A Trial by Jury

by D. Graham Burnett

  My juror card instructed me to appear at 9 a.m., but it is later than that when I finally clear the metal detectors and the low-ceilinged lobby of the dingy Centre Street court building and find my way upstairs.

  All the public spaces seem crowded with people, still bundled against the cold, slush melting into muddy pools at their feet as they stand around, waiting. I catch a fragment of a conversation between two older Hispanic women in the elevator: “Just two ounces! Not some kilo or noth’n . . . But he didn’t care. . . .”

  In the twice-exhaled air of the jury waiting room, about two hundred disgruntled New Yorkers had arranged themselves like a tray of magnetic monopoles: maximum space between each particle and its neighbors. Some read newspapers, others books; a few students had staked out desks in the corner and had begun to study, wearing Walkmans. Most simply stared into space. As seems to happen oddly often in New York crowds, I recognized someone (or thought I did): a guy I had played pickup basketball with several times at an uptown gym on the West Side. The city, finally, is finite; it takes several years to notice this.

  Centre Street’s hostile levee of potential jurors is daily called to attention by the senior court clerk, Victor Spellsman, a tousle-headed, squint-eyed Brooklyn native gone prematurely gray. He seems to be well on his way to becoming a New York institution, as attested by the gallery of inscribed celebrity headshots on the wall outside his office. (Gwyneth Paltrow! Stephen Jay Gould?) And rightly so. Combining precise measures of camp-counselor patience and “fuhged-aboudit” irascibility, he got the headphones off everyone, got the newspapers put away, and took people through the drill, demonstrating the use of the octagonal lottery-roller that would determine who got called up for which panel.

  Victor had questions for us: “Any convicted felons in the room?” he boomed happily. Sniggers. “No need to jump up,” he added hastily, with the honed timing of a natural stand-up, “just wander into the clerk’s office down the hall a little later, and I’ll let you go.”

  “Anybody not understand English?” he mumbled indistinctly, waving his arm over us. He asked this so fast I hardly caught it. But quite a few people promptly rose, and began making their way to the front to get their release cards. Out they filed.

  The joke grew on people. Bemused murmuring.

  Victor shook his head.

  “I’ll never understand it,” he stage-whispered to the rest of us, as a heavyset woman bulled for the double doors.

  After details (location of restrooms, water fountain, snack machine; an exhortation not to steal the magazines), we settled in to watch the preparatory video, narrated by Ed Bradley and Diane Sawyer. In addition to offering canned testimonials to the effect that we were going to have a great time (and a civics lesson, too), the program set jury duty in its historical context. This was compressed in the extreme, and got under way with a memorable flashback to the dark days of the trial by ordeal: As Sawyer’s woodwind voice soothingly narrated the bleak realities of justice in a benighted age, a knot of stringy-haired plebes, smirched and scrofulous, dragged a bound man through the woods and cast him into a deep lake. A papist factotum solemnly made the sign of the cross over the disappearance of the accused, and we learned that he would be found innocent if he did not resurface. Not an outtake from Monty Python, but an educational film prepared by the state of New York, the dramatization ended with the suggestion that the accused was innocent, and that his kinsmen may have succeeded in recovering him from the bottom.

  The movie put everyone in a good mood, and strongly suggested the possibility of human progress in matters juridical. The Centre Street court building was grim and forbidding in a Stalinist sort of way (towering, gray, squint-windowed), but it clearly beat the heck out of the Inquisition. I went back to my review.

