Crime has become the backdrop to American life. Occasionally there are police operations so unusual, crimes so sophisticated, daring or horrible, that they draw great amounts of public attention. But for the most part the crimes that are committed go unnoticed except by the people directly involved - the victims, the criminals, the police, medical examiners, defenders, judges, jurors - each with different perspectives and different values.
This is the story of a single murder, told from the viewpoint of an assistant United States attorney whose business it was to prosecute murder and rape cases in the District of Columbia. It illuminates in detail one small part of the backdrop. In forthcoming issues we will look at other crimes from the other viewpoints.
ROUTING messages told Jason Kogan that the folder on his desk had just completed a three-month journey through the law enforcement bureaucracy.
At first Kogan saw no names, only numbers.
"68869-76 for all papers filed in the future," the top line read.
"Nature of offense: 22-2410, 2403, 3202, 501, 2204" said the second line - nine serious crimes ranging from first degree murder to assault with intent to commig robbery.
Kogan looked out the window at the gay sky and the Criminal Court-house across the street where paddy wagons were unloading handcuffed prisoners. He got up, walked around the stacks of cardboard boxes filled with legal documents and shut the door to his office. In the waiting room outside were about a dozen witnesses, police officers and plainclothes detectives milling around. Kogan needed quiet to concentrate on the new case.
He picked up the dog-eared folder and leafed through it; pulled out the indictment and read it carefully. It charged that 19-year-old Ricardo E. Hunter had gone on a car-theft and armed-robbery spree that culminated in the murder of 69-year-old Thomas S. Dailey. It was another routine killing, if there could be such a thing. After six years prosecuting murders and rapes, Kogan still had not gotten used to them.
He skimmed the autopsy report - pretty standard stuff, unfeeling and legalistic. Somewhere around "perforation of the anterior margin of the right upper lone of the the anterior periusual, didn't get very much. The murder weapon was a .22 caliber rifle purchased at SuperGiant and legally registered to a friend of Hunter's. it had been sawed off to make it concealable. And it had been found in Hunter's apartment. The connection was damning, but not enough for a conviction.
The fingerprint report showed that only six prints had been lifted from the stolen car after its recovery. None belonged to Hunter. Damn fingerprints, thought Kogan. He blamed television for teaching people that fingerprints are always found at the scene of the crime.
The young prosecutor leaned back in his swivel chair, running his hands through his thinning, curly hair. The business about the fingerprints would be a challenge. Kogan liked that. After he got out of Georgetown Law School he promote justice or defeat evil. He became a prosecutor because in prosecuting a case you have to put together all the pieces to prove, finally, that something happened the way you said it happened.
With the fingerprints he'd have to show the jury that someone could get into and out of the car without leaving prints on any of the places where they'd been found.
Underneath the fingerprint report Kogan found a statement from one syswitness, a lawyer. Kogan made a note of the address. Connecticut Avenue and Van Ness Street NW. A nice, comfortable white neighborhood. He'd send cops around to canvass nearby houses for other witnesses, but they wouldn't come up with anybody new. Experience had taught Kogan that, with murder, no one ever holds back. People always come forward for murder. For lesser crimes, maybe not. But murder was always worth their time.
The witness's statement was crisp. precise and full of facts - the type Kogan would expect from a fellow attorney. But the witness could not identify the murderer. Nor did he get a glance at the man who drove the getaway car. All the witness could say about them for certain was that they were both young and black.
Two of them. Hunter and someone else.
A police cruiser had seen the getaway car and given chase a few minutes after the murder, according to other papers in the folder. But the suspects had been lost almost immediately in the early morning rush hour traffic. When Hunter returned sixteen hours later to the by-then abandoned car intending to wipe off his fingerprints, a police stake-out arrested him.
Fingerprints. Kogan chuckled.
Hunter had signed a "Miranda card," documenting the fact that he'd been reminded of his constitutional right to remain silent. Kogan saw the card as nothing more than a legalistic formality. He'd never known a police officer to crack heads at a station house, and he'd never seen evidence of a forced confession. He considered all the public fuss about the Miranda decision silly. Suspects almost always went ahead and talked no matter how many warnings they had received.
