A Trial by Jury

by D. Graham Burnett

  We headed to another small place near City Hall. Adelle approached me as I was gathering up my things and offered a few words of encouragement. “You’re doing fine,” she said kindly. I shrugged. I knew what I thought about what had happened: if anyone felt left out or screwed over in the process, it was my fault, because I was responsible for managing the room, managing the conversation, and managing the array of psyches around the table. I had erred in assessing Pat’s situation. I would have to do better.

  All the same, I longed to be alone, and the prospect of another sit-down dinner had all the appeal of a tooth extraction. I made my way to a table and sat. We were four: Dean, Jim, Jessica, and I. I ordered salmon and a green salad, but ate almost nothing.

  The officers of the court sat together again, but they were making a special effort to be sweet to us. They had collected our phone messages with particular attention (we would write them on sheets of paper and they would make the calls to deliver them), and they tried a few jokes to break up the gray mood that had sunk over us. My wife was out of the United States, so they couldn’t get the court phones to reach her. One of the officers, a very tall and sturdy Hispanic woman with a crew cut, took me into the back of the restaurant and let me dial at the pay phone using my calling card. She held the receiver. “It’s an answering machine,” she whispered to me, and then began to speak: “This is Sergeant Gainez of New York Supreme Court Criminal Division, and I have a message here . . .” and she held the receiver out to me. I told my wife I loved her, without touching the phone, and then Sergeant Gainez hung it back up. She put her finger to her lips as she turned back to me. That little breach of the regulations was our secret.

  I went back to the table in a better mood. Putting the trial behind us had a curiously intoxicating effect. Conversation warmed. We talked about our jobs: Dean got into Madison Square Garden free for Rangers games because he repaired the building’s giant ride-on vacuum cleaners. Jim asked me about the stack of papers I had always toted around during the trial, and that led to questions about my book, about the life of academics. I described the courses I had taught lately, and explained how I had gotten interested in the history of science. Unlike conversations in university settings—where, too often, one feels compelled to affect familiarity with whatever subject comes up (an occupational hazard of being “professionally” knowledgeable)—Jessica, Jim, and Dean actually expressed curiosity: the idea that somebody could spend six years studying the work of a handful of Amerindians and geographical explorers somewhere in South America more than a century ago struck them as so entirely quixotic, so idiosyncratic and outlandish, that their questions reminded me of the subject’s romance, something I had largely forgotten five and a half years earlier. They all wanted to read the book; I said that it had footnotes, and it was not going to be a best-seller. They stuck to their guns: they’d be watching Amazon.com.

  The world somehow seemed large again. For us, in the last weeks, it had mostly contracted to a few hours one August night more than a year earlier; but the stories of shamans ogling a Schmalcalder compass on the Takutu in 1842 had reminded us that there was more to life than the pattern of incisions in Cuffee’s back.

  Dean, a bit giddy from the weirdness of the whole thing, made a confession: “You know, you can’t ever judge people by how they look. I’ve got to tell you,” he said, turning to me, “that you are not at all like what I thought when I saw you at first.”

  I was pretty sure I knew what he meant, but I asked.

  “Well,” he said, “you were wearing work boots and those red sweatpants every day, you never shaved, you were always stretching out and doing weird exercises in the hall—I just figured . . . Well, I wouldn’t ever have guessed that you had a Ph.D.”

  I could say something similar to him, and I did: “Truth is, I had you sized up totally differently, too—I saw you dipping chaw in the hall, with your cowboy boots and your tattoo, and you seemed like a pretty conservative good-ol’-boy type to me, and then I find out you’re nothing like that.”

  “It goes to show you,” he said, nodding.

  The mood had gone from glum to something almost misty-eyed. Pretty soon we’d be having an Iron John moment; I was as much caught up in it as the others.

  Why was I stretching all the time? somebody asked. I said I had a bum leg from a sports injury and it cramped up on me. This led to the story of what had happened on one of the first days of the trial, when the judge pointedly asked me to remain in my seat after he dismissed the other jurors for the evening. What had that been about? I explained that the judge had given me a dressing-down for having stood up to stretch twice during brief pauses in the day of testimony. I recounted how I had tried to explain to him that I had, each time, asked permission from the sergeant-at-arms who sat beside us, and that each time he had said it was not a problem. But the judge shouted me down, threatened to throw me off the jury, upbraided me for having failed to alert the court that I was unfit for service, and scolded me for disregarding the seriousness of the office. All this in front of the full and open court. Then he summarily sent me from the room. The poor sergeant approached me later to say that I shouldn’t worry about it (looking closely, we could sometimes catch the court officers in shared moments of insubordinate mockery of the judge, under his very nose), but of course I was furious and humiliated, as well as anxious that I would be replaced by one of the alternates and sent home.

  Jessica said the judge was the rudest person she had ever met, and Jim shook his head in disgust. I said, in the end, it had all been for the good: I had been forced to practice sitting still all day, and this had obliged me to concentrate on keeping the leg relaxed. I had learned I had much more control over the discomfort than I ever knew—it had been a matter of meditative discipline, of refusing to let the cramps get going, because then they only got worse.

