The Guilty I

“Do you solemnly swear that the evidence you are about to give in this matter is the truth, the whole truth, and nothing but the truth?”

Let’s start with the facts: Three hundred of us, being citizens of this United States, are selected randomly and called to the Kent County Circuit Courthouse, Grand Rapids, Mi­chigan, on a Monday morning. It is drizzly, dreary. I am barely awake and have a poor outlook on the world, which is operating in gray scale. Out of the three hundred, thirty of us are called to make up a potential jury for a trial overseen by Judge Redford on the eleventh floor. I am one of the first five. We rise, are asked to turn our cell phones off, and proceed upstairs where the real action will happen. Of the thirty, I am one of the fourteen randomly selected for the jury, pending voir dire in which we are asked to answer questions truthfully about our biases and histories. We are seated in the box, quiet, awaiting instructions. There are no snacks allowed.

I didn’t expect to be summoned to the courthouse, as I listed my occupation on the form I received in the mail a couple weeks earlier as “writer/journalist.” Certainly lawyers, judges, and jury clerks wouldn’t want a writer-slash-journalist involved in deliberations of guilt? Said writer might be tempted to try to take notes and make something of the ­experience—document it, repurpose it, make it about himself. “Journalist,” however, is a little bit of a stretch for me, as I wouldn’t characterize my writing—even my nonfiction—as journalism, though it does deal in truth, fact, and in veri­fiable research. As such it perhaps deserves the slash and moniker: its sentences are heavy with actual, demonstrable truth content; the result is not mistakable for memoir. But I am called to the courthouse anyway, and the rhetoric of civic duty as one of the sacred tenets of American law and citizenship means that I am actually not so disappointed. I grew up watching L.A. Law, Law & Order, The Practice, and Perry Mason. I read some Grisham, have been to court myself under different conditions. I think I want to be chosen. And I am.

Anyone, any given I, any one of you, of y’all, of youse guys (as they say in my hometown), any one of the big mess of us could find ourselves impaneled on a jury. The jury process is a great argument for the edu­cation of citizens, particularly using the model of liberal education we endorse at the college where I work. Twelve¹ unrelated people are asked to listen and critically evaluate evidence and witnesses’ statements, and then have a rational discussion that leads to a collective agreement on a verdict of guilty or not. This particular gathering represents a flattening, too, of economic or ­social class, race, gender, and every­thing else, into citizens—a bunch of people in a small room. We are reduced in this way from individual Is to a jury, a we, an a.

This particular we, this a, this jury, is asked to sit and listen, to deliberate on the matter of the ­People of the State of Michigan v. Michael Antwone Jordan.² These are helpful facts, verifiable by paper trail. It is late morning. We wait in a windowless and overwarm room. Most of us are hungry. Some of us, surely, are nervous about this responsibility.

*

I have been thinking about truth and fact a lot lately, outside of this context. Following the acceptance, by this magazine, of a piece I wrote about the Grand Rapids funeral proceedings for former president Gerald R. Ford, I undergo the procedure of fact-checking. Like any medical operation, it is not dignified. The fact-checker wants my notes and collected research, PDFs of press releases. He also wants contact information for my brother (to check a very minor comment about my brother and his new baby), my father (to fact-check some minor personal history), and a college friend (to verify that I smashed a guitar at an open mic). All of a sudden I am asked to prove statements, or at least summon witnesses for corroboration. This is journalism, I think. Perhaps prompted by recent obvious embarrassments, standards have laudably been raised. In the past I have been happy to rely on the singular authority of the I in non­fiction, the essayistic I at once bigger than and a subset of the writer, the individual, the citizen. This writer-I has additional powers: It can commit information to the permanent record. It gets to speak, to tell its story. It can pretend it is monolith. It can control the release and position of facts; if and what to reveal, and when; how self-serving to appear, to be. It can inscribe them on paper in the form of notes. It can answer, be affronted by, or rebut fact-checking queries. It can be wrong. It can be shamed.

*

The chairs are comfortable, high-tech, criss-crossed by webbing, which likely means expensive—similar to the Herman Miller Aeron chair. The rhetoric of it suggests we will be here for a while. We are instructed by the judge not to discuss the case with anyone before its conclusion, which should be in a few days. Fact: the defendant, Michael Antwone Jordan (MAJ), is charged with two counts of the esoteric charge “utter­ing and publishing.” We on the jury are specifically asked not to research anything possibly relating to the case (No Google, we’re told), so we are not subject to outside influence or information. All of what we are allowed to know and act on is to be parsed by the attorneys and the judge.

*

We are instructed (and later research bears this out) that the charge “uttering and publishing” means the defendant is alleged to have created and presented a false document as real (in this case: two checks, hence two counts). MAJ is alleged to have stolen or otherwise acquired two paychecks not made out to him, and (uttering:) forged the payee’s signature, then Pay to Michael An­twone Jordan. He then (publishing:) signed for them and deposited the checks in his bank account. There are other terms for this, I think: Forgery. Plagiarism. Mail or other fraud. Theft. I look at him. He does not look back.

