But in it came. Initially we requested all the following: the crime-scene photos, the two videos (one of the scene and the other of Milcray’s statement), all of the telephone records, and the testimonies of a handful of witnesses, particularly Nahteesha, Hector-Laverne, and Stevie.
We received everything but the testimonies. The judge called us back out and explained that the only way we could revisit the testimony of witnesses who took the stand was to specify the portion of the testimony we wished to hear, at which point the court reporter would search the transcripts, find the passage, and read it back to us as we sat in the jury box. This was clearly going to make it impractical to review the whole of these witnesses’ testimonies (we would have had to sit for another week), but there would also be the difficulty of sorting out what specific bits we wanted to hear. How could we agree on what those were? If we really needed to hear them again, it was presumably because we weren’t sure what had been said; but if this was the case, how were we to specify to the court exactly what part we wanted? This rule made a certain kind of close work with the witnesses’ evidence impossible. For instance, a detailed collation of all the different times given by those who came in and out of the apartment the night of the killing—that was not going to happen.
Back in the jury room, the seminar-style conversation around the table broke open into loose groups gathered around different parts of the evidence: a cluster of people watched the television that had been rolled in to show the videos; another group circulated the photos of the scene and the body. I felt as though nothing could come of this anarchic room, loud with five or six conversations at a time, punctuated by laughter, some of the women periodically slipping into the adjoining ladies’ room to smoke.
But I was wrong. Several interesting things emerged quite quickly. One of these came from the group gathered around the television, who had noticed, while watching the crime-scene video, that unless the door of the apartment was opened fully it was not actually possible to see the futon. This threw an important part of Nahteesha’s testimony into question. How could she have seen the defendant on the couch, as she claimed, when she was in the hall and Cuffee was in the doorway? It didn’t look to us as if that was possible.
This finding led to further talk about the three witnesses who placed Milcray at the scene. No one seemed to put much store in anything they had told us—too much inconsistency, too many indications that their “identifications” of the defendant had been made by means of a single photo (rather than a formal lineup or an array of mug shots), under the stressful conditions of a police station, shortly after learning of the death of their friend. Only Stevie Trevor insisted he had never been shown Milcray’s picture by the police. But could his identification in the courtroom carry much weight? We had all been struck by what the defense attorney pointed out. The prosecutor had gone to great lengths to get Stevie, to bring him to New York, to put him up in a hotel and cover his expenses. This was a kid who had been in trouble with the police, on and off, his whole life, and now the DA’s office has its hands all over him, and he knows he is supposed to make a key identification. Then he gets put on the stand and asked to point out the man he saw in the apartment that night. There is only one other young black man in the courtroom. It’s not as if he is going to point to the wrong guy. (The defense attorney had played on this: when Stevie looked away and let his I’m-telling-teacher finger fall in the defendant’s direction, Milcray’s lawyer, sitting beside him, leaned back in his chair and threw up his hands—“You’re not pointing at me, are you?” he called out in mock horror.)
On top of the somewhat contrived, DA-driven context for this positive ID, there was also the disturbing fact that Stevie’s description of the man he saw in the apartment that night did not fit especially well with the way Milcray looked in his video testimony, recorded less than forty-eight hours later. Stevie (like Nahteesha) identified the person on the couch at the scene as having been clean-shaven, but Monte Milcray clearly had a fuzzy goatee in the video; Stevie described the man’s hair as “nappy” (when asked to explain this term, he expanded on it as “peasy” and “rugged”), evidently meaning the hair was long enough to have shape, but Milcray’s hair, in the video, was cropped to the skull.
The fatal blow to Stevie Trevor’s testimony had been a clever trick played by the defense attorney, who presented him with a sheet of paper showing four police photos of black men, one of them that of Milcray at his arrest. Could Mr. Trevor identify anyone on the sheet? He puzzled for a moment, and it wasn’t clear he had understood.
Did he recognize anyone in these pictures?
Hesitantly, he pointed to one of the random head shots.
He thought he might have seen that guy before.
It was not Milcray.
Stevie had probably just been confused, and thought he was supposed to identify someone other than the defendant, but it certainly suggested that the witness could be led without great difficulty.
“No further questions,” the defense attorney announced with a dismissive wave, and he walked away from the podium.
For all the cleverness of that move, the same attorney alienated a number of us in his closing argument, when he urged us to ignore the testimony of all three of the prosecution’s more exotic eyewitnesses.
“I don’t know how many of you have children,” he began, “but if you do, I ask you: Would you trust Hector, or Nahteesha, or Stevie, with your children? If not, I ask you not to trust them with my client.”
In the jury room this tactic was scorned as nothing more than a cheap effort to play on anti-gay bias. Still, we were gradually finding ourselves willing to put aside much of their testimony.
Or at least most of us were. Pat was energetically composing a list of all the testimony she felt she needed to hear read back, and the list was getting longer and longer. It included everything said by Nahteesha, Stevie, and Hector-Laverne—days’ worth of material. And there was much more, too.