  Dean had the workingman’s impulse to collective action. He proposed that if I ever again needed to stand up in the jury box I should let him know, and he would see to it that the whole jury stood up for as long as I needed. He was too pious a man to say, “Fuck the judge.”

  It was an intoxicating moment, a moment of solidarity—that of the table, and of the jury as a whole. On the bus ride out to La Guardia (a different airport, a different hotel), Dean and I sat together in the back, in the soothing dark, bumped by the potholes, and he told the story of riding out an engine-room fire on an aircraft carrier in the Persian Gulf.

  This trial was not the first time Dean had been adrift, locked in a small, hot room with a dozen angry people.

  Our crucible was Friday.

  8. The Third Day

  For the third time we start with ten seconds of silence, and then I request a moment to speak. I begin by apologizing, sincerely and carefully, to Pat, for having hurt her feelings. I ask her to forgive me, and to be patient; I am doing the best I can. She nods. Then I say a few words of encouragement, pointing out again what a difficult thing we have been doing together, spending more than a dozen hours in sustained conversation about such a grave matter. Already this is no small achievement. I tell them that I have been deeply impressed by their hard work, and that they ought to congratulate themselves.

  All this was only partially true. It would have been more correct to say that I had been quite disgusted by several of the participants—so alienated by Felipe, in particular, by what I viewed as his incontinent ramblings, by his seemingly total disregard for the significance of the matter at hand, that the previous evening, lying on top of the bedspread in the green-brown hotel room, I had written a grim assessment in my notebook:

  At several moments I have felt that my refusal to accord with a guilty verdict will reflect as much [as anything else] a rejection of the competency of this body of jurors to reflect weightily on a matter of such seriousness. In different circumstances I can imagine having a certain kind of conversation that could bring me around to reject the justification of self-defense. But there are some jurors here who are s
uch idiots, so thoroughly oblivious to good judgment, or so thick (regardless of their intentions), that it seems improper to aid them in depriving a man of his liberty.

  This was what I had actually been thinking. But pointing it out seemed unlikely to raise the tone of our discourse.

  To placate Pat, I requested from the group a special dispensation: that before we got under way she be permitted to take as much time as she needed to frame for us what she thought were the remaining decisive issues; that no one interrupt her while she did so. Paige rolled her eyes; a subdued huffing could be heard in the room. Pat had been very vocal from the start—her hand almost perpetually raised, her abrasive voice often growing louder as she plied us with uneven and insistent contributions. Her tantrum of the previous evening had palpably irritated several people, particularly when it became clear she wanted all of us to sit through nearly a week of readings from the transcript, and this despite being unable to articulate why any of the material really mattered. Everyone consented to give her the floor for an indefinite period, but only after I reminded us that a jury had to reach a unanimous verdict; we would do best to keep everyone on board all the way through.

  She spoke for a good, long time, from a list of loose notes, presenting a wide range of arguments and questions. The soliloquy was impassioned. I sensed that Pat was testing out a newly expansive, investigative, methodical, and public version of herself—someone with important things to say about important matters, someone to whom others were obliged to listen—and she seemed to be liking this person quite a lot.

  But most others in the room looked as if they were merely suffering her. There was no response when she finished.

  For the tenth time we polled, collecting yet another pile of paper scraps, which again added up to inconclusive tallies. Then Adelle raised her hand and began to speak, slowly, seriously, from the corner of the table.

  “Last night,” she said, “I lay up until very late, thinking about our discussion yesterday. And I found that I kept coming back to this same question: the relationship between law and justice. I realized that what I keep wanting here is for us to figure out some way to do justice, but I am starting to realize that the law itself may be a different thing. What is my real responsibility? The law? Or the just thing? I’m not sure what the answer is. We’ve been told that we have to uphold the law. But I don’t understand what allegiance I should have to the law itself. Doesn’t the whole authority of the law rest on its claim to be our system of justice? So, if the law isn’t just, how can it have any force?”

  There was, among some of us, a kind of stunned silence. For it became clear that Adelle had gone to the heart of the matter, directly, and with great equanimity and gentleness. Not everyone could see this. A few hands shot up immediately, and different people took the floor, declaiming whatever came to mind.

  But gradually Adelle’s formulation began to take hold. Several times I asked people to return to it, to think it over, to repeat back to Adelle what they had understood her to say. A new question was before us. How could we justify applying the law if we had decided that the resulting verdict was itself unjust? I fell out of the conversation for a while, rolling the dialectic around in my head.

  For a moment I feel I have grasped the secret of the system, the perfect illogic of its foundation: the system can fail to satisfy our desires, and therefore it is a success. In other words, the true justice of our legal system lies in its ability to forgo “justice.” This, perhaps, is what Aristotle meant when he wrote his celebrated definition: “Law is reason without desire.”

  Am I right about this? Am I just tired? I am not certain. Still, it seems that it is in the nature of reason to expose failures, slips, holes—to reveal them. A system that tried to hide its flaws would be, then, to that degree, less perfect than one that was avowedly imperfect. If the law could not get the defendant, then the law made us release him. It explicitly forbade us to nudge the rules to get the desired answer.

