Guilty . . . But Acquitted

I live in Baltimore City.  As all residents of Baltimore understand, I am summoned to jury duty at least yearly (it’s supposed to be yearly but I’m not the only one who believes the summons comes more frequently than it ought).  Moreover, living in a city that calls about 800 potential jurors every day, more often than not, I need to show up at the courthouse with a book or two to wait around all day.

Last Tuesday, for the first time, after perhaps a dozen voir dires over the years, I was impaneled on a jury.  There was a time when I thought I would like to serve on a jury if I could reasonably bear the time off from work (I’ve always worked for organizations that could and would pay me for time spent in jury service but deadlines don’t change just because you’re in court).  I’ve been unemployed for a few years now and time is not really an issue.  On the other hand, I’ve come to the opinion that our justice system is far from fair, that sentences are grossly long and that, overall, the system is in great need of reform.  To make things more stressful, the charges were serious:  3 counts of 1st degree attempted murder, 3 counts of 2nd degree attempted murder, various assault charges, and firearm charges including possession of a firearm by a prohibited person.  I decided that ridiculously long prison terms were something I could do little about and that I would try to serve in a fair and honest capacity despite my objections to the system itself (there was also not much I could do about it).

The basic facts of the case seem to be these:  in the spring of last year, in a south Baltimore neighborhood, two men argued in an alley.  Apparently, one pulled out a gun and started shooting hitting the other man in the hip and hand and also wounding two women that were also in the alley.  The two women ran and took refuge in an auto repair garage; the man ran into his house from the alley.

The State called three eyewitnesses.  One was one of the female victims.  She is a former “I’m in a program, now” heroin addict.  On the day of the crime, while at the hospital, she picked the shooter out of a photo array.  In order to assure her appearance in court, the prosecutor had her arrested the previous night and she spent the night in jail before being brought to court.  She was in her mid forties or so and weighed perhaps 85 lbs.  She was disheveled and twitching and thoroughly pissed that she’d spent the night in jail.  In court, she recounted the story and identified the defendant as the man who shot her.

The defense attorney tried to impugn her credibility by pointing to her drug addiction, the fact that one of the other victims was known to be a drug dealer and in a truly disgusting side note opined that her injury was entirely “predictable” because of her involvement in the drug trade.  At the hospital, she was found to have a small bag of heroin (about $10 worth).  The defense attorney surmised that since she was not arrested for possession (the heroin was confiscated and logged as evidence) she perhaps cut a deal with police to identify the man the police wanted to arrest.  The attorney also pointed to the fact that she’d been arrested to ensure her appearance in court as a strike against her credibility.  I know that it’s the defense attorney’s job to undermine testimony for the prosecution but I found his approach disgusting and rather patronizing.

The two other eyewitnesses lived in a house in the neighborhood.  Their bedroom window faces the alley.  Hearing gunshots rather close, they went to the window to look out and see what was going on.  They both identified the defendant as the gunman and each picked the defendant’s picture from a photo array at the police station on the day of the incident.  Their house is an old Baltimore row house with a backyard that is perhaps 7 feet deep and a fence separating it from the alley.  From their upstairs window, the gunman was about 15 feet from them.  They both testified that he had a gun in his hand and was yelling “You’ll get it, motherfucker” at a man running into a house on the other side of the alley.

The defense attorney’s tactic was to underscore the differences between the statements they made to police on the day of the crime and their testimony in court (some 14 months later).  In their statements at the time, they both said they saw 2 men running into the house — one being a person they knew to live there.  In their testimony, each remembered only one man running into the house (the one they knew lived there).  These discrepancies didn’t bother me too much — the identity — existence? — of the mystery man is intriguing but not particularly germane.  Over 14 months, particularly if one has told the story numerous times (I assume they had, I would’ve), it’s not surprising to have some details change in memory.  I put more weight in the statements they made on the same day, and that they identified the defendant in a photo array on the same day, than their testimony more than a year later.

So, three eyewitnesses put the defendant at the scene of the crime with a gun in his hand and one actually saw him shoot her.  The other female victim couldn’t be located and the male victim, the one seen running into his house, was polite but refused to cooperate with police in any way.

Other witnesses included a ballistics expert from the Baltimore Police Department.  He testified that the shell casings found in the alley were all fired from the same gun.  One of the detectives assigned to the case (the lead detective was unavailable having resigned from the police department and moved to Massachusetts to attend school).  He recounted his involvement at the scene and, at the prosecutor’s urging, described the methods by which the photo arrays are prepared and presented to witnesses.  The one female witness, because she was shown the photos in the hospital, was shown a photo array using a “shuffle” method.  Six photos are put in front of her face down.  They ask her to rearrange the pictures without looking at them so that they are in a more or less random order when she looks at them.

