A Trial by Jury

by D. Graham Burnett

  “It’s OK,” Dean said quietly, nodding at the enthusiastic game of Twister warming up on the floor (people shouting out what Milcray was saying on the video, as couples wrapped themselves into unlikely positions), “this is good. Most people in here have never been in a fight—they need to see how it would work.”

  Minds did change in these re-enactments. Adelle was now ready to concede, when we again gathered around the table, that, contrary to her earlier thinking, Milcray’s story of the hand-to-hand struggle contained nothing absolutely impossible. I pointed out that, though this might be so, it certainly seemed to me that the many wounds to the back had been delivered not as Milcray said but from above, after Cuffee was mostly immobilized, presumably from the first wound.

  Didn’t that mean I thought Milcray was lying?

  I said it did.

  Why, then, was I apparently willing to acquit, when I believed exactly what the prosecutor had claimed: that Milcray had knelt on Cuffee’s back and stabbed him to death?

  I answered that I was willing to ignore all of the wounds to the back. After all, none of them had anything to do with Cuffee’s death: the chest wound took care of that. Anyway, there was no accounting for what one might do if one had just been attacked in the way that Milcray claimed.

  “Think about it,” Jim Lanes added in agreement. “Milcray knew he had to turn his back on Cuffee in order to open the door. Once you’ve stabbed somebody once, think of how afraid of them you are, think how you know they want to kill you. Don’t you want to make absolutely sure they aren’t going to come for you again?” Jim had abandoned his natty bow tie of the early days of the trial, and he looked slightly tired, gray. For someone in advertising he had proved surprisingly reserved, I thought, but there was a determined quality to him even in his silence.

  Dean piped up that it was certainly true that in a rage one might do anything. He began to tell the story of his worst brawl in the navy. He had infuriated a smaller, younger superior, who leapt up from his desk and buried a ballpoint pen in Dean’s neck while sinking his teeth into Dean’s ear. He showed us the scar on his clavicle.

  “And then,” he went on, “I got my arm under his leg—because he had wrapped his legs around me—and I lifted him off, and I slammed him into this bookshelf, so he fell on the floor. I didn’t even discover I had been stabbed until later. . . .”

  “Wait,” I said. “Go over that again. How did the guy get his legs around you?”

  “He jumped up.”

  “But I thought you said he was at his desk?” I asked, beginning a mock cross-examination.

  “He was.”

  “So you are saying that this guy pushed back from his desk, leapt at you from a sitting position, and got his mouth at the level of your ear?”

  “Yeah, that’s what happened.”

  “But this guy was shorter than you, right?”

  “A lot shorter,” Dean answered.

  “And yet, in all the time it took him to do this, and to fly up at your face, you didn’t even have time to move out of the way. . . .”

  It was all an exercise, and Dean saw that immediately. It was a lesson in how hard it is to remember the precise details of a fight. We all trusted Dean, but it became clear that a hostile questioner could get someone quite tangled up about such a charged and impressionistic memory.

  I explained I was not trying to suggest that Milcray had told us the truth about everything that happened in the room that night. Or even that he was absolutely telling the truth about anything. It seemed to me that the issue was this: Had the prosecution proved—beyond a reasonable doubt—that Milcray could not have been acting in self-defense? The answer to that, for me, was no. In fact, it was not clear to me that such a proof was even possible in this case: two men go into a closed room, one emerges, he claims to have acted in self-defense. How could it be proved beyond a reasonable doubt that this is a lie? Perhaps if the defendant had a long criminal record, perhaps if Milcray had been convicted on several occasions of assaulting gay men in the Village—but, barring that, I had doubts.

  Jessica expressed irritation, saying that all this was ridiculous. At the start of the day, when I had suggested again that we begin with a moment of silence, she had said to me with a snip that she saw no need to do so. “I’m ready, actually,” she declared. I had replied that this was excellent, that she could use the time to reflect on her readiness. Now she volunteered her complete agreement with the prosecutor’s account: this guy had been torn apart by the demons of his double sex life. Milcray and Cuffee were clearly lovers, she asserted, and for some reason Milcray freaked out—because he was so disgusted with himself, or something.

  Jim agreed that they had almost surely been lovers. “This is a kid who craved sex on the edge,” he insisted.

  Yet Jim was opposed to a conviction. Why? “Because it could have been self-defense; nobody’s proved it wasn’t self-defense.”

  Several other people agreed that it seemed likely that Milcray and Cuffee had been sexually involved, but that this alone did not offer clear proof of anything.

  Vel had let her braids come down, and gathered them in a loose ponytail. I had gotten the sense that her unusual reading matter pointed to a wider interest in New Age spirituality: she had grown Zenlike in the deliberations, very controlled. Now she weighed in, serious, speaking clearly: she was not convinced by the prosecution. It was an authoritative tone, the tone of a manager.

  “No means no,” Pat announced sharply, riding the tide of opinion in the room. “Even if they just had oral sex and then Cuffee said he wanted more, if Monte said no, then it was rape.” For this reason, the semen on Milcray’s underwear, like that on Cuffee’s body, meant nothing: although these samples strongly suggested there might have been consensual sexual contact, that in itself did not prove there had been no attempted rape.

