A Trial by Jury (11 page)

Up to this moment, Adelle and I had spoken to each other relatively little. During the first weeks of the trial, we had chatted in the hall enough to learn that we shared academic interests, and that we were even in the same e-mail group for historians of exploration. We talked about a recent book in the field that we had both read. Quite quickly, though, we left off these topics. The trial seemed much more important, but we couldn't talk about it—jurors are strictly forbidden to discuss the proceedings before deliberations begin.

Once they did, Adelle was very vigorous, particularly during the interlude spent looking at the evidence—going from group to group, talking seriously in each, her face lined with concern, always asking questions of the others. For my part, I had grown increasingly certain that I was not going to be moved. But my desire to see a hung jury had also deepened, and Adelle looked like the best bet to hold down the opposing position. Suzy was more vehement, but Adelle seemed a more substantial figure in our discussions. The two or three others who continued to express a preference for a guilty verdict were much less solid: there was Paige Barri, the interior decorator, who had more than once voiced, with exasperation, a desire to get the whole business over with; and there was Jessica Pollero (of the bold knits and perfect skin), who came closest to showing disgust that so many of us were willing to let this guy off when he so clearly struck her as a liar (“I am so depressed by this,” she announced). She found the prosecutor's “inner demon” argument entirely persuasive: the step from a somewhat confused sexual identity to a homicidal bloodbath did not seem to her like much of a stretch.

I replied to Adelle that those persuaded of Milcray's guilt ought to present their positions to the rest of us because that is how trials work: the burden of proof is on the state, not on the defendant, who has no obligation to explain himself. Therefore, those of us unpersuaded by the prosecution's case did not have to convince anyone of anything; we had to
be
convinced by someone who could adduce the proofs of guilt.

Adelle looked troubled. Her understanding, she explained, was that if the defendant was going to claim self-defense then he absolutely
did
have an obligation to prove, beyond a reasonable doubt, that he had acted in self-defense, just as the state had an obligation to prove, beyond a reasonable doubt, that he was guilty of criminal homicide.

This was not correct. Our instructions had been murky, but I was certain that the judge had explained that a claim of self-defense expanded the scope of the prosecution's burden. In other words, the presumption of innocence extended to a presumption that individuals were telling the truth when they said they had defended themselves. When a defendant made that claim, the state was then obliged to prove, beyond a reasonable doubt, that the killing had
not
been in self-defense. This instruction had come couched in a few warnings: first, that in evaluating the testimony of all witnesses we were to consider what motivations they might have to lie (noting that this was particularly relevant in the case of the testimony of defendants themselves); and, second, that a “reasonable” doubt meant, among other things, a doubt motivated by “reasons.”

Adelle was not convinced. I went around the room, and most people had understood things as I had: that the prosecution was required to prove not only that Milcray was guilty of the homicide, but also that he had
not
acted in self-defense, and that the burden of proof was the same for both of these elements.

Felipe got up and stared out the window, explaining that he had something he needed to do at three o'clock that afternoon, and that he sure hoped we could hurry up and get this over with.

One or two people thought this was funny; a number of people, including me, did not. I told him directly, raising my voice for the first time, that those kinds of remarks didn't belong in the discussion, that we were doing something too serious, that I was going to lose my temper.

He did not meet my look. The moment passed.

We needed confirmation from the court on the precise extent of the people's burden of proof. I began drafting the question. When Pat pressed me to include on the sheet a request for all the testimony she still wanted to hear, I discouraged her, explaining that we would do whatever we had to do before things were over, but that I could not yet make everyone sit through all of that material. I suggested to her that she try to edit it down.

After lunch (sandwiches delivered to the room; I slipped an apple surreptitiously from my bag and nibbled a fistful of almonds), we received our answer: yes, the state had to prove beyond a reasonable doubt that the defendant did not act in self-defense. We went back into deliberations.

Now we all had a common understanding of just how much the prosecution had to prove, but there appeared to be little change in anyone's position. Again it felt most natural to let the room splinter into smaller discussions. As I drifted in and out of these, I sensed that this format probably favored those seeking an acquittal, since each cell of the room's fragmented conversation formed around one advocate of Milcray's guilt, who confronted two or three skeptics.

People really wanted to focus on the fight itself. One group gathered around the television monitor, replaying over and over a three-minute segment of Milcray's statement in which he described the actual fisticuffs. Adelle took notes.

“There!” she declared, rewinding—first he said Veronique pushed him down twice, then it seemed he said three times! He had to be lying.

She scribbled away, building a list of the inconsistencies in the fight testimony.

Another small group focused on the photos of the body at the scene. There could be no doubt that, as the chief medical examiner pointed out, the stab wounds in the back formed very tight clusters: a rosette in the back of the skull, and two groupings along the spine, one at the neck and the other lower down. They were very clean punctures, showing no gashes or tears on the surface, and, according to the coroner's report, all about the same depth: two and a half inches, exactly the length of the blade in people's exhibit 7. The penetrating orientation of these wounds (which the medical examiner ascertained semi-scientifically by the methodical insertion of wooden tongue depressors into each aperture, using these to eyeball the axis of the incision, and then marking arrows on the body diagram that was entered into evidence) was basically in and down, not veering to either side. Only a pair of shallower scratches showed up on the body, both high on the left buttock, seemingly unrelated to everything else.

None of this looked terribly consistent with a struggle, or with the defendant's story that he had made the back wounds from under Cuffee, reaching around his body from the front. Moreover, the blood from the cuts had oozed down and made a little puddle in the smooth, deep recess at the small of the victim's muscular back. This strongly suggested that Cuffee had not moved much during or after the infliction of those injuries—which was also inconsistent with Milcray's story, since he had claimed that Cuffee continued to fight menacingly as he took the blows.

