PhotoDude.com

Thu. Oct 14, 2004

One Day or One Trial

It was like some bad flashback from the early 1980’s. There I was, standing with a group of people around a long table, with 5 kilos of cocaine spread out on it. $250,000-$400,000 of cocaine that had arrived in DeKalb County concealed in the false bottom of a car battery. How did I get here?

It’s called “jury duty.” I’ve been of legal age for 28 years, registered to vote in the multiple districts in which I’ve lived during that time, yet have never been summoned for jury duty before. So when one arrived in mid-September, I didn’t try to weasel out of it. I figured I was overdue.

DeKalb County has a “One Day or One Trial” system. You show up on your assigned day, get bounced all over the courthouse, questioned superficially and then judged by strangers who usually reject you. If that is the outcome of your day (rejection), they don’t make you come back for more. If you are selected, you’re there for the duration of the trial.

After a boring hour and a half of “orientation” and waiting Monday morning, 40 of us were finally sent to a courtroom for jury de-selection. As I mentioned the other day, that’s exactly what it is: “Start with 40 people, and slowly … very, very slowly … toss them out one by one until only 13 remain.”

How do they do this? Rather superficially, but given the time allowed, that’s all that’s possible. They started by reading the grand jury indictment. The defendant was charged with two felonies. One, possession of cocaine, and two, possession of cocaine with the intent to distribute (this is determined by the legal standard of more than 400 grams of cocaine, which is of at least 10% purity). That’s pretty much all the info you get up front.

Then we were all asked similar questions, first by the DA, then by the defense attorney. Ever charged or convicted of a crime? Ever been a victim of a crime? Any relatives or friends in law enforcement? Have you ever served on a jury before, and if so, were you able to reach a verdict? Have you ever had someone close to you with a drug problem that impacted your life? Do you think any drugs ought to be legalized? Do you think the “War on Drugs” has not gone far enough? What do you do in your spare time? When you left high school, what did you aspire to be?

You were left to surmise why each question was asked, like that last one, which came from the defense attorney. My guess is that he for some reason wanted to know what you’d aspired to be early in life, because he knew what we’d ended up being (at least as far as what job we currently have), and hoped to draw some conclusion from that.

I told him I’d left high school hoping to become a doctor, but discovered I was more right brained than left brained. At which point the judge jumped in: “What kind of doctor? You know, he (pointing to the defense attorney) is a doctor.” I said a medical doctor. The defense attorney looked a bit puzzled and asked me to amplify on the right brain, left brain thing. I said, “well, the right side of the brain is associated with creative thinking and free thought, while the left brain is the analytical side, associated with mathematics and more linear thought.” The judge again, to the defense attorney: “You didn’t know that? You’re a doctor, aren’t you?” Otherwise my questioning was uneventful, but that may have been what pegged me. I still don’t know why I was selected.

You’d be amazed at the number of people who will stand up in a court of law and say they think certain drugs should be legalized. I’d estimate about a quarter of those present. Another 20% or so made it clear that drugs had negatively impacted their life in some way. I noted a couple who even claimed both statements. I guess if you were trying, once you know it’s a drug related case, it wouldn’t be too hard to deliberately get one side or the other to want to strike you from the pool.

When I got home and told my wife that our justice system had somehow not rejected me, she said, “how did that happen?” All I could say is, I don’t know, they made me raise my right hand and swear to tell the truth, and here we are. A simple believable lie like “I had a marriage destroyed by cocaine, and the scum who deal that poison get no consideration from me” ... and I would have been out of there in no time. One lie would have made quick work of it. The truth takes a lot longer.

Voir dire (a.k.a. jury de-selection) ate up all of Monday. Worse still, each potential juror is assigned a number, 1-40, and I was in the first group of 12 (Lucky Number 7). This meant two things. One, we got more time spent on us than those with higher numbers did. Closer scrutiny. It took an hour and a half to question the first 12, and I was told that by the time they got up in the thirties, they were only asking a couple of quick questions of each potential juror. Two, the first group of 12 was done by noon, and the judge said we could go away and come back ... at 3:30. Three and a half hours, and I’d taken the train to court, so I was stuck.

That’s the only advice I can give to anyone who shows up for jury duty with the hope they won’t be selected. Try to lag at the back of the line when they are assigning numbers as you head into the courtroom. It will insure that you will be there for a while that day before you are questioned, but might decrease your odds of being selected. On the jury I was on, 6 of us were in that first group of 12, and the remaining 7 were pulled from the other 28 folks. 50% versus 25%, if you want to play the numbers.

