slightly and tapped her lips thoughtfully. After a few moments, she took her hand away again and pointed to her audience. “Has it always been, though?”
Again, a wave of unease flowed through the room, followed by several independent ‘No’s, popping up like timid whack-a-moles.
“No?” McDaniels asked.
“No,” answered several more jurors, more confidently.
McDaniels singled out a specific juror again. Juror #9, a twenty-something White woman. The juror information sheet said she was a first-grade teacher. “Say, twenty years ago,” McDaniels asked her, “do you think the police might have worked harder to solve a Black-on-White crime than a Black-on-Black crime?”
The juror frowned. “Well, I don’t think they should have. But, yes, I think that might be true. Sometimes.”
McDaniels pivoted to Juror #18, an older African-American woman with a large purse and staid expression. “What do you think, Juror Number Eighteen?”
The juror nodded thoughtfully and straightened up a bit in her seat. “I think,” she started slowly, “that it will be a long time before White people will care as much about Black victims as they do about White victims.”
“So you don’t think the problem might have been worse twenty or thirty years ago?” McDaniels tried to clarify. She didn’t care—at least professionally—if things were fair now. She was just trying to suggest that the jurors would have a chance to right a long-ago racial injustice, if they would just convict Michael Jameson of murder.
Juror #18 shrugged. “I’m not sure how much things have really changed.” She gestured toward the front of the courtroom. “I mean, just look. The defendant is Black. And you too, but you’re clearly the assistant prosecutor. Everyone else is White.”
Talon stood up immediately. It wasn’t her turn to talk, but she’d take the objection. “I’m Native American,” she informed the juror.
The juror was taken aback for a moment, but then her surprised expression melted into a warm smile. “Well, that’s good, I think.”
Talon returned the smile. “I think so too,” she agreed. Then she sat down again, all without any objection from Quinlan, or his ‘assistant.’ Probably because it happened too quickly.
McDaniels gathered her thoughts for a moment. Then she returned to open-ended questions for the panel. “Let’s assume we haven’t reached the point quite yet where the criminal justice system treats everyone fairly regardless of race,” she said. “Should we wait to prosecute crimes against Black people until that happens?”
Of course not, Talon knew. After a moment, a few of the jurors said as much. Quietly.
“And should we ignore,” McDaniels finished up, “cold case crimes against Black victims if they occurred when people cared even less about Black-on-Black crime?”
And again the answer was, “No.” “Of course not.”
McDaniels smiled, then thanked the jury panel and sat down again, her point made.
“Any further questions, Ms. Winter?” the judge asked.
Talon hesitated. She was a lawyer. Lawyers liked getting the last word. But there was a limit to how much back and forth the jurors would tolerate. Even people who love to watch tennis are waiting for a player to miss and the point to be scored.
Talon stood up. “No, Your Honor. Thank you.”
She’d make her own point in opening statement.
But first, she had an objection to make.
* * *
Actually, the objection had to wait for the objectionable conduct to occur. But it didn’t have to wait long.
Once the jurors were excused from the courtroom, Quinlan exercised his first peremptory strike against Juror #4. Ordinarily, the lawyers didn’t have to give any reasons for exercising a peremptory strike. That was the whole point of them—getting rid of people who just rubbed you the wrong way, even if they didn’t quite qualify to be excused for good cause. But there was one exception to that rule.
“The defense objects to excusing Juror Number Four,” Talon interjected. “Pursuant to Batson versus Kentucky.”
Batson v. Kentucky was the United States Supreme Court decision that first held jurors can’t be struck from a jury panel just because of their race. The holding was later extended to other protected classifications. Saying ‘Batson objection’ was the lawyer equivalent of shouting ‘Racist!’
But if the objection fits…
Quinlan recoiled. An appropriate response, really, at being called a racist—even in code. “Your Honor,” he stammered, “I am shocked. I would never strike a juror because of their race or ethnicity.” He took a moment to gather his thoughts. “Besides, I have a race-neutral reason for wanting to excuse Juror Number Four.”
That was the one way to overcome a Batson objection. Point to a race-neutral reason for excusing the juror. That is, any reason other than, ‘He’s African-American’ or ‘She’s Asian.’
Judge Kirchner looked dubious. “Okay, Mr. Quinlan. What’s your race-neutral reason for excluding Juror Number Four?”
Quinlan stood up straight. “The State is concerned about his answers regarding systemic racism and the inability of an African-American man to receive a fair trial in the United States.”
Kirchner looked to Talon. “Any response, counsel?”
“That answer,” Talon responded, “is anything but race-neutral. It’s inextricably intertwined with the juror’s race.”
“Race-neutral means a reason other than the juror’s race,” Quinlan interjected. “The reason I gave was something over and above his race.”
Judge Kirchner raised an eyebrow. “’Over and above’?” she repeated. “So, race was part of it?”
Quinlan’s face blanched. “That’s not what I meant, Your Honor. I meant, it was what he said, not his race. Not at all.”
Kirchner frowned. She took a moment then looked again at Talon. “Anything further, Ms. Winter?”
“I think Mr. Quinlan’s responses speak for themselves, Your Honor,” Talon answered. “He struck the juror because of his views on race and justice in the United States—views which are necessarily impacted by his experience as an African-American man in the U.S. The Court should sustain my objection.”
The judge nodded thoughtfully. “This is challenging,” she admitted. “Generally speaking, the case law on this issue suggests that any reason other than, ‘Because he’s Black’—or Asian or whatever—will overcome a Batson objection. But Ms. Winter makes a valid point. If the views expressed by a juror are the basis for the challenge, but those views are informed by the juror’s race, what then?” She tapped a finger on her chin for several seconds. “Okay, here’s what I’m going
to do. I’m going to reserve ruling. Let’s move on to your other challenges and we’ll see where we end up.”
Talon was willing to accept that. And for the same reason that Quinlan objected.
“But, Your Honor,” he complained, “that could have a chilling effect on my other challenges.”
Kirchner cocked her head at him. “Not challenging jurors for racial reasons will have a chilling effect on you?”
Quinlan shifted his weight. “Again, that’s not what I mean, Your Honor.”
“Good,” Kirchner ended the exchange. “Let’s move on.”
And they did, each side striking potential jurors who they thought might not be fair, or receptive to their side of the case. Then they reached Juror #18.
“The State would thank and excuse Juror Number Eighteen,” Quinlan tried to sound nonchalant as he challenged the only other African-American whose juror number was low enough to make it onto the panel. It didn’t fool anyone.
Talon didn’t even need to object.
“You’re challenging the only other African-American juror?” Kirchner asked with no effort to hide her incredulity.
“Uh, well, yes,” Quinlan admitted, “but not because of her race.”
“And what’s your race-neutral reason for this challenge,” the judge demanded.
Quinlan cleared his throat. “The juror stated she thought the system wasn’t fair because Your Honor and I and Ms. Winter are all White.”
Kirchner shook her head. “That’s not exactly what she said.”
“And I’m not White,” Talon added.
“Right,” Kirchner agreed. “Ms. Winter informed the juror that she’s Native American.”
“Well, I’m not sure that matters,” Quinlan started.
“It matters to me,” Talon interjected.
Quinlan closed his eyes and exhaled. “The juror’s concerns about the fairness of the system still stand. That’s a race-neutral reason to excuse her.”
Talon considered arguing that Juror #18’s views were just as impacted by her race as were Juror #4’s. But she knew that she didn’t need to. Kirchner got it.
Talon Winter Legal Thrillers Box Set Page 14