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A Review Of D. Graham Burnett's A Trial By Jury


Tuesday, Nov. 20, 2001

D. Graham Burnett, A Trial By Jury (Knopf 2001)

Books by jurors are rare. Burdened as we are with celebrity trials, we have mainly been spared the thoughts of celebrity trial jurors. It is remarkable that there are not twelve books on the deliberations over O.J.'s innocence, and twenty-four on the Menendez' brothers' guilt.

The paucity of accounts by jurors of jury service is especially noteworthy because the jury, a central feature of our system of ordered liberty, is virtually immune from meaningful study. Jury dynamics was once a promising field of academic study, until judges stamped out the practice of observing juries in action. To protect the free exchange of views (and the privacy of jurors), such observation is now forbidden. That's probably for the best. Still, we'd all like to know a lot more about juries.

An occasional glimpse inside an actual jury is a poor substitute for broad, sustained study. It's a little like asking a randomly selected group of twelve people how they voted, and trying to analyze the election process thereby. But that's all we've got, which accounts for the relatively high level of interest in D. Graham Burnett's recent book, A Trial by Jury.

Burnett, a Princeton historian of science, got called for jury duty during a sabbatical, and ended up as foreman in a rather sordid murder trial. He is thus far from your "average" juror. He is also not, thank goodness, your average academic: he can write. So, typical or not, we now have his highly readable account of the trial and deliberations in The People of New York v. Monte Virginia Milcray.

Reciting the facts of the case seems more obligatory than relevant, because Burnett's book is more about the jury than the case it decided. Milcray stabbed Randolph Cuffee to death inside Cuffee's apartment. Was Cuffee, who was dressed as a woman, a prostitute Milcray had picked up, or did the two men have a longstanding relationship? Milcray claimed that he had started out as a willing customer for what he believed was a female prostitute, and ended up the target of a homosexual rape. But there were witnesses who claimed that Milcray was a regular in Cuffee's world of Ninth Avenue cross-dressers and drag prostitutes.

Throughout the narrative of the trial and deliberations, Burnett draws illuminating sketches of the jurors. One man who Burnett suspects will be an intolerant redneck, for example, turns out be a highly sympathetic urban missionary. Readers will know, of course, that they can't judge a book by its cover. And trial lawyers will know that they're unlikely to see much more than the cover when picking a jury. Burnett's account underlines this basic message.

Disputes Inside the Jury Room: Legal, Factual and Strategic

Burnett is probably a reliable reporter of the trial, but what really matters, from the book's perspective, is what happened inside the jury room.

Burnett tells us that some of his colleagues fundamentally misunderstood the judge's legal instructions. Others focused on facts that were plainly trivial. One juror in particular had only a tenuous connection to reality. And the situation was only worsened by the fact that Milcray's jury was not permitted to take notes or to have the jury instructions in written form; both restrictions probably diminished the quality of deliberations.

There were also more strategic disputes. Burnett believed that logically the jury should consider Milcray's defense first. He reasoned that Milcray had claimed that he had a right to use force, to fend off a rape attempt; that it was the government's burden to disprove Milcray's right to use force beyond a reasonable doubt; and thus if the government had not carried that burden, then the jury's work was done. Other jurors, however, disagreed. The jury queried the court about the legal standards, and after their question was answered, Burnett's approach was rejected.

Whatever the logical appeal of Burnett's position, what is striking is that some jurors recognized the importance of the order in which issues were addressed, and others did not. Like politicians who master the legislative process, jurors who think strategically can prevail even when they are initially in the minority. Bids like Burnett's to set the agenda can thus determine the verdicts that juries reach.

An Overburdened Jury's New Understanding of Government Power

Long delays in the trial are never explained. When Burnett stands during breaks to stretch a bad leg, the judge dresses him down in open court, and Burnett is powerless to respond. During deliberations, the panel is sequestered in a hotel, and permitted only a single nightly call home.

Burnett is not facile: he knows the difference between a cell and a hotel room. But the jurors nonetheless experience the power of the state, for the court exercises considerable control over their lives. Burnett draws a connection between the power of the court over the jurors' lives and the power of the criminal justice system over the defendant's life. The jurors gain an intuitive insight into how the government's high burden of proof functions as a counterweight to its power.

Some of this could conceivably have been alleviated by a more solicitous judge. Making jurors comfortable and treating them fairly is no small matter. A criminal trial is one of the few times citizens actually do the business of running the government. If the court makes no effort to make the mechanics of the system intelligible, or to treat jurors with respect, then jurors may conclude that the state's power is exercised arbitrarily, without restraint or concern for individuals. That would be troubling, not least because it may spur jurors to treat the state — and therefore the prosecution — like an adversary.

Burnett's View That a Hung Jury Is Acceptable

The second theme of A Trial By Jury involves Burnett's willingness to have the jury hang. He is an academic, and uncomfortable with the painfully real task of reaching a verdict. If the jury hangs, then the trial becomes, literally and figuratively, an academic exercise — an experience with which Burnett feels far more comfortable.

It is to Burnett's credit that he acknowledges his own discomfort, though he seems a little less abashed by it than he should. A murder trial is an ordeal for all involved, including the victim's family and the defendant. To pass the baton to another jury because reaching a verdict is hard and distressing for the jurors personally is not particularly responsible or even merciful. Jury service is a responsibility, and part of the responsibility is to deliberate conscientiously to try to reach a verdict — not to try to avoid reaching one.

In the end, the jury acquitted. The state had not, the jurors thought, disproved Milcray's defense that he had used reasonable force to fight off a rape. The jurors did believe, however, that Milcray had done something wrong, even if he had not committed murder, and they chafed at the inflexibility of the legal rules governing the case. Such frustration is inevitable: the protean quality of real life does not fit neatly into the laws' categories. By giving us a fully rounded account of one jury's encounter with those frustrations, Burnett has done both the bar and the citizenry a real service.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own. Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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