Free A Trial by Jury by D. Graham Burnett Page B

cells. The truth was therefore
in the room with us,
in our midst, in a physical form, almost tangible, but totally illegible—inside the well-shaped head of Monte Virginia Milcray.
    Who was he? That was the inescapable question. 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? Infuriatingly, we could learn this only if he chose to testify.
    What about Cuffee? Who was he? 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, different from blood on the wall and reams of phone-company records. How had this idea gotten going, when it was so counterintuitive? I was being asked to decide if a crime had occurred—in other words, if
someone
did
something
to
someone else.
How could the nature of either “someone” stand off-limits?
    I looked at Milcray, and I saw a cipher.
    That changed on the last day of testimony, when, with a shrug (after requesting, unsuccessfully, more time from the judge in order to contact a no-show witness), the defense attorney called Monte Virginia Milcray to the stand.
    And he went, long-legged, lankier than I had expected (I realized I had not yet seen him stand up). He walked with the smooth gait of an athlete, took the oath, and sat.
    By taking the stand, Milcray voluntarily settled the question of his criminal record. There wasn’t much: some unspecified “participation” in a nonviolent robbery at the age of thirteen or fourteen. Since that time he had graduated from high school (where he had been something of a track star), and had attended Marine Corps boot camp, from which he had been dismissed after dislocating his shoulder in a boxing competition, aggravating an injury from his high-school days. After this Milcray appeared to have held several regular jobs, one retailing at a sporting-goods store in midtown, the other doing data entry for a medical-records company. He lived with his fiancée (who was pregnant at the time of his arrest, and had since borne him a child) and her mother.
    In the end, the bulk of the defense case hung on these minutes of testimony. Without hesitation, even forcefully, Milcray told his story again: he insisted that he had acted in self-defense, that he had been the victim of a sexual charade. After briefly rehearsing this account under direct examination (where he seemed shy, but clear and calm), the defense turned him over to the prosecution for the cross.
    One does not become a successful prosecutor without a strong sense of how to play such a moment. This prosecutor’s tactics struck me as odd. He elected to use a badgering tone, and a sneeringly sarcastic mien. He dove in by accusing Milcray of being a perjurer, for having “lied on his application” to the Marines. But it appeared that this meant nothing more than that he had not alerted the Corps to his old shoulder injury. Since the military assesses its recruiters (at least in part) on the basis of how many bodies they sign up, one could well imagine that no one pressed him to disclose an overly detailed medical history on the forms.
    Given a defendant apparently so benign—young and slight, well spoken, with a handsome dark face, and bright white in his almond eyes—the prosecutor’s combative strategy ran the risk of a backfire. And this, I would say, is what happened: when Milcray maintained his composure, the prosecutor had no place to go but up, escalating his belligerence in hopes of cracking the defendant’s stance. By the end, the