Hunter was no exception. In a signed statement he had tried to convince arresting officers that he had only driven a getaway car, and that a friend named Curtis Peoples had actually done the killing. Kogan didn't care who pulled the trigger. Aiding in the commission of a felony made you guilty for any murder that occurred during that felony. Hunter had hanged himself.
In any event, Kogan rarely considered the possibility that the accused man might actually be innocent. The grand jury had heard enough to go forward with a first degree murder indictment, and his job now was to prepare the best possible case. Kogan already assumed that Hunter was violent and should be locked away for a long, long time. Only on rare occasions did he begin to work on a case and then recommend that the charges be dropped for weak evidence.
Kogan did not see himself as a dogmatic law-and-order man, the oppressive, narrow-minded sort his contemporaries sometimes associated with law enforcement. Far from it. He thought that his style of living - unmarried with a busy social life - belied that stereotype. But still, he liked to believe that anyone who had been indicted must be guilty. If they hadn't done something wrong, he reasoned, the criminal justice system never would have sent them all the way up to me.
Kogan put the folder aside with the other wild piles of paper that overflowed from his desk. He sat back and tried to imagine Dailey. An old man alone and unarmed. Aretired teacher active in church affairs. Wearing glasses and going blind. Dailey had been found clutching a $20 bill in his death-locked fist. He would make much of that when the time came. "Ladies and gentlemen of the jury, can you imagine that? An old, white-haired defenseless human being, going blind, is dead because that man sitting there in front of you wanted $20 so badly."
It bothered Kogan that Curtis Peoples, the man Hunter said had done the shooting, was still at large. Several times a week he'd call D. C. homicide detectives, most of whom he knew by name, and diplomatically urge them to keep looking.
Two weeks later, he received the call he wanted.
"We have Peoples," the detective said.
"The Prince George's police picked him up. He stole a car at gunpoint. Then he was pulled over, but he tried to drive away. They shot at him and he went into a fence. He got out and ran into a house, but couldn't take hostages because everyone ran out the front door. There was some shooting. Finally, dogs were sent in and they got him."
"Just People. The dogs bit him on the hands and legs."
Kogan simply assumed that the police version was true, unless there was conspicuous evidence to the contrary. The method of arrest - amid a lot of shooting - certainly wasn't unusual. Nor was the fact that the police had missed with every shot. Kogan knew that many police officers have notoriously aims.
The detective continued: "I went over to talk to Peoples right after they booked him. I gave him his warnings and all that, identified myself, and asked him if he'd make a statement. He said 'Sure' and told us that he had driven the car and that Hunter had pulled the trigger."
Kogan was pleased. "Can you get the statement over to me?"
"Sure." The detective began to chuckle. "You want to know something funny? I was one of the detectives who searched Peoples' apartment right after we arrested Hunter. We tore that place apart and couldn't find anything. But People told me that he recognized my voice. He said he was there in the apartment all the time, hiding in an empty stereospeaker. Can you believe that?"
Later that afternoon, Kogan read Peoples' statement and smiled. It had the type of street authenticity that juries believe:
"The day prior to the shooting Rich and his girl friend came over to my old lady's house and he said that let's get together and get some cash. Since I haven't had a job I went along with that . . . We got to talking, tomorrow when we step out of here, we will not be jiving. And if the - made any noise at all I'm going to shoot . . . I said, Let's get some sleep and he said no, we will be leaving out here about 5 a.m. I said, - , that's kinda early, isn't it? . . .
"We saw the man that got killed; he was coming down the street on the same side that we were, so Rich say he looke like he got some money, and he said when I say drift the car down, drift it down, that way the man will walk up behind the car . . . then Rich gets out of the car with the rifle in his left hand and he walks up behind the man. I don't know what was said because I was in the car, so when I looked in my rear view mirror, Rick was trying tio grab the man but he was backing up throwing hands in the air . . .
