The View From a Juror's Chair
By D. GRAHAM BURNETT
Last year I served as the jury foreman in a Manhattan murder trial.
The culmination of this ordeal -- 12 idiosyncratic individuals
thrown into tight quarters for 66 hours of sequestered
deliberations -- pushed civics into a realm normally reserved for
extreme sports. A clutch of strangers yelled, cursed, vomited,
whispered, embraced, sobbed and invoked both God and necromancy.
There were some moments when the scene could have passed for a
graduate seminar in political theory, others that might have been a
jiujitsu class.
A man's fate hung in the balance. And we, the jury -- closed in
our crucible; shuttled about in the dark like shades by armed
officers; cut off suddenly and indefinitely from our families,
friends, news, regular life -- shouldered the strange double burden
of jury service. We wielded fearsome power (over the young man
brought before us) and yet were rendered totally powerless (before
the judge, the guards and the system that had drafted us as the
foot soldiers of justice). Strung between these poles, we gained
perspective and understood things in new ways. Understood
intimately, for instance, the great power of the state. Understood
glancingly, at least, the weakness and fear of a defendant standing
before it. Understood feelingly, in the end, the great, disturbing
truth that lies beneath the niceties of daily life: deep down,
civics is an extreme sport; the ultimate, primordial and extremest
sport of all.
What do I mean? I mean that lives are lost and won in the courts,
lost and won in the law -- every day, everywhere. Most of us seldom
really think about this. But in the jury room, the thought cannot
be avoided, since there you learn that justice doesn't merely
happen (neatly, reliably, like a crystal taking shape in a distant
vacuum); justice is, rather, done, made, manufactured. Made by
imperfect, wrangling, venal and virtuous human beings, using
whatever means are at their disposal. In the jury room, you
discover that the whole edifice of social order stands, finally, on
handicraft -- there is no magic, no mathematics, no science, no
angelic fixer who checks our juridical homework. This is a
frightening thing, not least because any one of us could be accused
of a crime.
We punish one another. To live together, we must. But it is a
messy business when you get up close. The jury room is as close as
you can get. We expect much of this small cell, and its door seldom
stands open.
AUGUST 1998
Two N.Y.P.D. patrolmen kicked in the door. (Or said they did:
later evidence would show that the jamb and latch, strangely,
remained intact; moreover, each officer testified that he, and not
the other, had been the one to get it to give.) When the door
opened -- in and to the right, stopping against a low coffee table
-- the two men surveyed the scene: a small dark studio apartment.
Draped over the futon couch, and trailing onto the floor to the
right, were two blankets, one a cream-colored knit coverlet, the
other a cheap, quilted bedspread. Blood spatters stained both. The
curtain of the single, street-facing, ground-level window was
closed, with the exception of a small opening in the lower left
corner.
Causing this aperture was the lifeless hand of an African-American
male, about six feet tall and just under 200 pounds. The body lay
face down, the head wedged between the arm of the couch and the
radiator under the window, the legs splayed into the middle of the
room. Rigor mortis had caught and preserved the victim's final
gesture: his right arm reaching up to the sill -- surely an effort
to pull himself to the window and call for help. Under the left arm
lay a wig of long, dark, kinky hair. The body was naked.
The officers did not approach the figure or check for vital signs.
A multitude of stab wounds (it would turn out there were more than
20 altogether) along the right side of the victim's spine, neck and
head enabled them to surmise from the doorway what the medical
examiner would confirm several hours later: the man -- a habitue of
the West Village night life and a familiar face in the homey gay
bar at the corner -- was definitely dead.
Not until later, however, when crime-scene investigators rolled
the body over, did anyone see the wound that actually killed him --
a thin and nearly bloodless slit through his sternum, which,
reaching two and a half inches into the thoracic cavity, had just
nicked the upper arch of the aorta. Within minutes of his receiving
the blow, blood would have filled the sac around the heart, a
condition known as an ''acute traumatic cardiac tamponade.'' It is
as if the heart drowns.
Also revealed when the body was moved: two braided leather whips
and two unrolled condoms, one inside the other.
JANUARY 2000
I passed through the metal detectors at 100 Centre Street. My
juror card instructed me to appear at 9 a.m., but it was later than
that when I finally cleared the line and the low-ceilinged lobby of
the dingy court building and found my way upstairs. I caught a
fragment of a conversation between two older Hispanic women in the
elevator: ''Just two ounces! Not some kilo or noth'n. . . . But he
didn't care.''
From the outset I had resolved to treat the unwelcome intrusion of
jury duty as something like a vacation, a three-day visit to a
foreign country of bureaucratic languor and vast waiting rooms, a
linoleum land inhabited by a genuine demographic cross section of
the Big Apple. Most of all, I was looking forward to getting some
reading done.