  As the morning wore on, certain tremors manifested themselves in the taciturn atmosphere of the waiting room: while many read, worked, paid bills, zoned out into the world of their headphones, talked on cellular phones (Victor: “We do the cell phones in the hall, right? Show a little con-sid-er-AY-tion!”), or perused the increasingly grubby newspapers that made the rounds, still others seemed to eye the field. Though initially annoying, yes, this whole business was legal hooky, after all. One sensed a few people beginning to warm to the prospects, to the idea that they were not in their offices—indeed, that their not being at work was a civic duty, and one positively remunerated (albeit at a rather sorry level). Moreover, the room was full of other people, some of them attractive, all of them in similar circumstances—namely, trapped in close proximity, and for the most part deeply bored. Conveniently, a natural topic of conversation—the pains of jury duty—presented itself. There was a somewhat funny movie on the subject to discuss, and plenty of openings for sympathetic chitchat on the inconvenience of it all, and neighborly mutterings on the bureaucratic sclerosis of city and state government. A few strategic relocations could be witnessed; casual glances followed, saw reciprocation. By late morning, several conversational couples had formed, and these developed naturally into informal luncheon dates when we were directed to the neighborhood restaurants of our choosing and told to return in an hour and a half.

  I walked home for lunch, thinking I had learned something already: the Manhattan jury-duty waiting room secreted an unexpected libidinous energy. At this rate, if the wait lengthened to a threatened third day, I could visualize lubricious scenes in the green halls.

  And it was January yet. In spring, I decided, the wheels of justice must grind to a halt.

  I missed the chance to follow these developments. In the afternoon my name came up in a group of about seventy people mustered for the selection process in Part 24.

  It was shortly after entering that I first saw Milcray, when the judge asked him to turn around in his chair and face the courtroom. He did so. We saw a slim, dark-skinned black man who seemed exceedingly young. (He was twenty-one.) His hair trimmed close, he wore a black-and-white shirt, striped horizontally—a shirt of his own, but one that strongly suggested prison attire. He had a tendency to let his right hand linger at his chin, partially obscuring his face.

  Did any of us recognize this man? No one moved. Milcray turned back around. Satisfied, the judge began to read a list of names: witnesses and investigators in the case, locations and establishments. Already the attorneys, seated at their unmatched tables below the bench, were craning their heads behind them, casting their eyes over us, counting and assessing.

  Space is plastic in the mind. A room can change shape. Part 24 of the New York Supreme Court warped perceptibly for me when the judge announced that The People of New York v. Monte Virginia Milcray would be a trial for murder. We sat in a double-height hall with a bright northern exposure and blonded oak wainscoting reaching halfway up the white walls. Only behind the judge’s seat did this paneling extend to the beamed ceiling, creating a lofty frame where brushed metal letters announced “In God We Trust.” The invocation confirmed the sacral architecture: the altarlike bench, the choirlike jury box, the lecternlike witness stand, the rood screen of the balustrade separating the congregation in their pews from the powerful seats beyond.

  When the judge announced that we were trying Milcray for murder, this link, between his name and that word, introduced a new point of gravity in the room, distorting the pious front-facing quality of the space. It was as if the floor under the defense’s table had suddenly sunk into a strange deflection at the impact of a heavy, hidden object. We were now in a room with two gravitational centers: the judge and the defendant. This curious feeling was strongest at that moment, but it never entirely vanished. An accused person, standing in a court of law, has, somehow, tremendous weight.

  Years past, in an archaically formal Catholic grammar school, I participated in competitive poetic declamation. To the chagrin of several rotund nuns, I settled firmly on Oscar Wilde’s “The Ballad of Reading Gaol” as the text I would perform at our interacademy meet. A tale of lust and slaughter (“for each man kills the t
hing he loves”) set against the tragic story of Wilde’s own imprisonment (for unnatural acts of manly affection), it was not, properly speaking, suitable stuff for the sixth grade. Nor did the judges at Devon Preparatory School on Philadelphia’s staid Main Line warm to my impassioned recitation (“And blood and wine were on his hands / When they found him with the dead”). My delivery received respectable marks, but notes on my score sheets suggested I seek out new material.

  And yet the lines stuck deep in my head. The shock of hearing the word “murder” while looking at Milcray triggered a flash of poetic memory: Wilde’s swooning exclamation on learning that the man he spies in the prison yard faces punishment for a capital offense. The lines read:

  Dear Christ! The very prison walls

  Suddenly seemed to reel,

  And the sky above my head became

  Like a casque of scorching steel. . . .