*

Fact, verifiable according to the Detroit Free Press (“2 Youths Accused of Computer Fraud: Teens Broke Secrets of 2 Firms, Police Say”³) and the public record: Ander Monson was prosecuted in 1993 for seven counts of felony credit card fraud. He was a minor when arrested, so technically he doesn’t have to admit to this conviction on job applications and such, or as part of the voir dire process (which, in this context, is the examination of the jury by the judge and trial lawyers to determine if prospective jurors are competent, and if they have any unwelcome biases toward the matter under consideration). Or at least he is not sure that he is not required to disclose this. The jury clerk, Mrs. Greta Van Timmeren, told the group downstairs that if they weren’t sure, they should always disclose. He is therefore fairly sure, but to be positive he would have to ask a lawyer (not one of these lawyers). Fact: Ander Monson chooses not to disclose his criminal past. Supposition: Ander Monson wants to be on this jury. Supposition: Ander Monson’s nondisclosure of this initial fact might come back to haunt him. Fact: Ander Monson does not appear to care.⁴

*

Fact: several of the details in the Free Press story are false (my online identity was not, in fact, “the Black Wizard”), but are presented as utter journalistic truth. One wonders about the quality of their fact-checking. Here is a great line from the article about hacker culture: “Monson is pretty much a loner…. black kids, white kids, Asians—there is one thing they have in common: they are intelligent, bright kids who just don’t know what to do with their strengths.”

*

Fact: all fourteen members initially (randomly) selected for MAJ’s jury are white. MAJ is black. Almost every­one else present in the court is white. I assume we are all aware of this. One woman’s cell phone goes off in the courtroom, and every­one looks at her. As part of the voir dire process, the twitchy, jowly defense attorney, Norman Miller, is questioning and excusing potential ­jurors, apparently to try to make the jury more racially representative of the diversity of the city. I have seen this tactic on television, so I think I know something about it. He succeeds, and two black women are randomly selected to join us. One of them is Cell Phone Woman. When asked if she could be impartial on the question before the jury, she replies that there is no way she could ever find anyone guilty, ever: she doesn’t believe in it. No one believes this; she’s too insistent, too obvious, but she sticks to her claim and is excused. Another ­juror, also black, is selected to take her place. There are no more challenges. So we six men and eight women will make up the jury, and both defense and prosecution agree that everyone remaining is acceptable to all parties. We adjourn for the day. The trial is set to begin tomorrow morning. We are told not to speak to anyone—no family, no spouses, nobody—about any specifics of the trial. We exit, tasked, hushed.

*

Fact, apparent: at thirty-two I get a colonoscopy, since my mother died of colon cancer. She was thirty-three. I was seven. I tell my doctor the fact of my mother’s death. He recommends this procedure as a wise precaution. He instructs me to make sure the hospital accounting folks process it not as a “screening” (routine) colon­oscopy, since those are only covered for those much older than I. They should cover my procedure, though, since my mother died of colon cancer. That’s the important fact to make sure I tell them.

When I go in to undergo the procedure I am stocked with dread, even though I’m not going to be conscious for it, or rather, I am told that I will be conscious, but that I will not remember it. What does this do to the idea of a fact if it can’t be inscribed in memory? I ask the person who I presume is the anesthesiologist how the amnesia drug they give you works, and she tells me that it disrupts the action of the cerebral cortex, which prevents the mind temporarily from making new memories. This is, conveniently, the last thing I remember.

My wife and the friend who drove me to the procedure ­relate a number of things I said afterward that I have no memory of saying. Apparently I tried to flash them both, demonstrating the flimsiness of my hospital gown (which had a strap broken: I remember this). This sounds like something I would do, but I don’t remember it, as predicted, and this is a little terrifying: both to act without capacity for encoding that action in memory, and to act seemingly unconsciously but in accordance with what I think of as how I might well act.

I accept that these things occurred, though I have no actual firsthand knowledge of them. I could ask for the photos from the procedure as some sort of evidence. I could interview witnesses. Take some statements.

*

Fact: an oath we the jury (and anyone called to the witness stand) are asked to take is as follows (if I can be trusted to remember it exactly—or if the judge can, since minor variations are often introduced, according to my notes, each time he speaks it): “Do you solemnly swear that the evidence you are about to give in this matter is the truth, the whole truth, and nothing but the truth?” You recognize this from television or movies, I am sure, or think you do. This is a trope we recognize from fictional constructions, and its familiarity is appealing, reassuring. Yes, I know this gig, I think.

I feel like I have been here before, in the jury box, because I have seen it dramatized on television. Our collective reliance on fictional constructions is so great that the assistant prosecutor references CSI and other forensic television programs as part of her opening statement, in which she talks about the sort of proof and testimony we should expect to see in this trial, and what sort of evidence is sufficient to determine guilt. The process will not be, she warns, as sexy and definitive as it is on TV. I think we know this, that fiction is different than reality, but at the same time we are saturated with fictional representations of courtrooms, of trials, whether compressed and sensationalized on CNN, or on TNT reruns of Law & Order. How can we not, on some level, rely on these stories in the absence of actual experience?

