Change of Heart Page 2

  He took a huge, eleven-by-fourteen photo of Elizabeth Nealon and held it up right in front of me. Elizabeth had been one of those little girls who seem to be made out of something lighter than flesh, with their filly legs and their moonlight hair; the ones you think would float off the jungle gym if not for the weight of their sneakers. But this photo had been taken after she was shot. Blood splattered her face and matted her hair; her eyes were still wide open. Her dress, hiked up when she had fallen, showed that she was naked from the waist down. "Elizabeth Nealon will never learn how to do long division, or how to ride a horse, or do a back handspring. She'll never go to sleep-away camp or her junior prom or high school graduation. She'll never try on her first pair of high heels or experience her first kiss. She'll never bring a boy home to meet her mother; she'll never be walked down a wedding aisle by her stepfather; she'll never get to know her sister, Claire. She will miss all of these moments, and a thousand more--not because of a tragedy like a car accident or childhood leukemia--but because Shay Bourne made the decision that she didn't deserve any of these things."

  He then took another photo out from behind Elizabeth's and held it up. Kurt Nealon had been shot in the stomach. His blue uniform shirt was purpled with his blood, and Elizabeth's. During the trial we'd heard that when the paramedics reached him, he wouldn't let go of Elizabeth, even as he was bleeding out. "Shay Bourne didn't stop at ending Elizabeth's life. He took Kurt Nealon's life, as well. And he didn't just take away Claire's father and June's husband--he took away Officer Kurt Nealon of the Lynley Police. He took away the coach of the Grafton County championship Little League team. He took away the founder of Bike Safety Day at Lynley Elementary School. Shay Bourne took away a public servant who, at the time of his death, was not just protecting his daughter ... but protecting a citizen, and a community. A community that includes each and every one of you."

  The prosecutor placed the photos facedown on the table. "There's a reason that New Hampshire hasn't used the death penalty for fifty-eight years, ladies and gentlemen. That's because, in spite of the many cases that come through our doors, we hadn't seen one that merited that sentence. However, by the same token, there's a reason why the good people of this state have reserved the option to use the death penalty ... instead of overturning the capital punishment statute, as so many other states have done. And that reason is sitting in this courtroom today."

  My gaze followed the prosecutor's, coming to rest on Shay Bourne. "If any case in the past fifty-eight years has ever cried out for the ultimate punishment to be imposed," the attorney said, "this is it."

  College is a bubble. You enter it for four years and forget there is a real world outside of your paper deadlines and midterm exams and beer-pong championships. You don't read the newspaper--you read textbooks. You don't watch the news--you watch Letterman. But even so, bits and snatches of the universe manage to leak in: a mother who locked her children in a car and let it roll into a lake to drown them; an estranged husband who shot his wife in front of their kids; a serial rapist who kept a teenager tied up in a basement for a month before he slit her throat. The murders of Kurt and Elizabeth Nealon were horrible, sure--but were the others any less horrible?

  Shay Bourne's attorney stood up. "You've found my client guilty of two counts of capital murder, and he's not contesting that. We accept your verdict; we respect your verdict. At this point in time, however, the state is asking you to wrap up this case--one that involves the death of two people--by taking the life of a third person."

  I felt a bead of sweat run down the valley between my shoulder blades.

  "You're not going to make anyone safer by killing Shay Bourne. Even if you decide not to execute him, he's not going anywhere. He'll be serving two life sentences without parole." He put his hand on Bourne's shoulder. "You've heard about Shay Bourne's childhood. Where was he supposed to learn what all the rest of you had a chance to learn from your families? Where was he supposed to learn right from wrong, good from bad? For that matter, where was he even supposed to learn his colors and his numbers? Who was supposed to read him bedtime stories, like Elizabeth Nealon's parents had?"

  The attorney walked toward us. "You've heard that Shay Bourne has bipolar disorder, which was going untreated. You heard that he suffers from learning disabilities, so tasks that are simple for us become unbelievably frustrating for him. You've heard how hard it is for him to communicate his thoughts. These all contributed to Shay making poor choices--which you agreed with, beyond a reasonable doubt." He looked at each of us in turn. "Shay Bourne made poor choices," the attorney said. "But don't compound that by making one of your own."

  June

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  It was up to the jury. Again.

  It's a strange thing, putting justice in the hands of twelve strangers. I had spent most of the sentencing phase of the trial watching their faces. There were a few mothers; I would catch their eye and smile at them when I could. A few men who looked like maybe they'd been in the military. And the boy, the one who barely looked old enough to shave, much less make the right decision.

  I wanted to sit down with each and every one of them. I wanted to show them the note Kurt had written me after our first official date. I wanted them to touch the soft cotton cap that Elizabeth had worn home from the hospital as a newborn. I wanted to play them the answering machine message that still had their voices on it, the one I couldn't bear to erase, even though it felt like I was being cut to ribbons every time I heard it. I wanted to take them on a field trip to see Elizabeth's bedroom, with its Tinker Bell night-light and dress-up clothes; I wanted them to bury their faces in Kurt's pillow, breathe him in. I wanted them to live my life, because that was the only way they'd really know what had been lost.

  That night after the closing arguments, I nursed Claire in the middle of the night and then fell asleep with her in my arms. But I dreamed that she was upstairs, distant, and crying. I climbed the stairs to the nursery, the one that still smelled of virgin wood and drying paint, and opened the door. "I'm coming," I said, and I crossed the threshold only to realize that the room had never been built, that I had no baby, that I was falling through the air.

  MICHAEL

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  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, flattening 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 dryerase 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 rule.

  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.

  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 dryerase 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.