  Romantic excess, surely. But I was learning at that moment in Part 24 what Wilde-the-convict knew well in Reading: the environments of state power—courts, prisons—heighten ordinary emotions. For the next month, each day would underline the lesson. One is vulnerable here, made small; an aura of finality pricks out the details of ordinary life; a large force waits in the wings.

  The room grew quiet for a moment. But only for a moment, for, as soon as the judge moved on to explain that the trial would take more than a week, and that it would involve sequestration, up went a distinct and concerned murmur. When the judge invited those who believed themselves incapable of fulfilling such an obligation to come forward and explain, 80 percent of the room rose. I whispered to the woman sitting next to me that I was a little surprised more people weren’t curious to see what would happen; she said she was only remaining seated while she thought up an excuse. My sense was that I was busy, but how could I be too busy for this? Unlike many of those trying to be excused, I faced no particular financial hardship if I ended up being asked to serve. One by one people approached the bench, mumbled, and were dismissed. This took the remainder of the day.

  I slipped out to the men’s room down the hall. On the filthy wall two choice bits of graffiti stood out: “Fuck the police” and “I sniff juror underpants.”

  The following morning, after my name found its way out of yet another octagonal roller, I was called from the pews and seated in the jury box. The process of selection now began in earnest: this was voir dire, the question-and-answer session that the attorneys use to select jurors; I was on the “panel.” We were a total of eighteen, but our number required repeated replenishing as panelists disqualified themselves and the judge asked them to step down. Some cases were stranger than others. A shuffling man in a flannel shirt carrying a plastic bag of books and dog-eared papers declared lucidly that he was a Quaker, and that his religion prevented him from being part of “any process that authorizes the government to use violence against any individual.” He was excused.

  Several of our number bowed out in response to the simple question, “Is there anyone here who believes that they are unable to be fair in judging this case?” The clean-cut young man next to me, with a spy thriller on his lap, raised his hand. “And why not?” Because he felt that recidivism rates were too high, and he “basically” didn’t want it on his conscience if the guy killed again. Anyway, he thought the best policy was to lock ’em all up for good.

  Killed again? We hadn’t even figured out if he’d killed the first time. Excused.

  One woman said she was terrified, afraid of being involved; she was hyperventilating. Excused.

  A hand went up. A soccer-mom type, well put together, energetic. On being asked to explain, she tripped over her tongue and could say only that she did not think she could be fair, “in the circumstances.”

  “What circumstances?” the judge wanted to know.

  “Just . . . well, being here,” she stuttered, gesturing at the room. She could not find the words.

  The judge dismissed her with undisguised irritation. But as she gathered her bag and coat, I found myself wondering if she hadn’t grasped something real and disturbing about the proceedings. After all, the judge had said we needed to be “impartial,” that we were not to let the fact that the defendant had been arrested have any weight as we evaluated his guilt or innocence. But what could this rhetoric of neutrality possibly mean, here, in the “circumstances,” literally, “that which stood around us”—the vaulting room, the somber judge, the armed guards? We sat in a theater trimmed with the trappings of the state’s power; this power was being dramatized for us with pomp. Yet the judge wanted us to deny that any of this—his high chair, the robes, the guns—would influence our perception. But how could it not? The state (that is, the prosecution) had decided that Monte Milcray was guilty, and this was the state’s stage. The woman scurried out, too careful, I decided, to play along with our collective fib.

  Next we ran through a cycle of biographical questions, which each of us was expected to answer rapidly, in turn: occupation; length of time lived in Manhattan; previous jury experience; friends, family, or close acquaintances in law enforcement or the legal profession; had we ever been the victim of a crime?

  When the occupation question came to me, I said I was a “professor of intellectual history.”

  The judge looked up. “Where do you teach?” he asked.

  Hesitating, I said I was not currently teaching, but had been, until this year, at Columbia.