The other striking early discovery came from those who had been looking over the crime-scene photographs. In one of these there was something white and diaphanous on the edge of the futon near the body. There could be no doubt that, whatever it was, it had elastic gathers. In fact, if one had to guess, most likely one would have said that it was a large pair of women’s panties. This created quite a stir, and the photo made the rounds among us. The only other possible explanation was that one of the crime-scene workers had left behind a white disposable medical hairnet. Given the quality of the image, it was ultimately impossible to say for sure (though I silently thought the latter more likely). Several people suggested that we request a magnifying glass.
We did, but our request was denied.
Still, a seed of doubt had been planted. The thing certainly could have been panties, and even if not, why had the object not been taken into police custody so that we could know what it was? Several of those initially inclined to convict expressed frustration that the police work had not been more thorough.
Pat, meanwhile, had assembled a list of just about every bit of testimony that we had heard over the previous two weeks, and she presented it to me, explaining that we needed to send a note requesting to hear all of this again. Bringing everyone back to the table, I encouraged us to think for a moment about whether we could start to put our fingers on a few crucial issues, the issues that might have the power to move us from our respective positions; this would help us hone down our requests for evidence. Pat preemptively objected, saying she needed everything she had listed.
But, I said, she had made her position quite clear—she believed that the prosecution had not proved, beyond a reasonable doubt, that Milcray had not been acting in self-defense. So she believed we should acquit. Was that right?
She said it was.
So then, I continued, perhaps we should ask someone who took a different position—say, Suzy—if hearing all of the testimony on the request list could possibly change her position. I showed Pat’s li
st to Suzy O’Mear (the young woman with whom I spoke about volunteer work at dinner on the first night), who looked it over.
No, she replied, her sense of Milcray’s guilt did not proceed from anything particular said by any of those witnesses.
I tried to use this to show Pat that it would be impractical, and probably fruitless, to place such a large request for material until we had figured out exactly what issues were decisive for people. Pat looked irritated, and stood her ground. She might drop one or two things, but most of it she herself had to hear.
At this point a few people seemed to be losing patience with Pat, so I shifted the topic. I proposed that we might try having those who were convinced beyond a reasonable doubt of Milcray’s guilt tell us a bit about what they considered the “proof.” That way the rest of us (by this point it had become clear that I was tipped against a conviction) could see what the key points were: perhaps we would be won over, or perhaps we could cast some reasonable doubts on those proofs.
Adelle objected to this formulation. Why, she asked, did the burden fall on those who believed him guilty? Why didn’t we go around the room and have those who were prepared to acquit give their reasons?
Up to this moment, Adelle and I had spoken to each other relatively little. During the first weeks of the trial, we had chatted in the hall enough to learn that we shared academic interests, and that we were even in the same e-mail group for historians of exploration. We talked about a recent book in the field that we had both read. Quite quickly, though, we left off these topics. The trial seemed much more important, but we couldn’t talk about it—jurors are strictly forbidden to discuss the proceedings before deliberations begin.
Once they did, Adelle was very vigorous, particularly during the interlude spent looking at the evidence—going from group to group, talking seriously in each, her face lined with concern, always asking questions of the others. For my part, I had grown increasingly certain that I was not going to be moved. But my desire to see a hung jury had also deepened, and Adelle looked like the best bet to hold down the opposing position. Suzy was more vehement, but Adelle seemed a more substantial figure in our discussions. The two or three others who continued to express a preference for a guilty verdict were much less solid: there was Paige Barri, the interior decorator, who had more than once voiced, with exasperation, a desire to get the whole business over with; and there was Jessica Pollero (of the bold knits and perfect skin), who came closest to showing disgust that so many of us were willing to let this guy off when he so clearly struck her as a liar (“I am so depressed by this,” she announced). She found the prosecutor’s “inner demon” argument entirely persuasive: the step from a somewhat confused sexual identity to a homicidal bloodbath did not seem to her like much of a stretch.
I replied to Adelle that those persuaded of Milcray’s guilt ought to present their positions to the rest of us because that is how trials work: the burden of proof is on the state, not on the defendant, who has no obligation to explain himself. Therefore, those of us unpersuaded by the prosecution’s case did not have to convince anyone of anything; we had to be convinced by someone who could adduce the proofs of guilt.
Adelle looked troubled. Her understanding, she explained, was that if the defendant was going to claim self-defense then he absolutely did have an obligation to prove, beyond a reasonable doubt, that he had acted in self-defense, just as the state had an obligation to prove, beyond a reasonable doubt, that he was guilty of criminal homicide.
This was not correct. Our instructions had been murky, but I was certain that the judge had explained that a claim of self-defense expanded the scope of the prosecution’s burden. In other words, the presumption of innocence extended to a presumption that individuals were telling the truth when they said they had defended themselves. When a defendant made that claim, the state was then obliged to prove, beyond a reasonable doubt, that the killing had not been in self-defense. This instruction had come couched in a few warnings: first, that in evaluating the testimony of all witnesses we were to consider what motivations they might have to lie (noting that this was particularly relevant in the case of the testimony of defendants themselves); and, second, that a “reasonable” doubt meant, among other things, a doubt motivated by “reasons.”
