A Trial by Jury (16 page)

She looked at me skeptically for a moment, then blankly. I thought it possible she would make a lunge, and I tensed slightly. The idea of going to the floor with her, in a fury of hair and nails, was not altogether unappealing—it had been several long and stiff days.

She walked away.

It was after seven when we received word that the judge wished to see us. As we entered the court, I cast an eye around the room: the victim's family was there as ever, still grouped in the back, wearing long faces; Milcray sat alertly beside his attorney, who surveyed us as we filed past the bench; the prosecutors looked tired and glum; the judge directed his most piercing gaze at each of us as we crossed the room—it was a studied stare, a honed and perfected eye, practiced for the purpose of discomfiture.

When we had taken our seats, he informed us that doctors had treated our missing juror and expected to release her shortly. He would have the court officers take us to dinner and then to a hotel, and we would be expected at nine the following morning.

Several distinct groans sounded behind me, and the judge looked up coldly.

“Juror number eight, you will look at me when I address this court.” He fixed Paige for an additional moment with the lance of his eye, and then returned to his memo.

He would also instruct the officers that, if we so desired, the bus was to take us all to our homes, where we would be allowed to pick up a change of clothes. We would be individually escorted into our apartments, and everyone else would have to wait in the bus as the rounds were made through Manhattan, since only a single vehicle was available; the jury was not to be broken up. We were dismissed.

Except for juror number eight, who would please remain.

Out we filed, and as we crossed the bench, I heard Jim speak behind me, loud enough for the whole court to hear: “We're the prisoners now!”

I cringed. Both because the statement rang true, and because I feared how the judge would respond. But either he was not certain who had spoken or he decided to let the remark pass, already having one fractious juror to reprimand.

We were returned to the deliberation room to gather our belongings and await Pat's return from the hospital. Once there, I raised the question of whether we wanted to spend the next five hours driving all over the city so everyone could have fresh socks. No one cared. We agreed that we would refuse to go anywhere but the hotel, and that we would insist on eating there, or being allowed to go directly to our rooms if we wished.

When Paige emerged, she looked shaken. Apparently the judge had threatened her with contempt, and the powerlessness of her situation—indeed, the powerlessness of our shared situation—had been made painfully clear. The court officers collected our telephone messages, and went out to dial them in.

On a torn piece of lined paper I wrote: “Graham will not be home tonight, and it is not clear when he will be. He sends his most sincere love, and requests your prayers.”

The scrap came back to me later, marked: “OK left message on recorder 7:33pm J.J.”

We piled into the bus, where Pat awaited us, looking much better. I sat next to Rachel. In the dark, lurching, the tenor of the murmuring conversations suggested that the end was within our grasp.

When we reached the hotel, I went straight to the room and stayed there. Most of the jurors went down to dinner in the lobby restaurant. A guard sat in a chair outside my door; I could see him, in a fish-eyed view, through the spy hole. I showered, ate my last orange, a fennel bulb, and a few almonds, and fell into a deep sleep.

9. The Final Day

I
awoke suddenly, before the sun was up, and took my notebook off the night table. I had decided that I was going to make a push, first thing in the day's deliberations, for a unanimous verdict of acquittal.

Why? I am still not sure.

For the first three days, I had tried to maintain some semblance of balance, if not real neutrality. In part, this came out of concern for my role as foreman, as the person responsible for conducting the deliberations. If that person became too vehemently partisan, I thought, there would be a real danger that those holding opposing positions would turn against the process itself. Since my authority (such as it was) rested on nothing other than people's good will, it seemed most important, whenever possible, to let others actually make the case on behalf of the defense.

At the same time, of course, my opposition to conviction had grown increasingly clear both to me and to others: I had hazarded a number of actual arguments for acquittal, and at several moments even tried to tip the format of our deliberations in favor of such an outcome. But through all this, I stopped short of pulling out the rhetorical stops in zealously demanding that we find Milcray not guilty.

Mostly this was because I never felt truly hungry for an acquittal. How could I, when nothing would shake my sense that reasonable people could disagree on this case? I was opposed to a guilty verdict, yes, but if, on the second day, everyone in the room had suddenly hummed in unison and called vigorously for acquittal on all counts, I can't say for certain that I wouldn't have flip-flopped and begun pointing at all the flaws in Milcray's defense. The hung jury had been my first choice from the start.

Was there a logic to this ambivalent stance? Perhaps.

I realize now that for me—a humanist, an academic, a poetaster—the primary aim of sustained thinking and talking had always been, in a way,
more thinking and talking.
Cycles of reading, interpreting, and discussing were always exactly that: cycles. One never “solved” a poem, one read it, and then read it again—each reading emerging from earlier efforts and preparing the mind for future readings. The same went for understanding the past, for teaching history. Whereas scientists and mathematicians might get kudos for
answering
questions, for
resolving
problems, I had always felt that my work involved the exact opposite project: keeping the questions open. They were different sorts of questions, of course. For me, being a humanist meant committing my life to a somewhat absurd task: serving full-time as the custodian of unanswerable questions (how to live? what to do? how to know? why?); caring for them; nudging them to the fore in a crowded world; resurrecting others, now forgotten; keeping track of long-lost answers. Such questions cannot be answered, but they are not stupid.

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.

 

O
n 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.

 

O
n 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 once 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?”