I am a college professor, a historian of science, but that year I
had been awarded a one-year fellowship in a well-appointed
humanities center at the New York Public Library -- books
everywhere, a silent and bright office without a phone,
distinguished colleagues, catered lunches. My only formal
responsibilities were to read and to write. But things piled up on
the desk -- student evaluations, article proofs needing attention,
endless e-mail -- so the New York State Criminal Court began to
look like an opportunity to hide in plain view.
Actually ending up on a jury never crossed my mind. The day before
I reported for duty, I had a conversation with a friend, a
logician, who claimed that the magic word was ''philosophy'': once
the lawyers heard it, you were kindly asked to leave. I figured
that introducing myself as an academic ought to have the same
effect. With a lawyer wife who had worked for a public defender's
office, I promised to give any healthy prosecutor hives.
In the twice-exhaled air of the jury waiting room, about 200
disgruntled New Yorkers had arranged themselves like a tray of
magnetic monopoles: maximum space between each particle and its
neighbors. Some read newspapers, others books; a few students had
staked out desks in the corner and had begun to study, wearing
Walkmans. Most people simply stared into space.
This hostile levee was called to attention by the senior court
clerk, who seemed a New York institution-in-the-making, to judge
from the gallery of inscribed celebrity head shots on the wall
outside his office. (Gwyneth Paltrow! Stephen Jay Gould?)
''Any convicted felons in the room?'' he boomed happily. Snickers.
''No need to jump up,'' he added, with the honed timing of a
natural stand-up. ''Just wander into the clerk's office down the
hall a little later, and I'll let you go.''
''Anybody not understand English?'' he jawed, waving his arm over
us.
He mumbled this so fast I hardly caught it. But quite a few people
promptly rose and began making their way to the front to get their
release cards. Out they filed.
The joke grew on everyone. Amused murmuring.
''I'll never
understand it,'' he stage-whispered to the rest of us, over a knot
of duty-dodgers bulling for the double doors.
After details (locations of restrooms, water fountain, snack
machine; an exhortation not to steal the magazines), we settled in
to watch the preparatory video, narrated by Ed Bradley and Diane
Sawyer. In addition to offering canned testimonials to the effect
that we were going to have a great time and learn a lot about our
government, the program set jury duty in its historical context.
This was compressed in the extreme and got under way with a
memorable flashback to the dark days of trial by ordeal: as
Sawyer's woodwind voice soothingly narrated the bleak realities of
justice in a benighted age, a knot of stringy-haired plebes,
smirched and scrofulous, dragged a bound man through the woods and
cast him into a deep lake. A papist factotum solemnly made the sign
of the cross over the disappearance of the accused, and we learned
that he would be found innocent if he did not resurface. Not an
outtake from Monty Python, but an educational film prepared by the
state of New York, the dramatization ended with the suggestion that
the accused was innocent and that his kinsmen might have succeeded
in recovering him from the bottom.
The movie put everyone in a good mood and strongly suggested the
possibility of human progress in matters of jurisprudence. The
Centre Street court building was grim and forbidding in a Stalinist
sort of way (towering, gray, squint-windowed), but it clearly beat
the heck out of the Inquisition. I went back to my book.
Complacency was unwise. The next afternoon, my name came up.
THE
CASE
How complicated was the case that absorbed my life for the weeks
to come? That depends on how closely you look. For those weeks I
looked very closely, so to me it seems immensely complex. And yet,
the tale can be briefly told: two men are in a room; one stabs the
other, first in the chest, then in the back, many times; the
stabber says he was acting in self-defense. There are no witnesses.
But the plot thickens. This man, the defendant, claims that when
he went into the room with that other man, the victim, he believed
the victim to be an attractive woman who wanted eagerly to have sex
with him. In fact, he says, it was only when they both undressed
for this very purpose that he discovered something disturbing: his
date's idea of sex placed the defendant on the receiving end of
anal intercourse, like it or not. His date was a man.
Prevented from fleeing the room, pressed to the floor, grappling
for his clothes and the exit, the defendant took a lock-blade
pocket knife from the pocket of his overalls, opened it and stabbed
his attacker once, in the chest. When the assault continued, so did
the stabs -- until, eventually, the attacker relented and the
defendant gathered up his belongings and ran from the room into the
street, drenched in blood, his pinkie nearly severed from the
zealous swinging of the knife.
This is what the defendant says.
But the plot thickens. The defendant didn't tell any of this to
the police when they picked him up in the street and took him to
the hospital to have his finger sewn back on. He told them a lie,
namely that he had just been mugged by a gang of ''five white
males.'' The defendant is black.
This might have worked. Except, when the police found the victim,
they did what the police do when they find a person who has been
stabbed to death: they canvassed area emergency rooms for patients
admitted with suspicious cuts on their arms or hands. It is hard to
stab someone many times, in haste and agitation, and avoid a slip
or two. The defendant slipped.
