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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
"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
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
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
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
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
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
Another defendant equally culpable will not be punished by
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.
1 : 1 2 P . M.
"Of course Bourne planned it," Jack said. "He got a job with them so
that he'd be near the girl. He picked this family on purpose, and had
access to the house."
"He'd gone home for the day," Jim said. "Why else would he come
back, if he didn't need to be there?"
"The tools," Maureen answered. "He left them behind, and they were
his prized possessions. Remember what that shrink said? Bourne stole
them out of other people's garages, and didn't understand why that was
wrong, since he needed them, and they were pretty much just gathering
"Maybe he left them behind on purpose," Ted suggested. "If they
were really so precious, wouldn't he have taken them with him?"
There was a general assent. "Do we agree that there was substantial
planning involved?" Ted asked. "Let's see a show of hands."
Half the room, myself included, raised our hands. Another few
people slowly raised theirs, too. Maureen was the last, but the minute
she did, I circled that factor on the white board.
"That's two from column B," Ted said.
"Speaking of which . . . Where's lunch?" Jack asked. "Don't they
usually bring it by now?"
Did he really want to eat? What did you order off a deli menu when
you were in the process of deciding whether to end a man's life?
Marilyn sighed. "I think we ought to talk about the fact that this
poor girl was found without her underpants on."
"I don't think we can," Maureen said. "Remember when we were
deliberating over the verdict, and we asked the judge about Elizabeth
being molested? He said then that since it wasn't being charged, we
couldn't use it to find him guilty. If we couldn't bring it up then, how
can we bring it up now?"
"This is different," Vy said. "He's already guilty."
"The man was going to rape that little girl," Marilyn said. "That
counts as cruel and heinous behavior to me."
"You know, there wasn't any evidence that that's what was happening,"
Marilyn raised an eyebrow. "Hello?! The girl was found without her
panties. Seven-year-olds don't go running around without their panties.
Plus, Bourne had the underwear in his pocket... what else would
he be doing with them?"
"Does it even matter? We already agree that Elizabeth was young
when she was killed. We don't need any more from column B." Maureen
frowned. "I think I'm confused."
Alison, a doctor's wife who hadn't said much during the original
deliberations, glanced at her. "When I get confused, I think about that
officer who testified, the one who said that he heard the little girl
screaming when he was running up the stairs. Don't shoot— she was
begging. She begged for her life." Alison sighed. "That sort of makes it
simple again, doesn't it?"
As we all fell quiet, Ted asked for a show of hands in favor of the
execution of Shay Bourne.
"No," I said. "We still have the rest of the equation to figure out." I
pointed to column C. "We have to consider what the defense said."
"The only thing I want to consider right now is where is my lunch,"
The vote was 8-4, and I was in the minority.
3 : 0 6 P . M.
I looked around the room. This time, nine people had their hands in the
air. Maureen, Vy, and I were the only ones who hadn't voted for execution.
"What is it that's keeping you from making this decision?" Ted
"His age," Vy said. "My son's twenty-four," she said. "And all I can
think is that he doesn't always make the best decisions. He's not done
growing up yet."
Jack turned toward me. "You're the same age as Bourne. What are
you doing with your life?"
I felt my face flame. "I, um, probably I'll go to graduate school. I'm
not really sure."
"You haven't killed anyone, have you?"
Jack got to his feet. "Let's take a bathroom break," he suggested,
and we all jumped at the chance to separate. I tossed the dry-erase
marker on the table and walked to the window. Outside, there were
courthouse employees eating their lunch on benches. There were
clouds caught in the twisted fingers of the trees. And there were television
vans with satellites on their roofs, waiting to hear what we'd
Jim sat down beside me, reading the Bible that seemed to be an
extra appendage. "You religious?"
"I went to parochial school a long time ago." I faced him. "Isn't
there something in there about turning the other cheek?"
Jim pursed his lips and read aloud. "If thy right eye offend thee,
pluck it out, and cast it from thee; for it is profitable for thee that one of
thy members should perish, and not that thy whole body should be cast
into hell. When one apple's gone bad, you don't let it ruin the whole
bunch." He passed the Bible to me. "See for yourself."
I looked at the quote, and then closed the book. I didn't know
nearly as much as Jim did about religion, but it seemed to me that no
matter what Jesus said in that passage, he might have taken it back
after being sentenced to death himself. In fact, it seemed to me that if
Jesus were here in this jury room, he'd be having just as hard a time
doing what needed to be done as I was.
4 : 0 2 P . M.
Ted had me write Yes and No on the board, and then he polled us, one
by one, as I wrote our names in each of the columns.
I hesitated, then wrote my own name beneath Vy's.
"You agreed to vote for death if you had to," Mark said. "They asked
each of us before we got picked for the jury if we could do that."