The reality of the court process is that it is mostly boring, essentially undramatic—a set of plodding (because thorough), rigid procedures, punctuated by occasional moments of sudden gravity. It mostly surrounds the witnesses, who are obviously uncomfortable on the stand, nervous because they are legally obliged here to tell the truth, the whole truth, and nothing but, and on whose testimony the defendant’s future hangs.

*

Ms. Jan Kittel Mann, assistant prosecuting attorney with the Kent County Prosecutor’s Office and representative of the state, presents her opening statement, invoking the varieties of evidence she is going to present (police statements, witness statements, digital copies of documents, and some original paperwork), thus demonstrating that the prosecution has met what they call their “burden of proof.” The defense responds and says that they will show that the prosecution has not met their burden of proof.

*

Fact, amended: skip to San Francisco, a couple weeks after the trial, and I’m informing my brother Ben, his wife, and their new baby of my clean colonoscopy and the grotesque oddity of the procedure. I can’t come up with another term except for procedure in its technical blankness. Ben asks me why I had a colonoscopy, and I say, Because of our mother’s death from colon cancer, dumbass. He tells me, No, she didn’t have colon cancer: she died of ovarian cancer, which had spread to her colon, and this is not the same thing. Whoa. I am flummoxed. He is the younger brother, so why does he know this when I do not? I don’t even argue, which is rare. In fact, the more I think about it, the less I am sure. I wish I could blame this on the disruption of my cerebral cortex.

*

This coincides with the realization that the Believer fact-checker has found a number of revealing errors in my essay. Some are simple moments where I just chumped it (mistaking the title of the band New Order’s first single for the title of their first album, which is minor to most but an unforgivable sin by music-geek standards). Others are more revelatory: my father’s explanation that he and my mother did not technically work for the Peace Corps, but “rather [he] worked for the University of Michigan’s Center for Research on Economic Development (CRED), where [he] was assigned to the Ivory Coast (the University of Abidjan) as part of its Francophone African program funded through the U.S. Agency for International Development.” Dad later emailed to amend his correction with a second correction from my stepmother that my mother was in fact employed as a staff person at the Ivory Coast headquarters of the Peace Corps when he was teaching at the University of Abidjan.⁵ And fact-checking becomes an ongoing process of family discovery.⁶

*

In MAJ’s court case almost ­every witness called by the prosecution (there are eight or more) has their statement attacked by the defense attorney (again, like on TV). Mostly these are quibbles, asking one victim about his statement that he received paychecks ­every Friday (as opposed to a particular Friday—the victim claimed not to have been working at this particular temporary job long enough to get more than one paycheck). Another one of the victim’s statements conflicts slightly with something on the official police report. The attorney for the defense pursues this, and the witness testimony wobbles slightly. Even the minor witnesses are backed into corners where they make slight mistakes of recall—misremembering a deposit slip as a withdrawal slip, for instance.

Studies do show⁷ that eyewitnesses do not remember particularly accurately, and not accurately enough, perhaps, for us to value eyewitness testimony over other forms of evidence. We are suggestible, subject to social and psychological pressures, sometimes wrong even though we are sure. This is troubling, especially in the way that we, as Is, are made up of memories, millions on millions of minor and major phenomena we witnessed, things that happened to or in front of us. Some of these are easily recalled, and others are activated only occasionally by something as ­minor as a song, a scent, the memory of vanilla ice cream after a birthday party (if these can be said to be minor, and certainly Proust would demur), a word or voice that we haven’t heard in years. And if memories can’t be trusted, how can we trust any sense of self at all? Or can something stable emerge from the shaky matrix on which it is based?

I mention this in the jury room later as we deliberate, that this is the most interesting part of the courtroom process to me. We could probably get into some serious philosophy. One of the older gentlemen on the jury laughs and says that’s nothing new to him. He forgets things from yesterday, he says, and another older gentleman agrees. There is some cackling. I am young: what do I know about forgetting?

In fact that is a good question: what do we know, and how can we know we know it? We say we know, which means we accept a statement to be incontrovertibly true, a fact, unassailable; we have internalized its truth and moved on, built future action and assumption on it. If it turns out to be false or somehow edited, we are physically changed—synapses are rerouted. It means that we trust it; we are not interested in probing its truth content. It becomes part of a story—the stories we tell ourselves about ourselves. Obviously we can’t constantly scrutinize everything and test all of our hypotheses, so we trust mainstream sources—scientific journals and maga­zines that have surely checked these claims out, that have subjected their writers and their claims to fact-checking and double corroboration. We trust consensus, experience, and common sense, as the prosecu­ting attorney reminds us in voir dire: we can judge what is credible and what is not by the manner in which it is told and the person who tells it.⁸

*

Fact: As the doctor warned me, it matters to the insurance company whether my mother died of colon cancer. If, according to their algorithms and their battery of claim-checking tests, she did not, then the procedure was technically a screening colonoscopy, and they will not pay for it.⁹ Matters are further complicated by the conversation I had with my brother about my mother’s actual cause of death (which occurred, notably, after the procedure had been scheduled and completed, and the claim filed). Now that my mother possibly did not die of ­colon cancer, I am in danger of again being accused of fraud, for claiming my mother died of something she did not and conspiring to get a free colonoscopy.

