ON THE JURY, GENE WEINGARTEN DIDN'T BELIEVE THE D.C. POLICE'S EYES

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.