Adelle was not convinced. I went around the room, and most people had understood things as I had: that the prosecution was required to prove not only that Milcray was guilty of the homicide, but also that he had not acted in self-defense, and that the burden of proof was the same for both of these elements.
Felipe got up and stared out the window, explaining that he had something he needed to do at three o’clock that afternoon, and that he sure hoped we could hurry up and get this over with.
One or two people thought this was funny; a number of people, including me, did not. I told him directly, raising my voice for the first time, that those kinds of remarks didn’t belong in the discussion, that we were doing something too serious, that I was going to lose my temper.
He did not meet my look. The moment passed.
We needed confirmation from the court on the precise extent of the people’s burden of proof. I began drafting the question. When Pat pressed me to include on the sheet a request for all the testimony she still wanted to hear, I discouraged her, explaining that we would do whatever we had to do before things were over, but that I could not yet make everyone sit through all of that material. I suggested to her that she try to edit it down.
After lunch (sandwiches delivered to the room; I slipped an apple surreptitiously from my bag and nibbled a fistful of almonds), we received our answer: yes, the state had to prove beyond a reasonable doubt that the defendant did not act in self-defense. We went back into deliberations.
Now we all had a common understanding of just how much the prosecution had to prove, but there appeared to be little change in anyone’s position. Again it felt most natural to let the room splinter into smaller discussions. As I drifted in and out of these, I sensed that this format probably favored those seeking an acquittal, since each cell of the room’s fragmented conversation formed around one advocate of Milcray’s guilt, who confronted two or three skeptics.
People really wanted to focus on the fight itself. One group gathered around the television monitor, replaying over and over a three-minute segment of Milcray’s statement in which he described the actual fisticuffs. Adelle took notes.
“There!” she declared, rewinding—first he said Veronique pushed him down twice, then it seemed he said three times! He had to be lying.
She scribbled away, building a list of the inconsistencies in the fight testimony.
Another small group focused on the photos of the body at the scene. There could be no doubt that, as the chief medical examiner pointed out, the stab wounds in the back formed very tight clusters: a rosette in the back of the skull, and two groupings along the spine, one at the neck and the other lower down. They were very clean punctures, showing no gashes or tears on the surface, and, according to the coroner’s report, all about the same depth: two and a half inches, exactly the length of the blade in people’s exhibit 7. The penetrating orientation of these wounds (which the medical examiner ascertained semi-scientifically by the methodical insertion of wooden tongue depressors into each aperture, using these to eyeball the axis of the incision, and then marking arrows on the body diagram that was entered into evidence) was basically in and down, not veering to either side. Only a pair of shallower scratches showed up on the body, both high on the left buttock, seemingly unrelated to everything else.
None of this looked terribly consistent with a struggle, or with the defendant’s story that he had made the back wounds from under Cuffee, reaching around his body from the front. Moreover, the blood from the cuts had oozed down and made a little puddle in the smooth, deep recess at the small of the victim’s muscular back. This strongly suggested that Cuffee had not moved much during or after the infliction of those injuries—which was a
lso inconsistent with Milcray’s story, since he had claimed that Cuffee continued to fight menacingly as he took the blows.
And then there was the matter of the blood on the wall, to the right of the fallen body. The prim, bespectacled forensics expert had smilingly assured us that those swabs of blood had tested positive for the DNA of, surprisingly, Monte Virginia Milcray. This meant that somehow Milcray had managed to spray a nontrivial amount of his own blood onto the wall between the TV and the window, some of it several feet high, some of it on the television itself.
There was only one way to explain that: the blood came from Milcray’s severed pinky, and it almost certainly sprayed that way because Milcray was indeed kneeling over his victim in the corner, flailing away with big swings at a more or less immobile body. In fact, it seemed likely that he had injured his finger on one of the first of those swings, most probably one of those that landed on the back of Cuffee’s head. These, the coroner’s report stated, had not penetrated the skull (though they had made some gouges).
An excellent way to cut off your pinky is to drive a knife overhand into something so solid that the knife stops short but your hand keeps going. Something like a skull.
Several people began acting out the fight sequences as Milcray narrated them, trying to see if it was possible to imagine making the set of wounds we saw in the ways he described. Pat was on the floor on her back calling for someone to lie down between her legs. This and the subsequent wrangles occasioned a certain amount of joking, and I walked over to Dean, standing a little apart, and rolled my eyes: things seemed to be degenerating into a circus. We talked about the fight evidence together and agreed: it was not a very big deal that Milcray couldn’t recall the precise sequence of the fight (after all, he would have been in a very heightened state); and it seemed likely to us that most, if not all, of the wounds to the back were delivered after Milcray had gotten out from underneath Cuffee—i.e., from behind—while Cuffee lay facedown or crawled, just as the prosecutor argued. It might still have been the heat of the moment, but the initial struggle was over by the time Milcray was in a position to deliver those blows.
A Trial by Jury Page 9