A Trial by Jury

by D. Graham Burnett

  Strong objections came from several directions. The issue of self-defense, a number of people asserted, was to be considered only at the end: first we all had to agree that the defendant was guilty of one of the charges.

  The proposition surprised me; I could not understand how anyone got such an idea. I pressed, but those who spoke for this interpretation were energetic and a bit stubborn. Pat took the lead here. Raspy, blonde, buxom, she had the hard edges of a barmaid in a Back Bay Boston Irish pub; she also knew how to make herself heard, and took the floor without hesitation (not always in turn). It was early; all opinions had to be carefully respected. Consensus formed in the tacit silence of the majority.

  There was no sense arguing about it. I proposed that we send our first question into the court, asking for a copy of the judge’s instructions so we could sort this issue out. Even though I thought that the group’s idea of how to proceed made no sense (how could someone who believed that the defendant had acted in self-defense first agree that he had acted, say, recklessly? what could be reckless about justifiably defending oneself?), I had a number of my own questions about different parts of the charges and their phrasing, so I was keen to examine the text more closely.

  Everyone agreed, and I worded our first communication to the court, writing it on the lined sheet with my fountain pen (a fetish always to hand), which contained a foppish, tobacco-colored ink. It occurred to me that this might annoy the judge. After I read the question to the group for their approval, we rang the buzzer, and I gave the sheet to the sergeant who appeared at the door. Then we waited, and people chatted in groups.

  Paige approached me and explained that she was very intuitive, and that she hated bureaucracy; she encouraged me to adopt a more freewheeling, less technically exacting (and time-consuming) style, both in the way I worded our questions to the court and in the way I conducted our discussions. This managed to come across as both callow and slightly condescending at the same time.

  I said that it was important to be precise in writing, and not easy, and that there were certain exigencies constraining a group conversation; I would do what I could.

  We waited a long time. We did not then understand that any time we sent a question through, the entire court had to reassemble, which meant going and getting the lawyers, the clerks, the reporter—in short, everyone, including the defendant. Reassembling the court took about forty minutes, and made it very difficult to keep focus and momentum in the deliberations: it was hard enough for us all to agree on what our question ought to be, and how it ought to be expressed; then, once we had reached consensus, it would be more than an hour before we were back together in the room trying to figure out how to interpret the answer.

  In this first case the interpretation of the answer was quite easy. The answer was no. No, we could not have a copy of the jury instructions.

  The judge said this clearly, after he read our question out loud to the court. Then he looked at me. “I can again read through those instructions. I want you to answer me, simply yes or no, nothing more: Do you wish me to read them again?” I said yes. And so again we sat through the whole thing, and then were promptly packed back into the jury room.

  This, of course, had answered exactly none of our questions. We went back immediately to the issue of what question we ought to be addressing first. I did the best I could to explain that we should begin by considering the issue of self-defense. Our preliminary discussions suggested to me that there were about eight people in the room who were inclined to give credence to the self-defense claim (myself included), and that the others were divided among the various possible charges. Confusing the interpretation of this poll, however, was the fact that about half of those who had said they thought Milcray was acting in self-defense were also willing to say that he was guilty of one of the charges. Different people were confused to different degrees.

  My own position on the case as a whole was somewhat flexible. I distinctly remember thinking, at the moment we crossed the courtroom to begin deliberating, how strange it was to have heard so much and yet not to have formulated a firm opinion. Not only was I undecided, I had no strong sense of how others would see things, though I did harbor an unjustified prejudice concerning Dean, the big workingman cowboy type: I thought it likely he would take the lead in pushing for a guilty verdict, if not a lynching. (I think I figured anyone wearing, apparently without irony, a large, cast belt buckle reading “Rodeo” had to be a law-and-order type, and quite possibly a bigot, too). Despite a strong distaste for the prosecutor and the judge, I had not yet made up my mind. To be fair, these antipathies, at least in part, proceeded from an ingrained bias in favor of defendants. Somewhere in my head, I knew this.

