A Trial by Jury

Contents

Title Page

Dedication

Epigraph

Note

PRELIMINARIES - 103 Corlears Street

PART I - The Open Court

1. How It Ended

2. How It Began

3. The Defendant

4. The Evidence

PART II - The Deliberations

5. Into the Closed Room

6. The First Day

7. The Second Day

8. The Third Day

9. The Final Day

EPILOGUE - 103 Corlears Street

Acknowledgments

A Note About the Author

Also by D. Graham Burnett

Copyright Page

For my parents, my sister,
and a certain lawyer

Tell me who makes the laws for that slipknot?
Who makes the laws for that slipknot?
Who says who is going to the calaboose,
And get the hangman's noose or the slipknot?

Woody Guthrie

Eventually an imaginary world is entirely without interest.

Wallace Stevens

Note

This book is not a work of fiction. Some dialogue has been reconstructed, and in the interests of privacy and propriety, some names, dates, locations, and personal characteristics have been altered.

PRELIMINARIES

______________________________

103 Corlears Street

R
andolph Cuffee took the first wound in the chest. And though the chief medical examiner asserted that the incision—vertical, about an inch in length, just to the right of the midline of the sternum—would have required only a “moderate” degree of force, the pathology report drew attention to a noticeable bruise at the top of the cut.

A look at the murder weapon made this easier to understand. The knife (a legal, black-handled folding model with a vicious profile) featured a small metal tab about the size of a shirt button, which stuck out from the side of the blade, opposite the cutting edge, near the handle. Holding the closed knife at the ready placed this stud under the thumb, where it could be used to push the blade into an open and locked position. It was therefore possible to open the knife with one hand.

Possible, not easy. This was not a switchblade; no springs launched the blade. In fact, the maneuver required a certain manual dexterity and strength, since the four fingers had to pin the closed knife against the heel of the hand and draw the handle down into the palm at the same time that the thumb, in opposition, swung the blade (by means of the stud) into readiness; the action could be speeded by a deft snap of the wrist.

These minutiae proved significant. Could Monte Milcray—half naked, lying on his back, his legs “scooped” into the air and flailing (one clamped under each of Cuffee's arms as Cuffee lowered himself into the missionary position over him)—have reached down to the slim tool pocket on the outside right leg of his overalls, liberated the knife clipped there, and then, in the narrow space between their bodies and the futon, executed this one-handed feint and gotten the knife to open?

Put aside the other questions: How could he then have maneuvered the knife (in his right hand) into the space between his torso and that of his alleged attacker, who was at that moment supposedly bearing down on him with all his weight? How, from this awkward position, did Milcray manage such a clean strike? He left not a scratch anywhere else on Cuffee's chest, and yet buried the blade so deeply that the little thumb stud significantly bruised the surrounding tissue. How, in the process, did Milcray manage to make a deep gash on his own
left
shin? And this, curiously, without making any tear in the left leg of his pants?

Put all those questions aside. Ask simply, could he have opened the knife with one hand in that tight corner of the small room with a large man attempting to sodomize him?

The prosecutor ridiculed the idea, taking up the knife (people's exhibit 7) and waving it around the court while badgering the defendant for particulars. In the videotaped testimony, taken shortly after he confessed to the stabbing, Milcray had used the word “flick” to describe how he opened the knife. For emphasis and dramatic effect, the prosecutor now gave the closed knife a histrionic flick and showed that it remained closed.

From the stand, Milcray—his disarmingly high, effete voice and Southern accent giving him an almost solicitous air—began to gesture helpfully, while trying to explain: “No, not like that, you got to . . .”

“Like this?” asked the prosecutor, making another ineffectual flail.

“No, you got to . . . together . . . flick the wrist and use the stud. . . .”

“Well,” cooed the prosecutor, drubbing away at the closed knife with his thumb, and pumping his arm as if he were shaking off a Gila monster, “maybe I'm not so good at it as you. . . .”

Of this there could be little doubt.

 

G
o back eighteen months. On August 2, 1998, around four o'clock in the afternoon, two officers from Manhattan's Sixth Precinct took turns kicking at the door of apartment number one at 103 Corlears Street, a white brick building on the west side of the street between Christopher and West Tenth. When they forced the door (without splitting the jamb or unseating the latch), it opened in and to the right, stopping against a low coffee table and revealing a shallow studio that extended about fifteen feet to each side, but was perhaps only twelve feet deep. Holding back the young man who had brought them to the site, the officers entered the room.

