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….
He reminded the others of Dean Kossler’s “transcendent idea” that absolute justice belongs only to God, and that man’s justice must be imperfect. Thus, he said, the burden must be heavy, “and those of us with doubts must continue to vote not guilty.”
No longer tentative in his role as foreman, Burnett then distributed a stack of index cards before anyone else could speak. Eleven cards came back, and the jurors stared at Adelle Benneth, who gazed out the window before hurriedly scribbling a verdict. Burnett placed it on the bottom of the stack, because, he says, “I wanted the full dismay of the room to land on her if she had voted for a conviction.” But her card read “not guilty.”
Justice has apparently prevailed. (Burnett later learned that Cuffee had previously been accused of luring a man to his apartment by posing as a woman.) But you have to wonder whether the jury had to go through such an ordeal to get there. Why, for example, did the jurors have to be sequestered in the first place?
The answer is that in much of the country they wouldn’t have been; New York State law has long required that felony juries be sequestered, and only recently has this requirement been relaxed for less serious cases. Court officers have staunchly defended the rule because it guarantees overtime. And why did the judge refuse to permit the jury to take notes or to receive a copy of his instructions? Again, those rules are followed in some courtrooms and not in others, as a result both of law and of the judge’s discretion. According to Stephen Adler, the author of The Jury: Trial and Error in the American Courtroom,3 one study found that 37 percent of judges banned the taking of notes, and another sizable fraction never told jurors that they could take notes, or provided pencil and paper. And yet, Adler also observes, an experiment in New York found that in thirty-one cases in which note-taking was permitted, twenty-six judges concluded that the process had helped the jury, while none found it harmful. Reforms by New York State’s chief judge, Judith Kaye, have made jury service less burdensome and more democratic; but there’s obviously a long way to go. Burnett’s argument about the unlimited power of the state makes a convincing case that those reforms are in the interest of the court system, and not just the jurors.
You have the feeling, reading A Trial by Jury, that the jury reached the right verdict despite itself—despite the rules and despite the obstinacy and woolly-mindedness of its members. And yet this jury was far better educated and far more articulate than the group portrayed in the movie Twelve Angry Men, which dates from 1957. Henry Fonda, the lone holdout for acquittal at the outset, could never have delivered the kind of speech that either Burnett or Adelle Benneth did. The one rationalist in the group, the juror played by E.G. Marshall, is seen as a heartless calculator who never unbuttons his jacket or even sweats. It’s sympathy for the victim, and a visceral dislike for mob rule, that moves the Fonda character, and then, gradually, the others. The movie puts its faith in decency, not intelligence. Its unspoken premise is that decency is easily trampled; but once aroused, it acquires the power of conviction. Perhaps this was just Hollywood’s overblown fanfare for the common man; yet we also know, from extensive studies, that when even strongly pro–death penalty juries are exposed to a well-argued case for mercy, they will generally vote for the lesser punishment. It may be that Burnett puts too much stock in IQ. The jurors in The People v. Milcray may have succeeded not so much despite their individual failings as because something in the nature of the process lifted them above their own limitations.
A Cold Case also concerns a Manhattan murder; but the author, the New Yorker writer Philip Gourevitch, plays the conventional part of omniscient outsider rather than bewildered participant. Gourevitch has written an oddly old-fashioned kind of book, a police “procedural” about the kind of cop who himself reads police procedurals and a remorseless Irish killer who grew up on Jimmy Cagney and who actually says “You got me” when he’s finally caught. Gourevitch describes the murderer, Frankie Koehler, as “a refugee of sorts from the white, hoodlum milieu of another time and from a city that no longer exists.” The movies that A Cold Case evokes are starker and less ambiguous than the one we think of when we read A Trial by Jury.
The first half of A Cold Case belongs to Andy Rosenzweig, the detective who in the autumn of his career became obsessed with reopening a forgotten murder case. Back in 1970, Koehler, a career criminal, had murdered two men after a barroom brawl, and then disappeared. Twenty-seven years later, Rosenzweig happened to drive by the spot where a restaurant owned by one of the victims, Richie Glennon, had stood; Rosenzweig had been a friend of Glennon’s, and he realized that his cold-blooded murder case had disappeared without ever being solved. He looked up the files and learned that Koehler was listed as dead, though no one claimed to have seen his corpse. This piqued his professional curiosity. After a few false leads, Rosenzweig learned that Koehler was in fact living quietly in northern California with his longtime wife and a more recent mistress.