Also, take some hefty reading material, or hope your county library is kind enough to stock the jury room with a good selection of paperbacks, as they do in DeKalb County. I had time to read the entire Monday newspaper, and 220 pages of “Lost World” by Michael Crichton.

We came back Tuesday morning at 9:30am for the trial to begin. I’d wondered how they were going to decide which of us was the “alternate” juror, and they did it by number; the highest numbered juror (35) sat on the jury during the trial, but then during deliberations she spent the day in a room by herself watching TV. Again, higher numbers work for you.

The trial itself consisted of opening statements, the state’s case (plus defense cross examination), and closing statements. Excluding breaks and lunch, it was about 3.5 hours of actual court time. The defense presented no case, and opening and closing statements are not to be considered as “evidence.” So all I can tell you is what the state presented, and our deliberations on the holes that were left.

The defendant was pulled over on a six lane city thoroughfare (Buford Highway) for following too closely. The officer testified that the 1990 large work van he was driving was following 4 to 5 feet off of the bumper of a silver passenger car, doing about 40 mph. When he pulled him over, the officer said the driver was nervous, with his hand visibly shaking as he passed over his license and insurance (valid Texas license, seemingly valid insurance), and did not make eye contact with the officer. Neither did his passenger.

After the officer ran his license and tag, and all seemed valid, he went back to the van, and gave the driver a simple warning for following too closely. You probably know what’s coming next. The officer told him that though he was now free to leave, would he mind if the officer asked him a few questions? At this point I should note the driver didn’t speak English well, and this conversation was in Spanish.

The driver said, sure, what do you want to know. Where are you coming from? Mexico (note: defense consistently said “Texas,” state consistently said “Mexico”). Where are you going to? Florida. Um, if you’re going from Mexico/Texas to Florida, why are you on a city street in Doraville, Georgia? We realized we were lost, and pulled off the interstate to get directions (this stop was made a half mile south of I-285, a bypass which circles Atlanta, in a neighborhood that is heavily Hispanic).

Well, we have a lot of problems with drug traffic in this area, you’re not carrying any drugs or guns, are you? At this point the defendant walks to the rear of the large van, opens both rear doors, and says, look, all we have in here is four or five bags of beans and vegetables. I got them in Mexico, picked up my son (the passenger) in Texas, and we’re taking them to Florida. The officer notes that the large work van is otherwise empty … no luggage, no duffel bags, just four or five of bags beans and veggies. And two people.

The officer is highly suspicious of their entire story, and since the defendant had voluntarily thrown the doors to the van open, the officer asks, do you mind if I search your van? No, he says, the police stopped us in Mississippi, searched the whole van, and they didn’t find anything. The officer again asked if he was giving permission to have the van searched, and the defendant said “Yes.”

The officer goes back to his car. And gets his dog. Not exactly standard equipment (like, for your average Mississippi State Trooper?), but this officer and dog have worked and trained together for over five years. Yes, the defendant has had the misfortune of being pulled over by someone highly trained in narcotics interdiction. And his dog.

There are two types of drug detecting dogs, active and passive. Passive dogs are trained to sit when they detect the substance. But the officer’s dog was active, and is trained to view the whole drug search as a game. The targeted scents have been associated with his favorite toy, and when the officer gives the command to search, he thinks it’s Fun Time. When he finds the scent, he paws and bites at the source.

And what is the command to begin the search? “Druggie.” So the officer said “druggie” and began his usual search pattern around the vehicle. When he got to the front passenger corner of the van, the dog indicated. Strongly. Now, at that point, with a positive indication from a trained and certified drug dog, the officer has established what is called “probable cause.” You are no longer free to leave, and your vehicle will be searched.

The officer then did a first search of the obvious places within the passenger compartment, and didn’t find anything “in plain sight.” So he opened up the hood, and immediately noticed the battery looked odd. It was a slightly oversized “off-market” battery, had blue tape in odd places, had stains as if it had recently been overfilled, and was not seated properly. Though not common in Georgia, the officer had heard that border crossings sometimes found drugs concealed inside car batteries. More investigation was called for, and since they were backing up traffic and attracting attention on Buford Highway, he had the van towed a quarter mile to the Doraville Police Department to continue the search.

