New Adventures of the Compassionate Curmudgeon

In which I tend to rant. A lot. But compassionately...

The Trial

This is a slightly edited version of a blog post that was originally published on the old Compassionate Curmudgeon blog on June 7, 2008 at 10:28 AM. It's the last in the series about my stint as a juror in 2008.

Thursday during the late afternoon rush, there were probably eleven people muttering under their breath, as they made their way home; they could have left at least an hour earlier, if only that one juror hadn't been so stubborn.

That's speculation, of course, and wouldn't be admissible as evidence in a court, but it is true that one lone juror did extend the deliberation period by at least an hour.

I was that juror.

The Criminal Justice Center in Philadelphia

I've been pondering how to write about the case, because although it was basically pretty simple (only one day of testimony), it would be easy to get bogged down in the details. So rather than offering a narrative of the events as they unfolded, I'm just going to summarize the evidence from my point of view. Similarly, I'll just give a broad outline of the deliberations, because although they only lasted a bit over three hours, I couldn't possibly do justice to everyone's point of view.

The defendant, whom I'll just call Keith, was charged with three counts of "possession with intent to deliver a controlled substance", those substances being marijuana, cocaine, and hydrocodone-oxycodone. He was also charged with "possessing an instrument of crime", aka guns, and finally with "criminal conspiracy to sell drugs."

Judge John Poserina presided, with ADA Carmella Jacquinto on hand for the Commonwealth and Raymond Driscoll representing the defendant.

A total of four witnesses were called, all Philadelphia police officers. A plainclothes detective (named Walker, I believe) testified that in May of 2004 he used a Confidential Informant (CI) to make a drug purchase while he watched from his unmarked car parked about 60 feet away. He further testified that the defendant, Keith, was one of the participants in that transaction.

The police obtained a search warrant and executed it 24 hours later. Upon arriving at the house, they were met by a woman (Keith's wife), and during the search they found quantities of drugs in the enclosed porch, as well as in two or three other parts of the house, including at least one bedroom. On the bureau of that bedroom they found a checkbook and a couple of bills with Keith's name and address.

They also found two handguns, one in the porch, the other in the bedroom, at least one of which had its serial number filed off. And they found a BB gun.

While the police searched the house, Keith returned from his job as a Septa trolley operator. When he asked what was going on, he was placed under arrest.

The testimony about the search and arrest was given by two officers, one of whose names I've forgotten and the other one was named something like Licciardello (sorry, but jurors aren't allowed to take notes in Philadelphia courts, and my memory is not what it used to be).

Officer Spicer then testified as an expert to show that the quantity of drugs and their packaging revealed that they were intended to be sold, as opposed to being used.

And then the Commonwealth rested.

13th Street in Philadelphia

The next day the defense offered no testimony, the two attorneys gave their closing arguments, the judge gave instructions to the jury, and we were back in the jury room by noon.

The first task was to pick a foreman. I was the last person to take a restroom break, and on returning to the jury room the others informed me that I had been unanimously selected foreman. My attitude is that I'm happy to be foreman unless someone else really wants it, so this was fine by me.

The first secret ballot revealed that nine jurors voted guilty on nearly every charge (there were a couple split ballots) and three of us felt the defendant was not guilty of all charges. Since I was one of those three, I'll give my thought process.

One of my guiding principles is that it is better for fifty or a hundred guilty persons to go free rather than let one innocent person go to jail. So I take the presumption of innocence very seriously.

I'm also very much aware that eyewitness identification evidence is the leading cause of wrongful conviction in the United States.

So putting those together, I focused my attention on the fact that only one officer (Walker) testified to seeing Keith participate in the drug deal, and Walker had not been present at the arrest. The arresting officer, so I thought, had just cuffed the first person who showed up.

(During deliberations several jurors said they thought that Walker had been present during the arrest. I'm not certain who is correct, just trying to give my thought process, but it seems odd that an undercover policeman would be present for the arrest.)