  In my reverie, the failure of the law was taking shape as its triumph, but when I rejoined the conversation, I heard growing consensus that the law’s only purpose was justice, and therefore justice had to be the higher principle: it followed, then, that an appeal to justice must trump the mincing details of the law itself. The law might prohibit us from compromising on a manslaughter verdict unless we could all agree that the burden of proof had been met. But we were in accord that it was not just to let Milcray go unpunished for what he had done. Conclusion? The dictates of justice demanded that we circumvent the law. QED.

  I sensed that people were starting to perceive the law as overly clumsy, somehow—that it was a blunt tool—and that this higher principle, justice, had cast a kind of spell in the room. It had nimbler fingers, could reach into any corner. It was to this more ethereal and nebulous ideal that we seemed to owe our primary allegiance.

  Asking to say something, I stood for a moment.

  “I just want to make sure,” I said, “that we all remember that the weird rigidity of the law, this thing we are all noticing—that it is inflexible, that it seems to let Milcray slip through the net, a net so stiff that we can’t figure out how to bend it, to get it to catch this guy—I just want us to remember that there is a reason why we have this strange system.”

  I sensed a kind of focus in the room, a stillness—or was it in my own head?

  “There is a principle here,” I said. “Isn’t there a principle here? That our legal system should be ‘blind.’

  “In other words, the stiffness of the law is the product of a very serious idea: that the law should be exactly the same for everyone, regardless of who they are—that our ‘rule of law’ can never bend, because if it did it could be used to reach and get a particular person, be used to satisfy particular desires. Instead, the idea is that it will be totally rigid, and what it can catch it will catch, and what it cannot must be let go. What I’m saying is that our legal system didn’t end up this way by mistake; there have been decisions made to sacrifice the virtues of flexibility in exchange for absolute equality before the law.”

  I wanted them to see that this wasn’t necessarily unjust, it was simply a commitment to a different idea of justice.

  Adelle wanted to take us back to the issue of nullification: as we had discussed the day before, we were not, in fact, bound by the law, as I kept asserting.

  “What about the Fugitive Slave Act?” she asked, and reminded us that Northern juries in the years before the Civil War had refused to apply laws that required sending runaway slaves back to their masters.

  Was I saying that I would have upheld such a law because of the airy abstractions of the “rule of law” and the “equality of persons before the law”?

  This seemed to me the first time that Adelle and I had really squared off. Already we were well into the third day of deliberations. The atmosphere was intense, concentrated. Still standing, I said: “This is such an important point. We have to think more about this. I agree with you, that sometimes one has to appeal to higher principles and refuse to obey a law. But let’s play out the analogy you’ve just offered. During the Civil War, juries nullified a law, the Fugitive Slave Act, because they thought it was unjust. We agree that they were right to do so. Let me ask you, then: we’re considering nullifying (or let’s just say ignoring) a law here; what’s the law we would be ignoring by finding Milcray guilty?”

  Adelle thought for a moment, and then she said that she wanted to hear what other people had to say about this.

  Leah spoke up. “I think I know exactly what law we would be nullifying: the law that says the prosecution has to prove its case beyond a reasonable doubt. That’s what some of you are willing to put aside.”

  This was exactly the point I wanted to make, and I nodded slowly as she spoke, looking at Adelle. When Leah finished, I said that I agreed, that I could see no other way to interpret a conviction, given that I had heard just about all the people in the room (in fact, everyone but Suzy, sitting grimly
to my right) say that they believed the prosecution had failed to dispel all reasonable doubts about Milcray’s acting in self-defense.

  Adelle waved it off, saying she did not think that analogy was correct; she wanted to hear from other people. This was more than an attempt to change the subject: she was earnestly more interested in the group and their opinions than I could make myself be. She seemed to believe in the process—the talking, the exchange of ideas—in a way that I did not.

  But now Leah wanted to speak again. As the day had worn on, she had looked increasingly severe and pained. Behind this lay a sense of isolation. Gradually it had become apparent that she alone genuinely believed Milcray’s story. Through the afternoon she had been forced to watch as the whole room—even those still supporting an acquittal—had increasingly conceded that he was probably lying about many things. She seemed to have taken this hard, as a defection, and had withdrawn into a resigned bleakness, her arms folded tightly across her body. The rationale now cited for letting Milcray go—that the evidence, though broadly persuasive, was not quite persuasive enough to clear the exceedingly high bar set by the people’s burden of proof—clearly struck Leah as thin and technical. She understood the position perfectly, but appeared to see in it some backsliding from what she had thought was growing support for an acquittal. At this rate, perhaps the campaign for a compromise verdict of manslaughter would actually prevail. Now her frustration spoke, in a plea that we abandon all talk of nullification, of compromises, and apply the law strictly—to preserve the rule of law itself.

  “I have lived,” she warned, “in countries without any respect for the rule of law. . . .” She was referring to a stint in Central America with her parents, who were in the State Department. “It’s horrible. People live every day in fear.”

  Emotion got the better of her, and the plea became increasingly personal: “I had a friend who was arrested by the police in Turkey, and she was raped, and another . . .”