"I looked in the rear-view mirror again and the man had blood on his chest and the man was staggering back a bit and Rich was trying to grab him. So the man fall so Rich ran back to the car and he put the rifle in the car and he said I still ain't robbed this - . Then he got back out of the car and went back to the man and the old man got back up, and blood was all over him, and he fell down again and when he fell down Rich went into one of his pockets . . ."
Soon after Peoples was arrested Kogan saw him for the first time. His lawyer was with him. Kogan's first impression was of a soft spoken young black man. "Hey man," People said, "I only drove the car. I suffered enough."
Kogan figured that People was trying to appeal to his sympathy. People remained polite for a few more minutes and then Kogan saw him shift gears. Now the street smarts are coming out, Kogan told himself. Peoples' voice sounded cocky. "You need me to testify against Hunter. You need me, man. You'd better be good to me."
Kogan felt that Peoples was taunting him, saying, in effect, 'Come and get me if you can.' Kogan never saw them as personal competition. Now Peoples had sparked that sense of competition. It was a mistake.
As Kogan left he cell, Peoples blew him a kiss. I'll get you, Kogan whispered silently.
A few weeks later, Hunter pleaded guilty to armed robbery and second degree murder, accepting a plea-bargain deal. The state saved the cost of a trial and the possibility Hunter might have been acquitted; Hunter got a chance a earlier parole by pleading to the lesser charges.
Peoples stood fast, however. He claimed that he'd never made the statement and that he'd been in Cleveland at the time of the murder: He wanted a trial to prove his innocence.
Kogan wasn't surprised. Murderers and rapists often denied their statements, often demanded trials, even in the face of overwhelming evidence against them. Kogan figured they must have believed that somehow they'd be able to sway a jury. That's exactly what Peoples would try to do, and it would be up to the prosecution to show that he was a liar.
Kogan now faced a two-fold problem. Under the law, a person cannot be convicted soley on the basis of his uncorroborated confession. Kogan would have to present as present as much circumstantial evidence as possible.
Secondly, Peoples just might convince a jury that he'd been coerced. And without the confession, there was really no case against him. And what about Hunter? Should he be put on the stand as a prosecution witness? That was dangerous. He'd be hostile and might get into a screaming match with Peoples, make the jury believe that the prosecution was built upon emotions instead of facts. No, Hunter should be saved as a possible rebuttal witness, to be used only if necessary.
During the next month, Kogan put about 100 hours on the Peoples prosection - a normal workload for a murder. As usual, he worked at his desk, surrounded by tall gray filing cabinets and constantly ringing telephones. He instructed police officers who gathered statements, he ordered charts that showed exactly where the murder occurred, and he interviewed five or six dozen prospective witnesses for the trial.
On the asumption that too many witnesses indicate a week case, Kogan finally settled on twenty-eight, of whom only two were especially important.
One was the lawyer who had witnessed the shooting. However, he had to be careful not to exaggerate. His story would teach the jury just how quickly murder happends and just how meaningless it is. But it could do little more than that.
The other key witness was the victim's best friend. From him, Kogan planned to evoke a delicate portrait of the dead man, including his minute-by-minute activities on the morning of his murder.
"He got up very early every morning and spent most of his time volunteering at the church," the friend would say.
Then Kogan would hold up a pair of eyeglasses and a necktie taken from the body.
"Yes," the friend would sigh. "Those belonged to Thomas S. Dailey."
Kogan loved to plan such testimony. He began to play stage manager for his witnesses, making them come into his office for rehearsals that he called "witnesses conferences."
He told them how to sit on the stand and how to sit on the stand and how to appear to a jury. "Speak in your normal tone of voice," he advised. "Emphasize that you're just there to tell the truth." "Say only what you know." "Don't guess." "Look right at the jury." "Don't unduly emphasize anything."
As a final touch he decided to use as his last witness the homicide detective who'd taken Peoples' statement. The detective was tough and believable, the sort of honest cop that the public trusts.
The morning the trial began, Kogan was in the courtroom early. The first order of business was a suppression hearing, an effort by Peoples' lawyer to keep his client's confession from the jury.