His name came up in this search, and the police paid him a visit
in the hospital to ask him some pointed questions about those five
white males. The detectives didn't like his answers -- too vague.
They asked him to come down to the station -- to help jog his
memory. Within a few hours he admitted to stabbing the victim
(copious DNA evidence from blood at the scene would have made it
hard to deny). Only now did the police hear the story of the drag
seduction and the desperate fight in the small, dark room.
But the plot was thicker still by the time I and 11 other
Manhattanites took up our seats in the jury box of New York State
Supreme Court, Criminal Term. Because by that time the district
attorney's office had sniffed around and turned up a handful of
witnesses ready to testify that the victim and the defendant had
long been lovers, and that they had spent the evening of the
killing together in the apartment. Also, the forensics team had
noticed traces of semen on the penis of the victim and the
underwear of the defendant. Whose semen? They couldn't say.
INTO THE OPEN COURT
We heard this evidence in the bright,
high-ceilinged courtroom, under the stern eye of a sour-humored
judge. Then, on a television wheeled up beside the witness stand,
we were shown a grainy video of the defendant's confessional
statement. After some back and forth between the judge and a court
officer, the lights were dimmed; it proved impossible to lower the
shades, despite several attempts. The gallery had filled in for the
showing -- various clerks, assistants, a visiting class from John
Jay College of Criminal Justice.
A large cockroach emerged from under the prosecution's table,
creating a minor disruption. It escaped the stomp of a female guard
and wedged itself into an invisible crevice at the foot of the
bench.
The taped statement, taken the night the police picked the
defendant up from the hospital, made the evening of the killing
feel immediate. In the video, the assistant district attorney --
young, handsome, Asian, wearing a tie -- sits across from the
suspect, a narrow table between them, as in a chess tournament. As
the camera frame tightens on the defendant, the A.D.A. becomes a
disembodied voice, inquisitive, measured. Each question, outwardly
straightforward, seems to conceal complex structures: legal
implications, potential charges, due-process considerations. The
A.D.A. takes his time, making it clear he has to think before he
speaks. The defendant responds quickly, telling the story, his
intonation rising restlessly at the end of each phrase, as if he is
looking for some confirmation from his inquisitor, as if he himself
is asking question after question, in an eager tumble. The
difference in pace, in caution, stands out.
Asked to show how he handled the knife, the defendant obliges,
raising his right arm (in a cast, from his surgery) and supporting
it with his left at the elbow, through the sling. He mimes an
overhand grip and makes small, apologetic pecking gestures.
He has a high voice and a Southern accent, which together give him
a curiously solicitous air. He has a lisp that seems nearly a hiss;
he puts his mouth around words in haste, gobbling them. ''Yessir,''
he replies, often.
When he quotes himself as having blurted out ''What the
[expletive] is this?'' (on spying the male sex of his erstwhile
date), he excuses himself for his language, quickly, instinctively,
in a whisper.
By the end of the tape, he is holding his bandaged right arm and
wincing; he sucks air through his teeth in pain. Asked if he wishes
to add anything to his statement, he responds, reasonably, ''What's
going to happen next?'' And then, ''Can I go home tonight?''
The A.D.A. pauses and repeats his question: Does he wish to add
anything to his statement at this time?
He declines.
The high contrast of the image erases the features of his face,
making him a silhouette.
Defendants in murder trials seldom take the stand. they are under
no obligation to do so, and a jury is instructed to make no
inferences from their choice. For one thing, testifying generally
means exposing any criminal record they might have, information
that is otherwise rigorously withheld from the jury.
Again and again I found myself sitting in court looking across at
the defendant. Only he knew what had happened in that apartment.
Day after day, I looked at the defendant, and I saw a cipher.
That changed on the last day of testimony, when, with a shrug
(after requesting, unsuccessfully, more time from the judge in
order to contact a no-show witness), the defense attorney called
his client to the stand. As he went, long-legged, lankier than I
had expected, I realized I had not yet seen him stand up. By taking
the stand, he voluntarily settled the question of his criminal
record. There wasn't much: some unspecified ''participation'' in a
nonviolent robbery at the age of 13 or 14. He had graduated from
high school (where he had been something of a track star) and had
attended Marine Corps boot camp, from which he had been dismissed
after dislocating his shoulder in a boxing competition, aggravating
an older injury. After this he had apparently held several regular
jobs, one at a sporting-goods store in midtown, the other doing
data entry for a medical records company. He lived with his fiancee
(who was pregnant at the time of his arrest, and had since borne
him a child) and her mother.
In the end, the bulk of the defense case hung on these minutes of
testimony. Without hesitation, even forcefully, the defendant told
his story again: he insisted that he had acted in self-defense,
that he had been the victim of a sexual charade. After briefly
rehearsing this account under direct examination (where he seemed
shy, but clear and calm, and said that he had lied in his early
statements), the defense turned him over to the prosecution for the
cross.
