A Trial by Jury

by D. Graham Burnett

  But this, for all its beauty (and it is, I believe, beautiful, if also, yes, a bit mad), makes exceedingly lousy training for the grim duty of actually answering—closing definitively—an immensely complicated question with swift, withering, and barbed implications: a question like, “Is Monte Milcray guilty of murder?”

  Facing that question, I had immediately embarked on doing what I knew best: keeping the question open. This, I think, is what the hung jury meant to me. By handing the question back to the court—by saying, in essence, “Thank you, very interesting, now go ahead and do all of this again with another class”—I would feel that our deliberations had remained an exercise of thought, a splendid instance of thinking for the purpose of thinking. A hung jury would turn our jury duty into a symposium, an intensive discussion group, an interpretive seminar.

  Moreover, it would transform the actual trial of the veritable Monte Virginia Milcray—a thing with serious tooth in several people’s lives—into nothing but a bunch of words. It would transform the potent proceedings into a long, difficult, dense, and deeply moving text—a poem, of sorts.

  It could mean something different to everyone. Like art.

  I am not certain why, but by the morning of the fourth day this had changed. Perhaps it was because I myself had been worn down and could no longer hold out. But the sense with which I awoke—a sense that it was up to me to pull us together for a verdict—also had something to do with the judge’s cursory predeliberation instructions. Though he had informed us that each juror was to hold to his or her own opinion of the case, he had added that we were always to remain open to persuasion, and mentioned specifically that part of the responsibility of the foreman was to work toward unanimity, particularly in a situation where only one or two jurors remained at odds with the rest.

  But other reasons suggest themselves. Dean’s powerful formulation—that true justice was God’s affair—made it possible to imagine, somehow, that the really important question would, in fact, remain open, just as I had hoped. We would leave the complicated question to the gods. This definitely took the pressure off. If the unanswerable question—What is just?—could be deferred, then the trial could be reduced to something much more like a solvable problem—what happens when you apply the law to these facts?

  But I cannot omit another possible explanation for my sudden desire to see a verdict. Was it also that I wanted to take over the deliberations? To grandstand? To show I could lead the room to unanimity?

  I do not know for certain. I hope not. It is not impossible.

  On Saturday morning, the fourth day, I opened my eyes with a sense that, if everything went just right, we could get a unanimous acquittal on the first poll of the day. But I also had a sense that the first poll was critical: if that failed, there was no way to be certain how long things might continue. A considerable weight of anxious anticipation had amassed in the hours since deliberations had been suspended. Brought to bear rightly, that weight could leverage the first actions of the new day. We would not, in the foreseeable future, have a comparable pressure built up behind a verdict. I began to sketch out some notes.

  Reviewing that notebook, I can see the different things I was thinking then, as I lay in bed, scribbling by the swing-arm lamp, behind the drawn curtains, the sound of cars already a steady hum outside the window. On one sheet, in a crabbed hand, I wrote:

  We the jury wish it to be known to the open court that we feel most strongly that the strict application of the law to the facts established by the evidence in this case does not lead to a truly just verdict. We have, however, reached a verdict in accordance with our charge.

  Farther on I wrote, “There are no trick endings,” and then, later still, “We would choose this strong burden of proof . . . b/c the state is so powerful,” and beside that, circled, the insight that suddenly seemed to sum up the whole experience of the trial:

  We have seen the power of the state.

  This was the thing, I realized. For the last three days, we had struggled to come to terms with the burden of proof that the prosecution had to meet: it seemed unreasonable, exaggerated, impossible. But here was a way to understand it: the burden of proof was so high exactly because the state was so powerful.

  All of us probably would have agreed in the abstract, before the trial even started, that the state was powerful. But after four days of sequestration, we had developed a new and immediate appreciation of just what this power meant: the state could take control of your person, it could refuse to let you go home, it could send men with guns to watch you take a piss, it could deny you access to a lawyer, it could embarrass you in public and force you to reply meekly, it could, ultimately, send you to jail—all this, apparently, without even accusing you of a crime.

  For (mostly) law-abiding citizens with no experience of the criminal-justice system, with no experience of what it feels like to be made wholly impotent by the force of legal strictures and the threat of legal violence, this discovery had been shocking. One could see the shock in Paige’s face as she emerged from her scolding in the court. One could hear it in Jim’s angry muttering before the bench. I knew the feeling all too well myself, from sitting in front of the judge as he insulted me and silenced me and sent me from the room when I had done absolutely nothing wrong. At times the encounter felt like the belittling and arbitrary tyranny of primary school: “Who are these people,” the child asks, “and how come they can make me do what they say?” Here, in the justice system, your mother couldn’t write you a note. It was a giant difference: before the state, there was no higher worldly power.