  He made a mark on the sheet in front of him. I felt nervous, afraid of my voice in the room. What we were doing seemed impossibly grave.

  I glanced at Milcray, whose half-smiling face and lively eyes followed every exchange closely.

  Very few of the people on the panel had no previous experience of crime. In bare phrases people shared fragments of large stories: family friend killed; got mugged twice, apartment robbed; held at gunpoint, robbed; car stolen, house robbed.

  I said, “Two cars stolen, house robbed.”

  In my wallet I still carried the insurance card from a brick-red ’67 Chrysler Newport that had disappeared from a parking place on Osage Avenue in front of my house in West Philadelphia on a Thanksgiving morning many years earlier. I came out into the holiday air with a canister of auto-body cement and an orbital sander to do some work on a ding in the passenger-side door, and stood there stupidly, looking at the spot where I had left the car. Had my convertible dream turned into a blue pickup? For some inexplicable reason, I got down on my knees and looked under the truck.

  The judge explained the standard of proof. The state must prove its case beyond a reasonable doubt. Did we hear that? This did not mean mathematical certainty, but simply beyond the doubt of a reasonable person. “Is there anyone here,” the judge continued, “who would hold the state to an unreasonable standard?”

  In my heightened state I felt a strange, somewhat manic delight. Most of my academic life had been spent studying the history of what people found reasonable—from alchemical conjurations to statistical facts. The history of science is, in a way, the history of what proofs have counted as “reasonable” in different communities at different moments. To agree on what is true—about nature, about God—has again and again proved a tall order, and the standard of “the reasonable man” was, I knew, yet another invention (like the laboratory, the footnote, the College of Cardinals) to make the difficult task of truth-seeking a little easier in certain contexts—courts of law in particular. It was a much-contested question, this business of who-all was “reasonable,” and what, precisely, such a person looked like. There was a history here.

  But there I was. No time to pontificate, to remonstrate, to have a seminar. My ponderous classroom musings on Pascal or the Enlightenment were not welcome. I had to act as if I knew what “reasonable” meant, or raise my hand. For a moment the very thing seemed to be made real and hover before me. The ideal of the mind. Reason. Now we would all be reasonable. No more epistemological fretting or historicist relativism—the greatest abstraction in human a
ffairs had just taken shape and entered the room. I kept my hand in my lap. If all the others thought they were going to be reasonable, then, hell, I thought, I can be just as reasonable as anybody else.

  No one moved. Reason had been installed, deftly, quickly, in a second of silence. We moved on.

  The judge introduced the next question with a short explanation of how responsibilities would be divided in the trying of the case: “It is the function of the jury to apply the law to the evidence in the case. You will be the judge of the facts, but I am the judge of the law. It is not the function of a jury to rule on the law itself. You are to apply the law whether you agree with it or not, whether you think it is a good law or a bad one. Do any of you have a problem with this?”

  There was a pause.

  I raised my hand.

  “Mr. . . . Burnett,” he said, reading from his chart. “What is your problem with this?”

  And I replied, my throat tight, that if I thought the defendant would face the death penalty I might be inclined to acquit, even if I thought him guilty.

  My anxiety about speaking had only increased: the judge had just humiliated one of the panelists, a young well-to-do woman with long brown hair and a tendency to mumble. On an earlier question he gave her two chances to speak up and then scolded her harshly for wasting the court’s time. Sitting there with a little Prada handbag in her lap, she looked completely shocked. Her expression suggested no one had ever been rude to her before. But the judge did not relent—he laid into her again, as she stuttered.

  My throat tightened, too, from the certainty that my statement would disqualify me from service. This made me sad: once I had glimpsed the way the trial would force the prettiest abstractions into actual and fateful practice, I was completely absorbed—aware that this was a rare opportunity to participate in something important, weighty, real, something very different from my academic life. At the same time, I had resolved to be entirely straight with every question, and I could not promise in advance that I would apply a law that took human life.