Five Bullets (concluded)

          The victim in the five-bullets case opened his apartment door one afternoon. A man with a revolver fired at him and fled. Police quickly arrested the shooter who was after revenge because the victim had testified in a grand jury against the shooter’s brother about a robbery, and that brother was now in jail.

          The shooter told the police that my client, who lived in the same housing complex as the victim, had given him instructions on where to find the victim. My client told me that he had been out in the building’s yard when the shooter approached him and asked if he knew the victim. My client said yes, and the shooter asked where the victim lived. My client pointed to the building and said on the fifth floor. The shooter departed. My client said that he had never met the shooter before; he did not see the shooter with a gun; and he had no idea what the shooter was going to do.

          If this was true, my client, like the unwitting driver of the bank robber whom I had used as an example when writing about the Texas abortion law, was not an accomplice to the crime. I suspected, however, that there was a bit more to my client’s story than he was telling. He may not have met the shooter before, but the shooter was a well-known bad guy who evoked fear in the neighborhood. My client may have known the shooter by sight and been intimidated by him. Furthermore, my client may have heard the stories circulating about the victim’s testimony against the brother and at least suspected that the shooter’s inquiry was not a friendly one. Even so, however, I thought I could mount a good defense, especially since my client had never been in any trouble with the police, was an earnest student, and worked two part-time jobs to help his single mom and three siblings with family expenses.

          Alas, I was not to hear a jury announce a not-guilty verdict in what I thought was a winning case. When the shooter’s case went to trial, the prosecutors wanted my client’s testimony, and they agreed to give him immunity. It only made sense for him to accept it.

I remember this case for other reasons besides my lost opportunity for a victory. The victim after being shot somehow made it to the phone and called 911. Later, as was routine, I obtained a copy of that recording. I heard his voice reporting that he had been shot multiple times. His voice sounded calm. There were no screams or pleas for help. Just an affectless recitation of what had happened and where he was. He hung up. The recording continued with the 911 operator contacting a squad car. She said what she heard, but she added. “I don’t know. It sounded like a prank. I don’t think it happened. But I guess you have to go and check it out.” And he had five bullets in his body.

The case had yet another memorable wrinkle. Shortly after my client was arrested, a preliminary hearing was held. The victim was in a hospital, so the hearing was held there. He still had five bullets lodged in his body, three of which were in his skull awaiting surgical removal. I did not know how he survived the shooting, something I wondered about when it was my turn to question him. Multiple tubes were running in and out of his body, and it was hard to hear his responses with the numerous medical devices making different sounds. He, of course, did not know what had occurred between the shooter and my client, but in response to my query, he said he had always considered my client to be a friend, buoying my hopes for the trial that never was.

This was not as difficult as another cross-examination I once had, this one in a drug case. My client was charged with selling heroin to an undercover officer. In what was then a standard practice, the arrest was not made immediately after the sale, but weeks later, when the undercover pointed out the supposed seller to other members of his team, who then swooped in to grab the client. There was always the chance for a mistaken ID in these situations, and I won some cases on that ground but usually only if I could rather conclusively prove that my client had not made the sale. For example, I established that one client was sorting mail with many other workers at the main post office at the time of the transaction. Most often, however, these drug sales were tough to defend. The public, including jurors, generally thought that trained officers were unusually adept at making these identifications. However, data indicate that they are no better than the rest of us, and study after study have documented that mistaken identifications are one of the chief causes of wrongful convictions. My client, a street person, had no solid proof where he was at the time of the sale, and all I could do was to suggest that the undercover could not conclusively ID the seller, a defense that depended on cross-examination of the cop and almost never worked. The difficulty of that task, however, increased because the undercover between the time of the sale and trial had been shot and paralyzed in an incident unrelated to my case. He was wheeled into the courtroom on a hospital gurney with an IV drip in place. Go ahead: You try to cross-examine under these circumstances and show that that cop’s credibility could not be trusted and that there was a reasonable doubt that your client was guilty. I lost, of course. For the sale of two $5 bags of drugs, which he may or may not have done, my client got fifteen years in prison .

