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

By Gene Weingarten
Sunday, January 24, 2010; B04

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?

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.

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.

As a juror, I was skeptical. As a citizen, I was angry. For one thing, I was mad about the whole case -- the bewildering amount of police time and taxpayer money spent on prosecuting one guy for selling $10 worth of narcotics. But as a juror, I felt it was not my business to object to that. I would have been willing to convict a defendant despite those misgivings.

The police testimony was another matter. As witnesses, the officers had been supremely self-assured, even cocky; clearly, they'd been through this hundreds of times. As they passed the jury before and after testimony, they greeted us winningly. One of them winked at us, almost imperceptibly. Their testimony was clear, concise, professional and, in my view, dishonest.

I believe they feel themselves to be warriors fighting the good fight against bad people who have the system stacked in their favor. I believe they knew they had the right guy and were willing to cheat a little to assure a conviction.

I believe they had the right guy, too. But the willingness to cheat, I think, is a poisonous corruption of a system designed to protect the innocent at the risk of occasionally letting the guilty walk free. It's a good system, fundamental to freedom. I think a police officer willing to cheat is more dangerous than a two-bit drug peddler.

In his charge to the jury, the judge made it clear that if we found the defendant guilty beyond a reasonable doubt -- which I had -- it was our duty to convict. I was prepared to defy these instructions and acquit, in the interest of a greater good. There is actually a term for this: "jury nullification." I was going to nullify. But I was pretty sure that in my absence, the remaining 12 would convict.

The first sign that I was wrong came just minutes after I was dismissed. The other alternate told me that she, too, felt that the defendant was guilty but that the police had lied; in her mind, the lying created reasonable doubt. She, too, would have acquitted.

Back home, I waited for word of a verdict. It didn't come. 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.

Gene Weingarten is a staff writer for The Washington Post.

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