“But you just told the court you don’t know him,” a woman sitting next to me says.
“I didn’t remember it at the time. But yeah, I used to sell drugs when I was in high school. My boyfriend and I used to go to that very apartment building to get ours, and I’m thinking, yeah, I’ve probably bought from this guy before. He does look kind of familiar.”
We are on a jury panel. Going through the process known as “voir dire.” The guy she’s talking about is the defendant in a drug-trafficking case. Cocaine and marijuana. Five or six other charges too, all drug related. Did the judge also mention something about carrying a weapon? I think so.
It should probably not matter that it’s a young white woman privately confessing to those around her that she bought and sold drugs back in high school, which by the look of her could only have been three or four years ago. But in this instance her race matters a great deal.
But I’ll bet whiteness isn’t one of them.
The defendant in this case is African-American, no more than thirty-five. A thin, light-skinned black man, he has a closely trimmed haircut and an Abraham Lincoln beard. No mustache. The beard looks as becoming on the defendant as it did on Lincoln. But it too is trimmed. Had it been me on trial I’d have opted for a suit jacket instead of showing up to court in shirtsleeves and an open collar. However, there’s nothing about him that looks unkempt. He seems like a regular guy. Someone you might see working at Starbucks or driving an Uber.
Except for the indictment, we don’t know the facts in this case yet. This is just the part where the judge and two lawyers get to ask questions of a thirty-six member jury panel from which the final twelve will be selected. Statutory questions are asked by the judge. Things like, do you know the defendant? Are you related to him or to either of the attorneys? Did you know anything about this case before entering the courtroom? Do you think you can be impartial? This last question stumps one prospective juror. She doesn’t seem to know the definition of impartial. The judge rephrases the question several times before she finally understands what’s being asked.
A jury of my peers, I think. Geez.
When I Google the judge later, I learn that she majored in Psychology and Criminal Justice at the University of Georgia before picking up a Juris Doctoris at the University of Maryland. The psychology part shows. Not a hint of impatience at having to repeat the same questions several times. When the jury panel entered the room, she stood up, as did the two attorneys, the defendant, two sheriff’s deputies, two bailiffs, and court reporter.
“We stand to honor you,” the judge says. “By serving as a juror, you are making it possible for the American judicial system to work properly. Because of you, the business of the courts can move forward. We understand that you could be at work or school or maybe just sitting at home enjoying your day. But you are here. We thank you and honor you for that. That is why we stand.”
I’ve been watching real-life jury trials on and off ever since I was an undergraduate in New York. But I’ve never seen a judge do this. If I had a daughter, I would want her to be like this judge, a kind intelligent African-American woman who knows her legal stuff but makes a conscientious effort to bring humanity and decency into the courtroom. None of the pique you see from TV judges trying to get ahead in the ratings. None of that black-robed holier-than-thou stuff either. Google says she mentors young people in her spare time and has two daughters of her own. Whatever she’s got, I hope she’ll be able to pass it on to others.
The defense and prosecuting attorneys are middle-aged white men—graying hair, dark suits, striped neckties. Each of us on the jury panel is asked to stand and briefly identify ourselves. We give our names, occupation, and family situation. We verify the county we live in and also say whether we’ve served on a jury before. Then the attorneys ask a series of general questions we answer by raising our hands. Have you ever been the victim of a crime? Have you ever had a bad experience with the police? Have you ever been accused of a crime? Have you ever had any training in the law or law enforcement? Do you watch true-crime reality TV? Do you watch CSI, Law & Order, or any made-up crime shows? Do you think drugs should be legalized? Have you ever known anyone who overdosed on drugs?
Of the things that blow my mind during this day-long process, the one that gets to me most is the number of people who raise their hands in response to the overdose question. Considering the size of our panel, the figure seems high. Easily 25 percent. The drug most often involved is heroin. The people on this panel are drawn from a random sampling of driver’s license holders in a particular Georgia county. It’s a diverse group—white and black, male and female, young and old. Where are people getting all this heroin, I wonder stupidly? Then I remember the statistics we hear about in the news: 72,000 overdose deaths in 2017, a twofold increase over ten years ago. Most of these involved some form of fentanyl, a synthetic opioid often used to cut heroin and cocaine, which is 100 times stronger than morphine. Some forms of fentanyl can be as great as 10,000 times more powerful.
When the attorneys start questioning us more specifically, the heroin overdosers turn out to be ex-boyfriends, a son, neighbors, schoolmates. An attractive African-American woman sitting near me says privately she didn’t even know her friend was using. He always seemed so nice. So normal.
Although crystal meth and prescription medications come up during this phase of voir dire, heroin is clearly the overdose drug of choice. Without quality control, users have no way of knowing if a pusher has just sold them a one-way ticket to the afterlife.
The Lincoln-bearded guy on trial here is not accused of pushing heroin. But the penalty for trafficking in cocaine is nothing to “sniff” at. It carries a 10-year prison sentence. His fate will be decided by twelve of the thirty-six people sharing this room with me today.
Another question with a big response is the number of people who believe drugs—marijuana in particular—should be legalized. Fifty percent seem to believe this, possibly more. So many in fact that the judge offers this admonition: “Regardless of your feelings about legalization, do you understand that marijuana is against the law in this state? Are you able to set aside your personal feelings about this and decide this case on the basis of the evidence?”
The woman whose nice, normal friend overdosed turns to me and whispers. “I think you’re going to be part of the final jury,” she says. “They liked your answers. I can tell.” She also says the same thing to the engaging young white woman and another African-American woman who has had to tell the court in front of the rest of us about her own run-in with the law.
“Well, I got hold of some cheap vodka when I was younger,” she says. “I drank it too fast and started to act crazy.”
“What do you mean, act crazy?”