Such a Trial (continued)

          I went on to represent clients charged with more serious crimes and to supervise other trial attorneys. These experiences taught me a fact of life absorbed by most criminal defense attorneys: juries convict most of the time. This truth might have led to my disillusionment with the jury system, but I was repeatedly struck by how seriously jurors take their job. People are plucked from their daily routines and commanded to serve as jurors. Most resent it and have to make sacrifices to come to court. They are asked to make decisions about people they do not know and to assess situations and circumstances they hope never to encounter. It is easy to understand why ordinary citizens would not care one bit about what they are asked to do. But they do. Whether I have agreed with their decisions or not, I have observed that jurors almost always agonize over making the right decision.

          This fact has been highlighted by a few exceptions. The one that upset me the most happened in a robbery trial. A woman had been walking in a poor part of Brooklyn filled with rubble-strewn lots and ravaged shells of buildings. Two young men ran up behind her, grabbed her purse, and knocked her to the ground. She saw the two flee into one of the abandoned husks. Her screams brought calls to the police. She testified that she watched the hiding place of her attackers until the police apprehended the defendant there, and then she immediately identified him as one of the criminals.

          Cross-examination demonstrated, I thought, that she had had little opportunity to observe the purse snatchers. They had come from behind, one on each side of her. She had not looked back as they approached, and they had run off in front of her. I tried to show that at best she might have caught a glimpse of the profile of one of them, and although she maintained that she had continuously viewed their hiding place so that they could not have left without her detection, she had no explanation as to why the police had only found one of the supposed robbers, my client, in the building.

          The defendant, a teenager, testified that he had simply been hanging out in a neighborhood building when the police arrested him. He swore that he knew nothing about the robbery. The victim’s purse was not found.

          I then presented what I thought was convincing evidence that the defendant had not been found in the building where the robbers had sought refuge. The victim had firmly identified one location. The police just as firmly said that they had found the defendant elsewhere. Citing official records, I showed that the building where the defendant had been found was located at a considerable distance from the site the victim had pinpointed, with no connection between the two structures.

          I argued that the victim was clearly confused and that it was only natural that when she saw the defendant handcuffed in police custody, she identified him as one of the culprits. However, the identification was wrong or at least there was a reasonable doubt about whether she was correct. The jury, however, convicted in less than an hour. As the jurors left, I tried to talk to some of them to try to understand how I had failed. Only one paused. He told me that I had done a good job representing such a clearly guilty person. He then put his hand on my arm, laughed, and said, “We were especially proud of how you were able to make that building move.” He looked as if he expected me to chuckle at the joke. When I didn’t, he strode away. I was angry, of course, because I had lost, but I was also angry because he had apparently not taken the case or the facts seriously. This was behavior I seldom encountered in a jury.

          Instead I have found the vast majority of jurors to be diligent and earnest. One juror, for example, sought me out in my office the day after returning a guilty verdict. The police had said that while one officer had knocked on an apartment door, another stood out back and had seen the defendant toss drugs out the window. Others besides the defendant, however, had been in the apartment at the time, and the officer who had identified the defendant in the fifth-story window had seen the toss from an oblique angle. The apartment was not the defendant’s, and I argued that they had identified the wrong person. At least some jurors agreed, and they announced they were hung. The judge, however, sent them out for further deliberations. The jurors then asked for clarification as to what “possession” meant. The judge told them that possession as the law defines it is not limited to immediate, physical control. Instead, it includes “constructive possession,” meaning that anyone in a place where drugs are present constructively possesses them. I objected, arguing that the law of constructive possession requires knowledge and apparent control of an object. I constructively possess the books on my office shelf even when I am not physically possessing them, but my visitors do not. However, the judge did not waver, and fifteen minutes later a guilty verdict was returned.

          The next day that convicted juror protested. “I had no choice once the judge redefined possession. I didn’t think your client threw out the drugs, but I had no choice after what the judge said. I couldn’t sleep last night thinking about that boy.”

          Because jurors almost always try to reach the right decision, in cases where I have not agreed with their verdict, I do not ask, “What is wrong with you people?” Instead I ask, “What information did I fail to present?” “What question did I not think to ask?” “What argument did I neglect to make?” In some case, I have realized that the outcome was not the result of my failings or those of the jury. Sometimes the result is ordained by the law as given to the jury.

(Concluded November 25.)