by Jodi Picoult
“I don’t understand what’s in column A or B,” Maureen said.
“I never liked Chinese food,” Mark added.
I stood up in front of the white board and picked up a dry-erase marker. COLUMN A, I wrote. PURPOSE. “The first thing we have to decide is whether or not Bourne meant to kill each victim.” I turned to everyone else. “I guess we’ve pretty much answered that already by convicting him of murder.”
COLUMN B. “Here’s where it gets trickier. There are a whole bunch of factors on this list.”
I began to read from the jumbled notes I’d taken during the judge’s instructions:
Defendant has already been convicted of murder once before.
Defendant has been convicted of two or more different offenses for which he’s served imprisonment for more than a year—a three-strikes rule.
Defendant has been convicted of two or more offenses involving distribution of drugs.
In the middle of the capital murder, the defendant risked the death of someone in addition to the victims.
The defendant committed the offense after planning and premeditation.
The victim was vulnerable due to old age, youth, infirmity.
The defendant committed the offense in a particularly heinous, cruel, or depraved manner that involved torture or physical abuse to the victim.
The murder was committed for the purpose of avoiding lawful arrest.
Ted stared at the board as I wrote down what I could remember. “So if we find one from column A, and one from column B, we have to sentence him to death?”
“No,” I said. “Because there’s also a column C.”
MITIGATING FACTORS, I wrote. “These are the reasons the defense gave as excuses.”
Defendant’s capacity to appreciate what he was doing was wrong, or illegal, was impaired.
Defendant was under unusual and substantial duress.
Defendant is punishable as an accomplice in the offense which was committed by another.
Defendant was young, although not under the age of 18.
Defendant did not have a significant prior criminal record.
Defendant committed the offense under severe mental or emotional disturbance.
Another defendant equally culpable will not be punished by death.
Victim consented to the criminal conduct that resulted in death.
Other factors in the defendant’s background mitigate against the death sentence.
Underneath the columns, I wrote, in large red letters: (A + B)–C = SENTENCE.
Marilyn threw up her hands. “I stopped helping my son with math homework in sixth grade.”
“No, it’s easy,” I said. “We need to agree that Bourne intended to kill each victim when he picked up that gun. That’s column A. Then we need to see whether any other aggravating factor fits from column B. Like, the youth of the victim—that works for Elizabeth, right?”
Around the table, people nodded.
“If we’ve got A and B, then we take into account the foster care, the mental illness, stuff like that. It’s just simple math. If A + B is greater than all the things the defense said, we sentence him to death. If A + B is less than all the things the defense said, then we don’t.” I circled the equation. “We just need to see how things add up.”
Put that way, it hardly had anything to do with us. It was just plugging in variables and seeing what answer we got. Put that way, it was a much easier task to perform.
1:12 P.M.
“Of course Bourne planned it,” Jack said. “He got a job with them so that he’d be near the girl. He picked this family on purpose, and had access to the house.”
“He’d gone home for the day,” Jim said. “Why else would he come back, if he didn’t need to be there?”
“The tools,” Maureen answered. “He left them behind, and they were his prized possessions. Remember what that shrink said? Bourne stole them out of other people’s garages, and didn’t understand why that was wrong, since he needed them, and they were pretty much just gathering dust otherwise.”
“Maybe he left them behind on purpose,” Ted suggested. “If they were really so precious, wouldn’t he have taken them with him?”
There was a general assent. “Do we agree that there was substantial planning involved?” Ted asked. “Let’s see a show of hands.”
Half the room, myself included, raised our hands. Another few people slowly raised theirs, too. Maureen was the last, but the minute she did, I circled that factor on the white board.
“That’s two from column B,” Ted said.
“Speaking of which . . . where’s lunch?” Jack asked. “Don’t they usually bring it by now?”
Did he really want to eat? What did you order off a deli menu when you were in the process of deciding whether to end a man’s life?
