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On the jury, Gene Weingarten didn't believe the D.C. police's eyes

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By Gene Weingarten
Sunday, January 24, 2010

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.

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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?

As it turned out, my question became moot. At the end of criminal trials in D.C. Superior Court, but before deliberations, the judge discloses to the 14-person jury which two of them had been randomly selected to be alternates. I was one of the two, so I was dismissed. I never got to do what I had planned, which was to hold out for acquittal. I'd assumed my stubbornness would hang the jury, because I assumed the others would want to convict. Manifestly, the guy did it.

The case involved a routine "buy-bust" operation; according to the testimony, hundreds of these occur each month in Washington under almost identical circumstances. In this case, an undercover officer drove to a street corner in Northeast D.C. that is known for being an open-air narcotics market. He was approached on the street by a woman who was acting as an intermediary for the dealer. She took his order and his money, and then walked away from the car to meet the dealer out of sight of the buyer. It's a system designed to stymie any police surveillance.

For that reason, in buy-bust operations, at least one other undercover officer is usually staked out elsewhere in the vicinity; in police jargon, he is the "eyes." His job is to try to see what happens out of sight of the purchaser. Once the eyes has witnessed the transaction and can identify the seller, he radios his description of the suspect to the arrest team, which then moves in to do its job.

That's how it worked in this case: The arrest team descended, located someone matching the radioed description and cuffed him. In the suspect's pocket was a $10 bill with the same serial number as the bill the undercover buyer had given the intermediary. Open and shut.

At trial, the defense didn't deny that the defendant had been caught with the incriminating money. The explanation they offered was feeble: Moments before the arrest, the defense contended, someone had asked the defendant to make change for a $10 bill. This mystery person was named but never produced or further identified. The defendant never testified, which was his right, but the only person who gave him an alibi -- and his only real character witness -- was his best friend, who arrived in court in police custody and testified, unconvincingly, in an orange prison jumpsuit and manacled in chains, hand to foot.

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.


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