A Trial by Jury (10 page)

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

T
hursday 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 had 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.

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 list 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?