This restriction on evidence of earlier misconduct has two main exceptions: one, if the officer has been convicted of a crime involving dishonesty or a false statement (such as perjury) and punishable by at least a year in jail23 or, two, if a judge is persuaded that the previous infraction may motivate the witness to do wrong in the current case, such as lie to get a conviction and curry favor with superiors.24 Only by way of the second route—showing motive to lie currently—could Neill’s alleged misdeeds be brought before the juries.
Neill had a reputation among the public defenders. They regarded him as contemptuous of the law on the street and brazen in his storytelling on the witness stand. He navigated along the constitutional boundary with instinctive boldness, or—defense attorneys would say—with reckless disregard and dishonesty. Some lawyers loved to get him in front of a jury. “The art of cross-examination is to take the witness where he doesn’t want to go,” one private attorney remarked. “If I have G. G. Neill, I’ve gone head-to-head with him so many times, he thinks I have something on him even if I don’t. Ninety percent of what the jury takes in is nonverbal. He twists his body, he makes a face.”
Two defense lawyers, Lara Quint and Mary Petras, genuinely doubted Neill’s veracity in the case of Marcus Douglas, a twenty-eight-year-old black man he had arrested around midnight as the new year of 2005 arrived.
New Year’s Eve is when the guns come out for merriment, and Neill’s squad was prowling in a courtyard off Gales Place NE, watching for people getting ready to fire celebratory shots into the air. There was no disagreement between the sergeant and the defendant on the opening scene of their encounter. Douglas was outside drinking a beer with a friend named Shorty, and as midnight approached, the sergeant overheard Shorty say, “Go ahead, they busting off.” Douglas replied, “Go get the joint.” Neill then saw Douglas touch his waistband, as if he’d read the training manual.
In street slang, “bust off” meant “shoot” and “joint” meant “gun,” not a marijuana cigarette, as Quint confessed to thinking. She was a young graduate of Harvard Law School trying her third case, smart in the law but charmingly self-deprecating about her naïveté in the dialect of Washington’s tough neighborhoods. That’s why she was getting help from Petras, a sassy and savvy zealot of the courtroom wars against the police. Bucking all odds, Petras had compiled a decent record of winning motions for her clients.
When Douglas noticed the police uniforms, he took off running. Neill gave chase, with two police cadets behind. Douglas paused by a bush long enough for Neill to catch him, and as the two bent over, Neill behind Douglas, Neill claimed that Douglas dropped a gun into the shrub. In fact, Neill told me, he was so close that if he had reached out more quickly, the gun would have fallen into his hand.
Douglas, a somber man with liquid eyes, earnestly denied tossing a gun or owning the .38 that Neill found in the bush. His air of sincerity convinced even his lawyers, who were accustomed to a clientele that did not usually radiate innocence. In the police report, signed by both men, Douglas had acknowledged having been told of his rights to silence and a lawyer, but he answered questions anyway. The following exchange appeared:
Q. What do you have to say about this charge?
A. I don’t know nothing about the gun. I was running cause I had an open container of beer and I had weed on me.
Q. Do you know whos [sic] print was on the gun?
A. No.
Q. Why was Shorty telling you to bust off?
A. We was talking about busting off something at 1200 and I said go get the joint. It was almost 1200. I was gone drinking.… Everyone was talking about busting off.
Q. Why did you stop at the bush where the gun was?
A. I ran to throw the weed. I threw the bag of weed into the bushes.…
Q. Why was you fighting?
A. Off the drugs, off the drink.
Q. Is it possible that your prints is on the bullets?
A. No.
Q. Anything else.
A. No I was just trying to get rid of the weed.
The cadets had been too far away to see whether the gun had come out of Douglas’s hand, so they would testify unhelpfully, and the case would turn on Neill’s testimony alone—and on Neill’s credibility. The lawyers found plenty of civilian witnesses, but some were scared of Neill, others had criminal records that would impeach them, and none had seen the conclusion of the chase.
To sow the “reasonable doubt” required for acquittal, then, Quint and Petras needed to introduce Neill’s past record. They went through hoops to get it. They wrote the government letters requesting any information that might bear unfavorably on the credibility of the witness, as Giglio requires. The government stonewalled. Petras then heard from a private attorney that Neill had faced eight investigations in recent years, so the lawyers wrote again. Finally they had to file motions with the court, which ordered parts of the record turned over.
It included four investigations that were pending on or after the night he arrested Douglas: two complaints by citizens about unlawful automobile searches, one shooting after a struggle with an armed man, and one allegation that Neill had violated the Hatch Act, which prohibits government employees from using “official authority or influence” in a political campaign.25 He was accused of handing out paper fans promoting a City Council candidate while marching in uniform on July 4, and that was the only investigation still open at the time of the trial. The others had been resolved in Neill’s favor. The police department withheld the names of the complainants.
None of the incidents involved untruthfulness as defined by the Rules of Evidence, so the defense had to argue that all four had provided a motive for Neill to lie along the way to curry favor with the prosecution.
