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.
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.