“I broke a window in a hotel.”
“The window to your room?”
“No, the main window to the hotel.”
“Did they call the po-po?” Clearly, the defense attorney has schooled himself on Madea.
“Yes, and they put me in the clang-clang,” the woman says, holding up her wrists and crossing them. The gesture is meant to indicate handcuffs, but it looks a lot like “Wakanda Forever.” I wonder if the irony is intended.
After establishing that she harbors no bad feelings about the judicial system, she points out that she’s twenty-seven now and would never get involved in anything like that again. In any case, she knows enough now not to drink cheap liquor, she says. Both her cheeks are pierced. She’s a petite woman with inch-long false eyelashes. On her feet, a pair of black, well-worn Air Jordans with Velcro closures.
The free-pretty white woman turns to speak with the cheap-vodka Wakanda woman often, cracking jokes under her breath. She was so embarrassed, she says, about having to take a particular personal item out of her purse and put it on the conveyor belt during the security check.
“I’m like, O my God, O my God, really?”
She’s laughing now but was worried about it at the time. What worries me is that she hasn’t offered to tell the court she may have bought drugs from the defendant. But how can she without incriminating herself—and identifying the defendant as a drug dealer, thus eliminating his chance for a fair trial? Still, the term voir dire is related etymologically to telling the truth. Even if it was an oversight when the court first asked if she knew the man, leaving something like this out is not exactly truth-telling, is it?
We've been reminded that the defendant must be looked upon as innocent—unless and until the prosecution proves its case against him. This is the way things are supposed to work in the United States of America. This is why I have not looked for excuses to keep from coming here. It’s an honor to participate in a process we sometimes take for granted. It’s my civic duty, the small serious thing I can do to help keep America…America, in principle at least.
I do it gladly, though I’m sure I will not be called. Several of my blood relatives are lawyers, officers of the law, and otherwise involved in law enforcement. I’m not the kind of candidate these attorneys will choose. But I’m glad to be here. To do my part. To be a witness to the process if not the actual trial. And to be reminded that this is why I diligently perform that other civic duty—the thing that keeps democracy alive and kicking, despite the many challenges that threaten it. I vote. And when they call me for jury duty, I show up.
It bothers me that the system doesn’t always work as it should. And while I’m sure the attorneys in this case will not choose me for the final jury, I’m concerned that the free-pretty white girl might have a say in whether the defendant spends the next ten years of his life in prison.
Here’s where it gets existential for me. If they choose her, what should I do?
A few days ago, a writer friend on Facebook reminded me of a Hemingway short story I’d never read. It’s called “The Denunciation,” and it’s set during the Spanish Civil War in a famous Madrid bar Hemingway loved. A man who belongs to one side of the conflict comes into the bar dressed in a uniform that belongs to the other side. The fake uniform means he’s a spy. At first, the narrator says it’s none of his business. But in the end, he makes a telephone call to denounce the man as a traitor. There’s much more to the story than that. But this is the part of “The Denunciation” that concerns me as I sit on this jury panel waiting to find out if the free-pretty white woman will be asked to join the final twelve.
It’s not my business, I think. But then I consider all the jokes the young woman is telling. How none of this seems very serious to her. We’ve been instructed not to discuss any of the void dire questions during our two breaks. But there is a brief period while we're still in the courtroom when we're permitted to talk quietly among ourselves. That's when all this revealing chatter occurs.
I look at the young woman's pale unwrinkled skin and realize that she’s not only free-pretty, she’s free-white. Free of the statistics. The ones that say blacks and whites commit drug-related crimes at roughly the same rate—but African-Americans are far more likely to go to prison for them. As recently as 2017, the National Registry of Exonerations released a significant study with the following findings:
- African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in ‘group exonerations.’
- The best national evidence on drug use shows that African-Americans and whites use illegal drugs at about the same rate. Nonetheless, African-Americans are about five times as likely to go to prison for drug possession as whites — and judging from exonerations, innocent black people are about 12 times more likely to be convicted of drug crimes than innocent white people.”
- Why do police officers who conduct these outrageous programs of framing innocent drug defendants concentrate on African-Americans? The simple answer: Because that’s what they do in all aspects of drug-law enforcement. Guilty or innocent, they always focus disproportionately on African-Americans. Of the many costs that the War on Drugs inflicts on the black community, the practice of deliberately charging innocent defendants with fabricated crimes may be the most shameful.
This is why the war on drugs is really a war against African-Americans. This is why I said earlier that the young white woman in front of me has things about herself she might like to change—but her whiteness probably isn’t one of them. This is why she can treat all this a joke.
So now I have the answer to my existential dilemma. If she gets picked for the final jury, I’m going to ask the judge for a brief audience. I’m going to have a denunciation of my own.
Not because I have anything against this woman because she’s white. Or even because she’s young and clueless. I am going to denounce her because she’s messing with a system that’s already broken. If she goes through with sitting on that jury, her careless cavalier attitude will be making it worse.
Judges often have information about a case the jurors are not allowed to hear. If I tell the judge what I've just heard, she can have the attorneys approach the bench and recommend that they select an alternate juror. No one else in the courtroom will need to know why.
Normally in this situation, I’d be listening to hear if my own name gets called. Today, I’m listening for hers. It takes forever for all the names to be read aloud. The next name is not called until the previous person has been seated in the jury box. When the final jurors are selected, the young woman is still sitting with the uncalled jurors, as am I. It feels as if we’ve both dodged a bullet. I don’t like to snitch. But this is one situation where I’d have to be one.
In the Hemingway story, the narrator denounces the spy so the waiter won’t have to do it. He does this to keep the bar from getting a bad name. If he would go that far to protect a watering hole, how could I do any less to make sure a man I don’t even know gets a fair shake? After all, isn't the system broken enough already?