Me, Undecided

Amber Krieger

Underpants! says the text. We’re not supposed to have our phones out during deliberations, but we’re just voting now—again—so I risk it. I’ve been hearing the vibrations in my bag for the last half hour. I hold my phone under the table, looking down with just my eyes, like a kid using a cheat sheet. I’m not obvious at all.
There are eight texts, all from Frankie. I scroll back and read them in order.

Where R nail clippers?

Nvr mind

Can’t find Elephant Elephant

Have u seen elephant elephant

Could she be at school

Nvr mind

Someones wild


This last means our almost five-year-old, Eliza, has finally given up her beloved pull-ups. It figures that it’s happening tonight, on my first ever night away from her. After four days of commuting downtown, I’ve decided to stay in a hotel closer to the courthouse. I’m glad for this, especially now that the judge has ordered us to stay late and try to come to an agreement. But it’s not just that. This case has been disturbing and I was having trouble switching gears when I got home.
On the first night, Frankie couldn’t believe I wouldn’t talk about it.
“It’s against the rules,” I said.
“They don’t mean your husband,” he said.
It was dinner and we talked in snippets, under the sounds of salad tongs scraping glass, while Eliza pushed food around her plate.
“You’re the only one,” he said. “The others are all talking about it.”
He was probably right, but I’m a born rule follower, and instructions from judges are right up there with airline safety regulations and how to prepare plastics for recycling. If the others were talking to their partners, it’s not the only way we’re different.  Among the list of charges we’re considering—intimidation, unlawful sexual penetration, assault—the prosecutor has included attempted murder. The intent to kill. It’s this last that we’re debating now and so far, nine in our group are for the prosecution, two are for the defense, and then there’s me: undecided.
Not that I’ve told them that. The last time we voted, I wrote GUILTY because I figured I would get there eventually. I should. It’s how I land on the other charges. Plus, I’m female, educated, liberal. A parent. It’s this last part that’s my downfall.
The victim is a fifteen-year-old boy. The accused is also a fifteen-year-old boy. Looking at these two boys at their two tables with their two legal teams, I could barely tell them apart. Both thin and long, good candidates for the cross-country team. Both victims of some unfortunate acne, one with a crusty looking volcano perched on his nose, the other with a string of scabs along one jawbone. From my seat in the jury box, first row, second from the right, I thought these were the first stragglings of a beard. It wasn’t until he sat in front of me to give his testimony that I saw them for what they were. It made me like him a little better, this thing over which he had no control.
But neither boy is very likeable. They sat straight in their chairs, one with his fleshy lips set hard together, the other with his mouth slightly open, which made him look a little sleepy, or a little dumb. They stared straight forward almost all the time, never looking our way, as if we weren’t even there, we whom they should have been wooing with their shy smiles or heartbreaking fear.
They gave themselves away though, in the little things. Like when the victim stood to approach the witness stand and caught the corner of his hip on the table. He staggered a little and two bright red splotches flared up in his cheeks and his eyes cut over to us for a second. I thought I saw desperation there but then he stuck his chin out and sauntered to the stand like nothing had happened. If only that red, that need, had come during his testimony. Instead, he was defensive, sullen and utterly unconvincing. He couldn’t remember many specific facts about the incident. His description of the attack itself sounded canned, like something he’d read in a book.
“They have to prep them,” said Carla, a spunky twenty-something, when one of the pro-accused made the same objection. Carla made up her mind as soon as she heard what the crime was; it was simply too awful to doubt. “His lawyer has probably gone over this with him a hundred times, they have to with someone so young,” she said. “That’s why it sounded weird.”
Even Carla knows it was weird. Unsettling. I’m sure she’s right about the prep, but still, the posturing, the rehearsed lines, the way they worked so hard not to look at each other, made it feel like these boys were as unsure about what happened as we are. Carla is eager to protect the unprotected. When I was her age, I was just the same way. I still am. It’s just that my definition of the unprotected has changed.