A prosecutor cannot be successful without a strong sense of how to
play such a moment. This prosecutor elected to use a badgering tone
and a sneeringly sarcastic mien. He dived in by accusing the
defendant of being a perjurer, for having ''lied on his
application'' to the Marines. But it appeared that this meant
nothing more than that he had not alerted the Corps to his having
once hurt his shoulder in high school. Since the military assesses
its recruiters on the basis of how many bodies they sign up, it is
easy to imagine that no one pressed him to disclose an overly
detailed medical history on the forms.
Given a defendant apparently so benign -- young and slight, well
spoken, with a handsome, dark face and bright white in his almond
eyes -- the prosecutor's combative strategy ran the risk of a
backfire. And that, I would say, is what happened: when the
defendant maintained his composure, the prosecutor had no place to
go but up, escalating his belligerence in hope of cracking this
composure. By the end, the prosecutor had pulled out all the stops
and found himself furiously dramatizing the state's version of the
victim's final moments, as he lay helpless on his face, with the
defendant poised above him, repeatedly driving the knife into his
head, neck and back.
Acting all of this out a few feet from the witness stand, directly
in front of the jury box, the murder weapon in his hand, the
prosecutor again and again swung the open knife, rolling his head
and shoulders into each exaggerated stroke as he growlingly
challenged the witness to deny that this, in fact, was how the
victim met his death.
''And didn't you then -- like this! -- stab him? And then, again!
Like this? As he tried to crawl away? And -- again!''
But the sensational dramatization -- which the judge refused to
interrupt and which sent the victim's family howling from the room
as several of the jurors squirmed in disgust -- built to a
crashingly flat climax. To the blistering assertion that this was
how it had happened, the defendant offered a simple answer.
''No.''
And yet, it seemed, if anything was going to shake him,
it would have been that.
So egregious did I find the whole performance that, as the
defendant returned to his seat, slightly hunched, as if afraid of
bumping his head on something, I felt a deep desire to see the
prosecutor lose the case. How did that whisper of a thought affect
what followed? It is difficult to say.
INTO A CLOSED ROOM
Walking us down the hall and into the small jury room, the short,
jovial sergeant said he would take care of us: ''There's water
there,'' he nodded at a thermos, ''and this is the buzzer you press
if you need anything, and there's no smoking, of course, but
there's windows in the bathroom. . . . That's all I'm saying, O.K.?
''Oh, and, uh, you know, if you order up the knife, right? You
know I bring it in, but we don't leave it with you, see? . . . I
gotta carry it around, and you can look at it, but nobody can talk
till I leave. And the knife goes with me.''
He gave us a kidding smile as he prepared to close the door. ''You
know, we need 12 jurors for a verdict, eh?
''Anybody want cigarettes?''
Throwing a defendant into a lake
seems barbaric to us, or blackly funny: we are heirs of the
Enlightenment, after all; we are modern, thank God. But throwing a
defendant to a jury has a medieval quality all its own. Things can
come out different ways; large decisions hinge on small points.
People are quirky, idiosyncratic, even strange. Place a dozen
individuals together in tight quarters for long enough, and nearly
anything can happen.
Who were we? Four men and eight women. Perhaps as many as half of
us were 30 or younger. We were white (nine), black (two) and
Hispanic (one); we were, for the most part, professionals (in
advertising, software development, marketing). We seemed -- milling
about in the hall at breaks, chatting as we took the slow elevator
to the street after a long day of testimony -- to get along
perfectly well. Once the door to the jury room closed, I asked that
we begin with a moment of silence.
How did the deliberations unfold? I am sure each of us would
remember things differently; if you learn anything from a criminal
trial under the adversary system, it is that sincere people can
differ vehemently about events, and that there is seldom any easy
way to figure out what actually went on.
This is the way I remember things: On the first day we went around
the room and people said whatever they wanted about the case. That
taught us two things: first, that we didn't agree; and second, that
there was a great deal of confusion about the different charges we
had been asked to consider (murder in the second degree under two
different ''theories,'' as well as the lesser charge of
manslaughter). Did we all have to achieve unanimity on a single
charge before we could even consider the claim of self-defense?
(This made no sense to me, but it would be days before everyone was
convinced that it would never work.) Could a finding of
self-defense trump all of the charges? (It seemed obvious to me
that it could, but we had to hash this one out too and seek
clarification by means of written queries to the judge.)
By the second day a straw poll indicated we were still all over
the place: a handful wanted us to find the defendant guilty of the
most severe charge, and another handful voted for each of the
lesser charges; but about half the room also said they had not
ruled out self-defense. (Some of these people, though, had also put
in a ballot for guilt, which left me scratching my head.)
