A Trial by Jury (9 page)

6. The First Day

W
alking 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, OK?

“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 all twelve jurors for a verdict, eh?

“Anybody want cigarettes?”

 

O
nce we had collected ourselves, I proposed that we needed a few ground rules for talking with one another. I suggested that we speak in turn, that we indicate a desire to have the floor by a show of the hand, and that I would keep track of the order of speakers, so anyone who wished to contribute could. Everyone agreed, and almost everyone seemed eager to start to talk. I said I thought it would be best to begin systematically, by reviewing the charges together, so we were sure everyone had understood everything the judge explained, but several people complained that this was unnecessary and overly structured. I deferred, and we decided to go around the room and let everyone just say whatever he or she wanted as opening remarks. We started to my right, circling the long table: Jessica, Suzy, Paige, Felipe, Jim, Leah, Dean, Adelle, Pat, Vel, Rachel.

Immediately it became clear that there was nothing like consensus among us, that there was a great deal of confusion regarding the technicalities of the charges, and that people had significantly different abilities to think insightfully about the evidence. I remember distinctly the moment I realized what a range we were facing.

Rachel Patis, the kindly older Jamaican lady to my left, said in her opening statement that she wanted to see the videotaped statement again, because she thought she remembered hearing Milcray refer to Veronique as a “he” at one point. This, she thought, blew the thing open: Milcray was lying. Hadn't he claimed that he thought Veronique was a woman?

Now, one might be optimistic about this: here was a close analysis of a portion of the record. But the reasoning it reflected was so wildly off-base (at the time the video was recorded, obviously, Milcray knew very well Veronique had been a man—supposing any of his overheated story was true—and so might easily have used either pronoun) that one was facing a very difficult combination: deeply limited analytical ability mixed with a Sherlockian desire to find the magic tidbit of evidence.

And Rachel was solid in comparison with Felipe Rodriguez (on whose finger, I now noticed for the first time, sat a bulky silver skull ring), who launched vigorously into an incoherent yarn about pig-killing in his native Mexico, a story that took an abrupt about-face and suddenly seemed to be about a former girlfriend, whose virtue he believed he had cause to lament.

“No!” he exclaimed sharply, suddenly, his eyes getting wide as he leaned forward and shook a finger at us. “It is true! I'm telling you!”

What was true was not clear.

Any prospect of a rapid verdict slipped from view as we rounded the room. Though there seemed to be something approaching consensus that Milcray was a liar, and that much of his story was false, few of us set great store by the witnesses for the prosecution either, and a slim majority appeared to feel that self-defense could not be ruled out.

More serious than the range of initial opinions, however, was the degree of confusion concerning how the charges were to be applied. Wacky new misunderstandings would emerge down the road, but right away tension arose around a single question: Did we have to reach a unanimous verdict on
one
of the possible criminal charges
before
we could even consider the question of self-defense?

This came up because people wanted to poll the jury right away, and so I proposed that we go around and ask if people felt Milcray had acted in self-defense or not—putting aside the issue of whether he was guilty of murder or manslaughter (and, if murder, which theory applied). We would have to sort all that out later, I said, if we were collectively inclined to convict, but why didn't we first find out who thought he was guilty of
something
and who was ready to let him walk? It was acknowledged, of course, that these first polls would be merely exploratory, and not binding.

Strong objections came from several directions. The issue of self-defense, a number of people asserted, was to be considered only at the end: first we all had to agree that the defendant was guilty of one of the charges.

The proposition surprised me; I could not understand how anyone got such an idea. I pressed, but those who spoke for this interpretation were energetic and a bit stubborn. Pat took the lead here. Raspy, blonde, buxom, she had the hard edges of a barmaid in a Back Bay Boston Irish pub; she also knew how to make herself heard, and took the floor without hesitation (not always in turn). It was early; all opinions had to be carefully respected. Consensus formed in the tacit silence of the majority.

There was no sense arguing about it. I proposed that we send our first question into the court, asking for a copy of the judge's instructions so we could sort this issue out. Even though I thought that the group's idea of how to proceed made no sense (how could someone who believed that the defendant had acted in self-defense
first
agree that he had acted, say, recklessly? what could be reckless about justifiably defending oneself?), I had a number of my own questions about different parts of the charges and their phrasing, so I was keen to examine the text more closely.

Everyone agreed, and I worded our first communication to the court, writing it on the lined sheet with my fountain pen (a fetish always to hand), which contained a foppish, tobacco-colored ink. It occurred to me that this might annoy the judge. After I read the question to the group for their approval, we rang the buzzer, and I gave the sheet to the sergeant who appeared at the door. Then we waited, and people chatted in groups.

Paige approached me and explained that she was very
intuitive,
and that she hated bureaucracy; she encouraged me to adopt a more freewheeling, less technically exacting (and time-consuming) style, both in the way I worded our questions to the court and in the way I conducted our discussions. This managed to come across as both callow and slightly condescending at the same time.

I said that it was important to be precise in writing, and not easy, and that there were certain exigencies constraining a group conversation; I would do what I could.

