A Verdict on the System

November 21, 2001 | This article appeared in the December 10, 2001 edition of The Nation.

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When police officers kicked down the door of Randolph Cuffee's studio apartment on August 2, 1998, they found him lying naked on the floor. Under him were two unrolled condoms and two leather whips. The walls were sprayed with blood, and Cuffee had more than twenty stab wounds in the back of his head and along his spine. It was the one, small wound in his chest that had killed him, however.

About the Author

Carl T. Bogus

Carl T. Bogus, professor of law at Roger Williams University, is the author of Why Lawsuits Are Good for America:...

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Carl T. Bogus

Jefferson's Patsy? (History, Non-fiction)

No one has contributed more to the United States than James Madison. He
was the principal architect of the Constitution, the brilliant theorist
who, more than any other single individual, was responsible for
designing the American system of government. Moreover, along with
Washington and Franklin, Madison was one of the men who made the Constitutional
Convention in Philadelphia work. Whenever passionate disagreements
threatened the enterprise, it was Madison's calm logic to which the
others listened. As one delegate put it, it was Madison who had "the
most correct knowledge" about government affairs.

And no one did more than Madison to get the Constitution ratified in the
face of strong anti-Federalist opposition. The most hyperbolic
superlatives cannot do justice to the twenty-nine newspaper essays
Madison wrote that, together with essays by Alexander Hamilton and John
Jay (all written under the pseudonym Publius), comprise the
Federalist Papers. Suffice it to say that 200 years later a
distinguished political scientist wrote, "The Federalist is the
most important work in political science that has ever been written, or
is likely to be written, in the United States," and that Madison's
contributions shine the brightest.

And that is not all. At the convention in Richmond when anti-Federalists
George Mason and Patrick Henry used every argument and stratagem to
persuade Virginia to refuse to ratify the new Constitution--which, had
they been successful, would have caused the Union to be stillborn--it
was Madison's cool, clear reasoning that once again saved the day.

Madison's place in the pantheon of great Americans, therefore, is secure
regardless of how we evaluate his performance as the nation's fourth
President (1809-17). His reputation can withstand the central inquiry of
Garry Wills's short and provocative new book, namely: Why was James
Madison so great a constitutionalist but so dreadful a President?

Perhaps I overstate by calling Madison's presidency "dreadful." Wills
does not go that far. He presents an evaluation of Madison's successes
and failures, finding both. Nor do historians generally consider Madison
a dreadful President. When C-SPAN asked historians to rank the forty-two
American Presidents, Madison came in at number 18, putting him slightly
above average and, by way of modern comparisons, ahead of George H.W.
Bush (20) and Bill Clinton (21).

Wills's strongest pejorative is his description of Madison as a "hapless
commander in chief." Nevertheless, Wills's examination makes me wonder
whether, out of deference to Madison's other accomplishments, historians
are being unduly charitable to his presidency.

The defining issue of Madison's tenure was the War of 1812. Some
historians argue that he cannot be blamed for a war thrust upon him by a
"War Hawk Congress." Others, however, including most prominently Ralph
Ketcham of Syracuse University, argue that Madison wanted the war and
maneuvered Congress into declaring it. Wills sides with Ketcham and
builds a persuasive case that Madison deliberately propelled America
into a war for which it was ill prepared.

War was raging between England and France when Madison came to office.
Napoleon's armies were conducting their bloody marches across the
Continent while England was using her sea power to try to keep him
confined there. During his term, Jefferson had been confronted with the
problem of what to do about the combatants seizing ships that were
carrying American exports to their adversaries or, in England's case
especially, boarding American ships to seize sailors, many of whom were
deserters from the British Navy. At Madison's urging (Madison was
Jefferson's Secretary of State), Jefferson imposed an embargo on
American ships crossing the Atlantic. While some supported an embargo to
keep American ships out of harm's way, Madison believed an embargo would
exert enough commercial pressure on England to force it to agree to
leave American shipping alone.

But in fact the embargo meant little to England or France. It meant much
more to America, particularly New England, whose economy depended
heavily on trade with England. In the first year of the embargo
America's exports fell by almost 80 percent. New England preferred
having some of its ships and cargo seized by combatants to suspending
all trade. Under great pressure, Congress ended the embargo and replaced
it with the Nonintercourse Act, which permitted American ships to cross
the Atlantic as long as they did not trade with England or France. The
virtue of this approach was that it was unenforceable; once American
ships disappeared over the horizon, there was no telling where they
went.

