A Trial by Jury (14 page)

A few times people began to speak, and I asked them to wait, asked them to give us a few more minutes to collect ourselves. The silence was good. It held us and bound us in a manageable common task: saying nothing. Adelle rose, and went into the bathroom to apologize to Pat.

Then I started to talk, just above a whisper, reminding us of the importance of civility, reminding us of the difficulty of the task, and saying that we ought not be surprised that we were struggling—that these struggles reflected our seriousness, and that nothing less than a passionate seriousness was suitable to the task we faced.

A few times people started to return to what had just happened, suggesting that there ought to be a strict rule that we had to let anyone say anything, or that there ought to be a way, politely, to force someone to stop talking, if what they were saying offended someone. But I waved down those topics, saying I thought it would be better simply to close this last episode and move on with our deliberations.

Then I returned to the issue that had caused the break: the rule of law versus the desire for justice. I asked if I could tell them a story, a brief history that I hoped would make peace in the room.

For almost a decade, a close friend of mine had been at work on a study of the punitive systems of democratic Athens. Her book had been published earlier in the winter, the fruit of an undergraduate thesis and then a doctoral dissertation in classics and political theory. Having been classmates both in college and graduate school, we had followed each other's work for a long time. And, watching the rift open in the jury room, I felt as if I were attending a dramatization of one aspect of her argument. Her point had been, in part, that Athenian concepts of justice were inextricable from the idea of the “desert” of each individual—as in what every person
deserved.
Court proceedings aimed to establish this desert, and juries meted out their punishments accordingly. There was even a back and forth between the accuser and the defendant, in which each put forward to the jury different possible punishments and argued for their suitability.

Now, in an effort to re-establish harmony, I offered this story: those among us who were arguing that we could not let ourselves become slaves to the law were not necessarily arguing against the rule of law itself. The ancient Greek judicial system was proof: one could establish a functioning system of punishment, and a “lawful” society, by charging juries to come up with punishments that fit the individual criminal and the specific nature of the case and the people involved. The odd rigidity of our particular legal system—our obligation to find a verdict within the narrow strictures of the law, as described by the judge; our obligation to put aside any consideration of punishment, or of who this defendant was and what he appeared to deserve for what he had done; our obligation to put aside what we wanted to see happen—this was not the only alternative to chaos and barbarism, but simply the system we had inherited. It worked, mostly, and it was ours, but it was not the only way.

By these lights, the struggle we were having reflected one of the very deepest struggles that human beings had faced, for as long as they had formed societies bound by tradition: To what degree was the law a thing apart from people—an abstract system laid over the messy reality of individuals and their specific situations—and to what degree did the law emerge from the texture and character of people and the details of their cases? We should not feel bad that we were fighting over this issue: we were by no means alone. This was the Roman Law against the Common Law, nomology versus casuistry, the Enlightenment confronting its critics. This was serious business.

Some of what I said was true, some fudged. I knew this, and yet my aim was by no means to teach a course in Anglo-Saxon jurisprudence (what did I really know about all this anyway? not much), but to give a patina to our conflicts, to dignify the opposing positions with historical mantles so that we could make peace, see intelligence in the opposing views, and rise to the occasion of such a worthy disagreement.

In this, the story succeeded. Leah slipped into the ladies' room to make amends with Jessica, who emerged a few minutes later, as did Pat. Adelle and Leah remained apart from us, and I could hear them talking through the thick door.

Dean then raised his hand, and rose to speak. The room remained subdued, and behind him, through the narrow windows, the sky was a humid gray. He spoke with emotion, without hesitation, with simple force.

“I've been listening,” he began, “to these things people are saying, and I have tried to pray about all this. Now I've decided what I have to do. I believe Monte Milcray did something very, very wrong in that room. But I also believe that nobody has asked me to play God. I've been asked to apply the law. Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful.”

The statement centered the room. Here was an expression of despair that was a vow of faithfulness; a repudiation of sophistication that suddenly seemed overwhelmingly sage. No one spoke for several moments. He did not try to explain, or to say more. He sat down.

We could give the matter to God. What did this mean? How could it feel so extraordinary to consider this? Yes. To God. Perhaps. Yes.

There was silence.

To my right I heard Suzy O'Mear whisper something. Looking over, I saw that her eyes brimmed. “He's convinced me,” she whispered again. It was close to a sob. She said it a third time.

No one spoke, except Felipe, who suddenly blurted out that justice was from God, raising his finger and pointing to the sky. His parroting could not break the spell that had been cast. I stood up and walked to the window, fighting back tears. The room stayed quiet for a long while.

 

T
hings were by no means over, but something had changed. For the first time a unanimous verdict seemed within reach. My private commitment to a hung jury wavered. An acquittal beckoned. With the most passionate advocate of conviction dramatically converted, only Adelle remained. And there was every reason to expect that she could be moved. After all, she had voted “undecided” (as best I could tell) in yesterday's poll on the issue of self-defense, and she had never been strident, had always sought to learn from others. Now it looked as if she would be standing alone, and this would doubtless weigh on her. Listening to the sustained mumbling behind the bathroom door, I decided that Leah was probably the most powerful advocate for acquittal, so there was reason to think she would make progress with Adelle in their private palaver.

Pat excused herself and went into the men's room. Since midmorning, she had looked worse and worse. Her medication had proved impossible to secure, because the pharmacy she had asked the court to contact claimed her prescription could not be refilled. Apparently the court had engaged the narcotics unit for help clearing her renewal, but nothing had come through. She had been struggling with a bad cold-sore for several days, but now a number of ulcers could be seen on her face, and though she had applied heavy daubs of base to conceal these, several had opened in the course of the day, and she had been forced to stanch them with tissue. Her makeup bottle lay open on the table, and she had slumped into morose silence after complaining of an oncoming migraine.