  Jessica rolled her eyes. Suzy sat back with her arms folded, slowly shaking her head. Paige sighed with exasperation.

  Several of us said we agreed with Pat—that one could toss out almost the whole of Milcray’s story; the only thing that mattered was that crucial moment. Did we have any proof that this moment didn’t happen? Did we have any proof that Milcray did not say no at some point and that Cuffee did not reply with some sort of rough handling? Without such proof, how could we convict?

  Adelle spoke. “But the only evidence for that moment is Monte’s word, and what’s that worth?”

  She proposed an exercise: “Let’s make a list of everything that Milcray has told us, and then let’s cross off everything that has turned out to be a lie. What’s left on the list? Only that one moment. How can you be ready to let him walk out of here on the basis of that?”

  Felipe piped up that we need not worry about Milcray’s going free—even if we found him not guilty, he would go to jail for a good long time.

  This drew a number of puzzled stares. Several of us tried to explain that this was incorrect, that if we found Milcray not guilty he would be released. Felipe looked unconvinced, but he did not argue.

  Then a new idea started to circulate. Given such a strong division between those who thought Milcray was guilty of the highest charge (Suzy, Adelle) and those who thought he was absolutely not guilty of anything (Leah, Pat), wasn’t the wisest thing, the most responsible and mature thing, to seek some sort of compromise? For instance, couldn’t both extremes start to move toward some middle ground? Say, a conviction on the lesser charge of manslaughter?

  This suggestion had a reasonable quality, and a few people (Felipe, possibly Rachel, probably others) were clearly willing to consider it. Paige pleaded for a negotiated settlement: “We can’t be too rigid here—we have to try to work with each other.”

  Jessica agreed. Hadn’t we all admitted that what Milcray did was very bad? After all, it was clear he had abandoned a man he knew to be horribly wounded. That alone deserved some sort of punishment. We couldn’t just let him walk free when all of us agreed that he had done something quite
terrible—terrible regardless of whether he thought, at first, that he was acting in self-defense.

  I wanted to head off this kind of argument. “The problem with a compromise,” I said, “is that it would be a violation of our duty as jurors, which is to apply the law. We weren’t asked to consider whether Milcray is guilty of abandoning the scene or lying to police. The law says that we can only convict if we’re persuaded, beyond a reasonable doubt, that Milcray killed Cuffee and did not do so in self-defense. So that’s the only issue. We aren’t allowed to fudge the law because we’d like to see Milcray get punished.”

  Pat spoke up: “Yeah, I’m angry that the police didn’t do a better job, because if they had I might be able to convict, but the proof isn’t there, and that’s it.”

  There was a categorical quality to her every contribution.

  Suzy and Paige both expressed irritation, but it was Adelle who spoke.

  “But do we really have to apply the law? Who can make us? There is something called nullification—right?—where a jury disregards the law and does what it thinks is right?” She looked at me.

  I nodded.

  “What about that?” she asked.

  I had been standing, and I sat down. “Sure, there is always that,” I said. “Do you want to tell us more?”

  We did a deferential two-step deciding who would give a brief history of nullification. It fell to me, so I told the story as best I remembered it from quizzing my wife for her legal-history exams: some famous English case from the seventeenth century; the jury acquitted when the defendant was obviously guilty, doing so as a protest against the law itself; the judge threw the jury in jail, to force them to reach the “correct” verdict; somehow the judge ended up getting censured and the jury was set free, unpunished. Result? A venerable precedent in our legal tradition: juries can do whatever they please, and they are immune from prosecution.

  “If we want,” I concluded, “we can ignore the law.”

  The plea for compromise gained renewed strength in light of this story. Paige heaped scorn on the pedantry of those who would allow themselves to be constrained by the “letter” of the law while ignoring its “spirit”—a spirit, she explained, that amounted to the righteous desire not to let people who do bad things go unpunished.

  “We need a more sensual approach,” she urged, moving her hands as if she were feeling the nap on a piece of upholstery. It seemed to me she did not mean the term literally, but that in downtown interior decorating “sensual” was probably used in a general way to mean “good” or “appropriate.”

  To exemplify this more nuanced approach, Paige conceded that by now she was convinced that the prosecution had failed: they had not proved beyond a reasonable doubt that Milcray hadn’t acted in self-defense. And yet she still felt willing to find the defendant guilty of manslaughter, so that he would be punished for all the things he had done—lie, abandon the wounded man, etc. Who was prepared to join her?

  I spoke up before anyone else had a chance and said that I, for one, would definitely not support such a verdict, so we could rule out ever achieving unanimity on such grounds. If someone persuaded me that Milcray was guilty of one of the charges, then I was prepared to convict, but I wasn’t going to vote the defendant’s guilt as part of some compromise. Moreover, if she now really had reasonable doubts about Milcray’s actions, then duty obliged her to acquit.