This bias theory illustrates how clumsy the law can be when it tries to diagram human behavior. Perhaps a cop under close scrutiny would bend every rule to please superiors with a conviction, or perhaps he would be uncommonly scrupulous. Conduct and testimony could go either way. One prosecutor, familiar with police culture, believed that officers who were investigated repeatedly reacted more typically with resentment toward their commanders, not deference. Nevertheless, logical or illogical, the Rules of Evidence opened only this narrow pathway for the defense, and they took it successfully. Over the assistant U.S. attorneys’ objections, Judge Henry H. Kennedy, Jr., ruled that Neill could be questioned about the four complaints that had been in play during the course of the case, but no others.
Wealthy clients with millions to spend on their defense can hire sophisticated jury consultants to work up profiles of citizens likely to convict or acquit. Poor defendants have only the street sense of an experienced public defender, if they’re lucky enough to draw one, and Douglas was. As potential jurors were screened in open court, he and his lawyers separately scored them on a scale of one to ten, then used their ten peremptory challenges to exclude people they thought might be too credulous of the police. (The government was granted six such challenges.)26
No reason need be given for a peremptory challenge, and lawyers can filter out jurors using any characteristics except race and sex, the Supreme Court has held.27 But discerning racial and gender discrimination is difficult unless a lawyer acts blatantly to exclude all blacks or all men, for example; it’s hard to unravel the prohibited from the permitted rationales.
Methods of weaving race into the selection process were outlined by a senior prosecutor in the Philadelphia district attorney’s office, Jack McMahon, in a training video for fellow prosecutors. “In selecting blacks, you don’t want the real educated ones,” he declared. “Avoid selecting older black women when the defendant is a young black man,” he advised. “If you get, like, a white teacher teaching in a black school that’s sick of these guys maybe, that may be one you accept,” he said. “The only way you’re going to do your best is to get jurors that are unfair.”28 The tape, made public as McMahon campaigned for district attorney, contributed to his defeat.
> The other method of exclusion, for cause, requires the court’s approval and depends wholly on a judge’s fair and perceptive appraisal of human shortcomings—a skill not always found on the bench. If a potential juror is the defendant’s friend, that’s obviously corrupting. If she has ever been the victim of a crime, her bias may be less certain.
During voir dire,29 as the questioning in jury selection is known, Quint and Petras found that the pool comprised several people who knew the block, a few with relatives in the police force, others with relatives behind bars, some who had been robbed and said they were fed up with crime, and several members of volunteer anticrime patrols.
These categories seemed to cut in various ways. Some said the cops who were relatives never talked about their work. A middle-aged black man with a nephew in jail thought that his sentence was too long, and a white man believed that his brother’s was too short. Both got excluded, one by each side. The defense screened out the anticrime patrols. A short, frail man from the neighborhood seemed so nervous that the judge dismissed him, and a woman was excused after she started crying about her niece having been mugged.
Quint and Petras used one challenge for cause to exclude a white man who said that because the police had done a lot of good in his neighborhood, he would tend to believe an officer who testified. They used a peremptory challenge against an elderly black man, formerly an elevator operator, who worked in an after-school program at a recreation center across the street from the spot where Douglas had been arrested. Quint wasn’t sure whether he would want to be tough on guns or tough on the police.
“I felt OK about this jury,” Quint remarked in the end. Including two alternates, it contained eight African-Americans, five whites, and one Asian. The juror elected foreman was a white man who worked for a pharmaceutical journal.
On the first day of the trial, I was the only observer sitting in the rows of wooden benches. When you’re facing prison—and Douglas was facing four to five years—an empty courtroom must be one of the loneliest places in the world. It is a vacuum that engulfs many poor defendants with shattered families and friends who are stressed and busy with overlapping demands of unforgiving work hours, illness, and the desperate search for child care.
Douglas’s three-year-old daughter had been brought to court by her mother and her mother’s friend during jury selection the previous day. Although they were seated in the very last row, as if trying to be both present and invisible, Petras had quietly asked them to leave. The judge didn’t like children in the courtroom, Petras told me later, and she worried that jurors might think it callous to allow the little girl to hear such accusations about her father. So the room now had a sorrowful sense of emptiness.
A federal trial has its costumes. Female lawyers are evidently supposed to dress as if they have come directly from a funeral. Convention assigns males somber suits but permits them flagrant ties. Jurors come in all manner of clothing, from jeans and T-shirts to business attire.
Defendants being held without bail appear in prison uniforms when no jury is present; judges are accustomed to the garb, but it would scream to jurors, “Criminal!” So when juries are seated and trials begin, the accused are outfitted from two racks of variously sized garments in the public defenders’ office on the ground floor of the massive federal courthouse. Douglas wore a bright orange jumpsuit to his pretrial motion hearings but for the jurors he dressed more respectably than he generally did as a free man: His lawyers had given the federal marshals who guarded him a pair of dark trousers, a blue shirt, and a dark purple tie to have him put on. He looked splendid.
Neill arrived at the courthouse wearing his police uniform topped off by a pink baseball cap labeled OPERATION IRAQI FREEDOM. He shed the cap before walking into the courtroom and taking his seat on the witness stand.