We waited a long time. We did not then understand that any time we sent a question through, the entire court had to reassemble, which meant going and getting the lawyers, the clerks, the reporter—in short, everyone, including the defendant. Reassembling the court took about forty minutes, and made it very difficult to keep focus and momentum in the deliberations: it was hard enough for us all to agree on what our question ought to be, and how it ought to be expressed; then, once we had reached consensus, it would be more than an hour before we were back together in the room trying to figure out how to interpret the answer.

In this first case the interpretation of the answer was quite easy. The answer was no. No, we could not have a copy of the jury instructions.

The judge said this clearly, after he read our question out loud to the court. Then he looked at me. “I can again read through those instructions. I want you to answer me, simply yes or no, nothing more: Do you wish me to read them again?” I said yes. And so again we sat through the whole thing, and then were promptly packed back into the jury room.

This, of course, had answered exactly none of our questions. We went back immediately to the issue of what question we ought to be addressing first. I did the best I could to explain that we should begin by considering the issue of self-defense. Our preliminary discussions suggested to me that there were about eight people in the room who were inclined to give credence to the self-defense claim (myself included), and that the others were divided among the various possible charges. Confusing the interpretation of this poll, however, was the fact that about half of those who had said they thought Milcray was acting in self-defense were also willing to say that he was guilty of one of the charges. Different people were confused to different degrees.

My own position on the case as a whole was somewhat flexible. I distinctly remember thinking, at the moment we crossed the courtroom to begin deliberating, how strange it was to have heard so much and yet not to have formulated a firm opinion. Not only was I undecided, I had no strong sense of how others would see things, though I did harbor an unjustified prejudice concerning Dean, the big workingman cowboy type: I thought it likely he would take the lead in pushing for a guilty verdict, if not a lynching. (I think I figured anyone wearing, apparently without irony, a large, cast belt buckle reading “Rodeo” had to be a law-and-order type, and quite possibly a bigot, too). Despite a strong distaste for the prosecutor and the judge, I had not yet made up my mind. To be fair, these antipathies, at least in part, proceeded from an ingrained bias in favor of defendants. Somewhere in my head, I knew this.

As we first went around the room, however, and I heard not only Dean but also six or seven others say they thought it
might
have been self-defense, I found my own inclination in that direction becoming stronger. Clearly, I wasn't just raving. At that point I pretty much made up my mind that I would not vote the defendant's guilt. At the same time, I did not feel at all good about the prospect of letting Milcray go free. I decided that I would just quietly hold my position and hope at least one other person held the opposing position, resulting in a hung jury. The thing I felt most strongly was that the case defied judgment on the evidence we had available. Was this a cop-out? Maybe.

When my turn came (last) to state my position, I demurred, reminding everyone that I had said at the beginning that no one had to say anything at this point. I said I wanted to wait, to listen.

The only person who looked a little suspicious about this reticence was Adelle, the other academic. She had immediately become the strongest and clearest voice for Milcray's guilt, under the most severe charge, and seemed a bit shocked that so many of the others were hesitating. Very smart and articulate, she was clearly 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 external indications of being temperamentally inclined to a pro-defendant position, her advocacy of a guilty verdict weighed heavily.

The time had come to make a decision about what question we were going to consider first. Were we going to try to agree on a charge, or were we going to begin by dealing with the issue of self-defense? Logic demanded one answer: we had to begin with the question of self-defense. Until (and unless) everyone agreed that Milcray had
not
acted in self-defense, there would be no way to reach consensus on a given charge. I explained this, but the logic, for some reason, failed to move several people. I would say that this was simply because they were confused. But Adelle also rejected the argument, though she had to have understood that it made perfect sense.

Her stance, however, was strategically sound. She saw, I suspect, that if we first turned to the controlling issue of self-defense, she would be in a substantial minority and her position would be put on the defensive. Of necessity, the talk would turn to how she, and those who thought Milcray guilty, might be folded into the majority. If, on the other hand, she could get us going hashing out the charges themselves, this would surely shake things up: talk would be about the stabbing and the details of Milcray's stories, and there would be a much greater chance of pulling more jurors into close consideration of the defendant's guilt. Adelle thus aligned herself with those who were basically, to my mind, muddled. It was interesting to watch such curious alliances emerge.

I can't say whether she thought all this through consciously. Perhaps. But I sensed nothing Machiavellian in the move. Adelle was operating in good faith; she wanted us to make the right decision.

I proposed that we decide what question to consider first with a show of hands. Could we agree to be ruled by the opinion of the majority on this matter? Adelle objected. She said she felt this matter was too fundamental to leave to a simple majority; we needed to be unanimous on it, as on the verdict itself.

And there we were, stuck. Should we vote on whether the question should be resolved by majority vote? Would we let a majority decide that question? I felt as if I were peeking into the origins of deliberative democracy—so
this
is where constitutions come from. . . .

Pat broke the deadlock. When she cut in (again a little loud, absolute), it became clear that we had even bigger confusions to deal with. She thought, she explained, that the self-defense justification was relevant only if we found Milcray guilty of manslaughter, the lesser charge. According to her, if we found Milcray guilty of murder, then the self-defense business fell out of consideration altogether.

In one sense it was a legitimate misunderstanding, reflecting the broader confusion about which question needed to be considered first: the truth was that, if we found Milcray properly
guilty
of any of the charges, the self-defense business was no longer relevant. The whole point of the self-defense justification was that it meant we did
not
find Milcray guilty of any of the charges. But people were mixed up about exactly this.