Marilyn sighed. “I think we ought to talk about the fact that this poor girl was found without her underpants on.”
“I don’t think we can,” Maureen said. “Remember when we were deliberating over the verdict, and we asked the judge about Elizabeth being molested? He said then that since it wasn’t being charged, we couldn’t use it to find him guilty. If we couldn’t bring it up then, how can we bring it up now?”
“This is different,” Vy said. “He’s already guilty.”
“The man was going to rape that little girl,” Marilyn said. “That counts as cruel and heinous behavior to me.”
“You know, there wasn’t any evidence that that’s what was happening,” Mark said.
Marilyn raised an eyebrow. “Hello?! The girl was found without her panties. Seven-year-olds don’t go running around without their panties. Plus, Bourne had the underwear in his pocket . . . what else would he be doing with them?”
“Does it even matter? We already agree that Elizabeth was young when she was killed. We don’t need any more from column B.” Maureen frowned. “I think I’m confused.”
Alison, a doctor’s wife who hadn’t said much during the original deliberations, glanced at her. “When I get confused, I think about that officer who testified, the one who said that he heard the little girl screaming when he was running up the stairs. Don’t shoot—she was begging. She begged for her life.” Alison sighed. “That sort of makes it simple again, doesn’t it?”
As we all fell quiet, Ted asked for a show of hands in favor of the execution of Shay Bourne.
“No,” I said. “We still have the rest of the equation to figure out.” I pointed to column C. “We have to consider what the defense said.”
“The only thing I want to consider right now is where is my lunch,” Jack said.
The vote was 8–4, and I was in the minority.
3:06 P.M.
I looked around the room. This time, nine people had their hands in the air. Maureen, Vy, and I were the only ones who hadn’t voted for execution.
“What is it that’s keeping you from making this decision?” Ted asked.
“His age,” Vy said. “My son’s twenty-four,” she said. “And all I can think is that he doesn’t always make the best decisions. He’s not done growing up yet.”
Jack turned toward me. “You’re the same age as Bourne. What are you doing with your life?”
I felt my face flame. “I, um, probably I’ll go to graduate school. I’m not really sure.”
“You haven’t killed anyone, have you?”
Jack got to his feet. “Let’s take a bathroom break,” he suggested, and we all jumped at the chance to separate. I tossed the dry-erase marker on the table and walked to the window. Outside, there were courthouse employees eating their lunch on benches. There were clouds caught in the twisted fingers of the trees. And there were television vans with satellites on their roofs, waiting to hear what we’d say.
Jim sat down beside me, reading the Bible that seemed to be an extra appendage. “You religious?”
“I went to parochial school a long time ago.” I faced him. “Isn’t there something in there about tur
ning the other cheek?”
Jim pursed his lips and read aloud. “If thy right eye offend thee, pluck it out, and cast it from thee; for it is profitable for thee that one of thy members should perish, and not that thy whole body should be cast into hell. When one apple’s gone bad, you don’t let it ruin the whole bunch.” He passed the Bible to me. “See for yourself.”
I looked at the quote, and then closed the book. I didn’t know nearly as much as Jim did about religion, but it seemed to me that no matter what Jesus said in that passage, he might have taken it back after being sentenced to death himself. In fact, it seemed to me that if Jesus were here in this jury room, he’d be having just as hard a time doing what needed to be done as I was.
4:02 P.M.
Ted had me write Yes and No on the board, and then he polled us, one by one, as I wrote our names in each of the columns.
Jim?
Yes.
Alison?
Yes.
Marilyn?
Yes.
Vy?
No.
I hesitated, then wrote my own name beneath Vy’s.
“You agreed to vote for death if you had to,” Mark said. “They asked each of us before we got picked for the jury if we could do that.”
“I know.” I had agreed to vote for the death penalty if the case merited it. I just hadn’t realized it was going to be this difficult to do.
Vy buried her face in her hands. “When my son used to hit his little brother, I didn’t smack him and say ‘Don’t hit.’ It felt hypocritical then. And it feels hypocritical now.”