The other two witnesses, because they were shown the photo arrays at the police station, were shown photos prepared in a “double blind” method.  The detectives prepare the array and give them to a person not associated with the investigation to present them to the witnesses.  In this way, the person presenting the array is unaware which picture(s) represent suspects and so, can’t possibly lead the witness to pick a particular suspect.

The defense attorney lightly cross examined the police witnesses and then both prosecution and defense rested.  The defense called not one witness of their own.

After closing arguments, we jurors repaired to the jury room to deliberate.  It was obvious to me that some of the charges were absurd.  As one might imagine, first degree attempted murder requires premeditation.  The only attempt the prosecutor made to secure that charge was to point out during closing arguments that while premeditation is required it was sufficient if that premeditation was momentary.  My assumption is that the 1st degree attempted murder charges were logged in hopes of persuading the defendant to make a plea agreement.

It was late in the day when we got to the jury room and I already knew that we’d have to come back for a 6th day of service the next day.  But I said, “Can we at least agree that they’ve put the defendant at the scene of the crime with a gun in his hand?”  Because, if we couldn’t agree on that there was no need to even consider the other charges.  I was dismayed when 2 of the jurors could not agree on that.  It was depressing as hell.  We had taken an informal poll on just that question.  Ten of us agreed that the evidence put the defendant at the scene with a gun in his hand.  Two did not.

Their reasoning?  The police could have done this and they could have done that.  That, of course, is always true.  The police always “could have” done anything.  However, there was no evidence presented that the police “did” do something.  It was depressing as hell because I could see no other outcome but a hung jury.  I was wondering how long the judge — a woman who’d impressed me with her friendly yet formal handling of the courtroom — would make us ‘deliberate’ before giving up.

The next morning, we reconvened.  In hopes that things had changed during a night’s reflection, the foreperson asked for another poll on the fundamental question.  Still the same:  ten believed the defendant was present and in possession of a gun, two were not convinced.  The two found the heroin addict victim to be totally unreliable and, while they believed the other two witnesses were telling the truth, they weren’t sure that the police didn’t commit some malfeasance in their handling of the witnesses and the evidence.

Some of us began looking at the documents about the photo arrays and the identifications therein.  One the first page of each of the “double blind” photo array documents, there is a script that the presenter reads before handing the array to the witness.  Among other things, the presenter says that “I am not associated with this investigation in any way except that I am showing you these photographs.”  The presenter’s name, badge number and signature are on the document as well.

One of us recognized the presenter’s name and we found that she was present at the crime scene that morning according to the crime scene log.  To me, that certainly associates her with the investigation!  We asked the judge for clarification:  “Could ‘not associated with this investigation in any way’ be interpreted to mean ‘not assigned to the case’ or some other explanation that would permit her to be present at the crime scene?”  Unfortunately, no clarification could be given.

In addition, the presenter and the witnesses signed the photo array documents between 2 pm and 2:30 pm.  The crime scene log had the officer who was the presenter of the photo arrays present at the crime scene until 3:15 pm.  There were quite a few people in the crime scene log who left at 3:15 pm.  My assumption is that the person entrusted with the log didn’t note each coming and going but, rather, signed out everyone still on the list when he or she left the scene.  But who knows?  The evidence is what it is.

We took another poll.  Now that we’d identified problems with how the photo arrays were administered — particularly given that the prosecution and detectives went into a lot of detail about how the photo arrays were presented and why — there were 10 of us that agreed that the prosecution had not proven that the defendant was at the scene and in possession of a gun.  I think that we were all convinced that the defendant was the gunman but that the evidence was tainted.  Two jurors would still vote to convict; 10 (including me) would vote to acquit.  Eventually, those two agreed to acquit and we went back upstairs to read the verdict:  Not Guilty on all  counts.

It was a thoroughly unsatisfying and discouraging experience.  I can’t help but worry about the witnesses who lived in the neighborhood.  Their names and their address were broadcast frequently during the trial.  I can only hope that, having been acquitted, the defendant will have no animus towards those witnesses.  Still . . .

There’s a saying among Baltimore lawyers to the effect that “you can’t convict anyone in a court in Baltimore.”  This is usually interpreted to mean that juries in Baltimore are intransigent and uncooperative.  I have a new perspective on this now:  perhaps people aren’t convicted in Baltimore courtrooms because the police consistently foul up the case.