"I know." I had agreed to vote for the death penalty if the case merited
it. I just hadn't realized it was going to be this difficult to do.
Vy buried her face in her hands. "When my son used to hit his little
brother, I didn't smack him and say 'Don't hit.' It felt hypocritical then.
And it feels hypocritical now."
"Vy," Marilyn said quietly, "what if it had been your seven-year-old
who was killed?" She reached onto the table, where we had piled up
transcripts and evidence, and took the same picture of Elizabeth Nealon
that the prosecutor had presented during his closing argument. She set
it down in front of Vy, smoothed its glossy surface.
After a minute, Vy stood up heavily and took the marker out of my
hand. She wiped her name off the No column and wrote it beneath
Marilyn's, with the ten other jurors who'd voted Yes.
"Michael," Ted said.
"What do you need to see, to hear? We can help you find it." He
reached for the box that held the bullets from ballistics, the bloody
clothing, the autopsy reports. He let photos from the crime scene spill
through his hands like ribbons. On some of them, there was so much
blood, you could barely see the victim lying beneath its sheen. "Michael,"
Ted said, "do the math."
I faced the white board, because I couldn't stand the heat of their
eyes on me. Next to the list of names, mine standing alone, was the
original equation I'd set up for us when we first came into this jury
room: (A + B)-C = SENTENCE.
What I liked about math was that it was safe. There was always a
right answer—even if it was imaginary.
This, though, was an equation where math did not hold up. Because
A + B—the factors that had led to the deaths of Kurt and Eliza
beth Nealon—would always be greater than C. You couldn't bring them
back, and there was no sob story in the world big enough to erase that
In the space between yes and no, there's a lifetime. It's the difference
between the path you walk and one you leave behind; it's the
gap between who you thought you could be and who you really are;
it's the legroom for the lies you'll tell yourself in the future.
I erased my name on the board. Then I took the pen and rewrote it,
becoming the twelfth and final juror to sentence Shay Bourne to death.
"If Cod did not exist, it would be necessary to invent him."
-VOLTAIRE, FOR AND AGAINST
E L E V E N Y E A R S L A T E R
I have no idea where they were keeping Shay Bourne before they brought
him to us. I knew he was an inmate here at the state prison in Concord—I
can still remember watching the news the day his sentence was handed
down and scrutinizing an outside world that was starting to fade in my
mind: the rough stone of the prison exterior; the golden dome of the statehouse;
even just the general shape of a door that wasn't made of metal and
wire mesh. His conviction was the subject of great discussion on the pod all
those years ago—where do you keep an inmate who's been sentenced to
death when your state hasn't had a death row prisoner for ages?
Rumor had it that in fact, the prison did have a pair of death row
cells—not too far from my own humble abode in the Secure Housing Unit
on I-tier. Crash Vitale—who had something to say about everything, although
no one usually bothered to listen—told us that the old death row
cells were stacked with the thin, plastic slabs that pass for mattresses here.
I wondered for a while what had happened to all those extra mattresses
after Shay arrived. One thing's for sure, no one offered to give them to us.
Moving cells is routine in prison. They don't like you to become too attached
to anything. In the fifteen years I've been here, I have been moved
eight different times. The cells, of course, all look alike—what's different is
who's next to you, which is why Shay's arrival on I-tier was of great interest
to all of us.
This, in itself, was a rarity. The six inmates in I-tier were radically dif24
ferent from one another; for one man to spark curiosity in all of us was
nothing short of a miracle. Cell 1 housed Joey Kunz, a pedophile who was
at the bottom of the pecking order. In Cell 2 was Calloway Reece, a cardcarrying
member of the Aryan Brotherhood. Cell 3 was me, Lucius Du-
Fresne. Four and five were empty, so we knew the new inmate would be
put in one of them—the only question was whether he'd be closer to me, or
to the guys in the last three cells: Texas Wridell, Pogie Simmons, and Crash,
the self-appointed leader of I-tier.
As Shay Bourne was escorted in by a phalanx of six correctional officers
wearing helmets and flak jackets and face shields, we all came forward
in our cells. The COs passed by the shower stall, shuffled by Joey and
Calloway, and then paused right in front of me, so I could get a good look.
Bourne was small and slight, with close-cropped brown hair and eyes like
the Caribbean Sea. I knew about the Caribbean, because it was the last vacation
I'd taken with Adam. I was glad I didn't have eyes like that. I
wouldn't want to look in the mirror every day and be reminded of a place
I'd never see again.
Then Shay Bourne turned to me.
Maybe now would be a good time to tell you what I look like. My face
was the reason the COs didn't look me in the eye; it was why I sometimes
preferred to be hidden inside this cell. The sores were scarlet and purple
and scaly. They spread from my forehead to my chin.