Draped over the dark futon couch before them, and trailing onto the floor to their right, lay two blankets, one a cream-colored knit coverlet, the other a cheap quilted bedspread. Blood spatters stained both. Later, the officers would disagree on the lighting, but they concurred that the television was not on, and that the curtain of the single, street-facing, ground-level window to their right was opaque and 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 slightly under two hundred pounds. The body lay facedown, the head wedged between the arm of the futon and the radiator under the window, the legs splayed into the middle of the room. Rigor mortis had cemented a tableau of the victim's final gesture: the 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 testified that they did not approach the figure or check for vital signs. Twenty-odd stab wounds along the right side of the victim's spine, neck, and head persuaded them from across the room of what the assistant medical examiner would confirm several hours later: Randolph Cuffee, “Antigua,” a habitué of the Watutsi Lounge, and a familiar face in the other gay bars of the West Village, was dead.

Not, however, until later, when crime-scene investigators pulled the stiffened body into the middle of the room and rolled it over, did anyone see the wound that actually killed him—that thin and nearly bloodless slit at his sternum, which, reaching two and a half inches into the thoracic cavity, had just “nicked” (in the word of the chief medical examiner) the upper arch of the aorta. Within minutes of the blow, misplaced blood would have filled the sac around the heart, choking off its beat, a condition known as an “acute traumatic cardiac tamponade.” It is as if the heart drowns. Immobility follows, and death shortly thereafter.

Also revealed when the body was moved: two braided leather whips and two unrolled condoms, one inside the other.

PART I

__________________

The Open Court

1. How It Ended

I
have on my desk at this moment twelve five-by-seven ruled index cards. On each of them the same two words appear: “not guilty.” Eight are written in pen, four in pencil. On eight of them the words appear along a single line, on two the words are perpendicular to the ruling, and on two they are scrawled diagonally (one of these last has been written on an inverted card, turned so that the red top line and margin are at the bottom). Three are in all caps, three have only the initial letters capitalized, three are all lowercase, two others show the “N” capitalized but not the “g.” In the last of them the word “NOT” appears in all caps, but the word “guilty” is all lowercase.

By dint of these varied inscriptions, made in silence in a few tense moments, Monte Virginia Milcray walked out of Part 24 of the New York State Supreme Court, got into the elevator, and descended to the cold wetness of Centre Street a little before noon on February 19, 2000. I preceded him by several minutes, getting into a cab with my duffel bag and riding the dozen blocks home to my wife, with whom I had not spoken in four days. The cards were folded in the breast pocket of my navy blazer. I was crying.

The twelve cards represent the potent residue of the most intense sixty-six hours of my life, a period during which I served as the foreman of a jury charged to decide whether Monte Milcray was guilty of murdering Randolph Cuffee. During that period, twelve individuals of considerable diversity engaged in a total of twenty-three hours of sustained conversation in a small, bare room. We ran the gamut of group dynamics: a clutch of strangers yelled, cursed, rolled on the floor, vomited, whispered, embraced, sobbed, and invoked both God and necromancy. There were moments when the scene could have passed for a graduate seminar in political theory, others that might have been a jujitsu class. A few came straight out of bedlam. Before it was over, we had spent three nights and four days continuously attended by armed guards (who extended their affable surveillance into all lavatories); we had been shuttled to outlying hotels, into rooms with disconnected phones and sinks in which we washed our clothes; we had watched one juror pulled from our midst and rushed to the hospital (a physical collapse, caused by some combination of missing medication and the crucible of the deliberations), another make a somewhat half-hearted effort to escape (he was apprehended), and a third insist on her right to contact her own lawyer to extricate her from the whole affair (she was threatened with contempt).

During significant stretches in this trying time, we considered two weeks of testimony in
The People of New York
v.
Monte Virginia Milcray
and struggled to understand two things: what happened in Cuffee's apartment on the night of August 1, 1998, and what responsibilities we had as citizens and jurors.

It is my intention to tell this story as best I can. I am doing so for several reasons, among them two in particular: first, because there are things to be learned from the way events unfolded (about people, about the law, about justice, about truth and how we know it), and, second, because the jury room is a most remarkable—and largely inaccessible—space in our society, a space where ideas, memories, virtues, and prejudices clash with the messy stuff of the big, bad world. We expect much of this room, and we think about it less often than we probably should.

