by David Simon
Well, for one thing, he’s probably been up all night working two fresh shootings and a cutting on the midnight shift. No doubt the same detective scheduled to testify in Bothe’s court this afternoon just finished his overnight paperwork in time to listen to a dayshift’s roll call. No doubt he then spent another hour downing four cups of black coffee and an Egg McMuffin. Now he’s probably lugging paper evidence bags from the ECU to some lawyer’s cubbyhole on the third floor, where he will be informed that his best witness hasn’t yet shown up for court and isn’t answering a sheriff deputy’s phone calls. Beyond those worldly concerns, this same detective-if he knows his business-is obligated to arrive in the legal arena with a mind clouded by something other than transcendent visions of moral victory. In his heart of hearts, a veteran detective is inspired not by the glories of the courthouse, but by Rule Number Nine in the lexicon, to wit:
9A. To a jury, any doubt is reasonable.
9B. The better the case, the worse the jury.
And, in addition to rules 9A and 9B:
9C. A good man is hard to find, but twelve of them, gathered together in one place, is a miracle.
A detective who ventures into the corridors of justice with anything less than a firm and familiar skepticism for the American legal process is a man leaning into the punches. It’s one thing, after all, to see some of your best work torn to shreds by twelve of Baltimore’s finest citizens, but it’s another thing entirely to watch it happen from a state of naive incredulity. Better to check your expectations at the courthouse doors and enter its glistening corridors in full, willful anticipation of the debacle to follow.
The rock-and it’s a fine, honorable rock-upon which our legal system is built states that a defendant is innocent until found guilty by the unanimous vote of a dozen peers. Better that a hundred guilty men should walk free before one innocent man is punished. Well, by that standard, the Baltimore court system is pretty much working to code.
Consider: In this particular year in the life of Baltimore’s criminal justice system, the names of 200 perpetrators will be brought to the state’s attorney’s office in connection with 170 solved homicides.
Of those 200 suspects:
Five cases will still be pending trial two years later. (In two of those instances, suspects were charged in warrants but never apprehended by detectives.)
Five will die before trial or in the course of arrest. (Three of these are suicides, one the victim of a fire she set to kill someone else, one the victim in a police shootout.)
Six will not be tried when prosecutors determine the killings to be justifiable by self-defense or a result of accidental causes.
Two defendants will be declared not criminally responsible and sent to a state mental hospital.
Three defendants age sixteen and younger will have their homicide charges remanded to juvenile court.
Sixteen will have their charges dismissed prior to indictment due to lack of evidence. (On occasion, an aggressive homicide detective with insufficient evidence to prove a case will play a long shot and nonetheless charge his best suspect in the hope that the incarceration will provide sufficient leverage to provoke a confession in subsequent interrogations.)
Twenty-four defendants will have their charges nol prossed or stetted by prosecutors after indictment. (A nol prosse represents the unequivocal dismissal of a grand jury indictment; a stet places the case on an inactive docket, though the prosecution can be revived within a year if additional evidence is forthcoming. In time, most stet cases become dismissals.)
Three defendants will have their charges dismissed or stetted when it becomes clear that they are, in fact, innocent of the crimes for which they have been accused. (The innocent-until-proven-guilty standard does indeed have some real meaning in Maryland’s largest city, where it’s not uncommon for the wrong man to be charged or even indicted for a violent crime. It happened, for example, in the shooting of Gene Cassidy, and it happened again in three separate murders handled by detectives on Stanton’s shift. In those cases, the wrong man was charged as a result of faulty witness identifications-one from the dying victim, the other two from bystanders-and the defendants were subsequently cleared through additional investigation. Charging the wrong man on mediocre evidence is not difficult, and getting a grand jury to indict him is only a little harder. But after that, the chances of putting the wrong man into prison become minimal. It is, after all, hard enough for prosecutors in Baltimore to convict the guilty; the only scenario by which an innocent man could be successfully prosecuted on weak evidence would be one in which a defense attorney failed to evaluate the case and force-fed a plea to a client.)