One of these boys is accused of bullying the other because he is gay. It started, as these things often do, with rumors. The witnesses—teachers and students—had all heard them, but no one could say where they came from. They darted about school like poltergeists, gaining strength with each knowing look, each exaggerated swish of hips or flop of wrist when he passed, until they were able to manifest as objects. Tiny digs etched into a bathroom stall. A pair of girls’ panties planted in his stack of clothes in the locker room, so they’d slip out in front of the other boys when they dressed after P.E.
Who’s to say, speculated the defense attorney with a choreographed wave of her hand, that these things even came from the same person? She was desperate to spread around the blame. But the rumors, the small acts, are not what matter. It’s what came next. Hatred shaped by fifteen-year-old hands. A headless bird in a Barbie princess dress strung up in his locker. Shit smeared on the seat of his bike. And then, the reason we are here, an attack in a wooded area on his way home from school. The accused allegedly beat and then sodomized him with what may have been the butt of a gun, then held the probably-gun to his head and threatened to shoot.
Simply too awful to doubt.
“Saying you’re going to shoot someone is not the same as shooting them,” I said on our second day at the table. Mike, the pensioner, the NRA man, who spent the first thirty minutes of our deliberation ranting about the “sickening” things “these faggots” do, nodded vigorously and then fell back into his stupor. I’ve never seen such a stone face, the features absolutely still, even when spewing the most vile ideas. I wanted to hate Mike, but then I saw him wipe his sweating palms on his cheap polyester slacks, old man slacks, with a roomy enough rear to fit an incontinence diaper, and I started thinking about him wetting himself in the jury box and then sitting with it while the flustered first-time prosecutor gave the victim yet one more chance to be likeable—smelling himself, regretting that second cup of coffee, wondering how long until the next break—and I got a sinking feeling in my heart. How can you hate an old man in diapers?  
The woman with the vest, Mel, the know it all, the wannabe lawyer, said, “When you put a gun to someone’s head and say you’re going to shoot, you’re very likely to shoot.”
“But he didn’t,” I said. It’s the thing I keep coming back to. While the others seem firmly lodged in their camps of he did or he didn’t, I am spiraling over how much and why.
“He got scared off,” Mel said.
“We don’t know that,” I said. “Maybe he only meant to scare him.” Maybe he was jacked up on adrenaline and was as surprised as anyone when he saw the barrel of the gun pushing up that fuzzy hair, resting against that milky skin, set there by his own hand. Maybe that was the thing that made him back him off, run away.
“We don’t even know if the attacker had the gun with him,” said Mimi, the pregnant lady. Mimi who was supposed to be a shoo-in for the prosecution, with her huge belly and her hormones and her three other kids at home, including a son who’s been bullied. I’d wondered why the defense let her through, but now I know. She’s a raving nut. After her son was bullied, her husband beat the shit out of him for being the kind of pansy who gets bullied, while she stood by. “It makes me so sick,” she said, on the first day of the case, “the way this government is always interfering in people’s personal lives.”
It was hard to admit it, but Mimi was right about the gun. The police found it properly stored in the defendant’s parents’ gun-case. We’d all looked at it in the courtroom, and most of us had latched onto its presence at the attack as a fact, solid in our minds, evidence of intent to do more than a little harm. But like so much else in this case, whether it was even there that day is something we’ll never know.

“Pass in your votes on attempted murder,” Sam says and I text a quick smiley to Frankie and slip my phone back into my purse. Sam’s a frat boy/business major/project manager/get-it-done kind of guy who jumped at the chance to be foreman. This is our third time with the secret ballots, a process that is very important to Sam, even though everyone knows who has been voting how. We slide our folded scraps of paper across the table.
“All in?” Sam asks.
Mimi holds up a hand. Her paper lies open in front of her, but she does not appear to be struggling with her vote. She is simply waiting until she finishes her muffin. I am as fascinated by Mimi as I am repulsed: a small woman with chin-length hair that moves as a unit when she turns her head, settled into her chair in the same way she’s settled into her ideas. I wonder what it’s like to go through life like that, with your convictions drawn out in front of you in a sharp black line. Between her and Mike, it seems pretty hopeless that we’ll ever come to a consensus.
She dabs the crumbs from her lipstick, writes her verdict in careful cursive, and passes it to Sam. He mixes it in with the rest and then opens them into two columns in front of him. When they’ve all been arranged, he winces like he’s been poked in the side.
“Same,” he says.
The others grumble about yet another day, and at first I think that’s all it is. Then I get it. What’s really bothering Sam. We’re still ten for the prosecution and two for the defense, but he can tell from our handwriting that our makeup has changed. Last time I wrote down GUILTY but this time I wrote down NOT. And that means that either Mike the NRA guy or Mimi the libertarian has also switched sides.