  As we first went around the room, however, and I heard not only Dean but also six or seven others say they thought it might have been self-defense, I found my own inclination in that direction becoming stronger. Clearly, I wasn’t just raving. At that point I pretty much made up my mind that I would not vote the defendant’s guilt. At the same time, I did not feel at all good about the prospect of letting Milcray go free. I decided that I would just quietly hold my position and hope at least one other person held the opposing position, resulting in a hung jury. The thing I felt most strongly was that the case defied judgment on the evidence we had available. Was this a cop-out? Maybe.

  When my turn came (last) to state my position, I demurred, reminding everyone that I had said at the beginning that no one had to say anything at this point. I said I wanted to wait, to listen.

  The only person who looked a little suspicious about this reticence was Adelle, the other academic. She had immediately become the strongest and clearest voice for Milcray’s guilt, under the most severe charge, and seemed a bit shocked that so many of the others were hesitating. Very smart and articulate, she was clearly accustomed to holding the attention of a room. Her aspect was serious, though not at all unfriendly. Dressed comfortably—in sneakers and a shapeless sweater with loose sleeves that she pushed above her elbows—she moved with a kind of force, often lifting her short brown hair off her temples and fixing it behind her ears, rubbing her chin thoughtfully as she listened to others. Because she gave all external indications of being temperamentally inclined to a pro-defendant position, her advocacy of a guilty verdict weighed heavily.

  The time had come to make a decision about what question we were going to consider first. Were we going to try to agree on a charge, or were we going to begin by dealing with the issue of self-defense? Logic demanded one answer: we had to begin with the question of self-defense. Until (and unless) everyone agreed that Milcray had not acted in self-defense, there would be no way to reach consensus on a given charge. I explained this, but the logic, for some reason, failed to move several people. I would say that this was simply because they were confused. But Adelle also rejected the argument, though she had to have understood that it made perfect sense.

  Her stance, however, was strategically sound. She saw, I suspect, that if we first turned to the controlling issue of self-defense, she would be in a substantial minority and her position would be put on the defensive. Of necessity, the talk would turn to how she, and those who thought Milcray guilty, might be folded into the majority. If, on the other hand, she could get us going hashing out the charges themselves, this would surely shake things up: talk would be about the stabbing and the details of Milcray’s stories, and there would be a much greater chance of pulling more jurors into close consideration of the defendant’s guilt. Adelle thus aligned herself with those who were basically, to my mind, muddled. It was interesting to watch such curious alliances emerge.

  I can’t say whether she thought all this through consciously. Perhaps. But I sensed nothing Machiavellian in the move. Adelle was operating in good faith; she wanted us to make the right decision.

  I proposed that we decide what question to consider first with a show of hands. Could we agree to be ruled by the opinion of the majority on this matter? Adelle object
ed. She said she felt this matter was too fundamental to leave to a simple majority; we needed to be unanimous on it, as on the verdict itself.

  And there we were, stuck. Should we vote on whether the question should be resolved by majority vote? Would we let a majority decide that question? I felt as if I were peeking into the origins of deliberative democracy—so this is where constitutions come from. . . .

  Pat broke the deadlock. When she cut in (again a little loud, absolute), it became clear that we had even bigger confusions to deal with. She thought, she explained, that the self-defense justification was relevant only if we found Milcray guilty of manslaughter, the lesser charge. According to her, if we found Milcray guilty of murder, then the self-defense business fell out of consideration altogether.

  In one sense it was a legitimate misunderstanding, reflecting the broader confusion about which question needed to be considered first: the truth was that, if we found Milcray properly guilty of any of the charges, the self-defense business was no longer relevant. The whole point of the self-defense justification was that it meant we did not find Milcray guilty of any of the charges. But people were mixed up about exactly this.

