Jury service is one of the most common of all the burdens of citizenship (unless you consider voting a burden); and yet we have very few accounts of how juries actually work. In 1955, the University of Chicago Jury Project began to record jury deliberations surreptitiously (with the consent of judges); word of this unorthodox research method leaked out, and in the subsequent furor Congress and many states banned the recording of jury discussions. Later studies, including The American Jury (1966), a book based on the Chicago project by Harry Kalven Jr. and Hans Zeisel, have relied on reconstructions of what happened in the jury room or on mock trials.1
Scholars have sharply disagreed over whether juries have the collective intellectual capacity to unravel the complex problems presented in many civil cases; whether jurors can be expected to leave their prejudices behind them; whether they can make judgments that are genuinely independent and not reflective of their race or class. Kalven and Zeisel emphasize the social values that guide the jury’s thinking. “The real decision,” they write, “is often made before the deliberations begin.” On the other hand, Jeffrey Abramson, a professor of politics at Brandeis, argues in We, the Jury2 that jurors take their job far more seriously than most lawyers and experts imagine, and should be entrusted with more responsibility than they now are.
A Trial by Jury is, by contrast with these earlier books, a report from the trenches; the author, D. Graham Burnett, is a historian of science who was minding his own business as a fellow at the New York Public Library’s Center for Writers and Scholars when, in 1999, he received a summons from the Manhattan Criminal Court to report for jury duty. He was chosen to serve on a murder trial, and embraced the opportunity with an academic curiosity, which is to say that he was as interested in drawing broad inferences as he was in observing details. He noticed, for example, that he and his fellow jurors were far more attracted to wildly elaborate hypothetical possibilities than to straightforward explanations, since “the sense of drama goads one to raise the dramatic ante; to conceive of fantastic resolutions worthy of the setting, the cast, the deeds.” Philosophers may prefer Ockham’s razor, he concludes, but jurors wield “Ockham’s knitting needles.”
In the first and certainly less interesting half of the book, Burnett recounts what happened during the trial itself. There was never any doubt that the defendant, a young black man named Monte Milcray, had killed the victim, a male prostitute named Randolph Cuffee. The only question was whether he had acted in self-defense. Milcray’s story was that Cuffee, a much larger man, had lured him to his apartment by dressing as a woman, and had then cast off his disguise and tried to rape him; Milcray had defended himself with a knife and stabbed Cuffee to death. The prosecution’s story was that Milcray, though engaged to be married, had gone to the apartment planning to have homosexual sex, and then for some reason—perhaps because he was tormented by his “sexual double life”—had murdered Cuffee in cold blood. The state lacked a persuasive motive as well as unimpeachable witnesses, but Milcray had often changed his story, and the “twenty-odd stab wounds” on the front and back of Cuffee’s torso as well as in his neck and head seemed more consistent with vengeful fury than with self-defense.
And then deliberations began. Burnett, quite by accident, was named jury foreman. He suggested that the jury first address the question of self-defense, since the judge had already instructed them that Milcray could not be found guilty if he was trying to ward off a rape. But no; other jurors illogically insisted that they had to decide if he was guilty of the charges before they could consider the question of self-defense. Burnett has the academic’s impatience with irration-ality; he already observed in one of his fellow jurors a “deeply limited ana-lytical ability mixed with a Sherlockian desire to find the magic tidbit of evidence.” But here he was foreman, not a preceptor. He agreed that the jury would submit a request for a copy of the judge’s instructions. They discovered that the entire courtroom had to reassemble each time they made a request, a process that took about forty minutes. And then the judge answered their question: No, they could not see the instructions in written form. The judge, whom Burnett does not name, gave no explanation for this or any of his other rulings. He recited the instructions in their entirety once again, and the jurors trudged back to their jury room. Another misunderstanding led to another session with the judge, and soon it was time for the jury to be bundled off and sequestered in a hotel for the night.
It’s not just the defendant who is on trial in A Trial by Jury, but the jury system and the jurors themselves. Burnett’s fellow jurors included an interior decorator, two advertising copywriters, a software developer, “a kindly older Jamaican lady,” a security guard, and, weirdly, another historian of science. One character was given to oracular mumbles and another flipped out when she went off her medication. They were, in short, a familiar collection of Manhattanites. Burnett’s thumbnail sketches sometimes tell us more about the author than about his subjects. He sees one macho figure with a big belt buckle as the incarnation of Susan Faludi’s vision of the trapped white working-class male, and dubs him “Faludiman.” Burnett himself, who was in his mid- to late twenties at the time of the story, might not cut a very sympathetic figure in some of the other jurors’ memoirs. He sits and reads Wallace Stevens while the other jurors chat. He writes notes to the judge with his special fountain pen, which he has filled with “a foppish, tobacco-colored ink.” In the hotel restaurant, he “nibbled at the edges of things, and laid into an avocado-and-red-pepper sandwich once alone in my room.”
