The Rights of the People (20 page)

During voir dire,
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as the questioning in jury selection is known, Quint and Petras found that the pool comprised several people who knew the block, a few with relatives in the police force, others with relatives behind bars, some who had been robbed and said they were fed up with crime, and several members of volunteer anticrime patrols.

These categories seemed to cut in various ways. Some said the cops who were relatives never talked about their work. A middle-aged black man with a nephew in jail thought that his sentence was too long, and a white man believed that his brother’s was too short. Both got excluded, one by each side. The defense screened out the anticrime patrols. A short, frail man from the neighborhood seemed so nervous that the judge dismissed him, and a woman was excused after she started crying about her niece having been mugged.

Quint and Petras used one challenge for cause to exclude a white man who said that because the police had done a lot of good in his neighborhood, he would tend to believe an officer who testified. They used a peremptory challenge against an elderly black man, formerly an elevator operator, who worked in an after-school program at a recreation center across the street from the spot where Douglas had been arrested. Quint wasn’t sure whether he would want to be tough on guns or tough on the police.

“I felt OK about this jury,” Quint remarked in the end. Including two alternates, it contained eight African-Americans, five whites, and one Asian. The juror elected foreman was a white man who worked for a pharmaceutical journal.

On the first day of the trial, I was the only observer sitting in the rows of wooden benches. When you’re facing prison—and Douglas was facing four to five years—an empty courtroom must be one of the loneliest
places in the world. It is a vacuum that engulfs many poor defendants with shattered families and friends who are stressed and busy with overlapping demands of unforgiving work hours, illness, and the desperate search for child care.

Douglas’s three-year-old daughter had been brought to court by her mother and her mother’s friend during jury selection the previous day. Although they were seated in the very last row, as if trying to be both present and invisible, Petras had quietly asked them to leave. The judge didn’t like children in the courtroom, Petras told me later, and she worried that jurors might think it callous to allow the little girl to hear such accusations about her father. So the room now had a sorrowful sense of emptiness.

A federal trial has its costumes. Female lawyers are evidently supposed to dress as if they have come directly from a funeral. Convention assigns males somber suits but permits them flagrant ties. Jurors come in all manner of clothing, from jeans and T-shirts to business attire.

Defendants being held without bail appear in prison uniforms when no jury is present; judges are accustomed to the garb, but it would scream to jurors, “Criminal!” So when juries are seated and trials begin, the accused are outfitted from two racks of variously sized garments in the public defenders’ office on the ground floor of the massive federal courthouse. Douglas wore a bright orange jumpsuit to his pretrial motion hearings but for the jurors he dressed more respectably than he generally did as a free man: His lawyers had given the federal marshals who guarded him a pair of dark trousers, a blue shirt, and a dark purple tie to have him put on. He looked splendid.

Neill arrived at the courthouse wearing his police uniform topped off by a pink baseball cap labeled
OPERATION IRAQI FREEDOM
. He shed the cap before walking into the courtroom and taking his seat on the witness stand.

The opening arguments had sketched the conflicting stories. Douglas was an armed felon “reaching for his thirty-eight-caliber handgun.” Douglas was an innocent beer-sipping celebrant who had the “bad judgment” to carry his open can into the courtyard as midnight approached.

Neill tried to be engaging. He lost a little of his ghetto dialect, and as the jurors filed in or out, he faced them and stood with his hands behind his back, as if “at ease” on a military parade ground. “Good morning, Your Honor,” he said. “Good morning, jurors.” He was a veteran witness, although, a supervisor told me, some of the assistant U.S. attorneys regarded him as a bit of a loose cannon, hard to control on the stand.

One of the prosecutors, Jessie Liu, led him gently through the events. She displayed a huge aerial photo of the courtyard and had him stick orange dots on the spots where he had parked, where he had seen Douglas, where the critical bush was located. With the judge’s permission, she had him crouch to demonstrate how he had bent over Douglas. She handed him the gun, in a plastic bag; he removed the weapon and confirmed that it was the same firearm that he had recovered.

