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“A Trial by Jury” by D. Graham Burnett Knopf; 192 pages; $21 History professor D. Graham Burnett, who ended up on a New York City jury hearing a kinky and gory murder case, discloses the verdict in the first chapter of “A Trial by Jury,” so readers of his account of his jury duty are not kept in suspense about the ending of the trial. But “A Trial by Jury” contains suspense of other sorts: How will the prosecution try to make the case that a murder occurred and not an act of self-defense? How will the defense counter that accusation? How will the 12 jurors reach a verdict given their seemingly incompatible backgrounds, beliefs, intelligence levels, and understanding of the evidence? “A Trial by Jury” is a dual narrative — what happened in open court, and what happened behind closed doors during four days (including sequestration at night) of deliberations. Burnett is a keen observer at trial and proves especially insightful when explaining how jurors are kept in the dark about so many relevant factors, such as the backgrounds of the victim and the defendant.
How did it happen, I wondered, that a practice of truth-seeking had evolved to divide the job up in all these curious ways? The asking of questions was reserved to those who would play no role in judging the answers, while we, the jury, who were supposed to try to figure out what had gone on, had to remain absolutely silent. And though it was up to us to decide if the defendant was guilty, we would have no part in determining the consequences of that decision — the business of setting punishments was reserved to the judge; we wouldn’t even know what they might be.

Burnett, well-educated and logical, had trouble accepting the seemingly nonsensical strictures on jurors: “Our enforced silence was the most difficult thing. How could one even begin to investigate a problem without being able to engage with it directly? We were allowed no paper or writing implements. I fidgeted like a monkey.” Burnett’s observations on prosecution and defense strategies and styles are based not on legal expertise, but on common sense. For a lawyer reader, Burnett’s thinking provides some insight into how laymen view the trial experience. “The prosecution had a great deal of evidence,” Burnett comments, “but most of it for things that the defendant did not dispute. There was, for instance, no shortage of recovered DNA samples, presented by a cordially poised and slightly didactical woman from the forensics laboratory, and these linked the bloods of the victim and the defendant. But this, obviously, was consistent with [defendant] Milcray’s account.” Remarking on the inadmissibility of any prior criminal activity by the victim or the defendant, Burnett could not get his mind around the perversity of the system from a juror’s vantage point. Given that only the defendant knew the full truth, Burnett wanted to know “Who was he?” “That was the inescapable question,” Burnett writes. “Was he a person whose account I could believe? Had he already been arrested half-a-dozen times for shaking down gay men in the West Village? What could be more relevant to the case than that?” As for the victim, Burnett wanted to know lots more:

We were being asked to believe that he resorted to physical violence in a ravenous sexual rage. Was he a person of whom such a thing could be thought? Information bearing directly on this question was essentially prohibited to us, by law. Somehow, in the history of jurisprudence, these issues — who people were, what they had done in the past — had come to be thought of as different in kind from the “facts” of a case … . How had this idea gotten going, when it was so counterintuitive?

Burnett skillfully describes what took place during the jury deliberations. But with 12 equally important characters to describe, with the discussion taking so many seemingly incomprehensible turns, the narrative becomes difficult to follow. That is not a criticism, exactly. After all, Burnett, the jury’s reluctant foreman, found the discussion difficult to follow as it occurred. Hour after hour, behind closed doors, he sat in amazement as his 11 fellow jurors interpreted the evidence completely differently from himself. He marveled at the seemingly bizarre conclusions they drew from what they had seen and heard. Did his advanced academic degrees separate him that much from the jurors with far less formal education? What was going on? The process by which the jurors eventually reach unanimity is not pretty. Burnett’s narrative is bound to lead some readers to conclude the jury system failed to operate as it should have. Other readers are just as certain to celebrate the consensus-building concessions of the jurors as they struggled to do justice. Burnett wisely decides to discuss only the case at hand, rather than extrapolating from his idiosyncratic experience to all criminal trials. He is a pleasant guide to an unpleasant case — thoughtful, candid and a fluent stylist. Steve Weinberg is a free-lance journalist in Columbia, Mo.

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