SHORTLY BEFORE MIDNIGHT on a warm April weekend night in 1981, a man with a gun and two accomplices pushed his way into my Capitol Hill apartment, forced me and four friends to lie on the floor, and robbed us. We had been to the movies and came home for some ice cream. Instead, terror.
No feeling of impotent rage can compare with the helplessness one feels while lying on a floor listening to a man stick a gun into your wife's stomach and demand that she find him money. And we were the lucky ones. Two other homes in our neighborhood were robbed that month by the same men. In one of them, a man was alone when the robbers came. He was bound and blindfolded, kicked and taunted while the robbers removed his property and stole his car. Then, angry that his Volkswagen did not have an automatic transmission, the robbers returned and beat him again while demanding that he explain to them how to drive a stick shift.
Last month, a District of Columbia jury finally convicted the gunman, Maurice Yarber, a man who since an initial felony conviction at 19 has spent most of the last two decades serving one prison sentence after another. Obtaining this latest conviction, however, required a grand jury, three prosecutors, four judges, four trials, six defense attorneys and four years. As the months stretched on, two of the robbery victims first entered, and then finished, law school. Two more got married. The chief detective on the case retired. A witness moved to Taiwan.
And this prosecution was deemed a success in D.C. Superior Court -- a court system that is supposed to be a national model.
The costs of this sort of case are huge. The repeated trials occupied nearly a full month of court time, and judicial administrators estimate that jury trials cost at least $1,000 a day. The 10 witnesses collectively lost more than half a year of time away from their jobs. As victims of the robbery slowly dispersed to new homes from Texas to Vermont, the government was required repeatedly to pay to fly them back to testify. As the case grew older and staler, records were lost and memories clouded.
Through it all, the defendant remained locked in prison, his parole having been revoked after he pleaded guilty to illegal use of a credit card taken in the robbery (he admitted using it but claimed a friend had given it to him).
We, his victims, were locked in, too, unable to forget the memories of that dreadful night, knowing that we would be asked again and again in court to repeat them, knowing, too, that for our own health the best course would have been to let the memories fade.
"You get interviewed the night of the robbery, repeatedly," recalls a victim of one of the robberies who asked that his name not be used. "The next day, after you get back from the hospital, they've assigned two more detectives and you have to tell them. Then you have to tell the prosecutors."
"Even the last time I testified," after already appearing before a grand jury, two motions hearings and three prior trials, "I almost got sick starting to relive it all over again," he said.
This case was not typical. Retrials, notes U.S. Attorney Joseph E. diGenova, "are extremely rare" especially since "more than 80 percent of our cases end in pleas" and never go to trial even once. But as in many other fields, so, too, in criminal justice, cases of extreme stress can illuminate fundamental weak points of the system.
The American justice system is unique among Western nations both in the range and strength of the protections it gives criminal defendants and the severity of the punishments it metes out to the guilty. In theory, the system comes close to an ideal: punishing heavily those who are convicted while guaranteeing that the awesome power of the state to deprive a person of freedom is used only against the truly guilty. The paradox of our system is that this elaborate edifice works only because it usually is not used.
Much went wrong in the case of United States v. Yarber but this ordeal of repeated trials was not primarily the result of some bizarre failure of the criminal justice system. It was, instead, the ironic price of success of a system that is widely considered a national model.
Most District residents do not spend much time thinking about the city's criminal justice system. But criminal justice experts consider it about as close as any local court system comes to the ideal. District prosecutors, who work for the federal government and therefore bear the prestigious title of assistant U.S. attorneys, are on average far better qualified than their counterparts at even the best-known local district attorneys' offices.
Washington's Superior Court judges, who are presidential appoitees, generally are considered to be the best-qualified local judges in the nation. The city's Public Defender's Service, despite recent internal squabbling, is a national model. Even the D.C. courthouse, with its upholstered seats and recessed lighting, is like another world compared with the urine-reeking halls of peeled paint and cracked plaster where most big city criminal courts dispense justice.
At the same time, and contrary to popular belief, the D.C. courts are above the national average in the length of the sentences they hand out. In the past year, according to Justice Department statistics, the nation's capital was one of the few jurisdictions in which the average sentence was not shorter than sentences handed out the year before.
But like criminal courts everywhere, the D.C. courts are deluged with a mass of cases. The level of crime in 20th-century cities is like nothing the originators of our 18th-century system of justice ever anticipated. To cope with the crush, the system routinely tries to avoid trials. Prosecutors do not push for the maximum sentence they might be able to get, because their intransigence might force a trial. Defendants do not exercise the full range of their rights. In short, they bargain.
Plea bargains have long been the favorite target of critics of the criminal courts. Conservatives argue that the bargaining process allows criminals to commit heinous crimes and suffer only short sentences. Liberals object that the pressure to bargain -- pressure caused in part by lengthy periods spent in jail without bail before trial -- forces many defendants to waive important rights.
