A Trial by Jury (7 page)

The defense attorney would later claim that, after the body was removed, Pessel (or perhaps someone else) could have, intentionally or by accident, kicked the wig around, soiling it, and thereby undermining the defendant's story (by making it seem unlikely that the filthy wig could ever have served as an effective disguise). Surprisingly, crime-scene investigators did not initially take the wig into custody as evidence, so it lay around the heavily trafficked scene for more than twenty-four hours.

Casting various suspicions on Pessel was not difficult: he had an odd, agitated manner under examination, and vehemently insisted that he had no knowledge of the seamier side of Cuffee's Village life—no knowledge of the escort service, of the drag shows, or of the sexual paraphernalia and imagery Cuffee kept to hand. (The defense attorney's repeated requests for this material to be entered into evidence—particularly a set of sadomasochistic photos reportedly found in the apartment—got him threatened with contempt, to which he replied by moving for a mistrial. Judge: “Motion denied.”)

Pessel also insisted that he himself was straight. Given that the apartment had a single smallish futon serving as both couch and bed, and that sexually explicit photographs of naked black men were visible in several of the crime-scene photographs, parts of Pessel's story stretched credulity. More damaging was Nahteesha's later comment, entirely offhand, that Pessel had been Antigua's lover, and that Antigua had helped him struggle with his crack-cocaine habit.

I found myself spinning a tale in my head, taking the long route through heavy cover: “Maybe Pessel did it. . . .”

 

W
ith the prosecution's own witnesses so adept at undermining each other's testimony (just reconciling the timing of all these comings and goings proved very difficult), the defense rested after calling only a few individuals to the stand. For evidence, the defense attorney depended heavily on the outgoing phone record of Milcray's employer, which showed that several calls to a popular citywide chat service had been placed around 8 p.m. on the evening of the 1st. The timing of these calls corresponded almost exactly with that of a call made to the same service from Randolph Cuffee's apartment on the same day. The records did not indicate the duration of any of the calls, so there was no way to be certain that the two callers had overlapped using the chat line. But the telephone logs, indicating that the calls had been initialized within minutes of each other, certainly offered strong corroboration of Milcray's (final) story, that he had met Cuffee in a telephone “chat room.”

The prosecution countered that the phone chat service had a function enabling callers to establish semiprivate voice mailboxes, which could be used to leave messages for friends: Milcray and Cuffee must have been using this service to set their rendezvous and keep their relationship secret from Milcray's fiancée. By these lights (and the prosecution found the technical director of the telecom company and brought him up from Tucson to testify about the voice-mail option), the almost exact correlation in the timing of the calls was mere coincidence, since there was no reason for the message-leaver and the message-seeker to contact the service at the same moment. On balance, the evidence favored Milcray's account.

One other aspect of the telephone logs offered a very imperfect confirmation of a detail in Milcray's story. A record of incoming calls to Cuffee's phone on the night he died showed three attempts to contact him within the span of a minute at about 12:55 a.m.; all three calls originated from the same Manhattan number. Only the last one went through; there was no way to say if it was picked up by an answering machine or by a person. The actual location of the source phone could not be identified, leaving open the possibility that these log entries were a record of Milcray's alleged effort to contact “Veronique” from a pay phone several blocks north of her apartment (though Milcray never said anything about making three tries).

If those were not Milcray's calls, then he was lying again, since the records showed no other incoming calls to Cuffee's phone at any time in roughly the preceding hour.

However, given that the emergency call to 911 (reporting Milcray on Christopher Street seeking medical attention) came at about 1:10, the 12:55 calls to Cuffee's apartment could only have been Milcray's pay-phone inquiry if we assumed a hugely compressed time frame for all the events he described: we would need to believe that Milcray found his way to the apartment, chatted, undressed, fought, killed, and escaped, all in less than fifteen minutes.

Later, this would cause much gnashing of teeth in the jury room, and would lead, in fact, to a rather goofy effort to dramatize the whole of Milcray's narration in order to time it. The project had the feel of an acting exercise run at double speed, and even then it was tight.

Although the phone record could thus hardly stand as unqualified proof of a detail in Milcray's story (weren't the three calls in rapid succession more likely those placed by an impatient Matthew Pessel, waiting at the bar, trying to get Cuffee to pick up?), the defense attorney cleverly turned the very ambiguities of the evidence into an indictment of the prosecution. After all, the actual site of the phone from which the 12:55 calls came was never determined. Why could they not be traced? Because, as it happened, the originating number had been out of service for more than a year, and hence had dropped from the phone company's records. But why had there been no effort at the time of the original investigation to determine the provenance of the calls? This, the defense could legitimately claim, represented sloppy detective work at best, or perhaps an unwillingness to look for what might turn out to be exculpatory evidence.

Conspiracy paranoia? Not necessarily, particularly in the context of the highly selective evidentiary work done by police at the scene of the crime. On a series of cross-examinations, the defense repeatedly asked those who had searched the apartment if they had found any women's clothing. Again and again the answer was no. But a close look at the crime-scene photos suggested otherwise: a gauzy bit of white cloth over the back of a chair, a bright red garment bunched between the victim's legs, what looked very much like a pair of high heels under the coffee table, something else on the futon. None of these items had been collected, and none of the witnesses who investigated the crime scene could say what they were. Given that Milcray's story demanded that there be, at the very least, a large pair of panties in the room, it was surprising that closer attention had not been paid to these various articles. In addition, it was the assistant medical examiner, not the police, who turned up the whips (which were never taken into custody); similarly, a number of other items of sexual paraphernalia appeared to have been entirely passed over in the initial searches. The victim's caller-ID system, which might have contained crucial phone evidence, sat unchecked until a flood of later worry-calls (including those by Pessel) had displaced records from the night Cuffee died. It was clear that the crime-scene investigators liked stuff with blood on it; they got less excited about everything else.