We began requesting evidence we wanted to review. I had initially
been reluctant to drag these items into the room (it seemed to me
it would be hard enough to have a serious conversation around the
table without photographs, videos and other tidbits to play with),
but a pair of striking discoveries followed. One juror, looking at
a video taken of the crime scene, noticed that it was impossible to
see the futon couch from the hallway outside the apartment door --
the angle was wrong. A small point, but one with large
implications, since this meant that a key prosecution witness had
lied. He had testified to seeing the defendant on the victim's
couch that night. But he had also insisted he had been standing in
the hall.
The other discovery turned up in one of the crime-scene
photographs: a pair of what looked like panties on the corner of
the couch by the body. These corroborated the defendant's story,
and in doing so cast doubt on the testimony of almost all of the
police and crime-scene investigators who had testified for the
prosecution: they uniformly claimed that no women's clothing had
been found in the searches of the apartment.
But casting niggling doubt on various witnesses was one thing. The
deeper issue lay in realizing just how much the state had to prove
before we could find the defendant guilty: when someone claims to
have killed in self-defense, the presumption of innocence extends
to this claim; in other words, the prosecution must prove, beyond a
reasonable doubt, not only that the defendant killed but also that
he did not do so in self-defense. When there are no witnesses, is
this even possible?
It took us some time to work out just how heavy the burden of
proof was. Over four days we wrestled with this problem and
struggled to understand not only what happened in that cramped
apartment but also what the law demanded of us. Three moments were
decisive in this long debate, and each of them hinged on a
different juror, each of whom spoke clearly at a difficult juncture
and shifted the course of our deliberations.
JUROR 10: MEN CAN BE DATE-RAPED, TOO
Juror 10 was a raspy,
dyed-blond 20-something tough girl in tight black jeans who spoke
loudly and much, often well. An actress, apparently, with the hard
edges of a barmaid in a Back Bay Boston Irish pub, she knew how to
make herself heard and was not afraid to hold the floor. She leapt
into the fray from the start, composing a long list of all the
evidence that she wanted to hear again, a list that grew so long
that I, as the foreman, finally felt I had to discourage her,
because sending it in to the court would have obliged us to sit
through nearly a week of readings from the transcript. My stalling
on her requests caused trouble later: was I stringing her along?
she wanted to know. She let me know that I'd better not try to jerk
her around.
As the days wore on I increasingly got the sense that Juror 10's
sudden, explosive interjections signaled someone quick to trigger.
In addition, she was apparently taking some sort of heavily
regulated prescription drug, and by the third day of deliberations
she had run out. That spelled trouble.
Her moment of glory, though, came after lunch on the second day,
at the end of an hour we had spent collectively trying to
reconstruct the fatal fight from snippets of contradictory
description given by the defendant in his videotaped statement.
Replaying the tape of the defendant's account of the fight, several
jurors got down on the floor and acted out the moves the defendant
was describing. Juror 10 was on the floor on her back calling for
someone to lie down between her legs. This and the subsequent
wrangles occasioned a certain amount of joking, but our conclusion
after this boisterous tangling was that the fight almost surely
could not have happened in the way the defendant said. The wounds
to the victim's back certainly looked as if they had been delivered
from behind, when the victim was nearly motionless, lying on his
face, dying, presumably, from the first blow to the chest. (The
incisions in the back had the wrong penetrating angle to have been
made as the defendant claimed -- from underneath the victim, as the
defendant struggled in his embrace.)
We pressed the evidence. Had this been a drag seduction? Unlikely.
Look at the size of that victim. Who could get within 10 feet of
him and think he was a woman, wig or no?
Rape? We had lots of evidence that these men knew each other (a
parade of witnesses who could have come straight out of ''Paris Is
Burning'' swore to it), and the semen traces suggested they had
just had some sort of sex before things went bad. Didn't this have
all the marks of a crime of passion? Who could say why the
defendant got so angry at his lover, but hadn't he clearly attacked
and killed him in some sort of rage?
But not everyone agreed. Several people pointed out that even if
the men had been sexually involved, that didn't prove it was
murder. Juror 10 pushed this point: What difference did it make if
they had just been fooling around before things got ugly? Did this
make it impossible that the defendant was defending himself from
rape when he swung the knife? Wasn't that the only question? ''No
means no,'' Juror 10 announced sharply, ''even if they just had
oral sex, and then his lover said he wanted more, if he said no,
then it was rape.''
This declaration -- categorical, a little edgy, a little
holier-than-thou -- visibly irritated several of the people around
the table. But as the conversation continued into the afternoon, we
found ourselves coming back to it. Maybe the defendant was lying
about a lot of things, but if he had been cheating on his pregnant
fiancee and experimenting with a homosexual relationship, his
reluctance to tell the truth about much of what had happened made
sense. We all agreed that a woman could be raped by a lover, could
kill to protect herself in that situation; could we reject that
possibility here? Place it beyond a reasonable doubt? Did we have
any more reasonable account for why an apparently mild-mannered
young man with no history of violent crime would have committed
such a monstrous act? We did not. Then didn't self-defense remain
at least a possibility? Could it be ruled ''beyond a reasonable
doubt''? Those were powerful words.
