Change of heart

M I CHAEL

Only certain people wind up on a jury for a trial like this. Mothers who have kids to take care of, the accountants with deadlines, doctors attending conferences-they all get excused. What's left are retired folks, housewives, disabled folks, and students like me, because none of us have to be any particular place at any particular time.

Ted, our foreman, was an older man who reminded me of my grandfather. Not in the way he looked or even the way he spoke, but because of the gift he had of making us measure up to a task. My grandfather had been like that, too-you wanted to be your best around him, not because he demanded it, but because there was nothing like that grin when you knew you'd impressed him.

My grandfather was the reason I'd been picked for this jury.

Even though I had no personal experience with murder, I knew what it was like to lose someone you loved. You didn't get past something like that, you got through it-and for that simple reason alone, I understood more about June Nealon than she ever would have guessed. This past winter, four years after my grandfather's death, someone had broken into my dorm and stolen my computer, my bike, and the only picture I had of my grandfather and me together.

The thief left behind the sterling silver frame, but when I'd reported the theft to the cops, it was the loss of that photograph that hurt the most.

Ted waited for Maureen to reapply her lipstick, for Jack to go to the bathroom, for everyone to take a moment for themselves before we settled down to the task of acting as a unified body. "Well," he said, flat tening his hands on the conference table. "I suppose we should just get down to business."

As it turned out, though, it was a lot easier to say that someone deserved to die for what they did than it was to take the responsibility to make that happen.

"I'm just gonna come right out and say it." Vy sighed. "I really have no idea what the judge told us we need to do."

At the start of the testimony, the judge had given us nearly an hour's worth of verbal instructions. I figured there'd be a handout, too, but I'd figured wrong. "I can explain it," I said. "It's kind of like a Chinese food menu. There's a whole checklist of things that make a crime punishable by death. Basically, we have to find one from column A, and one or more from column B... for each of the murders to qualify for the death penalty. If we check off one from column A, but none from column B... then the court automatically sentences him to life without parole."

"I don't understand what's in column A or B," Maureen said.

"I never liked Chinese food," Mark added.

I stood up in front of the white board and picked up a dry-erase marker, COLUMN A, I wrote, PURPOSE. "The first thing we have to decide is whether or not Bourne meant to kill each victim." I turned to everyone else. "I guess we've pretty much answered that already by convicting him of murder."

COLUMN B. "Here's where it gets trickier. There are a whole bunch of factors on this list."

I began to read from the jumbled notes I'd taken during the judge's instructions:

Defendant has already been convicted of murder once before.

Defendant has been convicted of two or more different offenses for which he's served imprisonment for more than a year-a three-strikes rale.

Defendant has been convicted of two or more offenses involving distribution of drugs.

In the middle of the capital murder, the defendant risked the death of someone in addition to the victims.

The defendant committed the offense after planning and premeditation.

The victim was vulnerable due to old age, youth, infirmity.

The defendant committed the offense in a particularly heinous, cruel, or depraved manner that involved torture or physical abuse to the victim.

The murder was committed for the purpose of avoiding lawful arrest.

Ted stared at the board as I wrote down what I could remember.

"So if we find one from column A, and one from column B, we have to sentence him to death?"

"No," I said. "Because there's also a column C."

MITIGATING FACTORS. I wrote. "These are the reasons the defense gave as excuses."

Defendant's capacity to appreciate what he was doing was wrong, or illegal, was impaired.

Defendant was under unusual and substantial duress.

Defendant is punishable as an accomplice in the offense which was committed by another.

Defendant was young, although not under the age of 18.

Defendant did not have a significant prior criminal record.

Defendant committed the offense under severe mental or emotional disturbance.

Another defendant equally culpable will not be punished by death.

Victim consented to the criminal conduct that resulted in death.

Other factors in the defendant's background mitigate against the death sentence.

Underneath the columns, I wrote, in large red letters: (A + B)-C = SENTENCE.

Marilyn threw up her hands. "I stopped helping my son with math homework in sixth grade."

"No, it's easy," I said. "We need to agree that Bourne intended to kill each victim when he picked up that gun. That's column A. Then we need to see whether any other aggravating factor fits from column B.

Like, the youth of the victim-that works for Elizabeth, right?"

Around the table, people nodded.

"If we've got A and B, then we take into account the foster care, the mental illness, stuff like that. It's just simple math. If A + B is greater than all the things the defense said, we sentence him to death. If A + B is less than all the things the defense said, then we don't." I circled the equation. "We just need to see how things add up."

Put that way, it hardly had anything to do with us. It was just plugging in variables and seeing what answer we got. Put that way, it was a much easier task to perform.