Guilty or innocent, living or dead, deranged or competent-the winnowing process removes 64 of the original 200 defendants, or nearly 30 percent, before a single case is ever brought to court. And of the 136 men and women remaining:
Eighty-one will accept plea agreements prior to trial. (Eleven of those defendants will plead to premeditated, first-degree murder, 35 to second-degree murder, 32 to manslaughter, and 3 to lesser charges.)
Fifty-five homicide defendants will risk trial before a judge or jury. (Of that number, 25 defendants will be acquitted in jury trials. Twenty of the remaining 30 defendants will be found guilty of first-degree murder, 6 of second-degree murder, and 4 of manslaughter.)
Add 30 trial convictions to 81 pleas and the cumulative deterrent to murder in Baltimore is evident: 111 citizens have been convicted for committing an act of homicide.
By the reckoning of this particular year, the chance of actually being convicted of a crime after being identified by authorities is about 60 percent. And if you factor in those unsolved homicides in which there are no arrests, the chance of being caught and convicted for taking a life in Baltimore is just over 40 percent.
All of which is not to say that this unlucky minority then suffers punishment commensurate with their crime. Of the 111 defendants convicted in this year’s homicides, 22 men and women-20 percent of the total-will be sentenced to less than five years’ incarceration. Another 16 defendants-14 percent of the total-will receive sentences of less than ten years in prison. Given that Maryland’s parole guidelines generally call for prisoners to serve about a third of their sentences, it can be said that three years after they committed their crimes, fewer than 30 percent of the Baltimore homicide unit’s Class of 1988 is still behind prison walls.
Prosecutors and detectives understand the statistics. They know that even with the best cases-those that a state’s attorney is willing to bring before a jury-the chance of success is only three in five. As a result, those prosecutions that are marginal, those in which there is any indication of justifiable self-defense, those in which the witnesses are unreliable or the physical evidence is ambiguous-all these cases soon fall by the side of the road, becoming dismissals or weak pleas.
But not every case that goes to plea is necessarily weak. In Baltimore, plea bargains can be had on reasonably strong cases-cases that no defendant and his attorney would dare risk taking to trial in the suburbs of Anne Arundel or Howard or Baltimore County. Yet in the city, prosecutors know that such cases, when brought to trial, are likely to result in acquittals.
The difference is, quite simply, Rule Number Nine.
The operant logic of a Baltimore city jury is as fantastical a process as any other of our universe’s mysteries. This one is innocent because he seemed so polite and well spoken on the stand, that one because there were no fingerprints on the weapon to corroborate the testimony of four witnesses. And this one over here is telling the truth when he says he was beaten into a confession; we know that, of course, because why else would anyone willingly confess to a crime if he wasn’t beaten?
In one particularly notable decision, a Baltimore jury found a defendant innocent of murder charges but guilty of assault with intent to murder. They believed the testimony of the eyewitness, who saw the defendant stab the victim in the back on a well-lit street, then run away to sav
e himself. But they also believed the medical examiner, who explained that of all the stab wounds, a thrust to the chest had ultimately killed the victim. The jurors reasoned that they couldn’t be absolutely sure that the defendant stabbed the victim more than once. Presumably, some other enraged assailant could have wandered by afterward, picked up the knife and finished the job.
Juries do not like to argue. They do not like to think. They do not like to sit for hours at a time, wading through evidence and testimony and lawyers’ arguments. And in a homicide detective’s view, a criminal jury resists its obligation to judge another human being. It’s an ugly, painful business, after all, this process of labeling people murderers and criminals. Juries want to go home, to escape, to sleep it off. Our legal system prohibits a guilty verdict when there is reasonable doubt about a defendant’s culpability, but in truth, juries want to doubt, and in the stress of the jury room, all doubts become reasonable justification for acquittal.