Once there, he looked at the battery more closely. He popped a cap on one of the acid cells, and stuck in a screwdriver. Although the battery was about eight inches deep, the screwdriver only went in about three inches before “hitting bottom.” Knowing something was up, he talked to his Lieutenant, and though the ship called USS Probable Cause had already sailed, they decided to get a search warrant before they cut the battery open. They first drilled a small hole into the lower sidewall off the battery, and the drill bit came out with white powder on it that field tested as cocaine. So they broke out a Sawzall and cut off the bottom corner of the battery.

Inside was 5 kilos of cocaine sealed in food saver vacuum bags. It was packed more densely than the testifying officers had ever seen before, and tested to be 73.2% pure cocaine, with a very low acetone content. Acetone is used as a clumping agent to help compress the kilo of powdered cocaine into a hard brick. At this high a purity level (the GBI lab scientist said they rarely see samples above 90% purity), each of these 5 kilos would have been ground into a fine powder, then “cut” by added some cheap inert filler. One kilo of 73.2% cocaine becomes two kilos of 36.6% cocaine. More acetone is sprayed on to re-brick the kilos. Repeat this process until that original 5 kilos of 73.2% cocaine is perhaps 20 kilos of 18.3% cocaine, 81.7% filler and acetone. 20 kilos is 19,712 grams.

And that’s pretty much the facts of the case, as they were revealed to us (and compressed by me … there were actually two officers and one GBI scientist who testified). The defense presented no testimony or evidence, but from their opening, closing, and cross, their position was based on whether he “knowingly” possessed the cocaine. They stipulated nearly 90% of the case; yes, the officer stopped him, he gave permission to search, and they found lots of cocaine very cleverly concealed. The claim was the defendant knew nothing about it.

We learned about the different types of possession: actual possession (the item is on your person), constructive possession (you have control of and access to the item), and joint possession (more than one person has control of and access to the item). This was considered joint constructive possession: you’re in a vehicle (in control) containing drugs to which you have access. And your passenger, too. Even if you never touched the drugs, or the battery, if you knowingly occupied or drove the van containing them, you’re in possession.

As a jury, we had to determine whether he “knowingly” possessed the drugs “beyond a reasonable doubt” (which is not the same as “100% certainty”), and had to use only the offered evidence, or what we could reasonably infer from that evidence. With no testimony from the defendant, we were left with some holes. And we would be required to either fill them, or make them bigger.

The defense attorney did a good job in his close of bringing the basics to bear. He asked us to imagine someone close to us, that we’d known a long time, and how we’d react if we heard they were accused of a crime; “why, Mr. So-and-So would never do that.” That, he said, is the purest form of presumption of innocence; I simply know, in my heart, that he could never have done that. I wouldn’t believe it unless I saw it with my own eyes.

And that’s the presumption of innocence our Constitution requires that you give the defendant. He’s not guilty, until you see it with your own eyes. The state has the burden to overcome that presumption with the evidence. He effectively reminded us that it is a very hard thing to do, and that we’ve sworn we would do it.

He also addressed “beyond a reasonable doubt.” As both he and the judge said, there is nothing 100% certain in this world, though they were speaking to different ends of the equation. The defense attorney was advocating that the state had not even approached 100%, that they had not proven their case adequately at all. And that it was up to us to uphold that standard. He did a good job of raising the bar when he really had little “evidence” to offer, he did it by reminding us of the duty we’d sworn to uphold, and how serious it is.

So at 3pm we head off to our large soundproofed booth (it felt oddly claustrophobic for such a relatively sizable room), knowing the judge was leaving at 4:00, so we only had an hour left that day. The discussion began immediately, and seemed to me clearly directed by the closing the defense attorney had given. Everyone in the room seemed to take seriously the fact we had a man’s life in our hands, and there was no talk of “can we get this done by 4?”

In fact, when someone suggested maybe a preliminary ballot to see where we stood right off the bat, the majority of us said, no, let’s discuss some of these sticking points before we go there. Because we all felt we didn’t have the whole story. There were some parts missing.

The biggest “missing part” to me was something the DA never addressed: ownership of the van. The defense attorney pounded on that during his close (including revealing that the van had Florida tags), but closing arguments are not considered evidence, and the state had given us nothing factual on that issue. A big fat zero. I wasn’t alone in wondering about that. We talked about it, and re-read the indictment, where it did in fact list the van’s Florida tag (the state never mentioned that in their case), but nothing about ownership. We decided that all we knew was that the defendant was driving a van of unknown ownership, it had Florida tags, he had a Texas driver’s license, and he was arrested in Georgia.