Most people winced. Even the polite ones, like the eighty-year-old
missionary who brought us pamphlets once a month, always did a double
take, as if I looked even worse than he remembered. But Shay just met my
gaze and nodded at me, as if I were no different than anyone else.
I heard the door of the cell beside mine slide shut, the clink of chains
as Shay stuck his hands through the trap to have his cuffs removed. The
COs left the pod, and almost immediately Crash started in. "Hey, Death
Row," he yelled.
There was no response from Shay Bourne's cell.
"Hey, when Crash talks, you answer."
"Leave him alone, Crash," I sighed. "Give the poor guy five minutes to
figure out what a moron you are."
"Ooh, Death Row, better watch it," Calloway said. "Lucius is kissing up
to you, and his last boyfriend's six feet under."
There was the sound of a television being turned on, and then Shay
must have plugged in the headphones that we were all required to have, so
we didn't have a volume war with one another. I was a little surprised that
a death row prisoner would have been able to purchase a television from
the canteen, same as us. It would have been a thirteen-inch one, specially
made for us wards of the state by Zenith, with a clear plastic shell around
its guts and cathodes, so that the COs would be able to tell if you were extracting
parts to make weapons.
While Calloway and Crash united (as they often did) to humiliate me, I
pulled out my own set of headphones and turned on my television. It was
five o'clock, and I didn't like to miss Oprah. But when I tried to change the
channel, nothing happened. The screen flickered, as if it were resetting to
channel 22, but channel 22 looked just like channel 3 and channel 5 and
CNN and the Food Network.
"Hey." Crash started to pound on his door. "Yo, CO, the cable's down.
We got rights, you know . . ."
Sometimes headphones don't work well enough.
I turned up the volume and watched a local news network's coverage
of a fund-raiser for a nearby children's hospital up near Dartmouth College.
There were clowns and balloons and even two Red Sox players signing autographs.
The camera zeroed in on a girl with fairy-tale blond hair and blue
half-moons beneath her eyes, just the kind of child they'd televise to get
you to open up your wallet. "Claire Nealon," the reporter's voice-over said,
"is waiting for a heart."
Boo-hoo, I thought. Everyone's got problems. I took off my headphones.
If I couldn't listen to Oprah, I didn't want to listen at all.
Which is why I was able to hear Shay Bourne's very first word on I-tier.
"Yes," he said, and just like that, the cable came back on.
* * *
You have probably noticed by now that I am a cut above most of the cretins
on I-tier, and that's because I don't really belong here. It was a crime
of passion-the only discrepancy is that I focused on the passion part and
the courts focused on the crime. But I ask you, what would you have done,
if the love of your life found a new love of his life—someone younger, thinner,
The irony, of course, is that no sentence imposed by a court for homicide
could trump the one that's ravaged me in prison. My last CD4+ was
taken six months ago, and I was down to seventy-five cells per cubic millimeter
of blood. Someone without HIV would have a normal T cell count of
a thousand cells or more, but the virus becomes part of these white blood
cells. When the white blood cells reproduce to fight infection, the virus reproduces,
too. As the immune system gets weak, the more likely I am to
get sick, or to develop an opportunistic infection like PCP, toxoplasmosis,
or CMV. The doctors say I won't die from AIDS—I'll die from pneumonia or
TB or a bacterial infection in the brain; but if you ask me, that's just semantics.
Dead is dead.
I was an artist by vocation, and now by avocation—although it's been
considerably more challenging to get my supplies in a place like this.
Where I had once favored Winsor Et Newton oils and red sable brushes,
linen canvases I stretched myself and coated with gesso, I now used whatever
I could get my hands on. I had my nephews draw me pictures on card
stock in pencil that I erased so that I could use the paper over again. I
hoarded the foods that produced pigment. Tonight I had been working on a
portrait of Adam, drawn of course from memory, because that was all I had
left. I had mixed some red ink gleaned from a Skittle with a dab of toothpaste
in the lid of a juice bottle, and coffee with a bit of water in a second
lid, and then I'd combined them to get just the right shade of his skin-a
burnished, deep molasses.
I had already outlined his features in black—the broad brow, the strong
chin, the hawk's nose. I'd used a shank to shave ebony curls from a picture
of a coal mine in a National Geographic and added a dab of shampoo to
make a chalky paint. With the broken tip of a pencil, I had transferred the
color to my makeshift canvas.
God, he was beautiful.
It was after three a.m., but to be honest, I don't sleep much. When I
do, I find myself getting up to go to the bathroom-as little as I eat these
days, food passes through me at lightning speed. I get sick to my stomach;
I get headaches. The thrush in my mouth and throat makes it hard to swallow.
Instead, I use my insomnia to fuel my artwork.