The embargo ended on the last day of Jefferson's presidency, and the
indignity of combatants seizing American ships and sailors resumed in
full force as Madison took office. Then Madison heard good news: A
British diplomat reported that his government was ready to grant America
neutral trading rights. Thrilled, Madison immediately issued a
proclamation repealing America's prohibition against trade with
whichever nation, England or France, first granted neutral trading
rights to the United States. Believing troubles with England at sea to
be at an end, 600 ships sailed from American ports confident that all
would be well when they arrived at their trading destinations across the
Atlantic.

But England quickly announced there had been a mistake. Its
representative had failed to communicate that England would grant
neutral status only upon several conditions, one of which was that
England would continue to stop and board American ships and seize former
British sailors. Madison was fit to tied. By reneging on its word, said
Madison, England had committed an "outrage on all decency" more horrible
than the capture of black slaves from the shores of Africa.

Madison should have realized something was wrong with the original
repre-sentation, Wills argues. The US government's own survey revealed
that roughly 9,000 American crewmen were British deserters, and England
could not possibly afford so many of her sailors safe haven on American
ships.

Madison tried to wipe the egg off his face by announcing a new
policy--America would unilaterally resume trade with England and France
and continue to trade with both until either nation recognized America's
neutral trading rights, at which time America would automatically
reimpose an embargo upon the other. In view of the failure of the first
embargo, there was no reason to believe a potential new embargo would
force England or France to change its policy. But, says Wills, Madison
remained stubbornly committed to the failed policy of embargo.
Unfortunately, Wills believes, Napoleon shrewdly exploited it as a means
to maneuver America into war against England.

Napoleon announced he would repeal his ban on neutral trade on November
1, 1812, provided that the United States reimposed its embargo against
England by then. Acting once again without bothering to get
clarification, Madison reimposed the embargo upon England. But just as
he had previously acted without learning England's details and
conditions, this time Madison acted on Napoleon's offer only to discover
that Napoleon refused to rescind an order confiscating American ships at
port in recently captured Holland and other harbors of the empire.

Getting bamboozled by Napoleon appears, paradoxically, to have made
Madison even more furious at England. For its part, England found
Madison's willingness to side with France deplorable. "England felt that
it was defending the free world against the international tyranny of
Bonapartism," Wills writes. "Anyone who was not with them in that
struggle was against them." And so, increasingly, America and England
perceived each other as enemies.

Madison's anger with England was one factor that moved him toward war,
but there was another as well: He wanted to seize Canada. Jefferson
urged Madison to pluck this ripe plum while England was militarily
engaged with Napoleon. "The acquisition of Canada this year will be a
mere matter of marching," advised Jefferson.

It may be worth pausing to observe that many of Madison's worst
disasters involve following Jefferson. With the exception of the War of
1812, the most lamentable mistake of Madison's career was his plotting
with Jefferson to have states nullify federal laws, specifically the
Alien and Sedition Acts of 1798. The acts violated fundamental
principles of free speech and press, and Jefferson and Madison cannot be
blamed for opposing them. But the medicine they prescribed--the claim
that the states could enact legislation nullifying federal law--was
potentially far worse than the disease.

At the Constitutional Convention in 1787, Madison had argued that
Congress should be given the authority to nullify state law, and was
discouraged when he lost this battle. He later betrayed his own
convictions by arguing that the state legislatures could nullify laws
enacted by Congress, though for tactical reasons he called this
"interposition" rather than "nullification." Moreover, Madison allowed
himself to be Jefferson's cat's-paw in this matter. Jefferson, then Vice
President, wanted to keep his own involvement secret, and Madison
fronted for both of them. Madison was haunted by this throughout his
career: Southern states invoked Madison's support of nullification
during disputes over slavery, and Madison's political opponents
delighted in forcing him to try to explain the difference between
"interposition" and "nullification."