  Conversation heated up around the table, as people debated this idea of a compromise verdict. Several others said—for instance, Leah, quite passionately—they would never agree to convict Milcray using that rationale.

  Jessica held up one of the photos of Cuffee’s apartment. High on the wall, she pointed out, opposite the door, hung a modest, sobering crucifix; it presided over the small room.

  “All this talk about Milcray,” she said, “Milcray this, Milcray that. What about Cuffee?”

  By this point it was well into the evening, and people wanted to poll again, on each of the charges, in order, with the question of self-defense last. When we did, the results were all over the place. At first it seemed more jurors wanted to convict: two voted guilty on second-degree murder with intent, and another five or six voted guilty on either murder under the depraved-indifference clause or manslaughter. But then we counted the small, torn bits of paper that served as ballots on the issue of self-defense: one “no,” eight “yes,” and three “undecided.” So, in fact, there had been a slight movement in the direction of an acquittal. But there remained sufficient confusion over the need to get consensus on a charge that it was hard to interpret the results.

  The subject of a hung jury had hardly come up at all in our first two days, but in the silence that followed this count I offered it to the room as a possibility: “You know,” I said, “we might just write the court a note, explaining that we have been doing the best we can for something like”—I looked at my watch—“fifteen hours, and that we feel like we are stuck.”

  “He’d just send us back to keep going,” someone said.

  “Yeah, what does he care . . .” Jim added.

  “Well,” I tried again, “juries do hang. I mean, I don’t know what it takes before the judge gives up, but my sense is that things look pretty intractable in this room. After all this, we are still basically right where we were in the first minute of the first day. . . .”

  Even as I started talking, I could see the pained expressions and the shaking heads. I was getting nowhere with this suggestion.

  Leah cut me off: “Absolutely not. I think it’s way too early to give up.”

  As discussions unfolded, she had become one of the most vehement voices in favor of an acquittal. In fact, she seemed to be the only person in the room genuinely willing to believe Milcray, and to credit his story. The other seven of us who opposed conviction to varying degrees generally agreed that if this were God’s lottery, and we had to bet on whether Milcray had murdered Randolph Cuffee outright, the safe money would say he had. But that, we realized, was not the question. As Vel had pointed out earlier in the day, “Not guilty doesn’t mean innocent.”

  Adelle was shaking her head and looking quite dismayed, but before she could say what she was thinking, Pat jumped in, very excited and upset. She was furious at me for even bringing up the idea of a hung jury. Hadn’t she been asking me all day to turn in her request to hear a great deal of testimony again? What about all of that? Had I just been stringing her along the whole time, encouraging her to revise the list and edit it, when I had no intention of ever submitting the request? Where did I get off, talking about giving up when we hadn’t even gone over the evidence that everyone wanted to hear?

  This barrage set me aback. I had certainly stalled her request, because it seemed to me irrelevant to the proceedings, and because I didn’t feel I could commit all twelve of us to the jury box for the next three or four days to review testimony that (as best I could make out) only one person wanted to hear—particularly when that one person insisted vociferously that she had entirely made up her mind about the whole case. My surprise was all the greater because I had made subtle efforts to cultivate good relations with those who were advocating acquittal, particularly those like Pat who were very vocal. I had tried to make her feel that I was her partner in the process, and that we were very much on the same side. Had this come across as condescending? Perhaps.

  But there was something else, too. Increasingly Pat struck me as emotionally volatile. From her sudden, explosive interjections I had started to get the sense of someone quick to trigger. Added to this was the issue of her medication. She was apparently taking a heavily regulated prescription drug of some sort, and she was running low. Pressing the sergeant-at-arms for help in securing a refill earlier that morning, she had looked close to tears. She was going through packs of Kools in the bathroom at an alarming rate.

  I apologized to Pat, but I tried to stand my ground, too, pointing out that I had a duty to think about the flow of our deliberations as a group, and to bala
nce everyone’s requests. In response, she grew more aggressive, not less, nearly shouting, accusing me of ignoring her, disrespecting her, and disregarding the work she had put in reviewing the evidence.

  The woman knew how to fight, that was evident; she was obviously less clear on how to de-escalate a confrontation, and when it might be preferable to do so.

  A loud bang sounded on the heavy door, and the bailiff’s voice called: “Cease deliberations!” He put his head in: “Jurors, please assemble in the courtroom.”

  Time was up. Another overnight lay ahead.

  The atmosphere had soured a great deal in the last few minutes. I was tired, and a little angry to have come under an attack that seemed to me slightly unhinged. Everyone was disappointed and irritated at having to spend another night in a lousy motel. There was a palpable sense of failure: we had not managed to reach a verdict.

  A few people asked that we not be taken to dinner as a group but simply pick up pizzas and go to the hotel, allowing us all to eat alone in our rooms. The sergeant said no, and the other officers who were escorting us tried to tell us that everything would be OK, that we were just tired, and that we needed to get out of the jury room and settle down, talk about other things (outside the jury room we were prohibited from discussing the case). The truth is, we were good and sick of one another, but there was no choice—we had to eat together, court orders.