A Trial by Jury (3 page)

Next we ran through a cycle of biographical questions, which each of us was expected to answer rapidly, in turn: occupation; length of time lived in Manhattan; previous jury experience; friends, family, or close acquaintances in law enforcement or the legal profession; had we ever been the victim of a crime?

When the occupation question came to me, I said I was a “professor of intellectual history.”

The judge looked up. “Where do you teach?” he asked.

Hesitating, I said I was not currently teaching, but had been, until this year, at Columbia.

He made a mark on the sheet in front of him. I felt nervous, afraid of my voice in the room. What we were doing seemed impossibly grave.

I glanced at Milcray, whose half-smiling face and lively eyes followed every exchange closely.

Very few of the people on the panel had no previous experience of crime. In bare phrases people shared fragments of large stories: family friend killed; got mugged twice, apartment robbed; held at gunpoint, robbed; car stolen, house robbed.

I said, “Two cars stolen, house robbed.”

In my wallet I still carried the insurance card from a brick-red '67 Chrysler Newport that had disappeared from a parking place on Osage Avenue in front of my house in West Philadelphia on a Thanksgiving morning many years earlier. I came out into the holiday air with a canister of auto-body cement and an orbital sander to do some work on a ding in the passenger-side door, and stood there stupidly, looking at the spot where I had left the car. Had my convertible dream turned into a blue pickup? For some inexplicable reason, I got down on my knees and looked under the truck.

The judge explained the standard of proof. The state must prove its case beyond a reasonable doubt. Did we hear that? This did not mean mathematical certainty, but simply beyond the doubt of a reasonable person. “Is there anyone here,” the judge continued, “who would hold the state to an
unreasonable
standard?”

In my heightened state I felt a strange, somewhat manic delight. Most of my academic life had been spent studying the history of what people found reasonable—from alchemical conjurations to statistical facts. The history of science is, in a way, the history of what proofs have counted as “reasonable” in different communities at different moments. To agree on what is true—about nature, about God—has again and again proved a tall order, and the standard of “the reasonable man” was, I knew, yet another invention (like the laboratory, the footnote, the College of Cardinals) to make the difficult task of truth-seeking a little easier in certain contexts—courts of law in particular. It was a much-contested question, this business of who-all was “reasonable,” and what, precisely, such a person looked like. There was a history here.

But there I was. No time to pontificate, to remonstrate, to have a seminar. My ponderous classroom musings on Pascal or the Enlightenment were not welcome. I had to act as if I knew what “reasonable” meant, or raise my hand. For a moment the very thing seemed to be made real and hover before me. The ideal of the mind. Reason. Now we would all be reasonable. No more epistemological fretting or historicist relativism—the greatest abstraction in human affairs had just taken shape and entered the room. I kept my hand in my lap. If all the others thought they were going to be reasonable, then, hell, I thought, I can be just as reasonable as anybody else.

No one moved. Reason had been installed, deftly, quickly, in a second of silence. We moved on.

The judge introduced the next question with a short explanation of how responsibilities would be divided in the trying of the case: “It is the function of the jury to apply the
law
to the
evidence
in the case. You will be the judge of the facts, but I am the judge of the law. It is not the function of a jury to rule on the law itself. You are to apply the law whether you agree with it or not, whether you think it is a good law or a bad one. Do any of you have a problem with this?”

There was a pause.

I raised my hand.

“Mr. . . . Burnett,” he said, reading from his chart. “What is your problem with this?”

And I replied, my throat tight, that if I thought the defendant would face the death penalty I might be inclined to acquit, even if I thought him guilty.

My anxiety about speaking had only increased: the judge had just humiliated one of the panelists, a young well-to-do woman with long brown hair and a tendency to mumble. On an earlier question he gave her two chances to speak up and then scolded her harshly for wasting the court's time. Sitting there with a little Prada handbag in her lap, she looked completely shocked. Her expression suggested no one had ever been rude to her before. But the judge did not relent—he laid into her again, as she stuttered.