  It was obviously time to send in some more questions. We hammered out a two-part inquiry for the court. First, could a finding of self-defense trump any or all of the charges? Second, were we obliged to consider the charges and the issue of justification in the order the judge had presented them to us? This latter query, we hoped, would help us resolve the vexing question of how we were to begin.

  By the time the court assembled and the judge read our communication, it was close to 8 p.m. on a Wednesday evening. We had been in the jury room for about four hours. The judge answered our questions succinctly: yes, and yes.

  He then told us that we would be breaking off for the day, that the officers of the court would escort us to dinner and a hotel, and that we would resume our discussions at nine the following morning. There was an irritated sigh or two puffed in the jury box.

  In accordance with the general protocol of keeping us hazy about what was going on, very little had been made of the possibility that our deliberations would last more than one day. The friendly sergeant-at-arms, dismissing us the previous evening, had advised that we bring a small overnight bag, perhaps a change of clothes, etc. But the eventuality of our using this stuff had been greatly played down.

  I, however, had taken the hint seriously. Having no clear sense of the verdict myself, I saw little reason to think the process would be speedy. But I had other reasons, too, for my particularly close attention to the sergeant’s suggestion: I am pretty obsessive about food. The prospect of having to eat for several days in crummy restaurants out near Kennedy Airport (there had been a rumor that this was where the court deposited juries) lit a fire under my preparations on the penultimate day of the trial phase.

  That evening I packed my duffel bag as though I were going on safari: three pounds of nuts and dried fruit, three bags of sturdy raw vegetables, a dozen blood oranges, a dozen apples, a few avocados, a small block of Parmesan, and a round of country bread the size of a manhole cover. Tucked into an overnight satchel, these left no room for clothing. I barely squeezed in a fresh shirt.

  When we collapsed back at the hotel that first night, which was indeed on the outskirts of JFK, these provisions gladdened my heart. Dinner had been a sit-down affair at an Italian place behind the court complex. The food looked better than I had expected, but I nibbled at the edges of things, and laid into an avocado-and-red-pepper sandwich once alone in my room. Mealtime conversation had ranged: I learned that the young woman named Suzy O’Mear (straight-haired, unpretentious, gentle) had spent a year in the Jesuit volunteer corps somewhere in California. She spoke of the experience with respect, but it had clearly been a rude awakening for a well-to-do Catholic girl from Sacred Heart College—homeless children and families, cycles of poverty and substance abuse, a cadre of off-puttingly pious zealots as co-workers. What had made the deepest impression on her, though, were the continuous con games played by the poor and the needy. Again and again, she explained, she had been taken in by the people she was trying to help, by their promises and stories, by the tricks they contrived to skim resources or broker sympathy; by the end, she said, her trust in people had been deeply eroded, and her sense that it ought to be possible to help people had largely evaporated.

  I could sympathize with parts of her story. I had been the victim of a wonderfully precise confidence game as a boy, shortly after my parents moved the family to a marginal neighborhood in West Philadelphia. The material cost of the lesson had been low—a break-in, a few stolen items—but it had changed for good the way I thought about the stories people tell, particularly stories told to get my attention.

  Suzy struck me as a very decent person, somewhat bruised by her experiment in social justice. We discussed how, for the powerless, narratives offer a potent way to draw new cards, to supplement the bad hands they have been dealt. These sorts of con games, I suggested, shouldn’t be taken personally; they were always part of larger contexts of disenfranchisement and social jostling. Suzy was not overly impressed by my somewhat mush-headed analysis, with its odor of piety and post-Marxian pathos. She was also strongly in favor of finding Milcray guilty on the most severe charge. She figured she knew how to spot a liar.

  Felipe, dropping his voice to a whisper, shared some unseemly confidences: The Jews, he assured us, ran everything in the Dominican Republic; they were wildly rich and powerful. “It’s true!” he swore, to several uneasy faces.

  The shower in my room didn’t work; I took a sponge bath in the tub with a stiff washcloth, squatting at the tap.

