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ACKNOWLEDGMENTS 2

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  1. ACKNOWLEDGMENTS 1
  2. ACKNOWLEDGMENTS 10
  3. ACKNOWLEDGMENTS 11
  4. ACKNOWLEDGMENTS 12
  5. ACKNOWLEDGMENTS 13
  6. ACKNOWLEDGMENTS 14
  7. ACKNOWLEDGMENTS 15
  8. ACKNOWLEDGMENTS 16
  9. ACKNOWLEDGMENTS 3

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 yeara 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 victimthat 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

dust otherwise."

"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,"

Mark said.

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,"

Jack said.

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

asked.

"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

say.

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.

Jim?

Yes.

Alison?

Yes.

Marilyn?

Yes.

Vy?

No.

 

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.

I swallowed.

"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 answereven if it was imaginary.

This, though, was an equation where math did not hold up. Because

A + Bthe factors that had led to the deaths of Kurt and Eliza

beth Nealonwould 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

truth.

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

 

Lucius

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 ConcordI

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 agowhere 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

cellsnot too far from my own humble abode in the Secure Housing Unit

on I-tier. Crash Vitalewho had something to say about everything, although

no one usually bothered to listentold 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 alikewhat'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 themthe 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 lifesomeone younger, thinner,

better-looking?

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 AIDSI'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 avocationalthough 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 blackthe 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."

"Can't sleep?"

"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?"

"I'm painting."

There was a beat of silence. "Your cell?"

"No. A portrait."

"Why?"

"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

crying wolf"

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 restoredand 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 actsweeping the vestibule, or rinsing


: 2015-09-13; : 29;


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