My throat tightened, too, from the certainty that my statement would disqualify me from service. This made me sad: once I had glimpsed the way the trial would force the prettiest abstractions into actual and fateful practice, I was completely absorbed—aware that this was a rare opportunity to participate in something important, weighty, real, something very different from my academic life. At the same time, I had resolved to be entirely straight with every question, and I could not promise in advance that I would apply a law that took human life.

The judge expressed no interest. The death penalty was not relevant in this case, he announced dismissively, and opened the floor to the lawyers.

The lead prosecutor—heavy, bald, with a distinctive spot of livid skin under his left eye—approached first, greeted us, and began to ask questions, some general, posed to the group, some addressed specifically to one panelist or another, in response to information we had given about our jobs, or previous experiences of crime or jury duty. He wanted to make sure we would give his witnesses a fair hearing, regardless of what they were wearing or how they talked. Did any of us think that homosexual people had a particular tendency to lie? No one moved. He directed the question specifically to the older man now sitting to my right, the only one of us in a suit, a gold Rolex on his left wrist, his hands neatly folded in his lap. He shook his head and said no, adding, slightly defensively, that he was an openly gay man, who lived an openly gay life and had for years. He wore a cabochon garnet pinky ring. He would be, initially, our foreman, until he vanished in the last days of the trial.

Harder to interpret than these questions was the next: “Do any of you think it is possible for a man to have sex with another man and not be gay?”

Several of us must have looked puzzled, because he tried to clarify: “Do any of you think it is possible for a man to have sex with another man and not think of himself as a gay man?”

This made sense. The answer seemed obvious to me: sure. No one responded. I raised my hand.

“You think that
is
possible?” he repeated, and I said I did. What made me say that? he wondered. I replied that there was plenty of evidence that different cultures at different points in history thought different ways about same-sex unions. For instance, in South America there were traditions in which it was considered exceedingly masculine to have sex with some men in some ways. (The phrase had always stuck in my head:
“Soy tan macho que me cojo otros hombres.”
)

“OK . . .” the prosecutor said slowly. “OK,” he repeated, looking around the panel.

Did anyone else have knowledge of this sort of research, or agree that this was possible? Two or three hands went up. Who knows what he was getting at with this line of questioning. I never understood what relevance it had to the case.

Less pale than his adversary, the defense attorney had a slightly nasal (if not actually whiny) voice, and a tendency to lean back in his chair, legal pad on his knee, and gaze over our heads, out the window high up behind the jury box. He rose, came still closer, rested his elbows on the bar in front of the jury box. In an intimate way, sighing as if commiserating with our plight, he said slowly, “Good morning.”

There was little reply.

From his questions the contours of the case itself began to emerge for the first time. Did any of us think that it was impossible for a man to rape another man? Silence. Did any of us think that a man who legitimately thought he was going to be raped should not, could not, use any means at his command to protect himself? He looked at us closely. No one raised a hand.

“Now,” he said suddenly, breaking his eye contact and moving away from the rail, “there were a lot of stab wounds”—sounding the last two words as if he were shrugging with his voice—“twenty-five, twenty-six stab wounds . . . and a lot of these were in the back. Are there any of you who think, right now, that it's just
impossible,
that if you were defending yourself, and you were in a dark room, and there is this man, on top of you, trying to sodomize you—are there any of you who just say, ‘No way! There's
no way
you could stab somebody
twenty-five times
in self-defense'?” He looked back at us, and let the question sink in.

This was the first we heard of the wounds.

After several seconds, a large woman in the second row, heavily made up, raised her hand. “You, you think that's just
impossible?
” he continued. “I mean, you're excited, you're scared. . . .”

She furrowed her prominent brow and thought about it, and as she did so it was clear that she was slow. But she stuck to her guns. You couldn't put this one over on her—something was fishy about that number.