After a recess, Mary Petras geared herself up to punch holes in his credibility. She began by introducing the police form on which his questioning had been recorded. Douglas’s answers had been blacked out, because his lawyers hadn’t yet decided whether to have him testify. The judge had accepted the prosecution’s argument that the jury should not see answers on which he might not be cross-examined.

So the questions, not the answers, were Petras’s focus—questions she hoped jurors would find unnatural from an officer who had supposedly just seen Douglas toss a gun. “The first question you asked Mr. Douglas was, ‘What do you have to say about this charge?’ Correct?”

“Yes,” Neill answered.

“You don’t say, ‘I just saw the gun in your hand.’ ”

“If I say I saw him with the gun, he might get antagonistic,” Neill replied, explaining that he always asked open-ended questions in the hope of getting more information.

“You don’t say, ‘Why did you drop the gun in the bush?’ You say, ‘Why did you stop at the bush where the gun was?’ Correct?”

“Yes.”

A seed of doubt had been planted.

She began to ask Neill about two other arrests that night for thrown guns, so close in time that he seemed to be everywhere at once. When she implied that he was picking up guns and linking them to random people, Neill got testy and began speaking rapidly. “If I hadn’t seen him with a gun I wouldn’t have locked him up. It’s easier to get the gun off the street. I don’t have to come to court. After twenty-six years I don’t like to do it anymore. This is about the truth. You either see it or you don’t.” (Some cops do like to come to court, though, because it means overtime that can run their pay up above $100,000 a year.)

As Petras proceeded to assemble a timeline suggesting that Neill could not have made such rapid arrests (although he probably could have, based on how fast I saw him move on the streets), Liu objected, and the judge decided after a conference at the bench that the sequence was irrelevant. But another seed of doubt had already been sown.

And then, reconvening after lunch, Petras hit him with the key questions, designed merely to get some facts of his past before the jury. “Sergeant Neill, you are currently the subject of an investigation yourself, correct?”

“Yes, ma’am.”

And so it went: A violation of the Hatch Act? A complaint by a citizen that you illegally searched his car? Another complaint that you illegally searched him and his car? A shooting? She deftly avoided asking him to explain any of these incidents, although he jumped in with his excuse for wounding an armed man he had been wrestling to the ground.

“I only shot him when he tried to spin the gun around and said he was gonna shoot me twice,” Neill reported. An investigation by the U.S. Attorney’s office had been opened and closed, and the Metropolitan Police Department had criticized him for the offense of keeping his ammunition clip only partly full, his method of avoiding excessive pressure on the spring. Also, he added, “MPD wanted to know why I didn’t shoot him when I saw the gun in his hand, and I said ’cause he wasn’t pointin’ it at me.”

Now the men and women who would judge Douglas had a slightly more complete picture of the key police witness than jurors usually receive in trials, although it was still rather sketchy. Neill seemed to measure his squad’s accomplishments not by the number of arrests or convictions—data he never offered to me—but by the number of guns removed from the streets. “We got a hundred and sixty guns in a year,” he once announced as we rode through darkened neighborhoods.

This was not a feature of his professional values that Liu chose to emphasize in her redirect examination; perhaps a jury would speculate that his conviction rate was low, that his police work was shoddy. But she did ask him whether his unit ever found guns without making a charge.

“We’ve found guns but haven’t charged anyone because we didn’t see anyone with them,” he answered.

And at another point, she aimed the essential question straight at Neill’s heart: “Do you have any doubt that you saw the defendant with a gun?”

“No doubt. I have twenty-six years in the force, and I’m close to retirement. I don’t want to jeopardize that. I have a top secret clearance in the military.” Then he turned to look squarely at the jury. “If you find him not guilty, that’s your right.” He seemed poised to elaborate but was interrupted by Judge Kennedy, who told him not to go beyond the question. There had been no objection by Douglas’s lawyers to Neill’s
burst of defensiveness; they probably sensed that it would work to his detriment.