Why did Madison so readily follow Jefferson over cliffs? Madison was
nervous, bookish, provisional and physically unimposing (5'4" and 100
pounds). He was so insecure with the opposite sex that he did not
attempt courtship until he was 31. The object of his desire was 15, and
Madison was so crushed by her rejection that he did not venture into
romance again until he was 43, when he successfully won Dolley's hand.
It would be only natural for Madison to fall under the thrall of the
tall, dashing, passionate, cosmopolitan and supremely self-confident
Thomas Jefferson.

Any sensible strategy to seize Canada from one of the world's
superpowers would necessarily hinge upon a quick and powerful attack to
overwhelm British forces before they could be reinforced or before the
British Navy could be brought to bear in the conflict. Madison and his
military commanders planned a rapid, two-pronged strike: One American
force, commanded by William Hull, was to invade Canada from the west,
crossing over the border from Detroit. Meanwhile, Henry Dearborn was to
lead American forces from the east, crossing the Saint Lawrence River
from various points in New York.

Rather than take the time to raise and train a professional army,
Madison decided to invade Canada with militia forces. But this strategy
was the military equivalent of throwing pebbles at a hornet's nest--and
Madison should have known it.

Before the Revolutionary War, there had been much soapbox rhetoric about
the glories of the militia: Citizen soldiers were supposed to be more
virtuous and therefore more capable than professional soldiers. The
Revolutionary War proved this to be bunk. After the skirmishes at
Lexington and Concord, the militia performed terribly. So often did the
militia bolt in the face of even much smaller opposing forces that it
became Continental Army doctrine to position militia units in front of
and between regular army units, who were ordered to shoot the first
militiamen to run. Washington won the war only after raising and
training a professional army.

Notwithstanding the militia's dismal performance, some
politicians--particularly Southern slaveholders like Madison who relied
on the militia for slave control--continued to cling to the notion that
the virtuous citizen militia was superior to a professional army. One
Southerner who would have found these views laughable if they were not
so dangerous was George Washington. "America has almost been amused out
of her Liberties" by pro-militia rhetoric, he said: "I solemnly declare
I never was witness to a single instance, that can countenance an
opinion of Militia or raw Troops being fit for the real business of
fighting."

Madison, however, had not been listening. In the Federalist
Papers, he and Hamilton expressed differing views about the militia.
Hamilton argued that an effective fighting force required professional
training and discipline, and he urged Congress to support only a select
militia. Madison, however, continued to envision a universal militia
consisting of all able-bodied white men.

This debate resonates even today in the gun-control debate. Because the
Second Amendment connects the right to bear arms to the militia,
gun-rights advocates suggest that the Founders considered the universal
militia to be sacrosanct. The militia was then composed of the whole
body of the people, and thus the Constitution permanently grants the
whole body of the people the right to keep and bear arms--or so the
argument runs. This makes little sense as a matter of constitutional
law, however, because, as both Hamilton and Madison recognized, the
Constitution expressly empowered Congress to organize the militia as it
saw fit.

Despite the Revolutionary War experience, Madison launched his attack on
Canada almost entirely with militia forces. The results were
predictable. In the east, most militiamen refused to cross the Saint
Lawrence, claiming that it was unlawful to take the militia outside the
United States. Dearborn did manage to coax a small contingent across the
river. But when shooting accidentally broke out among his own forces,
they all fled in confusion back across the Saint Lawrence.

Meanwhile, in the west, Hull's forces were paralyzed by militia refusing
to take orders from regular Army officers. There was an invasion, but
American forces were not the invaders. By the end of 1812, when America
was to be in possession of most of Canada, a few American units that had
failed to retreat successfully back into New York were being held
prisoner in eastern Canada, and English forces had taken Detroit and the
Michigan Territories.

Things continued downhill. Two years later, a British force of 1,200
marched nearly unchallenged into the District of Columbia while 8,000
American troops, mostly militia, "ran away too fast for our hard-fagged
people to make prisoners," as one British commander put it. The British,
of course, burned the White House and Capitol to the ground.

Wills gives Madison high marks for grace and courage during the British
invasion of Washington, and, all in all, the war did not turn out too
badly. The British had not wanted it and settled for the status quo ante
bellum. And rather than feeling disgraced, America took patriotic pride
in a series of Navy successes, remembered through battle slogans and
anthems ("Don't give up the ship," James Lawrence; "We have met the
enemy and they are ours," Oliver Hazard Perry; "the rockets' red glare,"
Francis Scott Key). America came out of war feeling good about itself.
For this, historians give Madison much credit.