Reasonable doubt is the weak link in every prosecutor’s chain and, with a complex case, the doubts multiply. Consequently, most of the battle-scarred veterans in the state’s attorney’s office prefer a straightforward, one- or two-witness homicide: It’s an easier argument to present and an easier argument for a jury to accept. They believe your witnesses or they don’t, but either way, you haven’t asked them to think very hard or to pay attention for very long. But the more developed case file-the one that a detective built over weeks and months, the one that presents a mountain of not-so-glaringly-obvious evidence, the one that requires the prosecutor to subtly piece the case together like a puzzle-it’s that kind of case on which a criminal jury can wreak real havoc.
Because in Baltimore, at least, the average juror doesn’t want to spend time contemplating the inconsistencies in a defendant’s statement, or the complex web of testimony that systematically destroys an alibi, or the discrepancies between a medical examiner’s testimony and a defendant’s self-defense claim. It’s too complicated, too abstract. The average juror wants three upstanding citizens to say that they were eyeball witnesses to the crime and another two who can assure them of the killer’s motivation. Throw in a recovered murder weapon, a few print hits and a positive DNA match and then, by God, you’ve got a jury ready to mete out some punishment.
To a detective, however, it’s the circumstantial prosecutions that often represent the best police work, and for that reason Rule 9B has profound meaning. In theory, the dunkers take care of themselves in court. But the best cases-the kind a cop takes pride in-always do seem to get the worst juries.
As with every other part of the criminal justice machine, racial issues permeate the jury system in Baltimore. Given that the vast majority of urban violence is black-on-black crime, and given that the pool of possible jurors is 60 to 70 percent black, Baltimore prosecutors take almost every case into court with the knowledge that the crime will be seen through the lens of the black community’s historical suspicion of a white-controlled police department and court system. The testimony of a black officer or detective is therefore considered necessary in many cases, a counterweight to the young defendant who, following his attorney’s advice, is wearing his Sunday best and carrying the family Bible to and from court. That the victims are also black matters less; after all, they’re not around to set such a good example in front of the jurors.
The effect of race on the judicial system is freely acknowledged by prosecutors and defense attorneys-black and white alike-although the issue is rarely raised directly in court. The better lawyers, whatever their color, refuse to manipulate jurors through racial distinctions; the others can do so with even the most indirect suggestions. Race is instead a tacit presence that accompanies almost every panel of twelve into a Baltimore jury room. Once, in a rare display, a black defense attorney actually pointed to her own forearm while giving closing arguments to an all-black panel: “Brothers and sisters,” she said, as two white detectives went out of their minds in the back row of the gallery, “I think we all know what this case is about.”
Still, it would be wrong to suggest that Baltimore’s juries have become more lenient simply because they have become more black. Suspicion of the legal system within the black community is a real phenomenon, but veteran prosecutors can tell you that some of the best panels they’ve ever had have been all-black, whereas some of the worst and most indifferent have had a white majority. More than color, what has crippled the jury system in Baltimore is a factor that crosses all racial boundaries: television.
Pick any twelve people from Baltimore-from the black sections of Ashburton and Cherry Hill, from all-white Highlandtown or Hamilton-and chances are, you will come up with a few intelligent, discerning citizens. Some may have finished high school, one or two may have been to college. Most will be working folk, only a few will be skilled professionals. Baltimore is a blue-collar town, a stretch of the East Coast rust belt that never recovered when American steel and shipping began their downward spirals. Its population is underemployed, and it remains one of America’s most undereducated cities. Taxpayer flight has continued for more than two decades, and the vast majority of Baltimore’s white and black middle and upper classes now reside outside the city proper. They are, in essence, the stuff from which county juries are made.