When the hearing opened, Peoples smiled at Kogan, winked and blew him a kiss. "Hello, Kogan, my man."
Kogan smiled back as he called as witnesses four police officers, each of whom swore they'd given Peoples his Miranda warning. Peoples then took the stand himself and swore that the police officers had writen the statement and physically forced him to sign it.
After only a few moments deliberation the judge ruled that the statement could be used as evidence, and ordered that jury selection begin right after lunch.
Peoples was still all smiles, but his voice sounded sharp and dangerous. He turned towards the prosecution table.
"Mr. Kogan, there's some inconsistencies here."
"Yes, Curtis," Kogan shouted back, "There are inconsistencies, and they begin with you."
A U.S. marshal put handcuffs on Peoples and began to lead him away. At the door Peoples turned and blew Kogan another kiss.
Kogan knew many cases were won or lost with the jury selection, and now, for the first time, he consciously gave race a role in his prosecution. A black had murdered a white. Every prospective juror had to be measured against that fact.
Each side had ten "strikes," or jurors who could be dismissed without showing cause. Kogan quickly concluded that the defense counsel wanted whites, preferably liberals from North-west Washington, the type of people who would respond to the defendant's story of broken homes and a poor education.
In turn, Kogan tried to get as many blacks as possible, reasoning that they could best see themselves as victims, that they would be least sympathelic to Peoples' story about how poverty had driven him to crime. He looked for intelligent jurors because they'd be better able to see through Peoples' lies. And he wanted old jurors because they'd be more likely to put themselves in Dailey's position.
In the end, there were nine blacks and three whites, a normal balance. Kogan was satisfied, but worried about one thing. He believed that like all juries this one would be prejudiced against the prosecution. Most jurors had never entered a real courtroom before, but they'd seen hundreds of trials on television. During those trials, the government almost always presecuted the wrong man.
At a dinner party that night Kogan could talk about nothing but the trial. He assumed that everyone was interested. When he got home he had difficulty sleeping, worrying that something might go wrong.
The next morning it did. Kogan had planned to rely on the testimony of the police officer who'd found the $20 bill in Dailey's fist. But now, as the trial was about to open, no one could find him. Kogan began a frantic telephone search. First he was told that the officer was on sick leave. There was no answer at his house. Then his sergeant said that the officer was probably in the hospital. But nobody knew which hospital. Kogan wouldn't be able to introduce the $20 bill into evidence.
Kogan was furious. The public counted on him to keep murderers off the street. The least he had a right to expect was proper support. That wan't asking too much. He decided that after the trial he'd find out who was responsible. At the same time, he knew he wouldn't learn anything. The system swallowed its mistakes without a trace.
But as Kogan rose to present the first prosecution witness, he became an actor, committed to the principle that an audience - or jury - must never see nervousness. Every expression, every motion, every argument would be disciplined, desgined to convey an air of confidence.
If a witness seemed to be slipping up, he remained clam and encouraging, even though a voice inside his head was screaming, "What the hell's going on here?"
His behavior was all calculated so that the jury would not see how calculated it was.
By early afternoon, Kogan had called all his witnesses and rested the prosecution. He felt good, condifent that everyone had done very well. And he was exhausted.
Peoples took the stand as the first defense witness. His face was clean-shaven, his hair neat, his suit pressed into military crispness. He was still smiling.
People voice sounded innocent, even hurt and bewildered. Kogan's mind flashed back to a case he'd heard about in which the jury believed a rapist - or at least Kogan assumed he was a rapist - who had recanted his confession on the stand. The SOB had gone free. Kogan knew for sure now that the trial's outcome would depend on how well his cross-examination went.
Peoples began with his version of the arrest. "I was pulled over by a jmps out of the car and starts shootin', shootin'. Bullets hits the side of the car and come through the car. I panicked . . . I'm confused and tryin' to pick out what they're doing."
Kogan sat as motionless as possible, his hands folded neatly in front of him, so as not to distract the jury. Every couple of minutes he'd pick up his pen and quietly take a few notes.
Peoples' voice captured the courtroom. He sounded sincere, like a kid caught up in something he couldn't understand. Kogan was not happy.
