A Trial by Jury Read Online Free Page B

trying of the case: “It is the function of the jury to apply the
law
to the
evidence
in the case. You will be the judge of the facts, but I am the judge of the law. It is not the function of a jury to rule on the law itself. You are to apply the law whether you agree with it or not, whether you think it is a good law or a bad one. Do any of you have a problem with this?”
    There was a pause.
    I raised my hand.
    â€œMr. . . . Burnett,” he said, reading from his chart. “What is your problem with this?”
    And I replied, my throat tight, that if I thought the defendant would face the death penalty I might be inclined to acquit, even if I thought him guilty.
    My anxiety about speaking had only increased: the judge had just humiliated one of the panelists, a young well-to-do woman with long brown hair and a tendency to mumble. On an earlier question he gave her two chances to speak up and then scolded her harshly for wasting the court’s time. Sitting there with a little Prada handbag in her lap, she looked completely shocked. Her expression suggested no one had ever been rude to her before. But the judge did not relent—he laid into her again, as she stuttered.
    My throat tightened, too, from the certainty that my statement would disqualify me from service. This made me sad: once I had glimpsed the way the trial would force the prettiest abstractions into actual and fateful practice, I was completely absorbed—aware that this was a rare opportunity to participate in something important, weighty, real, something very different from my academic life. At the same time, I had resolved to be entirely straight with every question, and I could not promise in advance that I would apply a law that took human life.
    The judge expressed no interest. The death penalty was not relevant in this case, he announced dismissively, and opened the floor to the lawyers.
    The lead prosecutor—heavy, bald, with a distinctive spot of livid skin under his left eye—approached first, greeted us, and began to ask questions, some general, posed to the group, some addressed specifically to one panelist or another, in response to information we had given about our jobs, or previous experiences of crime or jury duty. He wanted to make sure we would give his witnesses a fair hearing, regardless of what they were wearing or how they talked. Did any of us think that homosexual people had a particular tendency to lie? No one moved. He directed the question specifically to the older man now sitting to my right, the only one of us in a suit, a gold Rolex on his left wrist, his hands neatly folded in his lap. He shook his head and said no, adding, slightly defensively, that he was an openly gay man, who lived an openly gay life and had for years. He wore a cabochon garnet pinky ring. He would be, initially, our foreman, until he vanished in the last days of the trial.
    Harder to interpret than these questions was the next: “Do any of you think it is possible for a man to have sex with another man and not be gay?”
    Several of us must have looked puzzled, because he tried to clarify: “Do any of you think it is possible for a man to have sex with another man and not think of himself as a gay man?”
    This made sense. The answer seemed obvious to me: sure. No one responded. I raised my hand.
    â€œYou think that
is
possible?” he repeated, and I said I did. What made me say that? he wondered. I replied that there was plenty of evidence that different cultures at different points in history thought different ways about same-sex unions. For instance, in South America there were traditions in which it was considered exceedingly masculine to have sex with some men in some ways. (The phrase had always stuck in my head:
“Soy tan macho que me cojo otros hombres.”
)
    â€œOK . . .” the prosecutor said slowly. “OK,” he repeated, looking around the panel.
    Did anyone else