The opening arguments had sketched the conflicting stories. Douglas was an armed felon “reaching for his thirty-eight-caliber handgun.” Douglas was an innocent beer-sipping celebrant who had the “bad judgment” to carry his open can into the courtyard as midnight approached.
Neill tried to be engaging. He lost a little of his ghetto dialect, and as the jurors filed in or out, he faced them and stood with his hands behind his back, as if “at ease” on a military parade ground. “Good morning, Your Honor,” he said. “Good morning, jurors.” He was a veteran witness, although, a supervisor told me, some of the assistant U.S. attorneys regarded him as a bit of a loose cannon, hard to control on the stand.
One of the prosecutors, Jessie Liu, led him gently through the events. She displayed a huge aerial photo of the courtyard and had him stick orange dots on the spots where he had parked, where he had seen Douglas, where the critical bush was located. With the judge’s permission, she had him crouch to demonstrate how he had bent over Douglas. She handed him the gun, in a plastic bag; he removed the weapon and confirmed that it was the same firearm that he had recovered.
After a recess, Mary Petras geared herself up to punch holes in his credibility. She began by introducing the police form on which his questioning had been recorded. Douglas’s answers had been blacked out, because his lawyers hadn’t yet decided whether to have him testify. The judge had accepted the prosecution’s argument that the jury should not see answers on which he might not be cross-examined.
So the questions, not the answers, were Petras’s focus—questions she hoped jurors would find unnatural from an officer who had supposedly just seen Douglas toss a gun. “The first question you asked Mr. Douglas was, ‘What do you have to say about this charge?’ Correct?”
“Yes,” Neill answered.
“You don’t say, ‘I just saw the gun in your hand.’ ”
“If I say I saw him with the gun, he might get antagonistic,” Neill replied, explaining that he always asked open-ended questions in the hope of getting more information.
“You don’t say, ‘Why did you drop the gun in the bush?’ You say, ‘Why did you stop at the bush where the gun was?’ Correct?”
“Yes.”
A seed of doubt had been planted.
She began to ask Neill about two other arrests that night for thrown guns, so close in time that he seemed to be everywhere at once. When she implied that he was picking up guns and linking them to random people, Neill got testy and began speaking rapidly. “If I hadn’t seen him with a gun I wouldn’t have locked him up. It’s easier to get the gun off the street. I don’t have to come to court. After twenty-six years I don’t like to do it anymore. This is about the truth. You either see it or you don’t.” (Some cops do like to come to court, though, because it means overtime that can run their pay up above $100,000 a year.)
As Petras proceeded to assemble a timeline suggesting that Neill could not have made such rapid arrests (although he probably could have, based on how fast I saw him move on the streets), Liu objected, and the judge decided after a conference at the bench that the sequence was irrelevant. But another seed of doubt had already been sown.
And then, reconvening after lunch, Petras hit him with the key questions, designed merely to get some facts of his past before the jury. “Sergeant Neill, you are currently the subject of an investigation yourself, correct?”
“Yes, ma’am.”
And so it went: A violation of the Hatch Act? A complaint by a citizen that you illegally searched his car? Another complaint that you illegally searched him and his car? A shooting? She deftly avoided asking him to explain any of these incidents, although he jumped in with his excuse for wounding an armed man he had been wrestling to the ground.
“I only shot him when he tried to spin the gun around and said he was gonna shoot me twice,” Neill reported. An investigation by the U.S. Attorney’s office had been opened and closed, and the Metropolitan Police Department had criticized him for the offense of keeping his ammunition clip only partly full, his method of avoiding excessive pressure on the spring. Also, he added, “MPD wanted to know why I didn’t shoot him when I saw the gun in his hand, a
nd I said ’cause he wasn’t pointin’ it at me.”
Now the men and women who would judge Douglas had a slightly more complete picture of the key police witness than jurors usually receive in trials, although it was still rather sketchy. Neill seemed to measure his squad’s accomplishments not by the number of arrests or convictions—data he never offered to me—but by the number of guns removed from the streets. “We got a hundred and sixty guns in a year,” he once announced as we rode through darkened neighborhoods.
This was not a feature of his professional values that Liu chose to emphasize in her redirect examination; perhaps a jury would speculate that his conviction rate was low, that his police work was shoddy. But she did ask him whether his unit ever found guns without making a charge.
“We’ve found guns but haven’t charged anyone because we didn’t see anyone with them,” he answered.
And at another point, she aimed the essential question straight at Neill’s heart: “Do you have any doubt that you saw the defendant with a gun?”
“No doubt. I have twenty-six years in the force, and I’m close to retirement. I don’t want to jeopardize that. I have a top secret clearance in the military.” Then he turned to look squarely at the jury. “If you find him not guilty, that’s your right.” He seemed poised to elaborate but was interrupted by Judge Kennedy, who told him not to go beyond the question. There had been no objection by Douglas’s lawyers to Neill’s burst of defensiveness; they probably sensed that it would work to his detriment.
The Rights of the People Page 15