*

Fact: over the last several months I have been reading book-length non­fiction submissions for a national prize. I am the only initial reader, asked to read 150 and pick 4 or 5 to send to the final judge. I think the experience will be fun, and it is—for the first 20 manuscripts or so. After that, I learn that it’s incredibly boring to read manuscript after manuscript of Is asserting themselves and their claims to truth. Listen what happened to me, they say. They interpose themselves between me and the light so everything is filtered through their shadows. They suppose the I is solid, made up of evidence and verifiable memory.

Thinking about I makes me increasingly self-conscious about its presence in my documents, in my emails (which embarrassingly begin many—or all—paragraphs with I, as if each email is an exercise in letting everyone else in on my solip­sism), my letters, notes about my experience, and the way I process it all through I, through these eyes, assumptions of truth or at least verisimilitude.

*

Each member of the jury receives a small notepad and a pen to take notes, even though the court recorder is transcribing everything, and in greater detail. We will have access to the court recorder’s transcription in the jury room, but it will not become part of the public record. Nor will our notes, I find out.¹⁰

Looking at MAJ I feel selfish writing notes to myself on the official jury notepads for what I am convinced will become an essay, though I don’t know where it’s ­going. I have already envisioned trying to write something about this experience. The notepads are here for us to be good jurors, documenting this case to determine MAJ guilty or not guilty, and I am using them to write down facts for later fact-checking; in the middle of the experience I have already committed to processing it for later. This is the familiar economics of writing nonfiction, I note to myself, already a couple levels removed from what should be my primary task. Later, while we’re waiting in the jury room, one of the jurors asks me what I keep writing on the notepads. I tell him I’m taking notes for an essay on this experience, whatever that is turning out to be. He laughs, maybe thinks I’m joking, says, Well, you’re the writer. The pads are small, too, and the pens suck, which does not really encourage much actual note-taking or writing of any depth. The physical process of it is altogether unwieldy, in addition to the ethical dilemma, since there are actual stakes here. How often is something actually at stake in essays, in memoirs, in most of the nonfiction I read (and perhaps write)? I wonder. How ­often is there actual risk involved, invoked?

I feel is part of the problem, with that I asserting itself in nonfiction, though we can’t fault it, lonely pronoun, stand-in for one consciousness. We can, however, fault the assumption that individual experience—sans connection to something larger, beauty or social action, for instance—is in itself interesting as a primary subject. We can fault the I—or at least the text—for not being aware of its own instability. Asserting the primacy of I suggests that we should care about it because it is an I, because it has incurred slights at the hands of others, of the world. And we should care. Sure, I agree with that: everyone is ­special, deserving of attention and examination. And inhabiting their experience allows us to share it, know it. (This is called collective knowing.) But I still don’t want to read what most people have to say about themselves if it’s just to tell their story. I want it to be art, meaning that I want it transformed, juxtaposed, collaged—worked on like metal sculpture, each sentence hammered, gleaming, honed. For me, the sentence is where it’s at—the way the story’s told—not simply the story behind the language. The action of telling is fine: kudos for you and your confession, your therapy, your bravery in releasing your story to the public. But telling is performing, even if it seems effortless. And writing that story and selling it to a publisher makes it product, packaged and edited and marketed. With years of reflection on that story and how it can be shaped as prose (and how its shape changes from our shaping it, reflecting on it), given audience and agents and editors, rhetoric and workshop and rewriting for maximum emotional punch—given the endless possibilities of the sentence on the page, I expect to see a little fucking craft. I guess I want awareness, a sense that the writer has reckoned with the self, the material, as well as what it means to reveal it, and how secrets are revealed, how stories are told, that it’s not just being simply told. In short it must make something of itself.

*

Of course some—many even, and most, if not all—are interesting when looked at closely enough, and preferably with an angle of refraction or reflection. But the memoirified superreal live-blogging culture in which we live has suggested to us—readers made writers, we are all potential content creators, even if we no longer have the time or inclination to actually read—that we should ourselves, unmodulated, automatically matter to strangers.

I wish I cared more about ­others’ stories, and I do, individually (I care about yours, reader, for instance; I’d love to talk one on one over a beer), but when taken en masse, in print, read in the hundreds of manuscripts that start with the letter and word I and end up being primarily interested in exploring self without craft or infusion or interruption by the world outside the I—that accumulation of vast and tangible facts, that ball of everything, litany of As: billions on billions on billions of individual entities—well, it gets boring pretty fast.

