A Trial by Jury

by D. Graham Burnett

  The judge expressed no interest. The death penalty was not relevant in this case, he announced dismissively, and opened the floor to the lawyers.

  The lead prosecutor—heavy, bald, with a distinctive spot of livid skin under his left eye—approached first, greeted us, and began to ask questions, some general, posed to the group, some addressed specifically to one panelist or another, in response to information we had given about our jobs, or previous experiences of crime or jury duty. He wanted to make sure we would give his witnesses a fair hearing, regardless of what they were wearing or how they talked. Did any of us think that homosexual people had a particular tendency to lie? No one moved. He directed the question specifically to the older man now sitting to my right, the only one of us in a suit, a gold Rolex on his left wrist, his hands neatly folded in his lap. He shook his head and said no, adding, slightly defensively, that he was an openly gay man, who lived an openly gay life and had for years. He wore a cabochon garnet pinky ring. He would be, initially, our foreman, until he vanished in the last days of the trial.

  Harder to interpret than these questions was the next: “Do any of you think it is possible for a man to have sex with another man and not be gay?”

  Several of us must have looked puzzled, because he tried to clarify: “Do any of you think it is possible for a man to have sex with another man and not think of himself as a gay man?”

  This made sense. The answer seemed obvious to me: sure. No one responded. I raised my hand.

  “You think that is possible?” he repeated, and I said I did. What made me say that? he wondered. I replied that there was plenty of evidence that different cultures at different points in history thought different ways about same-sex unions. For instance, in South America there were traditions in which it was considered exceedingly masculine to have sex with some men in some ways. (The phrase had always stuck in my head: “Soy tan macho que me cojo otros hombres.”)

  “OK . . .” the prosecutor said slowly. “OK,” he repeated, looking around the panel.

  Did anyone else have knowledge of this sort of research, or agree that this was possible? Two or three hands went up. Who knows what he was getting at with this line of questioning. I never understood what relevance it had to the case.

  Less pale than his adversary, the defense attorney had a slightly nasal (if not actually whiny) voice, and a tendency to lean back in his chair, legal pad on his knee, and gaze over our heads, out the window high up behind the jury box. He rose, came still closer, rested his elbows on the bar in front of the jury box. In an intimate way, sighing as if commiserating with our plight, he said slowly, “Good morning.”

  There was little reply.

  From his questions the contours of the case itself began to emerge for the first time. Did any of us think that it was impossible for a man to rape another man? Silence. Did any of us think that a man who legitimately thought he was going to be raped should not, could not, use any means at his command to protect himself? He looked at us closely. No one raised a hand.

  “Now,” he said suddenly, breaking his eye contact and moving away from the rail, “there were a lot of stab wounds”—sounding the last two words as if he were shrugging with his voice—“twenty-five, twenty-six stab wounds . . . and a lot of these were in the back. Are there any of you who think, right now, that it’s just impossible, that if you were defending yourself, and you were in a dark room, and there is this man, on top of you, trying to sodomize you—are there any of you who just say, ‘No way! There’s no way you could stab somebody twenty-five times in self-defense’?” He looked back at us, and let the question sink in.

  This was the first we heard of the wounds.

  After several seconds, a large woman in the second row, heavily made up, raised her hand. “You, you think that’s just impossible?” he continued. “I mean, you’re excited, you’re scared. . . .”

  She furrowed her prominent brow and thought about it, and as she did so it was clear that she was slow. But she stuck to her guns. You couldn’t put this one over on her—something was fishy about that number.

  Fair enough, I thought. But I could swallow the idea. I had seen fights where people were trying to do each other serious harm. I had even been in one or two such fights. It was hard to put a limit on what might happen under those circumstances.

  They sent us into the hall to wait. A few people chatted. I kept to myself. When we were called back into the room, it all happened very fast. The judge read five names, including mine and that of the man next to me, the white-haired gentleman with the garnet and the Rolex, Richard Chorst. I looked at him and shrugged, assuming we had been dismissed. But then the other thirteen panelists were asked to rise and follow the bailiff. And suddenly the five of us were standing, and the clerk of count was reading us the oath, and we were sworn jurors.

  I cannot remember the oath, but the clerk I see clearly: knobby, long, and mournful, his eyes furtive under bushy white brows, a desultory necktie hanging loosely at the collar of his worn-thin dress shirt—Thomas Mackelwee, associate clerk of count. He would sit at his desk in the corner of the courtroom as the trial wore on, dozing sometimes, quietly reading the Post, which he laid unobtrusively flat over his papers, getting up to swear in witnesses in his deferential mumble. Once, he was called on by the judge to give the dimensions of the courtroom in yards, to help a witness specify a key distance estimate in his testimony. Thomas Mackelwee was deep asleep. Uncharacteristically, the judge did not lose his temper. He paused, looked up, and called for a recess. Some people chuckled, but he did not.

  Thomas and the judge were two old, old men; one sensed they had worked together for a long time.

  One afternoon Thomas approached me in the hall and said, his eyes skittish, that he was interested in history.

  I liked him a good deal.