Both sides are right, but both miss the reality that comes through clearly to anyone who sits for days waiting to appear in court as a witness: a system that handles masses of defendants finds trials a strain. The longer the trial, the worse the strain gets. The plea bargain delivers a rough justice that upsets theoreticians but allows the courts to cope.
So what went wrong this time? In part, the problems were simple bad luck. Underneath, however, was a more serious problem. The defendant in this case was, under the laws of the District and of common sense, a career criminal. He had about reached the end of his string. Nearing 40 and facing 15 counts of felonies while armed, he could not expect a plea bargain that would require him to spend anything less than most of the rest of his active life behind bars.
Maurice Yarber, because of his prior record, was not going to plead.
While our entire experience was an oddity, many parts of it will be familiar to almost everyone who has been a victim in a criminal case. The first thing one notices is lack of information. Police and prosecutors are cooperative and helpful, but the case that looms so large in the victim's life is just one of dozens they are juggling.
Not only are they busy, prosecutors also know that defense attorneys love to suggest during cross-examination that a witness' recollection has been colored by what he has learned about the government's case. To avoid that problem, they try not to say too much.
Of course, for the question the victim most wants answered -- when will this all be over -- neither the police nor the prosecuting attorney can offer much that is helpful. Trials, they simply tell you, are at the mercy of crowded calendars and the idiosyncracies of individual judges.
Thus the second thing one notices: the waiting. Each courtroom at the D.C. Superior Court building has two waiting rooms on either side of the entrance. They are small, carpeted and sparsely furnished with a few chairs. Police who work by night and testify during the day sleep in one of the rooms. Everyone else crowds into the other room. As best they can, the witnesses try to sit and quiet the anticipatory panic that dwells somewhere deep in the stomach and springs to life each time the phone on the wall buzzes to summon the next person to the stand.
The first time round, in April 1983, we who were going to testify against Yarber spent four days in that room, playing cards, trying to read, waiting, pacing and waiting some more. When it was over, when we heard that the jury had convicted the defendant, we thought we could relax. Then the real problems started. Yarber's defense attorney had been far from a model advocate. In cross-examining witnesses, for example, he violated the lawyer's cardinal rule -- never ask a question that you do not already know the answer to -- and brought out testimony that hurt his client.
When the time for sentencing approached, Superior Court Judge Frank E. Schwelb decided that the performance of the lawyer was too bad to allow the guilty verdict to stand. The judge appointed another lawyer to review the work of the first and then decided to set aside the conviction. In November 1983 he ordered a new trial. The government remained determined to bring the defendant to justice. The defendant still refused to plead. The arena was set for round two.
As the second trial date approached -- July 20, 1984 -- witnesses again were summoned from out of town. After some had arrived, however, the trial was postponed because the defense attorney had a scheduling conflict. Then a new date was set -- September 19, 1984. By now, nearly three years had elapsed since the robberies. In the meantime, a codefendant had been acquitted in a separate trial at which we had all testified -- the eyewitness identification of him was shakier than with Yarber. We prepared ourselves to testify again.
For the rescheduled second trial, Yarber had a new defense attorney. Determined this time to ensure that no arguments could be made about the competence of the defense, the court had appointed W. Gary Kohlman, formerly the top lawyer at the city's Public Defender Service and one of the best-known young criminal defense attorneys in the city.
Kohlman defended the case so well that it ended with a hung jury.
So we girded ourselves for court once again.
The third and final round began five weeks ago, on June 17. We had been told to prepare to testify on a Monday. The three prior trials had taught each of us to know better. The definition of a courthouse, we had learned, is a place where everything takes longer than anyone will admit.
By Wednesday, we had not yet testified. The court clerk who had taken custody of evidence after the initial guilty verdict had lost some key items, including the array of photographs from which victims had picked out Yarber's face. The defense was arguing that because the photographs had been lost, testimony about them should be barred. The judge eventually refused to buy that argument, but in the meantime, while the lawyers argued, everyone waited.
Once testimony actually started, it took nearly a week. Once again we gathered in the waiting room, and once again we waited. Among us was a woman who left Washington after the robbery and now teaches elementary grades at a private school in New England. She had used the trial as a way of teaching her students about the courts, she said, and they had asked her many questions.
Mostly, she said, "They just don't understand why I have to keep going back."
After four years, I no longer have a good answer for those children. The system has worked in that Yarber, who is scheduled to be sentenced July 29, is likely, as a repeat offender, to actually serve 15 to 20 years. Yet here was a man who never should have been allowed out of prison in the first place who was granted parole. He committed three more violent crimes, and I was one of his victims. A perfectly sensible law mandating severe punishment for career felons eliminated any reason for Yarber to plea bargain, and errors no one anticipated forced trial after trial after trial.
Conservatives and liberals, both safely removed from the process, may offer solutions -- tougher judges and longer sentences, says one side; better education and employment programs to prevent crime, says the other. Inside the courthouse, however, those arguments seem distant and irrelevant. Meaning leaches out of civics-book concepts of right, wrong and justice after all these years. Even rage pales. All that remains is memory and a gut sense that one must persevere.