By day two, the atmosphere among the jurors became slightly bizarre. One juror lay down on her back, opened her legs, and invited the others to climb on and reenact the killing. Tempers started to fray. The jury remained sharply divided over Milcray’s guilt, and the idea of a “compromise” be-gan to circulate, as if the goal was consensus rather than justice. The frustrated feelings of the jury—the impatience, the rising irritation, the dread of spending another night in the hotel—began to warp its deliberations. And so another day fizzled out with very little progress. That night, Burnett wrote in his journal that while he could conceive of finding Milcray guilty, “there are some jurors here who are such idiots, so thoroughly oblivious to good judgment…, that it seems improper to aid them in depriving a man of liberty.” This does not quite comport with Jeffrey Abramson’s ideals.
And yet even as individual jurors were riding their own hobbyhorses, the jury as a whole was being drawn deeper and deeper into their own intuitions about justice and truth. Almost from the outset, Burnett and Adelle Benneth, his fellow historian (the author appears to be using pseudonyms), squared off as the leaders of the pro-acquittal and pro-conviction factions, respectively. On the morning of day three, Benneth told her fellows,
We’ve been told that we have to uphold the law. But I don’t understand what allegiance I should have to the law itself. Doesn’t the whole authority of the law rest on its claim to be our system of justice? So if the law isn’t just, how can it have any force?
This is the doctrine of “jury nullification,” a principle with a noble pedigree in American history. Indeed, Jeffrey Abramson’s central theme is that juries should be permitted under certain circumstances to express their conscience and values, as they did routinely until the late nineteenth century, when their role as a strictly fact-finding body subject to judicial instruction was fixed by a Supreme Court decision, Sparf and Hansen v. The United States. Only by “restoring the space for jury nullification,” Abramson argues, can we “preserve the jury as a forum where ordinary persons gain the power to reconcile law and justice in concrete cases.”
From this point on, A Trial by Jury resembles a Tom Stoppard play—a drama both human and metaphysical. Burnett came up with a formulation of his own to block the emerging pro-compromise, pro-nullification movement, observing that
the stiffness of the law is the product of a very serious idea: the law should be exactly the same for everyone, regardless of who they are—that our “rule of law” can never bend, because if it did it could be used to reach and get a particular person….
Another juror, Leah Tennant, noted sardonically that the law Benneth seemed to want to nullify was not the Fugitive Slave Act but the one requiring prosecutors to prove their case beyond a reasonable doubt. But the jurors were torn: they didn’t thirst for vengeance, but they felt suspended in the gap Benneth described between law and justice. Now Dean Kossler, whom Burnett had long ceased calling Faludiman, put forward his own view. “I believe Monte Milcray did something very, very wrong in that room,” he said. “But I also believe that nobody has asked me to play God. I’ve been asked to apply the law. Justice belongs to God; men only have the law. Justice is perfect but the law can only be careful.” Another juror, a holdout for conviction, whispered, “He’s convinced me.” Sometimes life does imitate the movies.
Meanwhile, the responsibility of being foreman was causing a transformation in our unworldly hero. On the bus to the hotel he had experienced “a moment of solidarity” with his fellow jurors, and the rough-hewn Kossler told him a story about “riding out an engine-room fire on an aircraft carrier in the Persian Gulf.” He talked about Wallace Stevens with one of his guards. Soon, we feel, he’ll be tucking into a meatball hero at the hotel restaurant. On the fourth and final day of deliberations, he delivered a peroration worthy of Walter Mitty himself. Why, he asked his fellow jurors once again, is the burden of proof so heavy? The answer, he said, “is to protect citizens from the power of the state, from the tremendous power of the state.” He recalled the petty humiliations to which all of them had been subjected by the judge and the guards, and the frightening realization that they were helpless in the face of state power. “Knowing what we know now,” he continued, in the spirit of John Rawls,
imagine that we had a chance to set up our own state, to make a government, the twelve of us. What kind of protection would we try to offer to the citizens? I think…we would put the heaviest possible burden on the state before we would let it take away a person’s liberty….