  7. The Second Day

  Thursday morning, at the hotel’s buffet breakfast, I sat next to Dean, who was manfully consuming a heaping plate of sausage and eggs. My own plate was empty, since I had eaten fruit and bread in my room. Conversation turned from my abstemious table habits to Vel’s ubiquitous book on fasting, to the approach of Lent, to the love of God.

  The more I talked to Dean, the more interesting he seemed. Not only, we were learning, was he a born-again Christian former crystal-meth addict (a habit he had picked up in the engine room of a navy aircraft carrier), but he was also a modern domestic missionary, who had been sent by his California “mother church” (of recovered addicts) as part of a small cell charged to found a new community in the drug-addled world of Spanish Harlem. Almost a decade had passed since this group had arrived (none of the faithful ever having seen New York City) and taken up residence in a communal apartment, living on resources pooled from odd jobs. No full-time work, because they needed to leave plenty of time for prayer, and for their mission: wandering in and out of the heroin galleries and the crack dens of the neighborhood, handing out literature, praising the Lord, preaching the possibility of recovery and redemption. They held their first meetings in an empty storefront, circling in prayer around vomiting addicts delirious from the struggle to go cold-turkey. The church now boasted well over one hundred families, and Dean had become one of its leaders, a deacon sometimes called upon to preach. He had married into the community, and he and his Guatemalan wife had two kids of their own; they were also raising Dean’s daughter from a previous marriage—the mother’s addiction had cost her first custody, then her life.

  All this was by no means the c.v. I had imagined for Dean, but it explained much: his accommodating and gentle voice in our deliberations; his obvious ability to speak with authority and lead the group; his sympathy (contrary to my initial suspicions) for the defendant. From the beginning, Dean’s attitude was that Milcray had done the wrong thing, that he had almost certainly gotten involved in something risky and stupid, but that this alone was not grounds for a conviction.

  “The Lord knows,” he would add, “I myself have been in the wrong place more than once.”

  One time the wrong place involved a horrendous van wreck (linked to a meth binge and a Hell’s Angels syndicate) that ha
d left him with an ax wound in the neck and a steel plate in his spine. He set off the metal detector at the court entrance.

  Back in the jury room that morning, after a slow bus ride through the rush-hour traffic, we went over the meaning of the judge’s answers. His having said that we had to consider the charges in order sealed most people’s sense that we had to reach unanimity on a single charge before we could go on to think about the self-defense issue. I sensed that there was now no way to persuade everyone that this wouldn’t work, but I made one more effort, explaining the way I would interpret the directive: what the judge said about “going in order” made sense, in that we could not consider whether the defendant had acted in self-defense unless we all concurred that he had killed Randolph Cuffee. In plenty of other cases, that basic question would itself be at issue. The rule that the charges had to be “considered in order” likely came out of such situations, when it was necessary to agree that the defendant had, in fact, killed the victim—in other words, that the state had the right guy—before even thinking about justification. In our case, I pointed out, there was no one in the room who didn’t believe, beyond a reasonable doubt, that Monte Milcray wielded the knife that caused the death of Randolph Cuffee. Therefore, we could begin immediately to consider if his doing so was in self-defense.

  No dice. The consensus was that the judge’s instructions literally meant going in order, and this meant agreeing on a charge before we did anything else. I kicked myself for not having phrased the question more clearly. Adelle had prevailed.

  She had also prevailed on the question of evidence. From the beginning she had made it clear that she wanted to start requesting different parts of what we had seen and heard over the previous two weeks: the pictures, the videos, the testimony of various witnesses. I had tried to hold this influx off. It seemed to me that it was going to be hard enough to keep order in the deliberations (already our basic ground rules of raised hands and speaking in turn had proved very difficult to maintain); the idea of the group’s having anything like a successful conversation once we had videos and stacks of pictures and reams of paper to play with struck me as a fantasy.