From the men's bathroom came the strangled sound of gags. She was throwing up.

Felipe stood and said that he wanted to leave, and that he would vote for anything that would get us out of the room—he didn't care. He also pointed out that Adelle's opinion couldn't be trusted, because she had been very upset by the photographs of the body at the trial, by the blood and gore. She was letting her emotions get the better of her, he claimed.

“I saw her!” he shouted. “She was crying! I'm telling you!”

Dean answered, advising Felipe to button his lip: “I've spoken quite a lot with that lady, Phil, and I promise you that she is one bright woman. What you just said there sounded to me like something disrespectful of that lady, and I'm telling you right here that I'm not going to allow that.”

Suzy jumped in, furiously. She had sat next to Felipe during the whole trial, and had complained repeatedly that when he was awake (which was by no means all the time) he talked to himself without pause, and commented aloud on the proceedings as if he were watching a game show. Not to mention that he had struck up a conversation with the victim's sister in the hall—grounds for a mistrial, if anyone had noticed. Would he please keep his opinions of other jurors to himself?

I added that, from my perspective, he could keep his opinions on the whole case to himself as well, given that he had now expressed a willingness to side with whatever position prevailed. The best thing would be for him to keep quiet for the rest of the deliberations.

For the most part he did, actually. He insisted for a while that I send a note to the court asking that he be excused, but when I finally did (writing only that “one juror wishes to be released”), the judge ignored it. The remainder of the day Felipe wandered around the room, sometimes speaking to no one in particular; later he pulled a Bible out of the coat closet and read a few passages aloud. For a while he contented himself with dropping a handful of pocket change and torn bits of paper on the table, the pattern of which he would then appear to read, confiding to his neighbors that he could predict the future and see into the past in this way: Milcray was innocent, and we would find him not guilty.

We drafted another query, asking if we were supposed to consider only those of the defendant's actions that resulted in the death of the victim. An answer of “yes” would have taken out of consideration the wounds to the back and the flight from the scene, simplifying things a good deal. When the sergeant came to pick this message up, we let him know that Pat had become much sicker, and that she desperately needed her medication. He said he would see what could be done. After he left, Adelle and Leah emerged from the ladies' room, and the rest of us tried to explain what had happened in their absence, what Dean had said, how Suzy had changed her mind.

We were trundled back out into the court to learn the judge's answer, but it added nothing: “The jury will consider all the evidence in the case.”

When we reassembled, Paige—increasingly excited at the prospect of a verdict, and having abandoned the idea of a compromise on manslaughter—called for a poll, not on all the charges, but simply on what was now recognized as the decisive question: guilty (of something) or not guilty (on the grounds of self-defense). Everyone agreed, and we tore strips of paper from whatever was at hand—notepads, the paper bags from lunch, scraps of court memos. Pushed into the middle of the table, they made a little rubbish heap. I collected them, and read out the results: ten not guilty, two guilty.

Odd. I had been certain that, after Suzy's tearful about-face, we were down to Adelle alone. I asked the room if the people who had voted for a conviction would be willing to identify themselves. Two hands went up: Adelle's and that of Rachel, the older Jamaican woman. She now believed Milcray was guilty? Yes. But she had been persuaded of the opposite for almost three days—what had happened? She waved vaguely at the floor plan of the apartment, mounted on foam core and propped on an easel in the corner of the room. It was too small an area for them to have fought like that, she murmured indistinctly. There wasn't room for Milcray to get out from under Cuffee. Look how the body lay. The futon would have prevented Milcray from getting out on that side.

This made no sense. We had considered all these points hours before and moved past them. Cuffee could have slumped forward into that corner, he could have crawled several feet before collapsing into the cramped position where the body was discovered. At no time had Milcray asserted that he slipped out from under the victim in that precise position, wedged in the corner.

The only explanation I could think of for her sudden switch was that Rachel felt much of the drama of the last hours had overlooked her. I sensed strongly that she wanted us to remember she was still in the room. At this point patience was not easy.

Paige could hardly contain her exasperation—she rose with an audible groan and paced the short side of the room. Before she could lose her temper, I jumped in and suggested that some of those persuaded we should acquit ought again to run through the grounds of their “reasonable doubts” for the benefit of those still unconvinced, like Rachel. Would Paige like to start?

She eyed Leah for a moment. Leah and Paige, I had learned that morning, had traveled in the same social circles for more than a year, and shared a number of friends, though they were not particularly close. When jury selection began, and they discovered that they were going to get to sit on the same trial, they said nothing to anyone about their relationship. No one ever asked. In retrospect, it seemed they had cemented a quirky, enthusiastic amity with surprising speed, distributing valentine candies together in the second week of testimony, skating out arm in arm at short breaks in the trial. Their emerging differences of opinion in deliberations had cooled this spirit considerably. Who could tell what was going on in their subtle interactions?

Paige took up the challenge, doing a good job of summarizing the case, though she advocated on behalf of Milcray with an urgency that seemed to me to outstrip her actual interest in the whole affair: she had become increasingly desperate to reach a verdict in the last hours. Later, we would find out that she was supposed to host a wedding shower the next evening.

Whatever her inspiration, she hit many of the best points. Again and again we had come back to the way Milcray described the attack in the videotaped statement, in response to the prodding questions of the assistant district attorney: What had his attacker said? Only that it wouldn't hurt. Did the attacker make any threats? No. Did the attacker ever punch or kick him? Never. Did he have a weapon? No. Did he ever threaten the use of a weapon? No. Did the attacker ever say that he would injure or kill him? Never. Did he say anything else? Only that it wouldn't hurt after it got in.