"I put my hands out the door and tell them I'm coming out . . . They grab me by my collar and put a pistol in my face. Then they turned the dogs loose. The dog jumped on me and pushed me back inside the house. Doing that, the dog tore the muscles outa my leg.
"I was layin' on the floor hollerin' like hell, 'Take them off, get 'em off.' Then they patted me down and hit me on the head.
Kogan kept his eyes on People as he told him of being taken to the station house. "An officer comes in and give me an empty piece of paper, lays it on the table and leaves it. Another oficer tells me to sign it. I know I ain't blind, but there's nothing on the paper. What can I do? I sign. I coulda signed all day long and I didn't know. I still don't know what's going on."
Peoples concluded his testimony by insisting once against that he was in Cleveland on the day of the Dailey murder.
Three alternative strategies raced through Kogan's mind. He could conduct a minimal corss-examination, letting Peoples' testimony stand on its own. That wouldn't do. People and been too believable.
He could go over Peoples' testimony detail by detail to show that it had been fabricated. That might not be particularly effective and might confuse the jury. Or, he could somehow show the jury that Peoples was really an excitable, violent person, fully capable of putting a sawed-off shotgun next to someone's chest and pulling the trigger. He chose a combination of the second and third options.
Kogan looked up at the wall clock just as Peoples walked by with a whispered "All right, brother," to him. Court was adjourned for the evening.
Kogan had invited a woman friend over for dinner that night, but he could feel himself get snappish whenever she tried to talk about something besides the trial.
She left early and Kogan began to gather his thoughts before exhaustion took over. The next day would be conclusive - the few hours that would tell everything. An ineffective cross-examination would put Peoples right back on the street to rob and murder again. None of the witnesses had linked Peoples directly to the murder. Only Peoples' statement had done that, and if Peoples had indeed convinced the jury that he hadn't made the statement? Well, then, they'd find him innocent.
Kogan set his alarm at 6:30.
Peoples entered the courtroom with a huge wink and a friendly "This is it."
After the jury filed in the returned to the stand. Kogan slowly walked toward him. Then, in a firm, but friendly, voice he began to ask questions, reconstructing step by step the story Peoples had told the previous afternoon.
At first, the defendant was respectful, answering with "Yes, sir," and "Would you repeat that, sir?"
Kogan wasn't concerned. He was building up to something.
After about ten minutes, long pauses opened up between questions and answers. Peoples had to think about his answers, might be making something up. The jury would notice this. Some of the pauses dragged out to almost a minute, and Kogan stood by patiently, with a slight smile on his face.
No matter what Peoples said, no matter how outrageous Kogan considered his explanations, the prosecutor always ignored the answer and immediately went on to the next question.
Kogan had no master plan. He just wanted to keep machine-gunning the questions at Peoples, hoping for a break.
Kogan allowed himself a few glances at the jury. Some seemed to pick up his rhythm, others had blank expressions. Never mind them. How they look doesn't mean a thing. Just concentrate on Peoples.
"You said that you took a cab. How much did it cost?" "I don't remember." "Was anyone else in it? "I can't be sure." "What did the driver look like?" "I couldn't see." "How much was the fare?" For every answers, an other question.
Then Kogan let his voice shift gears. His face was close to Peoples, his voice almost a shout. "You were driving a stolen car, weren't you?"
"No, I was not. I didn't rob nobody."
"Are you a violent man?"
"I am not a violent man."
"Not at all?"
The question evoked an objection from the defense table. Kogan didn't care. He wanted to keep the action going.
"you're just a nice little guy?" Kogan's mind flashed back on all the winks and kisses. The inner voice began to warn him, suggesting that this approach might be wrong. Kogan told it to shut up.
"Yeah, I'm a nice little guy."
I'll showthat SOB. "Are you intelligent? Are you street-wise?" Now Kogan was shouting.
peoples began to stutter. "I don't know what you m-m-m-m-m-mean."
"You felt like a piece of beefsteak when that dog bit you, didn't you?" Kogan saw that Peoples was scared and nervous. Good. That'll show them.