Juror 10's analogy to date rape cut away much of the prosecution's
case and focused us on that one fatal moment -- when the knife came
out.
JUROR 7: LAW OR JUSTICE?
Juror 7 was less impressed by this argument than most of us, and
because she herself was a very impressive woman, this was a
problem. Juror 7 was a professor, a historian like me. From Day 1
she had been the clearest voice for the defendant's guilt, under
the most severe murder charge, and she seemed a bit shocked that so
many of the rest of us were hesitating. Very smart and articulate,
she was evidently accustomed to holding the attention of a room.
Her aspect was serious, though not at all unfriendly. Dressed
comfortably -- in sneakers and a shapeless sweater with loose
sleeves that she pushed above her elbows -- she moved with a kind
of force, often lifting her short brown hair off her temples and
fixing it behind her ears, rubbing her chin thoughtfully as she
listened to others. Because she gave all indications of being
temperamentally inclined to a pro-defendant position (urban,
bookish, seemingly left-liberal), her advocacy of a guilty verdict
weighed heavily.
Juror 7 simply nudged us toward a conviction with her good
arguments. As a number of people were rallying round Juror 10's
point, Juror 7 spoke up: ''But the only evidence for that moment''
-- the moment the defendant said no to sex -- is this guy's word,
and what's that worth?'' she asked.
She proposed an exercise. ''Let's make a list of everything this
guy has told us, and then let's cross off everything that has
turned out to be a lie. What's left on the list? Only that one
moment. How can you be ready to let him walk out of here on the
basis of that?'' How reasonable was it to doubt that a liar was
lying? And with his neck on the line?
With the room increasingly polarized, a new idea began to
circulate in the wake of this strong argument for a conviction: a
compromise. Since about half the jury thought the defendant should
be found guilty of the most serious crime, and the other half
seemed to want a total acquittal, why couldn't we agree to convict
on the lesser charge of manslaughter? That way we would ensure the
defendant got some punishment for all the bad things he clearly did
do: abandon the scene, lie to police, etc.
''I think it would be a violation of our duty as jurors, which is
to apply the law,'' I said. ''We weren't asked to consider whether
this guy is guilty of abandoning the scene. The law says we can
only convict if we're persuaded, beyond a reasonable doubt, that
the defendant killed this man and did not do so in self-defense. So
that's the only issue. We aren't allowed to fudge the law because
we'd like to see the defendant get punished.''
Conversation around the idea of a compromise heated up, as we
debated whether this was a legitimate way to resolve the case.
''I keep coming back to this same question,'' she said, ''the
relationship between law and justice. 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?''
She had gone to the heart of the matter, directly, and with great
equanimity and gentleness. Gradually this new formulation --
justice versus law -- began to take hold. Justice: Compromise on a
verdict so the defendant gets some punishment. Law: Admit that it
had not been proved, beyond a reasonable doubt, that this could not
have been self-defense (nearly all of us agreed that the
prosecution's case had failed to meet this very heavy -- absurdly
heavy? -- burden of proof).
Thanks to Juror 7, a new question lay before us. How could we
justify applying the law if we decided that the resulting verdict
was itself unjust? Were we responsible to the law? Or to our idea
of justice?
It would take a
born-again-formerly-crystal-meth-addicted-ex-bull-riding rodeo
cowboy to answer this question for us -- the improbable Juror 9.
JUROR 9: JUSTICE AND GOD
Juror 9 was a big man: a 6-foot-3-inch
God-fearing veteran of the United States Armed Forces who now
repaired vacuum cleaners for a living. When I first noticed him, in
the early days of jury selection, he was spitting tobacco juice
behind the radiator by the elevator during a break. He had thin
brown hair slicked back and a manly mustache, and wore a weathered
pair of work boots. A contractor of some sort, I assumed, and I
pegged him, without much thought or interest, a prime example of
Susan Faludi's tragic tale of the white working-class male -- big
chest, big gut, big debt. I called him, irreverently, ''the
Faludiman'' in my diary. What did I know? Before the trial ended he
had blown my stereotype (indeed, any stereotype) wide open.
From the start of the trial, I thought it very likely he would
take the lead in pushing for a guilty verdict, if not a hanging. I
think I figured anyone wearing, apparently in earnest, a large belt
buckle reading ''Rodeo'' had to be a law-and-order type and quite
possibly a bigot too.
But at breakfast on the second day (at the hotel out by J.F.K.