  It would be another four days before we heard a word of evidence: it would take four more panels to round out a full complement of jurors and alternates. The judge does nothing to make this delay any easier on those of us picked first. Friday, Monday, Tuesday, Wednesday, we show up, and wait. And wait, still in the hall, as a trickle is added to our number after each long round of selection. For a while there is, among us, a woman reading a book of Camus short stories. Then she stops showing up.

  One afternoon (we are seven now who have been sworn in) I walk to the Canal Street subway stop with a fellow juror, picked the second day, Jessica Pollero, who wears elegant knit dresses with bold geometric patterns and carries a large pigskin bag. Is she in her early thirties? A streak of gray in her dark, full hair may be deceptive; but so, too (in the other direction), her flawless complexion. She writes advertising copy for a city agency, but wants to go freelance. We talk about France (she found the people rude), and the location of a restaurant in the Village (is it too close to the scene of the killing for her to go? The judge keeps warning us to stay away from the area, but she has plans). She is very nice, but less exotic, somehow, than I had imagined. Later, she would grow interested in a television show that involved marrying a millionaire. She sought the opinion of other jurors on this show: Could we believe it?

  I do not own a television, and this was to surprise her.

  Each day ends the same way: tomorrow we ought to get going. One of us, the quiet guy named Jim Lanes, freaks out on Tuesday and starts yelling at the bailiff after roll call, saying he isn’t waiting around anymore, and isn’t coming back. At first the officer tries to soothe him, and then, when that has no effect, gets serious, telling him that he is subject to arrest if he leaves.

  Lanes is a nice man in his mid-forties, handsome, and dressed in a tastefully quirky way—a chocolate-brown houndstooth shirt and an elegant maroon bow tie with white fletches. We chat going down in the infuriatingly slow elevator. His advertising business is a partnership with his wife, a designer. For all his dashing appearance he is quiet, polite, almost retiring in conversation. In this light his anger earlier seems bizarre, sudden, exaggerated.


  Paige Barri wears clogs, and red socks that sparkle; she talks on the phone in the hall a great deal, and seems to be friendly already with Leah Tennent, who is taller, the same twenty-something age, carries a backpack, has a kaffiyeh scarf whorled rakishly at her neck. They go out for coffee, and are always the last to come skidding down the hall when we are asked to assemble in the court. I overhear Paige trying to explain to the bailiff that she has some kind of class on Thursday afternoons.

  She can miss it, but . . .

  Paige is the interior decorator; her temperament is cool, a touch disinterested, slightly impatient. Leah’s software company designs multi-player games, but she talks about the job like it’s a lark, something she is just trying out for fun. She has traveled a good deal (South America, East Asia) and had some adventures. There is a bounce in her step, and her lively green eyes narrow slyly when she smiles, which she does often, brightly, with a hint of mischief.

  For my part, I dress way down, since the court building is so dusty and rank—parachute pants, hiking boots, a fleece. The rough index for my first book has come back from the press, so I fill the time in the hallway by poring over the loose galley pages, making index annotations. I am blandly friendly, but sit alone.

  It is late Wednesday afternoon when we get under way, filing into the open court down the main aisle, preceded by the bailiff, who announces our entry by barking, “The jury is in the court!” as the metal door swings open; faces turn to observe. For the first time we see the victim’s family, arranged in the penultimate row of the courtroom, on the prosecutor’s side. When we are assembled, Richard Chorst, the neat gentleman with the garnet ring, gets placed in the first seat, with me on his left. He sits upright, his hands folded in his lap. He, the judge explains, will be our foreman.

  “Are these jurors satisfactory to the people?” the judge asks the prosecutor, and he replies, without looking at us, “Satisfactory to the people.” “And to the defense?” The answer comes, a pinched voice, as the lawyer shuffles files: “Yes, your honor.”

  And we begin.

  3. The Defendant

  From the first moments of the prosecution’s opening statement, the strange nature of the proceedings made a deep impression. How did it happen, I wondered, that a practice of truth-seeking had evolved to divide the job up in all these curious ways? The asking of questions was reserved to those who would play no role in judging the answers, while we, the jury, who were supposed to try to figure out what had gone on, had to remain absolutely silent. And though it was up to us to decide if the defendant was guilty, we would have no part in determining the consequences of that decision: the business of setting punishments was reserved to the judge; we wouldn’t even know what they might be. (Although, later, during a suspension in our deliberations, when we were held temporarily in an empty courtroom under loose guard, one of us milling around the vacant bench found a judge’s laminated sheet of “sentencing guidelines”; thus we learned what would happen to Milcray if we convicted—he could go to prison for life.)

  Our enforced silence was the most difficult thing. How could one even begin to investigate a problem without being able to engage with it directly? We were allowed no paper or writing implements. I fidgeted like a monkey.

  The prosecution’s first witness was Antigua’s sister—catatonic, blank, her thick West Indian accent clipping her monosyllabic answers.

  “And did you go to the morgue with the police?”

  “Yes.”

  “And did they show you the body at that time?”

  “Yes.”

  “And did you recognize the body?”

  “Yes.”

  “And was it the body of Randolph Cuffee, ‘Antigua,’ your brother?”