“Vy,” Marilyn said quietly, “what if it had been your seven-year-old who was killed?” She reached onto the table, where we had piled up transcripts and evidence, and took the same picture of Elizabeth Nealon that the prosecutor had presented during his closing argument. She set it down in front of Vy, smoothed its glossy surface.
After a minute, Vy stood up heavily and took the marker out of my hand. She wiped her name off the No column and wrote it beneath Marilyn’s, with the ten other jurors who’d voted Yes.
“Michael,” Ted said.
I swallowed.
“What do you need to see, to hear? We can help you find it.” He reached for the box that held the bullets from ballistics, the bloody clothing, the autopsy reports. He let photos from the crime scene spill through his hands like ribbons. On some of them, there was so much blood, you could barely see the victim lying beneath its sheen. “Michael,” Ted said, “do the math.”
I faced the white board, because I couldn’t stand the heat of their eyes on me. Next to the list of names, mine standing alone, was the original equation I’d set up for us when we first came into this jury room: (A + B)–C = SENTENCE.
What I liked about math was that it was safe. There was always a right answer—even if it was imaginary.
This, though, was an equation where math did not hold up. Because A + B—the factors that had led to the deaths of Kurt and Elizabeth Nealon—would always be greater than C. You couldn’t bring them back, and there was no sob story in the world big enough to erase that truth.
In the space between yes and no, there’s a lifetime. It’s the difference between the path you walk and one you leave behind; it’s the gap between who you thought you could be and who you really are; it’s the legroom for the lies you’ll tell yourself in the future.
I erased my name on the board. Then I took the pen and rewrote it, becoming the twelfth and final juror to sentence Shay Bourne to death.
“If God did not exist, it would be necessary to invent him.”
—VOLTAIRE, FOR AND AGAINST
ELEVEN YEARS LATER
Lucius
I have no idea where they were keeping Shay Bourne before they brought him to us. I knew he was an inmate here at the state prison in Concord—I can still remember watching the news the day his sentence was handed down and scrutinizing an outside world that was starting to fade in my mind: the rough stone of the prison exterior; the golden dome of the statehouse; even just the general shape of a door that wasn’t made of metal and wire mesh. His conviction was the subject of great discussion on the pod all those years ago—where do you keep an inmate who’s been sentenced to death when your state hasn’t had a death row prisoner for ages?
Rumor had it that in fact, the prison did have a pair of death row cells—not too far from my own humble abode in the Secure Housing Unit on I-tier. Crash Vitale—who had something to say about everything, although no one usually bothered to listen—told us that the old death row cells were stacked with the thin, plastic slabs that pass for mattresses here. I wondered for a while what had happened to all those extra mattresses after Shay arrived. One thing’s for sure, no one offered to give them to us.
Moving cells is routine in prison. They don’t like you to become too attached to anything. In the fifteen years I’ve been here, I have been moved eight different times. The cells, of course, all look alike—what’s different is who’s next to you, which is why Shay’s arrival on I-tier was of great interest to all of us.
This, in itself, was a rarity. The six inmates in I-tier were radically different from one another; for one man to spark curiosity in all of us was nothing short of a miracle. Cell 1 housed Joey Kunz, a pedophile who was at the bottom of the pecking order. In Cell 2 was Calloway Reece, a card-carrying member of the Aryan Brotherhood. Cell 3 was me, Lucius DuFresne. Four and five were empty, so we knew the new inmate would be put in one of them—the only question was whether he’d be closer to me, or to the guys in the last three cells: Texas Wridell, Pogie Simmons, and Crash, the self-appointed leader of I-tier.