Airport where we had been sequestered), we got into a conversation,
at first about the food, then about fasting, then about the
approach of Lent and finally about the Good Lord. In addition to
telling us about his victory over drugs, he began to explain that
he had become a domestic missionary of his California ''mother
church'' (of recovered addicts), part of a small cell charged to
found a new community in Spanish Harlem. Almost a decade had passed
since this group took up residence in the community and began
pursuing its 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
and circled in prayer around vomiting addicts delirious from the
struggle to go cold turkey. The church now had well over 100
families, and Juror 9 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 rearing his daughter from a previous marriage.
All this helped explain his accommodating and gentle voice in our
deliberations; his obvious ability to speak with authority and lead
the group; his sympathy for the defendant. From the beginning,
Juror 9's attitude had been that the defendant 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.''
By midafternoon on the third day, the debate over a compromise
verdict of manslaughter had become testy, and several positions had
hardened. We were tired, some personalities had clashed, we all
felt increasingly trapped: without a verdict, would we ever be
released? Could we ever agree? At least four people still pressed
for a guilty verdict. About the same number seemed committed to
acquit. The rest wavered. I thought we were a hung jury.
Those pushing for the compromise idea argued that the law's only
purpose was justice; 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 (which we could not).
But we agreed that it was not just to let the defendant go
unpunished for what he had done. Conclusion? The dictates of
justice demanded that we circumvent the law. Q.E.D. Momentum for a
guilty vote gained, even though most people in the room had by now
agreed that they felt some ''reasonable'' doubt, however small,
about the self-defense issue.
It was an odd situation. We seemed ready to ignore the law in an
effort to get the verdict that so many people wanted: guilty. Or
this was how I saw it.
Then Juror 9 rose to speak. ''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 this young
man 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 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.
There was silence.
To my right I heard a whisper. Looking over, I saw brimming eyes.
''He's convinced me,'' someone whispered. It was close to a sob. No
one else spoke.
Acquit before the law; leave justice to God -- could we do this?
Was this like throwing the defendant in a lake? A lake in the sky?
A SETBACK
We knew we were close. We took a poll, and the numbers
hovered at the brink of an acquittal: 10 to 2. Juror 9's powerful
declaration had played a role in killing the drive for a compromise
conviction and had won converts. But the day did not end there.
Juror 10, missing her medication and exhausted by the stresses of
the past three days, had been looking worse and worse. The pharmacy
she had asked the court to contact claimed her prescription could
not be refilled. She had been struggling with a bad cold sore for
several days, and a number of ulcers could be seen on her face.
Though she had applied heavy daubs of makeup to conceal them,
several had opened, 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 a coming migraine.
Now from the men's bathroom came the strangled sound of gags. She
was throwing up.
At that, one juror stood up 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.
When the judge was informed of Juror 10's illness, he called us
into the courtroom. He had decided to have Juror 10 taken to the
hospital; we would suspend deliberations until further notice and
were strictly prohibited from discussing the case until the full
jury could reassemble.
It was shortly before 5 p.m. on Friday evening.
The hours that
followed were the most painful of the whole trial. A new complement
of court officers took charge, paunchy weekend cops who had
oversize highway patrol sunglasses and gonzo equipment belts. They
exuded a palpable sense of armed delight. On the judge's orders
they herded us into a cavernous empty courtroom down the hall,
where, for almost three hours, we waited without any sense of what
to expect. Could the deliberations be suspended indefinitely? Could
we be kept in custody all weekend? What if Juror 10 got worse?
Would the judge ever let us go?
Several jurors began to lose their composure. One, increasingly
desperate, wanted to contact her own lawyer, in the hope of winning
release. No chance. The judge later apparently threatened the same
juror with contempt. The powerlessness of her situation -- indeed,
the powerlessness of our shared situation -- had been made
painfully clear. We, it seemed, had become the prisoners.
So this was what incarceration felt like. No wonder the burden of
proof set the bar so high. When Juror 10 rejoined us later that
evening, there was a feeling that the ordeal had to end, and soon.
THE LAST DAY
It was Saturday, the fourth day of our
deliberations. I took 12 index cards out of my pocket and passed
them around. There was silence as they started to come back, each
folded in half.
I counted the cards. Nine. We waited, and two more came in.
Eleven. We waited. Still 11.
At this point there was no confusion about who still held a card.
Juror 7, my fellow historian, the eloquent voice for justice, sat
at the corner of the table to my left, where she had 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. One juror adopted a contemplative posture, her
fingers prayerfully arranged at her brow. Several others closed
their eyes and clasped their hands to wait. One man put his head
down on his folded arms. There was the sense that everyone in the
room was concentrating on the blank card in rapt meditation. Juror
7 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 in this, the first poll of
the fourth day. We knew we were close on the previous evening, but
Juror 10's trip to the hospital had forced us to suspend
deliberations right at that critical moment.