We break soon after that and I go back to my hotel room. It’s thrilling to be away from my family. I take a long, hot shower and get into bed with the remote and flip through the most promising hundred channels. Friends reruns. A whole channel devoted to Law & Order. I stop on a man with a mic, asking people on the street about Obamacare. Over and over, people make fools of themselves on camera, bashing the president’s health plan as un-American and socialist and then singing the glories of it under its official name. “I prefer the Affordable Care Act,” one man says. “It’s more affordable.” He looks like he can’t believe the idiocy of the interviewer. “Just the name says it all.” It feels good to laugh at these people, to believe that this moment of on-camera ignorance separates me from them.
Frankie calls at 10:00, right before he goes to bed.
“Eliza did the finger gun again,” he says.
Our newest trial. If she were a boy, maybe it would be different, boys will be boys, but she is a girl and not even five, so when she makes her thumb and forefinger into a gun shape, it must mean something. Now half the parents in her class think we are the NRA folks, the right-wing nuts. The first time it happened, I didn’t even notice. We were on the school playground and what caught my eye was the look on another mom’s face, her jaw falling open in classic disbelief. What’s making her do that? I wondered. I followed her eyes to where my daughter was playing by herself, pointing her “gun” up into the sky and twirling.
I didn’t think much of it then but the next day the Volvo moms ganged up on me. I call them that both because that’s what they drive and because of the way they always want to put lines around things, to square off the messy edges of life. “We don’t let the kids watch any TV,” said the one who was pretending to be my friend. “It makes it a little harder to cook dinner, but we have to put their well-being first, right?”
Frankie and I have decided to not say anything to Eliza about the finger gun. We don’t see what good calling attention to it will do. But still, we report on sightings. This is the fourth time this week. If anything, it’s becoming more frequent. After we hang up, I flip over to an I Love Lucy marathon. I watch as, over and over, Lucy and Ethel’s schemes go hilariously awry and then the world rights itself again, all in concise thirty-minute blocks. I fall asleep during a particularly convoluted episode in which the Ricardos and the Mertzes are plotting to kidnap the neighbors who they think are plotting to kill them. There are so many layers of misconception and deceit, I can’t parse what is actually happening. I sleep restlessly and dream of jurors held hostage by housewives with finger guns.