Gourevitch describes his hero in a few swift lines. “Rosenzweig,” he writes,
is an implacable man in the understated manner of Humphrey Bogart, to whom he bears some resemblance: he has the trim pro-portions, though he is more muscular; he has the versatile, long, toothy face, at once bemused and brooding, with a smile that bares a hint of a snarl and a sense of preoccupation with his own private calculus; and his nasal, slightly sibilant speech recalls Bogart’s nervous rhythms.
The book includes a splendid Gilles Peress photograph of Rosenzweig seen through the window of an all-night diner, looking as world-weary as Bogart. He’s a man who has clung to the basic virtues even when they bring him ridicule rather than honor. As a young cop, Gourevitch writes, Rosenzweig had a “penchant for arresting the same bookmakers and dope dealers from whom his colleagues collected protection money.”
But this is a problem; for Rosenzweig is too much the paragon to hold our attention for long. He is Bogart-as-knight-errant. Another problem is that tracking down Frankie Koehler does not, in the end, require all of his considerable gifts. Two investigators whom Rosenzweig dispatches to California, working with an FBI agent, pick up Koehler’s scent, track him to Reno, and learn that he has boarded a train for New York. Rosenzweig stakes out Penn Station, but it is one of his investigators who makes the collar. “It should have been me catching the guy, if it was a true-crime novel,” Rosenzweig laments; and we can’t disagree. The story is suitable for a good New Yorker piece, which is how A Cold Case started its life; but it now forms part of a short book of some 29,000 words with a suspiciously large number of numbered blank pages.
The second half of the book consists of another fleshed-out New Yorker article—a profile of Koehler’s lawyer, a colorful reprobate named Murray Richman—as well as an account of Frankie Koehler’s life as seen through his own eyes. Koehler’s fate was vir-tually predestined. He was born in 1929 in Hell’s Kitchen, which at the time would have been described as “a breeding-ground for crime.” (One of the jurors in Twelve Angry Men uses exactly that expression about the defendant’s unnamed neighborhood.) Koehler’s father was a burglar who was in jail when Frankie was a kid, and he took as models the gangsters who controlled the docks; he dropped out of school in sixth grade, and by the time he was sixteen he had murdered another teenager over a pearl, which turned out to be paste. “I’m sorry now for a buck-sixty,” he said in his statement to the police.
Once out of jail, he ran small-time gambling and other rackets at the New York Coliseum, made a lot of money, and spent it. He lived by crisp, if sociopathic, rules. “Where I come from,” he says in the taped confessional statement he gives to Rosenzweig, “when you don’t like someone, really don’t like ‘em, and they’re fucking scumbags, you shoot them.” Gourevitch finds Koehler’s account of his murder of Glennon and Pete McGinn mysterious, though it all seems pretty straightforward to Koehler himself. He didn’t like them.
What is, in fact, truly archaic about Koehler is his unambiguous sense of what is done and not done. He could have killed Glennon’s girlfriend, who found him standing over the two corpses and thus could have put him away for life; but, he said, “I’m not going to whack somebody I’m not fucking mad at.” (He may also have run out of bullets.) And he recoils at the suggestion that he might have worked as a contract killer: “That’s a scumbag does that.” He won’t kill the undeserving (except when he does).
And yet the more he sits in his cell and thinks, the stranger the seventy-year-old Koehler, his hair iron-gray and his face battered and pouchy, finds his own life. He writes long, brooding letters to Murray Richman, including a poem about his love for Cagney: “He would sit for hours in the RKO/Watching Jimmy in all his glow/ Being the gangster he longed for so.” He expresses remorse, and is at the same time disgusted by his remorse. Rosenzweig got him to confess by telling him about the four kids Pete McGinn had left behind. “He went to the priest,” Koehler says sardonically—meaning he appealed to Koehler’s conscience. “The hoodlum would’ve said, ‘I don’t give a fuck about the family, or anybody else.’” Koehler has moments of self-pity, but in the end, as Gourevitch observes, he despises sentimentality too much to believe that God or anyone else will forgive him his crimes. “What can you say if you do something real bad?” he asks the author. “Sorry? No, that don’t cut it. I don’t know what does.”
What one carries away from A Cold Case is not the crime, or the pursuit of the crime, but the portrait of the criminal as an elderly man, his hatred spent, his delusions purged, the movie camera in his head no longer whirring. “I spent a lifetime hating a world I never made, and people who had nothing to do with making it,” he writes to Gourevitch. “Then I got a world that I could make and turned it into shit. That’s a sin and a big one.”
We, the Jury: The Jury System and the Ideal of Democracy (Basic Books, 1994).↩
Times Books, 1994.↩