Peoples began to squirm in his seat. He pushed, as a cough from the public gallery filled the courtroom.
"Hey, wait, wait. I'm going to explain something. It's all coming to me."
Kogan walked over to the clerk's desk and picked up the statement that Peoples claimed he had been forced into singing. He turned and slowly made his way back to the witness stand, concious that tension was building up. his eyes never left Peoples' face.
When he was back within about two feet of Peoples, Kogan stopped and stood silently for a few seconds. To him it seemed like an awfully long time. But he hoped that to the jury it would seem like the Pained pause of a dedicated public servant about to become a little rough.
Suddenly Kogan pushed the statement in front of people's face and shouted. "Is that your signature on the bottom of page one?"
"yeah." The defendant paused and, to Kogan, looked like a man was in trouble. His voice sounded like he'd been concerned. Kogan was pleased.
"Is that your signature on the bottom of page two?" Again, the question came in a loud, almost spitting. "Yeah."
"Is that your signature on the bottom of page three?"
Now for the first time, Kogan heard violence, frigtening violence, in Peoples voice. This is it, he tought. After all the time and work, this is it!
Peoples answer came back in an angry, threatening shour."Hell -. I ain't robbed anybody."
Kogan didn't want to give peoples a chance to recover. Let the jury remember him the way he is now.
"Your honor, I have no further questions." Kogan walked back to his table, feeling, for the moment, exhilarated. Nothing in life matched this. Nothing.
"You're excused," Kogan heard the judge twll peoples. The prosecutor sat down, noticing for the first time that he'd broken out into a slight sweat.
Then the defense counsel stood to say that they'd be putting up no witnesses. The defense rested.
After each side had made its closing arguments, the trial was officially concluded. During his first few years as a prosecutor, trials had left Kogan excited. No they left him drained. He though abou cancelling his date that evening.
Kogan replayed the cross-examiniation over and over again in his mind as he walked across the street to his iffice. He could already see several ways that he might have done things better. Maybe he should have asked more questions. Maybe he should have pointed out more inconsistencies in Peoples' testimony. Maybe he should have devised a better way to show that peoples was a violent person. Maybe he should have Hunter testify. Maybe he'd blown it. Some of his collegues cried when they lost. Kogan thought he might, too, if peoples were permitted back on the street.
Kogan sat at his desk, half-heartedly shuffling papers. he kumped everytime the telephone rang, thinking that it was the court clerk summoning him back. After an hour passed, he got worried. If the jury had no doubts, the'd have reached a quick verdick.Something was wrong. Kogan began to pace.
Almost three hours had passed when the call came. Kogan rushed back to the courtroom. There was another delay, waiting for the judge. Then the jury was led in. Kogan felt tense. He looked straight ahead, but out of the corner of his eye he saw the foreman rise. The man had on a crumpled shirt and a serious expression.
The cler's voice had the dead tone of burecracy. "Have you reached a unanimous verdict, ladies and gentlemen of the jury?"
Whatever happens, Kogan told himself, this is the greatest moment there is.
"Guilty ot not guilty?"
"Guilty on all counts."
Kogan didn't let himself smile, but inside the loosened up. The judge thanked and excused the jury, which left through a back door.
THe handcuffs went back on the defendant. Kogan watched with satisfaction, nothing like a puppet whose string had been cut. There were no more winks, smiles or kisses. He lookes destroyed, Kogan thought. Everyhting'stajen out of him. He's defeated. I' ve won.
After peoples had been led out, Kogan stuffed all his legal documents into a brown grocery bag and carried them back to his office. He turned off the lights and stared out at the darkening sky for about five minutes, wondering what Dailey's life must have been like. He didn't think about the world that produced Hunter and peoples or about the conditions in the prisons that awaited them. They were beyond his control.
Then he picked up his date and went to a party.
The peoples trial took place January 4 through 7, 1977. Peoples filed an appeal to his conviction for first-degree murder in September, but remains in jail pending the hearing of the appeal. Kogan has since been transferred to the civil division of the U.S. Attorney's office.