All of this is our fault, ­writers, readers, publishers, probably, and teachers of writing especially. It is our job to encourage our students—those rising, almost completely erect, uppercase Is—to consider themselves worthy of respect, of examination. They are individuals, citizens: eligible for jury duty like any of us, able to sit in judgment of another and the sorts of proof offered by prosecution and defense. We believe, maybe, in that idea of liberal education, in the importance of individual and increasingly diverse stories, so that we assemble a legion of them and create thousands of writers all working on their personal essays, their ­memoir projects, most of which are (in spite of what we’d imagine) strikingly similar: they iterate and investigate traumatic occurrences in their or their family’s lives and assemble these into variably coherent and com­plicated, aware narratives.

As an aside: I do this, too. I can’t see a way to stop it, either, thinking about the I, examining myself (I must face the fact that I do, in the end, find myself interesting, which is good, I suppose) in text and thought. Perhaps the answer is in research, in taking notes. It’s finding, creating, or uncovering another subject—something else to rely on and parse beyond the self. ­People know this, obviously, but I don’t think we as a caste of MFAs, future serial memoirists or whatever, are thinking about it seriously enough. We don’t realize how many of us are doing approximately the same thing. (On the upside, though, those working against this grain may have their work immediately stand out.)

Very occasionally these indi­vidual stories are so striking, conscious, and/or artful that they create a heightened interest: they compel us, they cast that spell over our nighttime hours. One manuscript (of the ten¹¹ I passed on to the final judge of said book prize) recounted her (brutal, brutal) story of incest survival, in which she was molested by seemingly every member of her immediate (and maybe extended—my memory fails me here) family. If true (and if not, this is a perfect exploitation of the flaw in thinking about this sort of nonfiction—it doesn’t allow for any sort of doubt; it asks to be taken at face value, as absolute, or nothing¹²), there is sufficient weight (or, well, mass, technically, and when combined with gravity—risk, the power of a potentially killing, attractive force—only then it equals weight) in the story to compel the reader’s attention. But most manuscripts, while momentarily lovely, finally prove to be minor in one way or another: recountings of divorce, family strife, death, varieties of ­sexual encounters, childhood traumas that extend to adult life, references to Montaigne, resonances everywhere, epiphanies coming about once a chapter or so like white noise. They aren’t usually all that elegant. These writers presume—and have doubtlessly been told, perhaps in workshops, perhaps by me—that their stories, finally, matter in themselves.

Still, I see something in them: they can be made to matter if explored further, with style, an angle, some kind of action working as a countermeasure against the desire of the I to confess, to tell its stupid story.

*

Fiction writer Cris Mazza (perhaps best known for coining the term chick lit before it was annexed and repurposed by the publishing conglomerates, mapped to slim legs, short skirts, pink heels, and martini glasses) guest-edited a special “No First-Person” issue of the literary magazine Other Voices in 2006. It included only stories told in something other than the first person, running counter to what she identifies (and rails against) as an increasing trend towards defaulting to the first-person POV in contemporary fiction:

I am not a fan of the current popular status of the first-person narrator. This is not saying that I am not a fan of the first-person technique, but just not a fan of its current popularity. Think back to when an overwhelming percentage of new fiction was written in the minimalist style. To say, “Not every story is best served by being minimalist” would not be a claim that there are not some very superb minimalist novels and stories. What it would be saying is that when a technique becomes a popular fashion, becomes overused, its special qualities, complexities, and beauties are going to fall away, and all that’s left is the faddish use of its most obvious characteristics.… [S]uccessful uses of first-person POV underscore the pitfalls of its excessive popularity…. too many times the use of first person has nothing to do with what the book is about.

I don’t object to the use of I (how could I?), but to its simple, un­examined use, particularly in nonfiction where we don’t assume the I is a character, inherently un­stable, self-serving, possibly unreliable. I object to our unthinking cultural embrace of the I phenomenon, to our readerly desire for unmediated Is, for confession booths, for more reality in everything we see, including our fiction. That our cultural interest in the nonfiction I, in individual testimony, has spilled over into the way we approach the short story and the novel, and our assumptions about what fiction is and why it matters. That we are now writing self-absorbed fictional characters without realizing it. And what’s worse, that we don’t seem to understand (and thus use) this: that our stories borrow the self-­importance of memoir (which is at least buttressed by actual, fact-checkable reality), that they fail to consider form, and that they don’t do what they need to do as fiction.

*

I’m thinking about all of this when we are called into the courtroom, and the defense officially, anticlimactically rests, having called no witnesses—not even asking the defendant to tell his side of the story. Thank god this is a diversion from both the I in this essay and the ostensible subject of the essay, or the frame narrative, which is certainly the deliberation of the guilt or innocence of our real subject, the actual dude MAJ sitting forty feet away from us. I need these diversions to get away from this essay being about me. We are not here for entertainment, but to sit in judgment of an actual person. There is something real at stake. If the incest survival story is not ­finally 100 percent verifiable, and we are let down by it, then we wasted time, maybe a little money, some emotional currency, and found our way to a bogus catharsis or two¹³. At least, we hope, it was a good story. If the witnesses on the stand in this space are not to be trusted, then we could erroneously put MAJ away for years or decades. MAJ sits there and does not look at us in our raised rows on the right side of the courtroom, which I am thankful for.