  If we as a jury wanted to understand why the burden of proof fell on the prosecution, and fell with such gravity, we needed only to reflect on what we had discovered directly about the real power of the state and its agents. There was, in a deep way, no recourse. Yes, there were appeals courts, constitutional protections, citizen juries like us. But in the end—in the end there was, simply, the final power of the state. There was always this. This was a power even more terrifying, in a way, than a man with a knife in a closed room. That sort of raw, physical power, for all its horrors, can never extend indefinitely in all directions. If you were to run outside, people would object, would (in principle) come to your aid. In the room, you know this, even if you cannot actually escape. But there is nowhere to run from the state: it is the sine qua non of such an entity that nearly everyone outside the room (the courtroom, the prison) has already accepted the legitimacy of what the state chooses to do to you (or has at least acquiesced). In fact, all those people out there, they actually constitute the state itself. If you run out to them, they will help catch you. There is nowhere to go.

  I began to sketch some remarks, in outline form, that centered on this observation. I was still scribbling when the sergeant knocked on my door to say I had to come down to breakfast. I opened to say that I wasn’t eating breakfast; could I please have another few moments? I was working on something important.

  No. I was to come downstairs with him. Now.

  On the bus, there was a kind of barely concealed exuberance. It was a bright and cold winter morning, and the streets were deserted, limed with a dusting of dry snow and powdered salt. We caromed over the Manhattan Bridge at top speed, sharing a tacit sense that we would not be doing this again. I scribbled.

  On first entering the court building, I asked the clerk if he could find me a set of index cards. It had occurred to me that any way we could distinguish this impending vote from all those that had preceded it would help, and increasing the formality of the process—even in slight ways—might increase the pressure on those who still hesitated. I wanted this poll to be taken on neat and clean cards, instead of the torn scraps that had sufficed to this point.

  People had just gotten their coats off and were arranging themselves around the table when the clerk knocked and stuck his head in with the cards. I slipped them into the breast pocket of my blazer.

  Returning to the table, standing, I asked o
nce again that we prepare ourselves in a few moments of silence. And when this was over, I began by saying that I knew everyone was eager to take an immediate vote (Paige signaled her enthusiasm and indicated we should get going), but that I wished to say a few words. No one exactly objected.

  First, I welcomed Pat back, told her how happy we were to see her looking so much better, and said how hard it had been to lose her right at such a crucial moment. It had been a trying evening without her. I again pointed out how much credit everyone deserved for having done such a remarkable thing: for having talked about such difficult matters with a group of total strangers for more than twenty-three hours. We were strangers no longer.

  “Before we go to the poll,” I said, “I want to talk about two things, very briefly: first, the burden of proof itself, and, second, how it applies in this case. Let’s start with the burden—this is the thing we have struggled with most.”

  Here I gestured to Adelle. “Many of us feel that this burden is so heavy, so strict, that it may cause us to miss the opportunity to do justice to a person who did a very bad thing. But the question we have to ask is: Why? Why is that burden so heavy? And I think that we all understand why: to protect citizens from the power of the state, from the tremendous power of the state.

  “We understand that power much better after the last four days. We discovered that it is, fundamentally, an absolute power, and a frightening one. We discovered that a man in a chair and a robe could tell us we couldn’t go home, that we couldn’t talk to our families, that we couldn’t even talk to a lawyer. He could send us to jail. We discovered what it was like to be escorted everywhere we went by men with guns. We discovered that, in the end, there seemed to be no limit to the power of the state over us, once we fell into its hands.

  “Think with me for a moment. Knowing what we know now, imagine that we had a chance to set up our own state, to make a government, the twelve of us. What kind of protections would we try to offer to the citizens? I think, after what we’ve learned over the last few days, we would put the heaviest possible burden on the state before we would let it take away a person’s liberty, and we would do that because we’ve learned the secret of government: that the state, any state, is, in the end, like a monster, more powerful than everything else. For this reason the burden is so heavy.

  “Yesterday, in a moment I will never forget, Dean and Felipe reminded us of a transcendent idea: that true justice, final justice, absolute justice, belongs to God; human justice can only be cautious, not perfect. For this reason the burden is so heavy. And those of us with doubts must continue to vote not guilty.

  “Now for the second thing: how the burden applies in this case. Has it been shown, beyond a reasonable doubt, that Monte Milcray did not act in self-defense when he stabbed Randolph Cuffee?”

  I began to look around the room, to let the weight of majority opinion sink in on anyone still wavering.

  “I have doubts,” I said. “Vel has doubts. Jim has doubts. Rachel has doubts. Leah has doubts. Dean, I know, has doubts. Pat has doubts. Are these reasonable doubts? Are they the doubts of reasonable people? I hope so. Are they doubts with reasons? I believe so. Let me give mine: there is nothing in all these mounds of evidence, nothing, that proves Monte Milcray is lying when he says that he tried to defend himself against a sexual attack.” I paused. “And this is a reason.”

  I cannot say how this peroration sounded. I meant what I was saying, but I had certainly crossed into the terrain of oratory—pausing, rounding my sentences, deploying the tropes. Did this matter? I do not know.

  Thanking them for giving me the chance to speak, I mentioned that at breakfast I had heard a few people joking about the movie Twelve Angry Men. “But I think we have all figured out that there are no trick endings here, no surprise discovery that will suddenly swing down and change everything. Not guilty does not mean innocent. It means something very specific: it means that twelve people could not agree that the state made its case. I believe we are in that situation.”

