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Last week I was a juror in the trial of a man accused of selling a $10 bag of heroin to an undercover police officer. At the end of the two days of testimony, I concluded that the defendant was guilty beyond a reasonable doubt. I also concluded that he should be acquitted.
In my mind, it came down to a simple, unsettling question: Is it worse to let a drug dealer go free, or to reward the police for lying under oath?
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As I saw it, the defendant was guilty beyond a reasonable doubt. But there was a complication.
The "eyes" officer in this case -- the only person who claimed to have seen the cash and drugs change hands -- testified that he had radioed the following description of the suspect: black male, black jacket, royal blue baseball hat, v-necked white t-shirt, sneakers, key on a chain around his neck, carrying a bottle of ginger ale. He said his view had been unobstructed, on a clear day, from a distance of 50 to 60 feet.
Defense lawyer Jon W. Norris produced aerial photographs to prove that this was wrong. Between the place that the eyes said he was sitting and the place the police said the transaction occurred was a full-length basketball court -- 80 feet -- plus a lot more pavement. Norris sent an investigator to the scene to measure the total distance: It was, the investigator testified, 172 feet. The prosecutor never contested this. He couldn't. The discrepancy was verified by satellite imagery.
So the eyes had seen a ginger ale bottle at 172 feet? Really? That's some set of eyes the eyes had.
One morning, my wife and I went out into the street, measured off 172 feet and stood at either end. My eyesight is 20-20 with glasses. Her eyesight is 20-20 without glasses. From that distance, I could not see a trace of the key I had hung around her neck. She could not begin to distinguish the Sprite bottle I carried from any other greenish bottle-shaped thing. From that distance, you couldn't tell a v-neck from a crew neck or, for that matter, a T-shirt from a polo shirt.
I concluded that the eyes had lied about the specificity of his radioed description -- and that he wasn't the only one. Two other police officers who had been at the scene testified that they'd heard exactly that description, word for word, detail for detail, down to the ginger ale bottle. They said they were certain.
How could this be? Defense lawyer Norris offered a theory: The officers had colluded in a fabrication. To better justify the arrest, he said, they had improved upon what had probably been a much sketchier original description. Once they had all seen the defendant up close, in handcuffs, and examined photos of him taken at the scene, all the little details became clear: the v-neck, the key, the ginger ale bottle. Retroactively, Norris suggested, they produced a perfect description.
Hadn't the initial description been tape-recorded? No. The D.C. police testified that they do not do that. Sending a radio message out over a recorded channel, they said, would risk that the message could be intercepted by the bad guys on a police scanner and alert them to the sting. I found myself wondering: If the police wanted to, couldn't they just put a cheap recording device in the eyes' car? Just for the record?
But they don't. Possibly they don't want the record.
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At the end of the day, after four hours of deliberations over a $10 drug bust, the deadlocked jury was sent home for the night. They came back the next day and tried again. More hours passed. In the end, they pronounced themselves hopelessly hung. A mistrial was declared.
I later spoke with one of the jurors, who told me they had been split, 10 for acquittal and two for a guilty verdict. Many of them had simply mistrusted the eyes. They didn't believe he could have possibly seen the ginger ale bottle or the v-neck or the key, and they felt his apparent willingness to lie had tainted the prosecution's whole case.
The prosecution seemed to get the message. On Friday, they said they would not refile the charges. The defendant is now free.
I'm proud of our jury system. I can't say the same about our police.
CR