There was no other evidence (or so I thought) that directly linked the defendant to the drugs or the guns. Yes, they were found in the house where he lived, but there was no evidence presented as to how many people lived in or had access to that house. The defendant's fingerprints were not found on the guns.

With this as my foundation, I basically rejected the rest of the evidence as not being directly linked to the defendant. I think what I did was to compare every other piece of evidence individually against the single ID testimony and found it wanting.

To put it another way, if I'm ever in a position of being accused of a crime, I would hope that my liberty would not be taken away because of the testimony of one eyewitness identification, no matter how good the observational skills of that witness.

And let me quickly interject something here. I'm in no way impugning the testimony of Walker or any of the other police officers. As far as I'm concerned they all testified honestly to the facts as they recalled them, and any inconsistencies (and during cross-examination, Mr. Driscoll found several, including one whopper) were simply the result of flawed memory after four years. I'm not even necessarily disputing Walker's ID of the defendant; I'm saying that he is only one person.

As we were discussing this, one of the jurors, Joseph, asked me what evidence would it take to convince me that Keith was in fact the person observed in the drug transaction. My answer was something along the lines of "If the officer had made the arrest on the same night that he observed the drug transaction".

And to be clear, I was not denying that crimes had been committed in that house; nor was I saying that I thought Keith was innocent. I simply did not think the Commonwealth had met its burden of proof beyond a reasonable doubt.

Anyway, about an hour or so into deliberations, when it became clear that we weren't making any progress, I asked whether there were any of the charges that they might change their minds on. Turned out that everyone thought that the cocaine charge was the weakest because of the relatively small quantity that was found. We now had one Not Guilty verdict!

But it continued to look like we might become a hung jury on the other charges, as I wasn't backing down a bit. By this time, however, the other two advocates of not guilty were weakening.

There was a lot of very spirited discussion, but never once did anyone express anger. Impatience, yes. Exasperation, yes. But never anger. And there were a few raised voices from time to time. But there was also some joking around that kept the tension from rising too high.

For example, at one point several people were talking at once. I called for order, because I had just heard Joseph say something that I liked. "Did you just say that you agreed with me on some point?" That got a nice laugh.

13th and Filbert in Philadelphia

Finally I asked if there might be some possibility of a compromise verdict. I didn't have anything specific in mind; I just tossed out the idea to Joseph.

There were a couple things happening now. Certain synapses in my brain were beginning to realign; the little grey cells were firing furiously. I had come in to the jury room convinced that everyone would feel as I did, and that we would have a very short deliberation and would acquit on all charges. But now I began to consider that nine reasonable people felt very differently than I did, and that the two who had initially agreed with me, no longer did. Plus, several of the jurors, in particular Joseph, but some of the others as well, kept asking me to explain my thinking again. And they kept pointing to the evidence of the oxycodone found in the bedroom that was clearly packaged (per the expert witness) for resale. And the bills with the defendant's name that were found on the bureau. And the gun in the bedroom. And the serial number filed off the gun...

And they pressed me on Walker's identification of the defendant. I insisted that it was just one person, and he had only seen the individual for a short time from a distance of 60 feet. Yes, they said, but he's a trained observer; he's a professional.

Gradually I began to look at the evidence as a whole; true, each individual piece might be explained away (at least as it pertained to the defendant; I repeat that I never doubted criminal activity, just that I didn't think the evidence pointed strongly enough against the defendant), but the totality of the evidence was now beginning to look pretty damning.

More back and forth, and at some point everyone agreed to take the marijuana charge off the table. We now had a second Not Guilty verdict!

So, they asked me, we've all given up something, what are you willing to compromise on?