The same went for the prosecution. The lead attorney followed the general directive that the jury was to be shown as much blood as possible. The photos were good, depicting the spray on the wall, the pooling in the small of the victim's back, but the veritable items, bedaubed with the veritable fluids, were still better. The lead prosecutor kept his assistant (younger, droopy-lidded, sporting a bristly mustache and close-cropped buzz) busy snapping on latex gloves to open the bundles of evidence, each item with its rust-colored streaks and speckles. Every envelope, bag, or piece of Saran wrap bore a unique evidence label, not the same as that of the evidence it contained; this caused long waits while, for instance, a witness extracted a stiffened condom from three bits of packing material, and each of these, for some reason, along with the condom itself, had to be read into the record and demarcated with a multiple-digit alphanumeric code. Mix-ups were not infrequent.

The forensics expert, asked to link samples to the labeled locations on the floor plan of the apartment, twice pointed—erroneously, but with great confidence—to the same spot.

Much posturing took place around each of the relic-like items, as the sergeant-at-arms and the witnesses, too, were obliged to don gloves and handle each piece, creating additional delays and cultivating an environment of medico-forensic gravity. Not to be outmaneuvered, the defense attorney one day slyly requested the judge's permission to examine several items on the evidence dolly. Then, nonchalantly, in his pearl-gray suit, he wandered over and picked through the pile of gore with his bare hands, as if to say, “Enough already with the fuss.” One had to watch closely to see him subtly apply a rub-on antiseptic wash to his hands after returning to his place.

Some of the defense attorney's efforts to undermine the state's case were more overt, and less successful. Questioning the relevance of a sample of Cuffee's blood recovered from the lip of the letter slot in his door (and presumably dripped there by the defendant as he exited), the defense challenged the prosecution's expert forensics witness: “But you have no way of knowing how old that blood is, right? I mean, Cuffee might have cut his finger on that slot two weeks earlier, right?”

Hmm. Well, yes, but there was the small matter of the pint of blood on the adjacent wall. . . .

Just checking.

 

D
efendants 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 choices. For one thing, testifying generally means exposing any criminal record they might have, information that is otherwise rigorously withheld from the jury.

From the start of the trial, this careful court practice—separating the admissible “facts” of the case from inadmissible information about the “characters” involved—struck me as more than quixotic; it was downright perverse. Again and again I found myself sitting in court looking across at Milcray. Only he knew what had happened in apartment one, 103 Corlears Street. Without doubt, the actual truth existed in his mind and probably nowhere else in the spacious universe, with the possible exception of the mind of God. What we all wanted to know resided in an electrochemical array in Milcray's brain, in the gray matter where his memory flickered in live cells. The truth was therefore
in the room with us,
in our midst, in a physical form, almost tangible, but totally illegible—inside the well-shaped head of Monte Virginia Milcray.

Who was he? That was the inescapable question. Was he a person whose account I could believe? Had he already been arrested half a dozen times for shaking down gay men in the West Village? What could be more relevant to the case than that? Infuriatingly, we could learn this only if he chose to testify.

What about Cuffee? Who was he? We were being asked to believe that he resorted to physical violence in a ravenous sexual rage. Was he a person of whom such a thing could be thought? Information bearing directly on this question was essentially prohibited to us, by law.

Somehow, in the history of jurisprudence, these issues—who people were, what they had done in the past—had come to be thought of as different in kind from the “facts” of a case, different from blood on the wall and reams of phone-company records. How had this idea gotten going, when it was so counterintuitive? I was being asked to decide if a crime had occurred—in other words, if
someone
did
something
to
someone else.
How could the nature of either “someone” stand off-limits?

I looked at Milcray, 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 Monte Virginia Milcray to the stand.

And he went, long-legged, lankier than I had expected (I realized I had not yet seen him stand up). He walked with the smooth gait of an athlete, took the oath, and sat.

By taking the stand, Milcray voluntarily settled the question of his criminal record. There wasn't much: some unspecified “participation” in a nonviolent robbery at the age of thirteen or fourteen. Since that time 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 injury from his high-school days. After this Milcray appeared to have held several regular jobs, one retailing at a sporting-goods store in midtown, the other doing data entry for a medical-records company. He lived with his fiancée (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, Milcray 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), the defense turned him over to the prosecution for the cross.

One does not become a successful prosecutor without a strong sense of how to play such a moment. This prosecutor's tactics struck me as odd. He elected to use a badgering tone, and a sneeringly sarcastic mien. He dove in by accusing Milcray 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 old shoulder injury. Since the military assesses its recruiters (at least in part) on the basis of how many bodies they sign up, one could well 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 this, I would say, is what happened: when Milcray maintained his composure, the prosecutor had no place to go but up, escalating his belligerence in hopes of cracking the defendant's stance. By the end, the prosecutor had pulled out all the stops and found himself furiously dramatizing the state's version of Cuffee's final moments as he lay helpless on his face, with Milcray poised above him repeatedly driving the knife into his head, neck, and back.