Some credit is undoubtedly deserved. More than once, Madison acted with
courage and grace in the midst of panic. America was properly proud of
its naval feats, though it is not clear that a President who took a
nation with seven warships into battle against an adversary with 436
deserves laurels.

Is it unfair to call Madison a dreadful President? If Wills is correct
about Madison stumbling his way toward war through a series of
diplomatic blunders and then deciding to take on a world power with
militia forces, perhaps not.

And what is it that allowed Madison to be so great a constitutionalist
and so poor a President? Wills argues that it was provincialism and
naïveté: What Madison had learned from the great minds by
reading books allowed him to understand political theory better,
perhaps, than anyone else. But without greater worldly experience, even
Madison could not operate the levers of power that he himself designed.
Yet as Wills aptly concludes, "Madison did more than most, and did some
things better than any. That is quite enough."

Carl T. Bogus

Related Topics

Adelle D. Graham Burnett Detective Employment Change Monte Milcray Person Career Randolph Cuffee Trial Vincent's Hospital cellular telephone historian judge

Randolph Cuffee, better known as Antigua, had been a regular in the gay bars of the West Village. Manhattan police began their investigation by asking area hospitals whether they had treated anyone with lacerations on his hands or arms during the preceding night. When one frantically and repeatedly stabs another human being, and the knife becomes wet and slippery, one is apt to cut oneself. The police quickly discovered that a young man named Monte Milcray had been admitted to St. Vincent's Hospital. The small finger on Milcray's right hand--the very finger that would slip from handle to blade--had nearly been severed. Police had brought him to the hospital during the night after Milcray, wandering through the neighborhood without a shirt and with overalls and shoes covered with blood, asked someone with a cell phone to get him help by calling 911.

Milcray told the police who brought him to St. Vincent's that he had been attacked by five males and that he had lost his shirt in an ensuing struggle, so detectives visited Milcray in the hospital under the ruse of trying to locate his attackers. Milcray's shoes and overalls were collected, which, lab tests later showed, had both Cuffee's and Milcray's blood on them; when Milcray came out of surgery they asked him to the station house to look at mug shots.

Milcray was put in a small room with a book of photos. He spent some time disinterestedly perusing the book, during which time he was observed through a one-way mirror. After a while, two detectives interrogated him more directly. Exhausted and in pain--two steel screws had been surgically screwed into the bone of his right hand to reconnect the finger--Milcray soon abandoned the story about being attacked and agreed to make a statement. He told his story twice, first to one of the two detectives who interrogated him (he agreed to talk only to the junior, male detective and refused to make a statement while the senior, female detective was present), and then again to a police videotape crew.

According to the videotaped version, Milcray was taking a stroll during a work dinner break when a longhaired woman stopped him by exclaiming, "You're sexy!" The woman said her name was Veronique. They flirted. She gave him her phone number and address, and invited him to visit her after work. Milcray finished work just before midnight and made his way to her apartment. Veronique was wearing a short robe, and an erotic movie played on the television. Milcray sat next to Veronique on a futon. They chatted. At Veronique's suggestion, Milcray got undressed. But when Veronique pulled down her panties, Milcray saw she had a penis.

While Veronique started to put on a condom, Milcray--by his testimony--tried to scramble to his feet and put his overalls back on. Veronique pushed Milcray to the floor and started to pull down his overalls and lower herself on top of him. "Once it gets in, it's not gonna hurt," Veronique said. Milcray pulled his knife from the pocket of his overalls and opened it with a one-handed flick. The first stab in the chest did not dissuade Veronique, so Milcray reached around and stabbed her in the back until she was weak enough so that he could extricate himself.

Eventually, Milcray modified this version of the story too. Confronted with telephone records showing that Cuffee and Milcray had both called a telephone chat room at the same time during the night in question, Milcray claimed that this is how he met Veronique. Milcray said he made up the story about meeting her during a walk because he did not want his fiancée to know he had called a date line.