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 only a few who were not crying, though I cannot remember
everyone'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 give when our
deliberations had ended: ''The jury has reached a verdict.''
I looked around the room. Several people were embracing, and two
of the young women were gathered around Juror 7, saying encouraging
things to her. She looked around 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, Juror 7 cried out: ''No! Wait,
we're not ready! Not yet.''
I stood there dumbly, with my arm outstretched. 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
unrecoverable collapse. At the prospect of snatching defeat from
the jaws of victory like this, 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.
''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 proposed a message, a sort of disavowal of our own verdict:
''What if we wrote something like, '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.' '' I had
scribbled this statement in my diary, early that morning, as an
expression of despair.
I looked up. A nod here and there. Yes. Several others. Yes. No
one said no, not even Juror 7.
So that was what we did. I wrote out that statement, concluding by
saying that we had, nevertheless, reached a verdict. 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 (who had sat mournfully through every day of
the trial) and 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.
In the half-hour it took for the court to assemble, our gray
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, so that we would all be able to stay in touch.
After we had taken our seats in the courtroom, the judge read my
note aloud, without the least trace of inflection, slowly,
mechanically, pausing momentarily after each word as if to strip
the sentences of meaning.
''Have I read that correctly, Mr. Burnett?''
I said he had.
''Has the jury reached a verdict?''
I said yes.
The judge turned to the clerk and asked him to begin.
''On the
charge of murder in the second degree with intent,'' the clerk
began, ''how finds the jury?''
''Not guilty.''
I looked at the defendant, whose head was resting against his
hands, clasped in front of him, his elbows on the table. His head
dropped when the answer came.
''On the charge of murder in the second degree under the theory of
depraved indifference, how finds the jury?''
''Not guilty.''
His head dropped farther, and a distinct wailing went up from the
back of the room.
''On the charge of manslaughter, how finds the jury?''
''Not
guilty.''
And the young man looked straight up, with tears streaming down
his face, and his fists clenched at his throat.
The wailing from the back of the room grew louder.
The defense
attorney showed no emotion; the prosecutors sat impassive.
I could hear sobbing in the jury box behind me and to my left. The
judge spoke more words, the clerk spoke more words. I was asked a
question. Was this the verdict of the jury? I said it was, aware
that the moment was collapsing for me, that I was not able to
maintain any distance from what was happening, that I was no longer
seeing what was going on.
The attorneys approached the bench for a conference, and we were
told that the jury would be polled. Each of us would be asked to
affirm the verdict individually. Did I speak? I do not remember. I
heard the voices around me. Yes. Yes. . . .
And so it went. I watched the defendant, who had again frozen in a
posture of silent expectation, his hands clasped in front of him.
Tears were visible, dripping down his nose, onto the table. His
head again dropped, slightly, each time an answer came: Yes. Yes.
Once Juror 7, behind me, had spoken, the thing felt done. But five
answers remained. Yes. Yes. Yes. Yes. Yes.
And it was over. We had let him go.
EPILOGUE
We let the
defendant go.
Several weeks later, at a party on the Lower East Side, I fell
into conversation with someone who turned out to be a cop. He
pumped me for the story, and then, in a good-natured way, expressed
his dismay that we had voted for acquittal. How had we decided to
do that, when it sounded to him as if we all basically thought it
had probably been a murder?
I thought about trying to explain. Trying to explain what it means
to say you are convinced beyond a reasonable doubt. Trying to
explain that not guilty doesn't mean innocent. Trying to explain
that after four days of sequestration, you have a new understanding
of the power of the state, and of the reason that the people's
burden of proof is so heavy -- to protect citizens from this thing,
this leviathan. Trying to explain how you might think you were
probably looking at a murderer but decide the law would not permit
you to convict him. Trying to explain what it felt like to go home
in tears, to sit in the dark, wondering if you had done the right
thing.
I thought about trying to explain. Because if I explained all
that, I could tell him the remarkable thing that happened next,
that first night at home, in the dark. The phone rang, and I
answered it, and heard the voice of a fellow juror, a young woman
who had stayed around the court to talk to the lawyers after it had
all ended. She told me, her voice trembling, that she had learned
of additional information we had not been allowed to hear because
it had been ruled inadmissible by the judge. Evidence that the
victim had been in trouble with the police before -- for a
sexual-misconduct charge. Once upon a time, he was accused of
dressing like a woman, luring a young man to his apartment and
pressing sex on him.
It was a great deal to explain. The party was loud. I nodded
again. ''Do you want to hear the whole story?'' I shouted.
D. Graham Burnett is a historian of science currently at Princeton
University. This article is adapted from ''A Trial by Jury,'' to be
published in September by Alfred A. Knopf.
http://www.nytimes.com/2001/08/26/magazine/26JURY.html?ex=999878409&ei=1&en=9ed0b5b4b20eaf54
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Copyright 2001 The New York Times Company