As a result, most city folk go into a jury room with no greater sophistication about crime and punishment than can be gleaned from a 19-inch television screen. More than anything else, it’s the cathode-ray tube-not the prosecutor, not the defense attorney, certainly not the evidence-that gives a Baltimore juror his mind-set. Television ensures that criminal juries are empaneled with ridiculous expectations. Jurors want to see the murder-see it played out in front of their eyes on videotape in slow motion or, at the very least, see the guilty party fall to his knees at the witness stand, begging for mercy. Never mind that fingerprints are recovered in less than 10 percent of criminal cases, the average juror wants fingerprints on the gun, fingerprints on the knife, fingerprints on every door handle, window and house key. Never mind that the trace lab rarely makes a case, a juror nonetheless wants to see hairs and fibers and shoe prints and every other shard of science gleaned from Hawaii Five-O reruns. When a case does come complete with an excess of witnesses and physical evidence, then jurors demand a motive, a reason, a meaning to a murder that has otherwise been proven. And on those rare occasions when jurors are satisfied that the right man has actually been locked up for the right murder, they want to be assured that the defendant is truly a bad person and that they themselves are not bad people for doing this terrible thing to him.
To provide, in real life, the utter certainty about crime and culpability that pervades television is impossible. Nor is it easy to rid a juror of such expectations, although veteran prosecutors never lack for trying. In Baltimore, state’s attorneys routinely call fingerprint experts to the stand in those cases in which no fingerprint evidence exists:
If you would, please explain to the jury how often fingerprints are recovered at crime scenes and how often they are not recovered. Explain how it is that many people, depending on their biochemistry at the time of the incident, do not leave detectable fingerprints. Explain how fingerprints can be obliterated and smudged. Explain how atmospheric conditions affect fingerprints. Explain just how rare it is to pull a fingerprint off a knife hilt or gun butt.
Similarly, the detectives themselves come to the stand to fight a losing battle with the last six episodes of L.A. Law and other network fare in which the lawyers-better-looking lawyers than we have in court today, mind you-always parade before the jury with guns and knives bagged and tagged and labeled Exhibit 1A.
A good defense attorney can blow ten minutes of smoke by glaring at a detective who tries to explain that weapons have a nasty habit of leaving the crime scene before the police arrive.
You mean you never recovered the murder weapon? This jury is supposed to convict my client without a murder weapon? What do you mean, it could be anywhere? Are y
ou trying to tell us that after committing an act of murder, the defendant might have actually run away? And taken the gun with him? And then hidden it? Or thrown it from the Curtis Bay bridge?
On Columbo, the gun is always in the liquor cabinet behind the vermouth. But you didn’t check behind the defendant’s vermouth, did you, detective? No, you don’t have the murder weapon. Your honor, I move that we unshackle this poor innocent waif and send him back to his loving family.
In the minds of Baltimore’s prosecutors and detectives, at least, television has utterly shattered the notion of a thinking jury, strangled it with plot lines in which all ambiguity is obliterated and all questions answered. As a result, those charged with punishing the act of murder in Baltimore no longer believe in all that Norman Rockwell business about twelve angry men in shirtsleeves, arguing in sticky heat over the essential evidence. In the real world, it’s more like a dozen brain-deads telling each other that the defendant seems like a nice, quiet young man, then laughing at the prosecutor’s choice of tie. Defense attorneys are quick to call such thinking sour grapes, but in truth, the faithlessness that veteran prosecutors and detectives feel for the jury system goes deeper than that. The argument isn’t that the government should win every murder trial; the system isn’t built that way. But does anyone really believe that 45 percent of the homicide defendants brought to a court trial-the last stretch of the legal system’s long, thinning bottleneck-are in fact innocent?
As a consequence, city juries have become a deterrent of sorts to prosecutors, who are willing to accept weaker pleas or tolerate dismissals rather than waste the city’s time and money on cases involving defendants who are clearly guilty, but who have been charged on evidence that is anything less than overwhelming. Naturally, a competent defense attorney or public defender understands that in most cases, a jury trial is the last thing a city prosecutor wants, and he uses this leverage when he bargains for his client.