Before I embark on this task, however, a few words of warning. There are really two stories here: that of the case itself—a trial story, a courtroom story, a drama focused on a violent death; and that of the deliberations—the story of what happened behind the closed door of the jury room. Each of these stories is complex, and they are of course entangled. I set out to write this book in order to tell the latter, but to do so I must rehearse elements of the former. Let me be clear, though: it is by no means my intention to retry the case in a personal memoir. The case is closed. In writing this book, I have made no additional investigations of the events at issue, I have not revisited the records of the trial, and I have not interviewed any of the people involved. All of that was tempting, and would certainly have been interesting, but my sense has been that to embark on such digging would have been, inevitably, to put the trial on trial, to lose myself again in the twisting labyrinth of unrecoverable fact that we negotiated in the jury room. I would have begun to extend that labyrinth, to open new rooms and passages. And this was not the aim. I am sure there is more to the maze than I have seen (when is there not?), but by keeping notes during the weeks of the trial, I laid a thread along the path we took together as jurors, and that is the thread I will follow here.

A further disclaimer: what I am writing is my own story of the deliberations. I have no idea what those who shared the experience with me would make of this document should they pick it up. Or let me speak more frankly: I am sure each of them would contest my story in different ways—argue, perhaps, that I did not represent them rightly; assert that this part over here was not that way; draw to my attention things I have forgotten. If one learns anything from a criminal trial under the adversary system, it is that sincere folk can differ vehemently about events, and that there is seldom any easy way to figure out what actually went on.

At different moments while writing this account—much of it longhand in a notebook during the weeks following the acquittal—I have closed my eyes and tried to imagine what the small, bare jury room looked like from the perspective of the others. We sat around the same table, but the room must have appeared slightly different to each. I try to see in my mind's eye how things looked from the other side—the door on one's right, the winter windows at one's back.

That is where Dean Kossler sat. What would he think of this narrative? Dean—the big, solid, former bull-riding cowboy turned vacuum-cleaner repairman. Dean—the six-foot-three-inch born-again God-fearing veteran of the U.S. armed forces. 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; he wore a weathered pair of work boots. A blowhard contractor of some sort, I assumed, and I pegged him, without much thought, as a poster boy for 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 notes. What did I know? Before the trial ended, he had blown my stereotype (indeed, any stereotype) wide open.

What would he say about all this? About what I have written?

Or Felipe Rodriguez? I originally wrote to myself that he seemed “sweet and shy.” He giggled often, wore a large number of braided string bracelets, seemed lost in his giant orange parka. I came to loathe him. By the end, he had thrown much into question for me: not least, my confidence in jury trials. Are there some citizens not clearly able to distinguish daytime television from daily life? Apparently there are. Should they participate in deciding on the freedom of another person? Maybe. I doubt he remembers things as I do.

And there were others, of course. Leah Tennent, the self-possessed and buoyantly bohemian young woman with whom I read Wallace Stevens poems in the back of the bus. Olivelle “Vel” Tover, the youthful, clear-eyed black woman with an elaborate braided coiffure who studied a manual of purgative and rejuvenating fasts in the waiting area; we discussed together the value of self-denial, of cleansing the body through the strictest diets. Rachel Patis, the solid, quiet, unflappable West Indian woman who volunteered at her local police precinct and wore blouses trimmed with lace; she moved slowly, sat very still, seemed like an older lady. Patricia Malley, “Pat,” the dyed-blonde tough-girl in the tight black jeans who spoke loudly and much, often well; she seemed instantly animated in Dean's company, adjusted her eyeliner, laughed easily and with gusto.

And so on: James Lanes (who went by Jim), Jessica Pollero, Suzy O'Mear, Paige Barri, and Adelle Benneth. This last was, like me, a professor of history. More improbable still, she focused, as I do, on the history of science, and had, like me, a particular interest in exploration and travel narratives (though she worked on the medieval period and I on the modern). A striking coincidence, all this.

Together, then, we were two professional historians (Adelle and I), two ad-copy writers (Jessica and Jim), a globe-trotting Gen-X software developer (Leah), an industrial-vacuum-cleaner repairman with a rodeo tattoo who moonlighted in car-stereo installation (Dean), an interior decorator (Paige), an “independent marketing executive” and part-time security guard (Rachel), an actress (Pat, but was she also a bartender?), the manager of certain commercial enterprises owned by the “Mattress King of Miami” (Vel), and a couple of others (Felipe, Suzy) of less clear occupation. Twelve citizens, twelve different characters.

The deliberations were theirs as much as mine. This story, however, is mine alone. Like a witness, I am fallible; I shall surely misremember things. And even if my memory were perfect, what retelling, in a string of words, is not a distressing distortion of the cluttered thickness of things as they happen?

Trials are about this.