Beyond that, we had to infer from evidence. This was not a case of borrowing an unfamiliar vehicle to go a couple of blocks to the store, this was alleged by the defendant to be a lengthy interstate trip. One where you might think you’d check the mechanical state of the 14 year old work van. Things like the battery.

A couple on the jury wondered how the vehicle could have been driven from Texas to Georgia on what was in essence 40% of a normal battery. The defense constantly referred to the “half-effective” battery, but the state never addressed that point. But a couple of us explained that [1] once the vehicle is started, the generator powers the vehicle, and the alternator recharges the battery, and [2] if you don’t turn off the van when you refuel, two people could drive all the way across the country without turning the van off and needing the battery to restart it.

Others in the jury were bothered by the fact the state had never fingerprinted the battery, a seemingly simple investigative step. Regardless of whether they should have, I pointed out, it’s a no win situation for the DA. If they’d not found the defendant’s fingerprints, defense would have used that to infer he knew nothing about it. If they’d found prints, defense would have said, hey, he was on a long trip, of course he checked and touched the outside of the battery, but that doesn’t prove he knew what was inside it.

We debated some other smaller issues, and then took a preliminary secret ballot on the two counts. It was 11-1, and 10-2. But we didn’t have hardly any time to get back to deliberations before the judge had to leave, and therefore so did we. The hour went very quickly, it seemed.

That night, Susan wants to know all the juicy details. “Well, I can’t, the judge told us not to discuss any of the case with anybody.” She fails to convince me that he didn’t mean her. It’s fun for once to know something she doesn’t and taunt her with it. But I also truly didn’t even want to verbally recount what had happened, as that can quickly become “deliberation” with someone outside the jury. And since this judge had already threatened a couple of potential jurors with contempt of court for being late from a break, I didn’t want to test the theory.

We all returned Wednesday morning, and, as usual, we 13 got to spend a lot of time waiting around together. I have to say, it was an altogether pleasant group of people, as diverse as this county is. We had plenty of time to talk together over the course of two days, at times when we specifically could not talk about the case. You always hear that each jury has a wackjob, but this one seemed to lack it’s quota.

Unless it was me.

At any rate, we spent about another hour talking things over. What it boiled down to was the defendant’s own words, as offered in evidence by the state, and left either stipulated or uncontested by the defense. He was asking us to believe that he was driving a large 14 year old work van containing nothing but four or five bags of beans and veggies (not even a duffel bag with a toothbrush) from Mexico to Texas to Florida, and he got lost and didn’t realize it until he found himself in Atlanta, nearly 400 miles off course. In the eyes of all of us, this “defense” greatly compromised his credibility. And not only did the defense not refute those statements, they claimed them in their closing statement by asking us “haven’t you ever gotten lost in an area strange to you?” No, not like that. And if I ever do, I hope someone will take the keys to my car, because I’m no longer fit to be driving.

As for the question, “why would someone knowingly carrying that much cocaine volunteer their vehicle to be searched?” ... we again had to turn to the defendant’s own words. Though it was not verified by the state in any way, he claimed he was stopped and the vehicle thoroughly searched by police in Mississippi. One might think if your clever place of concealment fooled them once, you could surely fool them again, and willingly throw open the back doors of the van … at the opposite end from where the cocaine is concealed; “look, nothing here but beans and veggies. Sure, search all you want.”

It was also a simple logistical issue. If you’re the Kingpin (not our defendant, he was a mule), and you’re shipping a quarter million in illegal merchandise in the bottom of a “half-effective” battery in a 14 year old van, are you just going to say “take these beans to Florida, and have a nice trip (sucker)?” Or are you going to make sure that if that van breaks down, they don’t abandon it? Would you make sure if the “half-effective” battery appears to go dead on the trip, they don’t spend $60 on a new one, leaving the old one to be thrown away by some mechanic? Are you going to give the van to someone with a level of competence that they would veer 400 miles off course on their alleged unknowing way to Florida?

Is it impossible? No. But we did not find it at all believable. When we took a vote about an hour into our morning deliberations, it was 12-0, and we returned our verdict of guilty on both counts.

No one seemed surprised. No gasps of shock, or outward signs of disappointment. Not from the defense attorneys, the defendant, or the six family/friends there to support him. The judge dismissed us, and surprisingly to me, told the lawyers that if they wanted to question the jurors outside, that would be up to us.