My TV binge has made me feel hungover, but it’s not just me. Everyone arrives looking haggard. I take my usual seat, keep my eyes on the croissant I bought in the hotel lobby. The buttery flakes cling to my fingers and lips and the table.
Sam comes in with an urgency to his stride. “I don’t know about you, but I did a lot of thinking last night,” he says. “Let’s take another vote.”
“Enough of the secret ballots,” says Mel. “We need to know who’s voting no and why so we can talk this through.” People are nodding.
Sam gets that poked in the gut look again. He’s clearly uncomfortable with this idea. Maybe he knows that talking doesn’t always change your mind, it just wears you down. Maybe he has had endless debates with his partner, and then the Volvo moms, and then his partner again, about finger guns.
“Okay,” he says. “Let’s go around and state how you vote and what piece of evidence or testimony convinced you. Sound good?” People nod again. “Fine. I’ll go first.” Ever the leader. I admire how quickly he regains his composure. “On attempted murder, I find him guilty,” he says. “His parents own a gun and he had access to it. Even his teachers say he’s a bully, and that gym teacher who said he had it out for the victim—I believed him.”
Yes, the teachers were believable. The parents, devastated, all of them, were believable. Clueless, but believable. But where is the evidence? The beyond a reasonable doubt? The victim doesn’t know for sure if there was a gun. Even the doctor’s report is inconclusive. He didn’t go in for four days, when his mother discovered blood in his urine and forced him to reveal the bruises that purpled his torso like paintball splats. There was no question he’d been beaten, but by that time, the expert explained apologetically, the appearance of his rectum—noticeably swollen, with micro tears—could have been the result of “consensual anal play with a hard object” from up to a week before.
We go around the table clockwise, guilty guilty guilty, he was mean, he has no alibi, his family has a gun.
Simply too awful to doubt.
“I find him guilty, too,” Mike says. We all stare at that wall face. “It’s simple. If I had a gun and that faggot was near me, I’d do the same damn thing.”  
Sam cringes, Carla opens her mouth and closes it again. Mimi, her pink-nailed fingers clasped around her belly, nods like it’s a fair assessment. People like that shouldn’t have babies, Frankie would say.
“I don’t think he should go to jail for it,” Mike adds. “But the law’s the law.”
Mel says, “So who doesn’t find him guilty?”
Mimi reaches into her purse, comes up with a banana, digs a fingernail into the non-stem end. “I think the attack was random,” she says. “Not related to the other stuff.”
Mel holds up a hand before anyone can protest. “And, who’s the other one?” she says.
There are only a few of us left to speak and the eyes go back and forth between our faces. I wish that we had stuck with the private ballots, that I could have kept my turmoil a secret, figured this out on my own. I wish I had just written down GUILTY. I should get there, eventually.
“It’s me,” I finally say.
“And do you think the attack was unrelated to the bullying?” Carla says. She can’t keep the derision out of her voice.
“No,” I say. “Of course they’re related.”
“But then—” Sam says.
“If we set him loose, he’s going to kill that kid,” Carla says.
“I don’t think so,” I say. “I don’t know. Maybe.”
“Could you live with it if he does?”
Of course not. But.
“He beat him up in the hall, just the week before.”
Yes, but.
“Everyone says he had it out for him.”
“His family owns that gun.”
“How can you possibly—?”
I wish I had a neat answer for these people, my so-called peers. I wish there were a piece of evidence, a line of testimony, something concrete I could point to as the basis for my vote. But the fact is, I am checking off all the same boxes as they are and coming to not at all the same conclusion. The path from intimidation to assault seems clear, but after that it becomes murky. Must this kind of hate always lead to the desire to kill? Are we really that simple?
“What is the sentence for these crimes?” I say.
“We’re not supposed to weigh that,” Sam says.
“But what is it? If we convict on all four? Five years? Ten? He’s a teenager.”
“Twenty-four years,” says Mel. “Give or take some months.”
We are all silent. What can we say? Even Carla is shocked. Whichever way we decide, if we are wrong, one of these boys could lose his life.
I close my eyes and try to see what Mike sees. A boy in the woods, full of hate, a boy with a plan. But as he gets closer to the crime, I no longer see him from the outside. I am inside him. I see the victim in front of me. My heart is pounding. My hand moves, raises a gun. Ugly words swirl in my brain, come out of my mouth. But I am not confident. I am scared. I am confused. How did I get here?
I have doubt. I have so much doubt.

It’s getting late and we’re not getting any closer. They tell us to take a break. I walk down the hall to the women’s room, which is oddly palatial, like something out of an old department store. There’s a separate outer room with a sit-down counter and a long mirror on one side, and a wide chaise longue on the other. I’m thinking I might lie down in there for a bit, but when I open the door, I see someone else has had the same idea. The lights are off and the daylight through the tall windows is waning, but it’s easy to recognize Mimi’s pregnant form.
“You can come in,” she says softly. “There’s room.”
I sit on the edge and take off my shoes and then lie on my back with only a couple of inches between us. Her breath is shallow, a little labored, punctuated every few minutes by a sharp intake, a little gasp. After a few minutes of this, I turn to look at her and she nods.
“How long?” I ask.
“It’s been building since this morning,” she says. “The last two were just the same.” That little gasp, her eyes moving involuntarily away until it’s over. “I figure I’ve got about four more hours before I need to go in.”
“We’re not going to be done in four hours,” I say.
“I know.”
“Why don’t you say something?” I ask, but what I really mean is why don’t you change your vote? Why don’t you convince me to change mine? It would be so easy for us all to go home.
She doesn’t answer. She is totally inside herself. Tomorrow there will be peace and joy and sore nipples and a tiny reaching blank slate.
I picture Eliza as I first saw her, pulsing, magnificent, covered with vernix. And now: with her pull-ups laid to rest and her finger-gun under her pillow.
These creatures we bring into the world. How they will hurt and who will protect them and what they will do and will they be right or wrong.
We lie face to face. Mimi’s breath is warm in the space between us. I can smell her conviction and the turkey sandwich she ate for lunch. When the next contraction comes, I give her my hands and she squeezes.

Originally published in Moss: Volume Three.
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