  Here I made a bizarre mistake: not guilty, of course, means (in New York at least) that twelve people did agree that the state had not made its case. A very different proposition. Curiously, at that final moment I described a hung jury, when that was not at all what I meant. No one, apparently, noticed. Not even I, at the time.

  Without pausing, I took the cards out of my pocket and passed them around. Felipe started to speak, but Paige shushed him. There was silence as the cards started to come back, each folded in half. I counted them. Nine. We waited, and two more came in. Eleven. We waited. Still eleven.

  At this point there was no confusion about who still held a card. Adelle sat at the corner of the table to my left, where she had now sat for four days. She had a pencil in her hand, and the card on the table in front of her. She was looking fixedly away, up, behind her, out the window.

  No one spoke. Paige adopted a contemplative posture, her fingers prayerfully arranged at her brow. Several others closed their eyes and clasped their hands to wait. Felipe put his head down on his folded arms. One sensed everyone in the room concentrating on the blank card in rapt meditation. Adelle breathed audibly, wrote something rapidly on the card, closed it on itself, and pushed it into the middle of the table.

  I placed it, consciously and more or less conspicuously, at the bottom of the pile. I wanted the full dismay of the room to land on her if she had voted for a conviction. Then I began to open the cards and read them: not guilty, not guilty, not guilty, not guilty, not guilty, not guilty, not guilty, not guilty, not guilty, not guilty, not guilty. And the last one: not guilty.

  The taut silence of the room broke in a gust of relief. There was absolutely no joy, no celebration, no delight. There was only an imprecise emotional surfeit. People were overwhelmed. I think there were few who were not in tears, though I cannot remember anyone’s face, because I was choked up myself.

  Rapidly, I went to the wall next to the door and buzzed for the bailiff. I returned to my seat only for a moment, to take out a sheet of the paper we used for corresponding with the court and to write on it the message I had been told to send when our deliberations had ended: “The jury has reached a verdict.”

  I looked around the room. Several people were embracing, and Paige and Leah were gathered about Adelle, saying encouraging things to her. She looked out over the shoulder of someone giving her a supportive hug, and she said suddenly, tearfully, “If we are doing the right thing, why are we all crying?”

  At that instant, the knock came solidly at the door, followed by the requisite bark, “Cease deliberations!” The officer swung the door open, and I stood there with the sheet in my hand.

  But as I reached to hand it to him, Adelle cried out: “No! Wait, we’re not ready! Not yet.”

  I stood there dumbly, with my arm outstretched and the officer looking quizzical. I hesitated, and then turned to him, apologized, and asked him to leave.

  With this back-step, the room teetered on the brink of an irrecoverable collapse. At the prospect of our having just snatched defeat from the jaws of victory, several jurors looked ready to go wild. I returned to my place and remained standing, asking for people to stay calm if they could and to hear a proposal.

  “This morning,” I began, “as I was thinking about how today might go, I had an idea for a way we might try to express our frustration, our sense that we’ve been stuck with an impossible task and given inadequate tools. This might be a way for us to move forward. Do you want to hear it?”

  I asked, because it was important that I not seem to be steering things overmuch; the moment could not have been more delicate.

  Most desperate, Paige took the lead in saying yes.

  I opened my notebook: “What we might do,” I said, “is write a message to the court that makes explicit that we are unhappy, in a way, with our own verdict, that we feel we are doing the right thing before the law but something that is not, in the end, really just. I propose that we write a message that rea
ds something like this,” and I read them the statement I had written that morning:

  “We the jury wish it to be known to the open court that we feel most strongly that the strict application of the law to the facts established by the evidence in this case does not lead to a truly just verdict. We have, however, reached a verdict in accordance with our charge.”

  I looked up. Paige nodded. Yes. Several other people nodded. Yes. I asked, “Could we all agree to that?” No one said no. Including Adelle.

  So that was what we did. As I wrote out the statement, people consoled one another, and conversation turned to how this, at least, would be a way we could communicate our struggle to the family of the victim—let them know that we had not accepted the demonized portrait the defense painted of him but, rather, that we found ourselves bound by the strictures of the law. We could tell them that we were not unsympathetic toward their plea for justice.

  I read the statement aloud one last time to the room before I buzzed for the bailiff. Again no one objected. The bailiff came, and he took the sheet from my hand.

  And we waited.

  In the half-hour it took for the court to assemble, our mournful solemnity gradually brightened into the camaraderie of a parting of the ways. Laughter broke here and there, as the idea that it was over began to sink in. People started exchanging business cards, and someone had the idea that we ought to circulate an address sheet and then get it copied, so we would all be able to stay in touch. A piece of paper made its way around the room, and someone buzzed for the bailiff, asking if he would make us twelve copies. He took the sheet and said he would, and as he left he said that we ought to prepare ourselves because the court was almost ready, and it looked as if we would each need to be ready to speak. That was all he said, and he shut the door behind him.