*

In his closing statement, defense attorney Miller looks at us and talks about story and credibility, attacks the witnesses’ slightly conflicting testimonies, and suggests that there just might be a conspiracy of the (white) victims to accuse the (black) defendant (though he doesn’t go so far as to make this explicitly a race issue) and defraud the bank of the approximately six hundred dollars by claiming not to have deposited the checks themselves. We can’t trust them, he says, on the small stuff, and if we can’t trust them, then how we can convict MAJ? And since MAJ put his own real social security number on the endorsed checks, not seemingly trying to hide anything, doesn’t it make more sense that the witnesses paid him for some service and just won’t own up to it on the stand?

The story doesn’t have a lot of support, especially since the defendant has not spoken—asserted his voice, his consciousness, his story, that I—during this entire trial. This is for obvious reasons, since he was recently released from prison (we learn this over the defense’s objection), and would probably do more to incriminate himself or prejudice the jury if he took the stand. But we are left with no real story aside from the prosecution’s version, which is simply that he apparently is that stupid (in addition to being a recidivist, itinerant criminal), that the witnesses have no reason to lie, and that the documents we’ve seen tell such a thoroughly convincing story that MAJ doesn’t need to tell his. And story here is important. We want to be able to make sense of the evidence. That’s how we process information, in terms of story.

Prosecutor Kittel Mann responds to the defense by relating a story of her own. Last week she’d been sure—absolutely, totally, and completely—that she had left her glasses at a restaurant, and after significantly, desperately looking into it, found she’d left the glasses in her office. “We all have memories that are not perfect,” she says. She asks us to decide for ourselves how reliable these witnesses are.

Mr. Miller reiterates that MAJ’s behavior doesn’t show that he was trying to hide anything. How dumb do we think MAJ is? we’re asked. He says the prosecution’s story—these facts, these small holes in the witnesses’ testimonies—“just don’t add up,” and this means that the burden of proof rests with the prosecution. It has not met its burden, so we must find him not guilty.

The court clerk selects (semi-randomly—one person has asked to be excused because she has small children to care for) the two alternates, and they are thanked and asked to leave before the final deliberation. I was sure I would be one of them: it would be the most appropriate cosmic response to my attempts to write about all of this. But I am not.

*

The rest of us adjourn to the jury room and take a break. When we return we must elect a foreperson, who turns out to be me. This pleases me more than it should. I am sure everyone can tell that I am happy with my role, and I am embarrassed that my desire is this obvious. Since it falls to me to moderate the discussion (I have done this before, I think, albeit not with these stakes), we take a quick anonymous vote on paper, and it comes back 11–1, guilty. We discuss, and though several of us are silent, there is no real counter­argument. We talk about MAJ’s lack of testimony and credibility, the un­likeli­hood of the story Mr. Miller is telling us. Eight witnesses testified for the prosecution: they told their stories. The defendant did not tell his. We as a jury, as Americans, hold that against him: he had the right to speak for himself but did not. It is as if there is no story without the I, MAJ, on the stand, participating. So MAJ refuses to make himself a writer, a confessor, refusing us access to his story, his experience. And we jurors, as readers, remain unsatisfied. We want access, backstage passes, scoop, an unauthorized biography. And we are not getting it with MAJ. Nor are we getting it in this essay, since I can’t stand in for MAJ and tell his story. Or, I refuse to: I could, after all, assume it, connect some dots, make some fiction out of it, please some readers, and make this more dramatic.

But readers are part of the problem. We want drama and we want access to everyone’s story. We demand more I, and more dramatic I, and when the I turns out to be aware of what we demand, what we are watching and waiting for—when that I starts fudging details, confabulating events, expanding time spent in jail, claiming gang affiliations and street cred or Jewishness or Holocaust experience, all to increase drama, sell books, or get TV time and movie adaptations, all to satisfy us and give us what we have repeatedly demonstrated we want—we get angry, and we are angry at that I, and the publishers who propagated and propped up the I, but we should also be angry at ourselves.

*

I suspect one person either voted not guilty on instinct and stood down in the face of argument, or else simply wanted to put the matter to discussion, which is worthy, certainly, and so we take another vote, and I read the votes off: guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty, guilty, and finally, dramatically, guilty. We have concluded that we the jury (not we as individuals—who might not want to be held personally responsible) find MAJ guilty on two counts of uttering and publishing. The decision has taken less than an hour. I press the red button on the wall that summons the court clerk.