The other jurors seemed to nearly run for the elevator, but being a curious guy, I stalled by going over to the water fountain, and when I turned around, there was the defense attorney. So what do you want to know?

He was very nice, said he didn’t want to be argumentative, but wanted to know what the deciding factor was. I told him none of us bought the whole story of being lost, and that compromised his credibility. He revealed to me that this case had been about a motion to suppress. Apparently the law has recently been changed in some arcane technical way, and they were applying the new law to this arrest that had preceded the law’s change. Obviously, he had lost his motion to suppress, and we went to trial. When I asked why he decided not to put his client on the stand, he said it was because his story seemed to change slightly with each telling, and he couldn’t take that chance. He knew the officer’s story would be consistent, and therefore had to build his strategy around the admitted police report.

He then asked about “presentation.” He said he didn’t want to sound vain, but he’d heard in the past that the way he dresses had indicated to a juror that he was a hired lawyer, not a court-appointed public defender (which he was), and therefore they assumed drug money was behind the defense. I told him there was no discussion of that among the jury members, and that I personally had not been able to determine what he was by the way he dressed. I told him, I don’t know how you “dress down” to overcome that possibility. I also gave him some small criticism on his vocal presentation, based on my background in radio. I told him that, overall, it appeared to me that he was like a really good race driver who got stuck in a really crappy car. He just had nothing to work with.

Finished with him, I went over to the DA to give him “equal time.” I asked him why they never mentioned ownership of the van, and he said they’d traced it to a person in Florida who could not be found. It turns out that the Doraville Police Department had received a tip that a large shipment was supposed to be arriving that day, but little in the way of details. And though the bust itself was quite an accomplishment, they’d been unable to follow it up with additional arrests. It was a 5 kilo dead end, which is exactly the way these drug dealers set it up. The Top Bad Guys on each end of this deal are insulated by layers of low level runners. They’ve built into their plans the fact a certain percentage of their runners will get busted. But the runners only know an intermediary on both ends of the chain, not the guys who are really running the deal and raking in the profit.

Those real bad guys not only walked, they remain totally unknown. The defendant was likely the very lowest rung of their organization, probably paid five to ten thousand dollars to run the real risk and insulate the real bad guys. We were not allowed to gain any impression of the defendant at all, but my guess is that he’s simply a relatively poor man who saw a chance to make some money, and isn’t the thuggish menace we picture drug dealers to be. That’s what my heart said, and I did feel sorry for him and his family (my guess is his son had already been convicted, as the defense once appeared to quote from the transcript of the case). But in court, you can’t rule with your heart. And my brain said, this man is the only part of a large drug organization that the state was able to arrest. Your heart might say, “let this man go and bring me the real Bad Guys for the punishment they deserve,” but that’s just not the way the drug world works. By design.

In the end, though I took no pleasure at all from sending the man to jail, I have to say that I was surprisingly fulfilled by this experience. I tried not to form any preconceptions, but it wasn’t hard to look at the number of government entities involved and think “this is going to be like watching ugly bureaucratic sausage being made.” And from the perspective of watching the defendant’s actions weighed, analyzed, and punished, it was ugly. A man’s life was in the balance. And as the judge pointed out, the jury selection took longer than the trial. From the outside, it might seem like a tiny amount of time in which to determine a man’s future.

But from the inside, what impressed me most is the fact it is an entirely human process. Filled with humans who understood and took seriously their duties. The judge was gruff when he had to be, and left no doubt who was in control, but also repeatedly showed his human side and his curious nature. The district attorney was rather dry, but not at all imperious. The court appointed defense attorney had little to work with, but worked it hard. He was quite opposed to the sometimes typical stereotype of the overworked and distracted public defender. This was obvious not only from the trial itself, but from our conversation afterwards.

And then there’s the core of it, the Constitutional right to be judged by a jury of your peers. Without a visible or verbal exception, the 12 who joined me were up to the task. Each appeared to take our duty seriously, starting at the very top with the fact a man’s life was at stake. It was a very diverse group, ethnically, professionally, and socially. For a sample size of 13, it was a fair representation of this county’s population. This was the kind of group I’d be very comfortable with having on my jury should I ever have the misfortune of being on trial.

And in the end, we did what we found to be our duty. Unlike in fairy tales, not everyone lived happily ever after. But I’m able to look myself in the mirror, and know that, as a jury, we did the only thing we could.