  “It was me broth’r,” she said, beginning to sob in stoic stillness.

  “And what did you say?”

  The judge cut off this question: “It is not relevant what she said,” he announced irritably. “Next question . . .”

  My way up Centre Street in the evening takes me past the adjacent jail, linked by a bridge of sighs to the court building itself. I step aside to let one of the repainted school buses of the Corrections Department back into the loading dock. It pings insistently and has windows of metal mesh. Milcray may ride in one of these. He may be held in the jail at night. We are not told.

  Paused, I notice an interesting architectural detail on the building: the squared-off columns posed decoratively around its base are constructed of wire, as if they were the armature of a plaster sculpture. Harmless enough, modernist, and not unattractive. But, looking more closely, I see this means that these columns, set before the jailhouse, appear to be composed of stacks of little barred cells. I sense a tendentious architect slipping a caustic commentary past his clients: the traditional elegant white columns of the classical orders (those symbols of justice, and props to the pediment of the republic), stripped bare, reveal a carceral skeleton. Unnerving.

  After police discovered the body of Randolph Cuffee, they followed standard procedures in the investigation of a stabbing death: they canvassed New York–area hospitals for patients admitted with cuts to their arms and hands. It is hard to stab someone many times, in haste and agitation, and avoid a slip or two.

  Monte Milcray slipped. He had been admitted to St. Vincent’s Hospital around 2 a.m. on August 2 after being picked up by police near Sheridan Square. Central Dispatch had sent a squad car to follow up on the report of a young African-American man with an ugly hand wound who was making his way along the outdoor cafés of the neighborhood asking anyone with a cell phone to call 911. His right pinky was more or less severed, and there was a good deal of blood on his overalls, his shoes, and his personal effects.

  When investigators pulled the file on this incident, they saw a suspicious story. Milcray had told the responding officers (who called in the paramedics) that he had been in an extended altercation with “five white males,” a posse that initially confronted him outside his gym in the Flatiron District, and then pursued him on a wild chase, punctuated by beatings, all the way down to an area he vaguely indicated lay to the west on Christopher Street. Shaking them finally (though having managed to conserve his hip pack, its water bottles, a CD Walkman, and his jacket), Milcray discovered his hand injury and sought help. Where was his shirt? Lost in the fight. Had he tried to alert passers-by or duck into an attended building during the twenty-five-block bias crime? Apparently not. Could he describe the attackers? Loosely at best.

  It is hard to come up with a good lie. Monte Milcray immediately became the leading suspect in the death of Randolph Cuffee. This was not, of course, how police then approached him. Rather, the detectives who visited him in his hospital room expressed a desire to learn more about his own assailants, and asked permission to take his bag and shoes to the lab in order to run some tests that might aid in this investigation. Meanwhile, the precinct sent two intrepid gumshoes to a medical-waste incinerator on Long Island, where they spent several hours picking over the contents of a large dump truck in an effort to recover Milcray’s overalls, which the hospital had discarded. Amazingly, they succeeded. Later, most of these items would prove to be splattered with a mixture of human bloods: Milcray’s and Cuffee’s.

  When Milcray came out of surgery the next day, his finger largely reconnected, he was asked if he would be willing to take a ride down to the station house in order to look over some photos, in hopes of making an identification. He agreed, and was shuttled to a neighboring precinct, because cameras and press reporters were on stakeout at the Sixth, clamoring for a break in the Cuffee case. The specter of a gay-bashing incident had attracted much attention.

  The two lead detectives in the case put Milcray in a small, windowless interrogation room with a spy-through mirror and gave him a can of lemonade and a random book of mug shots. There was a bit of desultory flipping, but it was now late evening, and Milcray had just undergone major surgery in which a pair of steel pins were drilled into the bones in h
is hand—this at the end of a very eventful thirty-six hours. He was tired and in pain.

  At some point in the questioning that followed, one of the detectives either did, or did not, tell Milcray that the body of Randolph Cuffee had been discovered at 103 Corlears Street. The detectives would remember this detail differently. Either way, Milcray announced the desire to make a statement, but said he wished to do so only to the male detective. Obligingly, the lead detective (a woman) left the room. Milcray then received his Miranda warnings, first orally, then in writing, on a sheet he signed. As Milcray perused this document, the male detective exited the room and conferred with his superior, who had been looking on through the mirror.

  “He’s going to give it up,” he said to her, and went back into the room.

  She stepped out to call the district attorney’s office.

  Milcray told the following story.

  Leaving work for his meal break on the evening of the 1st, Milcray claimed to have taken a walk west, toward the Staples store on Union Square. On the street there he met a long-haired black woman who addressed him flirtatiously, saying as she passed, “You’re sexy!” and asking him if he modeled.

  He replied: “Where’s your man at?”

  She introduced herself as Veronique, and gave him her number and her address, inviting him to come by her West Village apartment around midnight, when he got off work.

  At 11:55 p.m. Milcray punched out of work and made his way across town, into a neighborhood that, according to his statement, he had never before visited. He got lost, made a call to her apartment from a pay phone, received further instructions, and found his way.