A Verdict on the System

A Verdict on the System

Book review: A Trial by Jury, by D. Graham Burnett


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.

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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