After Neill’s testimony, the prosecution engaged in some defensiveness of its own. Knowing that no fingerprints had been found on the gun, the government tried to preempt jurors’ surprise and doubt by eliciting testimony from a veteran police lab technician about how hard it was to lift useful prints. Either the surface is dusted with black powder, which is then picked up by tape and transferred to a white card, or the gun is placed in a tank where super-glue is heated until it becomes a gas. It adheres to fingerprints, which can be seen using fluorescent chemicals and special light. Only 10 to 15 percent of recovered guns have identifiable prints, the technician testified, because most places that hands touch—the trigger, the handle—are knurled, and prints on flat surfaces are often smeared, especially if the gun is thrown. The explanation, albeit logical, often throws jurors who have watched the fictitious precision of crime-lab work on television.

The prosecution rested, and then the defense had to decide whether to put Douglas on the stand. The problem was, Douglas would have to pay a high price for giving the jury his version: If he testified, the prosecutor would cross-examine him about a prior conviction. It would come down to the word of a young black felon against a veteran white policeman.

In general, a defendant’s criminal record remains unknown to the jurors, who are supposed to judge guilt or innocence regardless of prior conduct. But if the accused testifies, the prosecution is free to cross-examine about past convictions involving dishonesty, just as the defense can try to impeach the credibility of testimony by government witnesses.

In this case, however, jurors already knew that Douglas was a felon, because the fact was woven into the federal charge he faced: possession of a firearm by someone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”
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It is a highly prejudicial accusation that tarnishes defendants even if they remain silent in their trials.

What the jurors did not know were the details, and his lawyers didn’t want them to find out. In 1995, Douglas had been sentenced in Maryland to five years, all but one suspended, for two robberies and a burglary. He had no serious blemishes on his record since, and Petras and Quint hoped that Judge Kennedy would allow him to testify without having that conviction introduced. Petras stayed in jail until midnight prepping him for his possible testimony the next day, but in the morning, Kennedy found
the conviction admissible under the Rules of Evidence, which admit priors whose sentences have ended within the previous decade.

Under the circumstances, Quint’s more seasoned colleagues advised against putting Douglas on the stand. “They said the details of his priors would come out, and you never know what a defendant will say under cross-examination,” she noted. Worse, the Federal Sentencing Guidelines would increase the penalty if he testified and was found guilty: His sentence would be raised by two levels for “obstructing justice,” a perverse twist that punishes those who profess their innocence. Just by going to trial and refusing to plead guilty, Douglas had forfeited a sentence reduction of two levels for “acceptance of responsibility.” The dice were loaded.

Therefore, the defense didn’t really put on a case beyond relying on the holes that Quint and Petras hoped they had poked in Neill’s story. After the summations, the jurors filed out to deliberate, and the courtroom was left in heavy silence.

Over the next two days, jurors were confounded and divided. Some had not taken notes, one told me later, so they asked Kennedy twice for transcripts, which they assumed they had a right to see. But the judge refused without telling them why, causing irritation in the jury room; had they known in advance, they would have been writing. Kennedy accepted Quint’s argument that excerpts out of the context of body language and inflection would be distorting, and the judge did not want the case retried in bits and pieces of transcript. Quint didn’t want Neill’s credentials paraded again in print before the jury.

At 3:15 p.m. on the second day of deliberations, the foreman passed Judge Kennedy this note: “Unfortunately, we are at an impasse. We have taken two votes. Please instruct us on how to proceed. We feel we have said all that we have to say.” The judge sent them home and brought them in for a third day, when the foreman finally notified him that they were hopelessly deadlocked. Kennedy did what judges hate to do: He declared a mistrial.

The jurors broke down mostly along racial lines, according to one of them, a young white woman. The African-Americans tended to disbelieve Neill, and the whites and Asian man voted for conviction. Some jurors told of friends and boyfriends who carried guns. During voir dire, the young woman added, a number of jurors had concealed their negative experiences with the police, which had created bias, although she obviously had biases of her own. “I’d rather that the cops presumed that something was bad rather than good,” she said. “I think the same thing
with tapping our phones to catch terrorists. So what? Let the cops presume something and then find nothing.” The police, she declared, should have the right to search any car at any time for any reason.