Knitting a tale of the search for a truth

A Trial by Jury
June 7, 2002

You are called for jury service. You are unenthusiastic, but it would enable you to escape from routine. That was Graham Burnett's dilemma when called in New York City. There was much waiting at court. He got through the voir dire questions asked in the US to reduce the representative panel to an appropriate jury for that trial. It took four more days to produce the jury, with - sensibly - "alternates" for crises.

The case was bizarre: a "straight" (with fiancée) man (Afro-American) had been accosted by a tall (West Indian) woman. He called at her place. As sex commenced "she" lost her wig, had a penis and started forcibly sodomising her pickup. He managed to get his flick-knife into "her" chest - this eventually killed her - while "she" was on top of him; he also stabbed "her" around the neck - not lethally. In so doing he gashed his far leg and knife hand. He was arrested (via police hospital checks), told lies but eventually admitted the above. He was charged with murder and pleaded self-defence.

We enter a world of Pedro Almodovar characters and baroque plotting. The judge appointed the only gay juror foreman, who vanished six days later. Burnett was then appointed foreman. He is a historian of science interested in theories of truth. One of the eight women jurors was another such historian. There were no black males, but there were Afro-American and West Indian women jurors. The police were neither oppressive, nor impressive. They were good on blood; not so good on semen and condoms, and worse on phone-logs, which were forensically important. The prosecutor liked blood. The witnesses were gay and transvestite males.

In jury theory two narratives come together: the story in the trial and the story of the trial. A sub-element was "the beauty contest", the impact of advocates. Both failed. The prosecutor's inability to shift from sneer gear irritated; and when the defence lawyer looked good by default, he blew it with anti-gay innuendoes. The judge was a jury ogre. They were, for example, never allowed pen or paper, nor copies of his instructions. From this tangle of narratives Burnett produces a new metaphor for the jury's truth-seeking role. It is not only a case of Occam's razor, excising the false and irrelevant. It uses Occam's knitting needles to fashion - with 23 hours of anguish - a grunge garment of events.

The treatment of the jury had an impact. They perceived themselves trapped in the maw of the state. Their tough deliberations included discussing the relationship between law and justice, and their perception of their situation led them to prizing the classic burden and standard of proof. This mattered because the limited policing, contradictory witnesses and the defendant's evidence rendered certainty on anything, apart from the stabbing, difficult. There had been some (prohibited) group discussions and there were shifting factions, but on the fourth morning they coalesced: the state had not proved that the defendant had not acted in self-defence, so the verdict was "not guilty". They added a note that another decision might have occurred, less distressing for the deceased's relatives, if the court had received better evidence - which led to the final ordeal of each juror being polled for his or her vote in open court.

This is a responsible and gripping account, for the widest readership, of "the jury room... a remarkable and largely inaccessible space in our society. We expect much of this room and we think about it less than we probably should". How true that was until this year in this country, where only the Bar Council's timely opinion research showing massive support for the jury and jury trial (temporarily) forced new Labour to retract from another attempt to remove a swath of our remaining jury trials. Also, Burnett could lawfully publish his book in the US. The best we have is Trevor Grove's The Juryman's Tale , which eschewed anything relating to his jury's deliberations; to do so would have been a contempt. But would it be a contempt today? With the Human Rights Act in force I wonder if a publisher, after advice from counsel, would be in contempt if it was to commission an account from, say, 12 jurors from the same trial? Burnett concedes that the foreman's perspective might differ from other jurors'. Nevertheless it would be churlish not to admire his example that may not be emulated, but in our new climate of freedom of expression might be followed.

Paul Robertshaw is senior lecturer in law, Cardiff Law School.

A Trial by Jury

Author - D. Graham Burnett
ISBN - 0 7475 5474 9
Publisher - Bloomsbury
Price - £14.99
Pages - 204

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