And then there was the matter of the blood on the wall, to the right of the fallen body. The prim, bespectacled forensics expert had smilingly assured us that those swabs of blood had tested positive for the DNA of, surprisingly, Monte Virginia Milcray. This meant that somehow Milcray had managed to spray a nontrivial amount of his
own
blood onto the wall between the TV and the window, some of it several feet high, some of it on the television itself.

There was only one way to explain that: the blood came from Milcray's severed pinky, and it almost certainly sprayed that way because Milcray was indeed kneeling over his victim in the corner, flailing away with big swings at a more or less immobile body. In fact, it seemed likely that he had injured his finger on one of the first of those swings, most probably one of those that landed on the back of Cuffee's head. These, the coroner's report stated, had not penetrated the skull (though they had made some gouges).

An excellent way to cut off your pinky is to drive a knife overhand into something so solid that the knife stops short but your hand keeps going. Something like a skull.

Several people began acting out the fight sequences as Milcray narrated them, trying to see if it was possible to imagine making the set of wounds we saw in the ways he described. Pat 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, and I walked over to Dean, standing a little apart, and rolled my eyes: things seemed to be degenerating into a circus. We talked about the fight evidence together and agreed: it was not a very big deal that Milcray couldn't recall the precise sequence of the fight (after all, he would have been in a very heightened state); and it seemed likely to us that most, if not all, of the wounds to the back were delivered after Milcray had gotten out from underneath Cuffee—i.e., from behind—while Cuffee lay facedown or crawled, just as the prosecutor argued. It might still have been the heat of the moment, but the initial struggle was over by the time Milcray was in a position to deliver those blows.

“It's OK,” Dean said quietly, nodding at the enthusiastic game of Twister warming up on the floor (people shouting out what Milcray was saying on the video, as couples wrapped themselves into unlikely positions), “this is good. Most people in here have never been in a fight—they need to see how it would work.”

Minds did change in these re-enactments. Adelle was now ready to concede, when we again gathered around the table, that, contrary to her earlier thinking, Milcray's story of the hand-to-hand struggle contained nothing absolutely impossible. I pointed out that, though this might be so, it certainly seemed to me that the many wounds to the back had been delivered not as Milcray said but from above, after Cuffee was mostly immobilized, presumably from the first wound.

Didn't that mean I thought Milcray was lying?

I said it did.

Why, then, was I apparently willing to acquit, when I believed exactly what the prosecutor had claimed: that Milcray had knelt on Cuffee's back and stabbed him to death?

I answered that I was willing to ignore all of the wounds to the back. After all, none of them had anything to do with Cuffee's death: the chest wound took care of that. Anyway, there was no accounting for what one might do if one had just been attacked in the way that Milcray claimed.

“Think about it,” Jim Lanes added in agreement. “Milcray knew he had to turn his back on Cuffee in order to open the door. Once you've stabbed somebody once, think of how afraid of them you are, think how you know they want to kill you. Don't you want to make absolutely sure they aren't going to come for you again?” Jim had abandoned his natty bow tie of the early days of the trial, and he looked slightly tired, gray. For someone in advertising he had proved surprisingly reserved, I thought, but there was a determined quality to him even in his silence.

Dean piped up that it was certainly true that in a rage one might do anything. He began to tell the story of his worst brawl in the navy. He had infuriated a smaller, younger superior, who leapt up from his desk and buried a ballpoint pen in Dean's neck while sinking his teeth into Dean's ear. He showed us the scar on his clavicle.

“And then,” he went on, “I got my arm under his leg—because he had wrapped his legs around me—and I lifted him off, and I slammed him into this bookshelf, so he fell on the floor. I didn't even discover I had been stabbed until later. . . .”

“Wait,” I said. “Go over that again. How did the guy get his legs around you?”

“He jumped up.”

“But I thought you said he was at his desk?” I asked, beginning a mock cross-examination.

“He was.”

“So you are saying that this guy pushed back from his desk, leapt at you from a sitting position, and got his mouth at the level of your ear?”

“Yeah, that's what happened.”

“But this guy was shorter than you, right?”

“A lot shorter,” Dean answered.

“And yet, in all the time it took him to do this, and to fly up at your face, you didn't even have time to move out of the way. . . .”

It was all an exercise, and Dean saw that immediately. It was a lesson in how hard it is to remember the precise details of a fight. We all trusted Dean, but it became clear that a hostile questioner could get someone quite tangled up about such a charged and impressionistic memory.

I explained I was not trying to suggest that Milcray had told us the truth about everything that happened in the room that night. Or even that he was absolutely telling the truth about anything. It seemed to me that the issue was this: Had the prosecution proved—beyond a reasonable doubt—that Milcray
could not
have been acting in self-defense? The answer to that, for me, was no. In fact, it was not clear to me that such a proof was even possible in this case: two men go into a closed room, one emerges, he claims to have acted in self-defense. How could it be proved beyond a reasonable doubt that this is a lie? Perhaps if the defendant had a long criminal record, perhaps if Milcray had been convicted on several occasions of assaulting gay men in the Village—but, barring that, I had doubts.

Jessica expressed irritation, saying that all this was ridiculous. At the start of the day, when I had suggested again that we begin with a moment of silence, she had said to me with a snip that she saw no need to do so. “I'm ready, actually,” she declared. I had replied that this was excellent, that she could use the time to reflect on her readiness. Now she volunteered her complete agreement with the prosecutor's account: this guy had been torn apart by the demons of his double sex life. Milcray and Cuffee were clearly lovers, she asserted, and for some reason Milcray freaked out—because he was so disgusted with himself, or something.