Well, what was I willing to compromise on? I considered several different scenarios. Thinking out loud, I said that I might be able to consider that the evidence is strong enough that, though it might not point directly to the defendant, he must have known what was going on in his house. If he had knowledge of illegal activity and did nothing about it, well, might that not be considered conspiracy? Yes, I know that may not be the legal definition, but we were trying to come up with a compromise, and I was trying to find a rationale for reversing my position.

Joseph and the others kept on me. For awhile I thought we could take the remaining drug charge off, but several were adamant. The quantity and the packaging of the oxycodone were such that they insisted on a guilty verdict.

I began to bend on the gun charge. One of the guns was found in his bedroom, after all, and Joseph kept pressing me, did I really deny that it was his bedroom?

Somewhere along the way, they dropped the conspiracy charge. We now had three Not Guilty verdicts!

And that's as far as they were willing to go. Why wouldn't I agree to it? I told them that I wasn't rejecting the compromise, I just wasn't completely there yet.

Eventually, I did get there, however, and we now had two Guilty verdicts.

Someone asked if I was comfortable with our decision, and I replied that no, I wasn't entirely comfortable, but I thought I could live with the decision.

Just to make it formal, we decided to vote once again on all the charges.

The Court Crier looked in on us. We told him we were minutes away from a verdict. He told us that the judge was about to adjourn for the day! It was 3:30. We had been deliberating for just about three hours, not including the half hour for lunch.

We took the vote (show of hands this time), I filled out the verdict sheets, and in a few minutes we were ushered back into the courtroom where I read the verdict. The defense attorney, Mr. Driscoll, did not ask for the jury to be individually polled. And that lifted my spirits; it seemed to indicate to me that he was not surprised by the verdict.

Justice is blind

Back in the jury room, the judge paid us a visit to thank us for our service. He had given us each a letter explaining the historical significance of the jury system (I read it later and it is a very good summary). Veronica, I think, asked him if we had reached the right verdict. He recognized that it was a compromise verdict, and when someone pressed him, he said he would probably have found the defendant guilty on all charges. But, he said, he has seen many, many of these cases over the years. He also revealed that the defendant had a previous conviction for selling drugs.

That was good to hear. "Judge," I said, "I was the last holdout, and what you've just told us has made me feel a lot more comfortable with my decision."

A few brief words for the professionals. ADA Jacquinto did a good job presenting the evidence and arguing her case. If I felt the evidence was inadequate, well, she went to trial with the evidence she had, not the evidence she'd like to have. Mr. Driscoll, too, did a good job advocating for his client. I particularly liked that he didn't drag out his cross-examinations; he made his points clearly and moved on. And, of course, the judge. He kept the trial moving, and we all appreciated his gracious gesture at the end.

The other court employees (sorry, I didn't get any of their names) are the unsung heroes of our judicial system. They are all superbly professional, overworked, and probably underpaid.

This is longer than I intended it to be, and I've left an awful lot out. Those three hours went by quickly and yet they seemed to last a lot longer. At one point we asked the judge to clarify a point of law; after we went back into the courtroom and the judge re-read the law and we returned into the jury room, we decided that we didn't feel clarified. A lot happened in those three hours.

But I want to reiterate that this was a good group of people. Everyone, or almost everyone (yes, George, this means you! :-), recognized that I was not being willfully stubborn; like each of them, I was trying to find a solution based upon evidence that I considered less than satisfactory. A couple times George accused me of being unreasonable. I didn't have to defend myself, as Sandra and others jumped in to do that.

When I had finally agreed to the unanimous verdict, Joseph smiled at me and reached across the table to shake my hand.

And when some of us were waiting in line to retrieve our cell phones, Sandra offered a final encouraging word. "James, I'm glad I met you. I learned a lot from you. And from Joseph, too."

"Yes," I replied, "Joseph is a good guy."

Addendum July 2015: For the record the names of the police officers are

  • Jeffrey Walker, undercover officer
  • Thomas Liciardello
  • Brian Reynolds
  • Michael Spicer

To find out what happened after the verdict was read, please check out The Aftermath.