As Shay Bourne was escorted in by a phalanx of six correctional officers wearing helmets and flak jackets and face shields, we all came forward in our cells. The COs passed by the shower stall, shuffled by Joey and Calloway, and then paused right in front of me, so I could get a good look. Bourne was small and slight, with close-cropped brown hair and eyes like the Caribbean Sea. I knew about the Caribbean, because it was the last vacation I’d taken with Adam. I was glad I didn’t have eyes like that. I wouldn’t want to look in the mirror every day and be reminded of a place I’d never see again.
Then Shay Bourne turned to me.
Maybe now would be a good time to tell you what I look like. My face was the reason the COs didn’t look me in the eye; it was why I sometimes preferred to be hidden inside this cell. The sores were scarlet and purple and scaly. They spread from my forehead to my chin.
Most people winced. Even the polite ones, like the eighty-year-old missionary who brought us pamphlets once a month, always did a double take, as if I looked even worse than he remembered. But Shay just met my gaze and nodded at me, as if I were no different than anyone else.
I heard the door of the cell beside mine slide shut, the clink of chains as Shay stuck his hands through the trap to have his cuffs removed. The COs left the pod, and almost immediately Crash started in. “Hey, Death Row,” he yelled.
There was no response from Shay Bourne’s cell.
“Hey, when Crash talks, you answer.”
“Leave him alone, Crash,” I sighed. “Give the poor guy five minutes to figure out what a moron you are.”
“Ooh, Death Row, better watch it,” Calloway said. “Lucius is kissing up to you, and his last boyfriend’s six feet under.”
There was the sound of a television being turned on, and then Shay must have plugged in the headphones that we were all required to have, so we didn’t have a volume war with one another. I was a little surprised that a death row prisoner would have been able to purchase a television from the canteen, same as us. It would have been a thirteen-inch one, specially made for us wards of the state by Zenith, with a clear plastic shell around its guts and cathodes, so that the COs would be able to tell if you were extracting parts to make weapons.
While Calloway and Crash united (as they often did) to humiliate me, I pulled out my own set of headphones and turned on my televisio
n. It was five o’clock, and I didn’t like to miss Oprah. But when I tried to change the channel, nothing happened. The screen flickered, as if it were resetting to channel 22, but channel 22 looked just like channel 3 and channel 5 and CNN and the Food Network.
“Hey.” Crash started to pound on his door. “Yo, CO, the cable’s down. We got rights, you know . . .”
Sometimes headphones don’t work well enough.
I turned up the volume and watched a local news network’s coverage of a fund-raiser for a nearby children’s hospital up near Dartmouth College. There were clowns and balloons and even two Red Sox players signing autographs. The camera zeroed in on a girl with fairy-tale blond hair and blue half-moons beneath her eyes, just the kind of child they’d televise to get you to open up your wallet. “Claire Nealon,” the reporter’s voice-over said, “is waiting for a heart.”
Boo-hoo, I thought. Everyone’s got problems. I took off my headphones. If I couldn’t listen to Oprah, I didn’t want to listen at all.
Which is why I was able to hear Shay Bourne’s very first word on I-tier. “Yes,” he said, and just like that, the cable came back on.
* * *
You have probably noticed by now that I am a cut above most of the cretins on I-tier, and that’s because I don’t really belong here. It was a crime of passion—the only discrepancy is that I focused on the passion part and the courts focused on the crime. But I ask you, what would you have done, if the love of your life found a new love of his life—someone younger, thinner, better-looking?
The irony, of course, is that no sentence imposed by a court for homicide could trump the one that’s ravaged me in prison. My last CD4+ was taken six months ago, and I was down to seventy-five cells per cubic millimeter of blood. Someone without HIV would have a normal T cell count of a thousand cells or more, but the virus becomes part of these white blood cells. When the white blood cells reproduce to fight infection, the virus reproduces, too. As the immune system gets weak, the more likely I am to get sick, or to develop an opportunistic infection like PCP, toxoplasmosis, or CMV. The doctors say I won’t die from AIDS—I’ll die from pneumonia or TB or a bacterial infection in the brain; but if you ask me, that’s just semantics. Dead is dead.