Milcray was charged with second-degree murder and manslaughter. D. Graham Burnett--a young historian of science whose first book, Masters of All They Surveyed, was about how the history of cartography influenced the creation of Guyana--served on the jury that heard the case. A Trial by Jury is his memoir of that seventeen-day experience.

Burnett writes with the elegant simplicity of a serious student of poetry. (We learn along the way that he is particularly fond of Wallace Stevens.) Every word has been chosen with care. The book is a pleasure to read. And it is interesting--in more ways than Burnett may have intended. He does not begin this adventure with favorable impressions of the other participants. Through his eyes we observe a judge who is rude to everyone, a prosecutor who bumbles a cross-examination and a defense counsel who miscalculates during closing arguments by trying to appeal to homophobia. "I don't know how many of you have children," he said during his closing argument to the jury, "but if you do, I ask you: Would you trust Hector, or Nahteesha, or Stevie"--three flamboyantly gay witnesses who testified that they had seen Cuffee and Milcray together before the night of the murder, which if true meant that Milcray was concealing a pre-existing relationship with Cuffee--"with your children? If not, I ask you not to trust them with my client." This backfired; the jury recognized the crude appeal to prejudice for what it was and resented it.

It is when Burnett found himself locked inside the jury room with eleven of his fellow citizens that things really looked bleak. "There are some jurors here who are such idiots, so thoroughly oblivious to good judgment, or so thick (regardless of their intentions), that it seems improper to aid them in depriving a man of his liberty," he wrote in his notebook one evening.

The judge appointed Burnett foreman after the juror originally assigned to that position mysteriously went AWOL. It may have been a random assignment--Burnett happened to be the second juror selected for the case--but it had consequences, if not for the ultimate result then at least for how the jury happened to get to it. Burnett appears to be a control freak. When, for example, he learned the jury would be sequestered, he packed a duffel bag full of bread, nuts, fruit and hearty vegetables. He was not going to be at the mercy of restaurants.

As foreman, Burnett began by offering a simple proposition: The jury should consider the question of self-defense first. The jurors had been instructed to return a verdict of not guilty if they found that Milcray reasonably believed that he was in imminent danger of being raped or forcibly sodomized. The question of self-defense, therefore, could resolve the entire case. It made no sense to wrestle with questions of whether Milcray intended to kill Cuffee and therefore might be guilty of second-degree murder, or whether he acted instead with depraved indifference, or with recklessness, which is the hallmark of manslaughter, if Milcray had acted in self-defense.

Burnett's approach was eminently logical, and he was exasperated when the other jurors rejected it. They included a vacuum-cleaner repairman, an interior decorator, an actress who also tends bar, a part-time security guard, a mattress-store manager, a software developer, two advertising copywriters and several jurors with no discernible occupation. Burnett was taken aback when a juror named Adelle also rejected his approach. She was, by strange coincidence, not only another academic but a historian. Burnett never doubted her intelligence and decided that her rejection was a clever ploy: Adelle wanted to return a guilty verdict but believed most of the jurors were leaning toward self-defense. If jurors considered self-defense first, the deliberations might have concluded too quickly, before she could persuade them to find Milcray guilty. Thus, she preferred to begin with discussions that would emphasize the brutality of the killing--or so Burnett theorized.

Burnett never seems to consider that the jurors rejected his approach because they were afraid he was rushing them to judgment. This was a serious matter, and they had a grave responsibility. One human being had stabbed another to death. Only two individuals would ever truly know what happened in that room; one was dead, and the other was the defendant. They had heard the defendant's versions of the events--one recorded in the police interrogation room on videotape and a second delivered live from the witness stand (with the revised story of meeting Cuffee in a telephone chat room). While self-defense was not implausible, there was the matter of more than twenty stab wounds in Cuffee's back.

What then followed was four grueling days of jury deliberations. It was not always pretty. One of the jurors appears to have been a borderline psychotic who had difficulty differentiating between reality and television soap operas and periodically launched into irrelevant, anti-Semitic rants. Many of the jurors were not practiced at the kind of linear thought that Graham Burnett is used to. Tempers flared, and at times the process became so unpleasant that some jurors wanted to end it at almost any cost. Nevertheless, the group persevered. The deliberations were conducted with great diligence, and by the end, they were exceedingly thorough. Burnett initially reacts to some of the jurors' efforts with disdain. He admits to rolling his eyes when they tried reenacting the struggle on the jury room floor to see whether Milcray could have gotten the knife from his pocket while Cuffee was lying on top of him, as Milcray had described. But when, by scrutinizing video and still photographs of the crime scene, jurors made important discoveries overlooked by both the police and the defense, Burnett is surprised and impressed; he left the process with a jumble of conflicting thoughts and emotions but, I think it is fair to say, with a more positive impression of the system and its participants.