*

We file back in, and as foreperson I am asked whether we have a verdict. I say yes. The judge tells me to read the verdict. I am surprisingly nervous here. I read the verdict. The defense asks to poll the jury individually, and we each have to affirm that we voted guilty, just to make sure we can be held accountable—that there are no dissenting Is in we. And it is done. We are ceremonially thanked, sent back to the jury room, and the judge comes in to thank us personally. A middle-aged man on the jury asks me for a copy of the story when I’m done with it. I take down his contact information. We file out and leave our jury badges behind.

The jowly defense attorney stops me on the way out and asks me if there was a single thing that tipped the jury to guilty? I wonder if he’s asking me as a writer, a professor, or the foreperson. I say, No, not really, but that for me it came down to not having a plausible story from the defendant, but that obviously MAJ couldn’t take the stand since he’d only prejudice the jury. He says yes, there wasn’t much to be done. His face is flushed. He confesses this was his first case. He asks me if I thought he did OK. I tell him that I had no idea this was his first,¹⁴ and that he did a good job, considering what he had to work with, for whatever my reassurance is worth. I tell him that he was Law & ­Order–worthy. I think this is a compliment.

*

Half an hour earlier, back in the jury room, I tried to convince everyone that they should watch the 1957 film 12 Angry Men (directed by Sidney Lumet). I tell them that all the action takes place in the jury room, like this one we are sitting in, and that George C. Scott is in it, and some other people who are eminent, surely. I trail off, not remembering exactly. (George C. Scott is not in the movie, I find out on rewatching it, though there is a George-C.-Scott-like character who butts heads with the jury’s lone truth seeker, played in the original by Henry Fonda. In 1997 George C. Scott appeared in the for-TV remake, so I haven’t fabricated this completely, which is good.) What I do remember of the plot (correctly, it turns out) is this: The foreman asks for an anonymous vote. He collects the scraps of paper and reads them aloud, one after another. The vote is 11 guilty, 1 not guilty. (I must admit that when this happened in our jury, a part of me was thrilled: the “plot” of our story was prefigured by the plot of the film.) The film makes a compelling argument against reliance on memory, demonstrating how several witnesses in the trial (Rashomon-style) have made assumptions, and are unintentionally fabricating what they said—they have convinced themselves that what they said is what they remember, that it is the truth, and when they say it, it is inscribed in memory: it becomes part of their psychology—and how ­easily swayed we can be by our own ­biases. (Racism is a strong presence in the 1957 film with all white men on the jury.) I tell them they should really watch it. (No one on the jury has seen ­either version.)

*

I realize that I am relying here on a film, a fiction, to support my point, but it is increasingly likely that what we remember—all of it—is fiction, variously true or edited. It is constantly being re-edited to fit our version of events with what we think of ourselves, the narratives we use to define our lives and give context to action, and we might as well admit it.

According to a 2007 article, “This Is Your Life (and How You Tell It),” from the New York Times, “Researchers have found that the human brain has a natural affinity for narrative construction. People tend to remember facts more accurately if they encounter them in a story rather than in a list, ­studies find; and they rate ­legal arguments as more convincing when built into narrative tales rather than on legal precedent.” The ­article goes on to detail some of the varieties of personal narrative, and how they fit into the larger culture (themes of redemption, good memories spoiled by dark details and disappointment, “American cultural narratives, of emancipation or atonement, of Horatio Alger advancement, of epiphany and second chances”). Legal research—or at least common sense—must certainly bear that out. And of course the more you think about it the more it makes sense: of course we reevaluate events and seeming facts in our lives (or perhaps, in extreme cases, confabulate them) in light of our current mood and psychology, and in terms of how they connect to other larger stories that we have constructed.

*

I have worked the story of the jury, the story of the story of the jury (12 Angry Men), the confusion over my mother’s cause of death, my sort-of-screed against nonfiction, and my misdirected and unnecessary colonoscopy (and the resulting insurance story) into the civic service of probing the truth. I have thought about my criminal history as a sort of interesting speed bump in my life, partly because I was not actually jailed, but also because I went on to what I call better things: college degree, marriage, graduate degrees, good teaching jobs, publications. That is a note of redemption I—or you—might be hoping for. So I have reconstructed this story out of other stories, fitting them together so they feel (hopefully) satisfying. And the self-­consciousness, the self-analysis, that I return to as a kind of habit is perhaps an antidote to the pressure I feel of writing nonfiction, of claiming that humans can ever actually present the truth, the whole truth, and nothing but, on paper, permanently. That I can realistically trust my own memories when bits of them simply never took. It’s embarrassing, really. My story has a little epiphany, too, about memory, which is convenient. And others have a different relationship with their memories than I do, I imagine: hardcore drug users, routine binge drinkers, and those with biological or psychological problems, for instance, all of whom are at a huge disadvantage: they cannot rely on their memories at all. These people who live less straightforward lives know all of this already, and might take notes, or rely on photographs, or transcripts, or others’ recollections, the police blotter, circumstantial or eyewitness evidence, ­stories they tell or write themselves: anything that can help to bring it back to them, or help them to reconstruct the self.