Fair enough, I thought. But I could swallow the idea. I had seen fights where people were trying to do each other serious harm. I had even been in one or two such fights. It was hard to put a limit on what might happen under those circumstances.

They sent us into the hall to wait. A few people chatted. I kept to myself. When we were called back into the room, it all happened very fast. The judge read five names, including mine and that of the man next to me, the white-haired gentleman with the garnet and the Rolex, Richard Chorst. I looked at him and shrugged, assuming we had been dismissed. But then the other thirteen panelists were asked to rise and follow the bailiff. And suddenly the five of us were standing, and the clerk of count was reading us the oath, and we were sworn jurors.

I cannot remember the oath, but the clerk I see clearly: knobby, long, and mournful, his eyes furtive under bushy white brows, a desultory necktie hanging loosely at the collar of his worn-thin dress shirt—Thomas Mackelwee, associate clerk of count. He would sit at his desk in the corner of the courtroom as the trial wore on, dozing sometimes, quietly reading the
Post,
which he laid unobtrusively flat over his papers, getting up to swear in witnesses in his deferential mumble. Once, he was called on by the judge to give the dimensions of the courtroom in yards, to help a witness specify a key distance estimate in his testimony. Thomas Mackelwee was deep asleep. Uncharacteristically, the judge did not lose his temper. He paused, looked up, and called for a recess. Some people chuckled, but he did not.

Thomas and the judge were two old, old men; one sensed they had worked together for a long time.

One afternoon Thomas approached me in the hall and said, his eyes skittish, that he was interested in history.

I liked him a good deal.

 

I
t would be another four days before we heard a word of evidence: it would take four more panels to round out a full complement of jurors and alternates. The judge does nothing to make this delay any easier on those of us picked first. Friday, Monday, Tuesday, Wednesday, we show up, and wait. And wait, still in the hall, as a trickle is added to our number after each long round of selection. For a while there is, among us, a woman reading a book of Camus short stories. Then she stops showing up.

One afternoon (we are seven now who have been sworn in) I walk to the Canal Street subway stop with a fellow juror, picked the second day, Jessica Pollero, who wears elegant knit dresses with bold geometric patterns and carries a large pigskin bag. Is she in her early thirties? A streak of gray in her dark, full hair may be deceptive; but so, too (in the other direction), her flawless complexion. She writes advertising copy for a city agency, but wants to go freelance. We talk about France (she found the people rude), and the location of a restaurant in the Village (is it too close to the scene of the killing for her to go? The judge keeps warning us to stay away from the area, but she has plans). She is very nice, but less exotic, somehow, than I had imagined. Later, she would grow interested in a television show that involved marrying a millionaire. She sought the opinion of other jurors on this show: Could we believe it?

I do not own a television, and this was to surprise her.

Each day ends the same way: tomorrow we ought to get going. One of us, the quiet guy named Jim Lanes, freaks out on Tuesday and starts yelling at the bailiff after roll call, saying he isn't waiting around anymore, and isn't coming back. At first the officer tries to soothe him, and then, when that has no effect, gets serious, telling him that he is subject to arrest if he leaves.

Lanes is a nice man in his mid-forties, handsome, and dressed in a tastefully quirky way—a chocolate-brown houndstooth shirt and an elegant maroon bow tie with white fletches. We chat going down in the infuriatingly slow elevator. His advertising business is a partnership with his wife, a designer. For all his dashing appearance he is quiet, polite, almost retiring in conversation. In this light his anger earlier seems bizarre, sudden, exaggerated.

Paige Barri wears clogs, and red socks that sparkle; she talks on the phone in the hall a great deal, and seems to be friendly already with Leah Tennent, who is taller, the same twenty-something age, carries a backpack, has a kaffiyeh scarf whorled rakishly at her neck. They go out for coffee, and are always the last to come skidding down the hall when we are asked to assemble in the court. I overhear Paige trying to explain to the bailiff that she has some kind of class on Thursday afternoons.