Tonight, I'd had the sweats. I was soaked through by the time I woke
up, and after I stripped off my sheets and my scrubs, I didn't want to lie
down on the mattress again. Instead, I had pulled out my painting and
started re-creating Adam. But I got sidetracked by the other portraits I'd
finished of him, hanging on my cell wall: Adam standing in the same pose
he'd first struck when he was modeling for the college art class I taught;
Adam's face when he opened his eyes in the morning. Adam, looking over
his shoulder, the way he'd been when I shot him.
"I need to do it," Shay Bourne said. "It's the only way."
He had been utterly silent since this afternoon's arrival on I-tier; I
wondered who he was having a conversation with at this hour of the night.
But the pod was empty. Maybe he was having a nightmare. "Bourne?" I
whispered. "Are you okay?"
"Who's . . . there?"
The words were hard for him-not quite a stutter; more like each syllable
was a stone he had to bring forth. "I'm Lucius. Lucius DuFresne," I said.
"You talking to someone?"
He hesitated. "I think I'm talking to you."
"I can sleep," Shay said. "I just don't want to."
"You're luckier than I am, then," I replied.
It was a joke, but he didn't take it that way. "You're no luckier than me,
and I'm no unluckier than you," he said.
Well, in a way, he was right. I may not have been handed down the
same sentence as Shay Bourne, but like him, I would die within the walls of
this prison-sooner rather than later.
"Lucius," he said. "What are you doing?"
There was a beat of silence. "Your cell?"
"No. A portrait."
"Because I'm an artist."
"Once, in school, an art teacher said I had classic lips," Shay said. "I
still don't know what that means."
"It's a reference to the ancient Greeks and Romans," I explained. "And
the art that we see represented on—"
"Lucius? Did you see on TV today... the Red Sox . . ."
Everyone on I-tier had a team they followed, myself included. We each
kept meticulous score of their league standings, and we debated the fairness
of umpire and ref calls as if they were law and we were Supreme
Court judges. Sometimes, like us, our teams had their hopes dashed; other
times we got to share their World Series. But it was still preseason; there
hadn't been any televised games today.
"Schilling was sitting at a table," Shay added, still struggling to find
the right words. "And there was a little girl—"
"You mean the fund-raiser? The one up at the hospital?"
"That little girl," Shay said. "I'm going to give her my heart."
Before I could respond, there was a loud crash and the thud of flesh
smacking against the concrete floor. "Shay?" I called. "Shay?!"
I pressed my face up against the Plexiglas. I couldn't see Shay at all,
but I heard something rhythmic smacking his cell door. "Hey!" I yelled at
the top of my lungs. "Hey, we need help down here!"
The others started to wake up, cursing me out for disturbing their rest,
and then falling silent with fascination. Two officers stormed into I-tier,
still Velcroing their flak jackets. One of them, CO Kappaletti, was the kind
of man who'd taken this job so that he'd always have someone to put
down. The other, CO Smythe, had never been anything but professional
toward me. Kappaletti stopped in front of my cell. "DuFresne, if you're
But Smythe was already kneeling in front of Shay's cell. "I think
Bourne's having a seizure." He reached for his radio and the electronic door
slid open so that other officers could enter.
"Is he breathing?" one said.
"Turn him over, on the count of three . . ."
The EMTs arrived and wheeled Shay past my cell on a gurney-a
stretcher with restraints across the shoulders, belly, and legs that was used
to transport inmates like Crash who were too much trouble even cuffed at
the waist and ankles; or inmates who were too sick to walk to the infirmary.
I always assumed I'd leave I-tier on one of those gurneys. But now I
realized that it looked a lot like the table Shay would one day be strapped
onto for his lethal injection.
The EMTs had pushed an oxygen mask over Shay's mouth that frosted
with each breath he took. His eyes had rolled up in their sockets, white and
blind. "Do whatever it takes to bring him back," CO Smythe instructed; and
that was how I learned that the state will save a dying man just so that
they can kill him later.
There was a great deal that I loved about the Church.
Like the feeling I got when two hundred voices rose to the rafters
during Sunday Mass in prayer. Or the way my hand still shook when I
offered the host to a parishioner. I loved the double take on the face of
a troubled teenager when he drooled over the 1969 Triumph Trophy
motorcycle I'd restored—and then found out I was a priest; that being
cool and being Catholic were not mutually exclusive.
Even though I was clearly the junior priest at St. Catherine's, we
were one of only four parishes to serve all of Concord, New Hampshire.
There never seemed to be enough hours in the day. Father Walter and I
would alternate officiating at Mass or hearing confession; sometimes
we'd be asked to drop in and teach a class at the parochial school one
town over. There were always parishioners to visit who were ill or
troubled or lonely; there were always rosaries to be said. But I looked
forward to even the humblest act—sweeping the vestibule, or rinsing
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