Amnesiacs with damaged hippocampi (the location of much memory-activity in the brain) cannot imagine the future at all, because they cannot frame it in terms of the past. The rest of us can do both: create future out of past experience, and re-create the past to fit the present, and tell ourselves it is true, that we are sure of it, that this we most certainly and definitely believe.

*

In the end, whatever else this is all about, Michael Antwone Jordan—the dude, the actual physical person in the defendant’s chair, not just MAJ, not just a ­literary construction—is in the center of the swirl of it. I am left with the image of him forced to stand for the jury’s verdict. This is a fact. It has to be. It happened. I have the documents. The defendant, having risen, having offered us not one word, not one story, this entire trial, faces us. Or: I have no idea if he faces us; I am not looking at him when I deliver the verdict. I don’t remember. I am too nervous. If I think about it long enough, I don’t know what the verdict, what the essay, what the self, is about, really. My job in this moment is simply to speak, an I standing in for we. So I do. And I don’t remember what happens next. Nor do I remember what he looks like in this moment, what his actual face looks like. Michael is a faceless, voiceless defendant in this story. He is guilty, he is storyless. Or: he is story­less, he is guilty. I can’t, and won’t, speak and stand in for him. I can only try to make my own burden of proof, and show you a preponderance of evidence, of story, on my behalf. I can only stand up and speak for myself. 

1. Well, fourteen: two are selected at random at the trial’s conclusion as alternates and are not asked to deliberate with the others.

2. Awesomely, one of the witnesses is asked at one point during the trial, “Do you recognize the name Michael Jordan?”

3. March 27, 1993: a representative (and inaccurately—or at the very least, ridiculously imprecisely—on several counts) states: “He called himself the Black Wizard. And though he was only 16, he had the brains, the cunning, and the connections to crack the computer systems of two major financial corporations, police say.” The article rather grandiosely pitches this arrest as part of “the latest wave of alleged credit card fraud among suburban [teens].” Conveniently, in order to access this article in their archives, since I have lost my hard copy, I was required to give them my credit card information.

4. Not quite true: there is a possibility that I was wrong not to disclose, and that by disclosing here I have somehow created a crack in the conviction that might be used to appeal it and possibly to stick it to me, legally. So there is a risk—pos­sible real-world consequence—in relating this.

5. So what I thought to be true turns out to be false, and then true again.

6. (and of a kind of ritual personal humiliation)

7. The standard text on this matter is Elizabeth F. Loftus’s Eyewitness Testimony (1987), for those who are interested.

8. Say it clearly and you make it beautiful, no matter what” (Bruce Weigl, “The Impossible”). It took me a while to track down this quote, which I misremembered, interestingly, as “Tell the truth and you make it beautiful, no matter what,” which is quite a different idea.

9. Between drafts of writing this essay I am informed that my insurance claim is denied because they parsed it as preventative, routine, not ordered specifically because of family history.
I am currently appealing this decision and assembling evidence in my favor, trying to get to the burden of consumer proof. They assured me prior to the procedure that it would be entirely covered, which did not bear out. So I might be stuck with the bill due to bad fact-checking.

10. They collect and shred the notebooks, so I smuggle mine out in my pants, expecting I will need it for fact-checking later.

11. I didn’t feel like I could send just five, as instructed.

12. Plus there’s no time for me to fact-check these manuscripts, or even do five minutes of Googling to see if their claims are borne out, if it’s even possible to check. The power inherent in many of them is that they are telling the truth, that it is their story, not how they tell it. It is an attractive stance. The power of confession, of appearing to tell the truth, to initiate the reader in secret, is heady, definitely. It’s useful to manipulate in poems, in fiction, and in nonfiction. It creates intimacy, particularly if we as readers feel like we can—we must—enter into belief. Which is why some of us feel betrayed when memoir turns out to be not entirely true. A question I start to ask to ferret out lesser manuscripts is: if this doesn’t turn out to be true, do I still care? Meaning: Is it interesting beyond its apparent truth content? Do I still care when the I turns out to be a ghost?

13. Though the whole point of catharsis is that it is bogus: a construction, that it is an emotional or psychological experience in the audience, achieved via the quality of a performance. So maybe we shouldn’t complain if we achieve catharsis at all (though this risks sounding like the physical response of orgasm is the thing to be achieved). We have had the response, and there it is. Who cares if it’s enabled by our need to believe in the truth. We hope non in nonfiction (Frey) or the near-non ­implied in the allegedly autobiographical fiction of J. T. LeRoy is as if we require so much reality that we cannot simply give ourselves over to the hands of fiction without wanting to parse the gravitas of the author as part of the text.

14. This is a minor fiction: at least in retrospect I could tell; his nervous tics, his halting closing, all of this seemed to suggest the fact. During the trial, the judge made a big show of talking about how much respect he had for both the prosecution and defense attorneys, and how long he had worked with them both. Maybe this was an attempt to help compensate, or even the apparent playing field. In the end it appears this tactic was a useful fiction.