The author's initial air of superiority was not necessarily due to hubris: He came to the process--as, of course, does everyone--with preconceptions that colored his observations. These preconceptions are not random. For years, the court system has taken a beating in popular perception. It was, of course, bruised by the O.J. Simpson trial, in which, to many people's minds anyway, a jury was manipulated into acquitting a man of a double murder despite substantial evidence of guilt.

Less obvious but far more pernicious has been a concerted propaganda campaign to disparage the judicial system. The objective of this campaign--conducted by big business through entities established specifically for this purpose, including the American Tort Reform Association, which hundreds of the nation's largest manufacturers, trade associations and insurance companies formed in 1986--has been to enact legislation making it more difficult for citizens to file lawsuits, especially product-liability lawsuits, against corporations. At least forty-five states have enacted some form of regressive but misleadingly labeled "tort reform." George W. Bush made it a principal plank of his 1994 Texas gubernatorial campaign, and his first act as governor was to ram a tort reform package through the legislature. The strategy has been to weaken confidence in the court system by telling a series of horror stories (the McDonald's hot-coffee case is the most notorious) that create an image of a Mad Hatter world of wacky judges, unscrupulous lawyers and fluff-headed jurors. While the specific target has been the civil justice system rather than the criminal courts, campaigns of this type hardly make fine distinctions.

Time and again, the reader can see Burnett's unconscious preconceptions at work. He expected to find loathsome or incompetent characters, and that is how he perceived them. The judge--a "sourbone, a humbug autocrat"--earns low marks during jury selection when a potential juror--a "soccer-mom type"--tells him that she does not think she can be fair "in the circumstances." When asked what circumstances she is referring to, she simply gestures around the room. "The judge dismissed her with undisguised irritation," writes Burnett. (Early on, Burnett fastened on the strange idea that he would maneuver the jury into deadlock. This would be something of a personal protest against a trial that, he believed, was not worthy of what was at stake. Yet, while the judge may not have been Benjamin Cardozo and neither of the lawyers Daniel Webster, the trial seems to have been essentially fair.)

Near the end of the deliberations, the jury decided the law did not allow them to do justice. The jurors found a judge's laminated sheet of sentencing guidelines and learned something they were not supposed to: If convicted, Milcray could go to prison for life. They were not supposed to know this because under New York law the jury's only job is to determine whether the defendant is guilty of the charged offenses; it is the judge who decides the sentence. The jurors believed the state did not prove beyond a reasonable doubt that Monte Milcray had not acted in self-defense, but they were uncomfortable about letting him off scot-free. At the very least, after Milcray was safe, he left another human being to die rather than call for medical assistance.

In many ways, this real-life story is reminiscent of Twelve Angry Men. In both, a jury had to decide whether a killing was justified. The defendant was the only living witness, and evidence both supported and cast doubt upon his version of events. The police investigation and the trial itself were commonplace, competent but not brilliant. The jury appreciated the gravity of its responsibility and considered the case with great thoroughness. It understood the burden-of-proof standard but, even taking it properly into account, the decision remained difficult. There was no "eureka" moment, no solution to the ambiguities. The jury finally decided the case as best it could, and its members left the courthouse with mixed feelings.

While no trial can accurately represent the system in all respects, Burnett's story is consistent with much of what we know about juries generally. Research has confirmed, time and again, that jurors take their duties seriously, listen carefully and deliberate earnestly. Studies show high rates of agreement between judges and juries on the decision about guilt or liability--indeed, an agreement rate of about 80 percent in both criminal and civil trials.

No one can say whether the jury made the correct decision in this case; but one would be hard pressed to say that anyone could have made a better decision. This real-life story of citizens struggling to do their duty is, as a result, both illuminating and, ultimately, uplifting.

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