After Neill’s testimony, the prosecution engaged in some defensiveness of its own. Knowing that no fingerprints had been found on the gun, the government tried to preempt jurors’ surprise and doubt by eliciting testimony from a veteran police lab technician about how hard it was to lift useful prints. Either the surface is dusted with black powder, which is then picked up by tape and transferred to a white card, or the gun is placed in a tank where super-glue is heated until it becomes a gas. It adheres to fingerprints, which can be seen using fluorescent chemicals and special light. Only 10 to 15 percent of recovered guns have identifiable prints, the technician testified, because most places that hands touch—the trigger, the handle—are knurled, and prints on flat surfaces are often smeared, especially if the gun is thrown. The explanation, albeit logical, often throws jurors who have watched the fictitious precision of crime-lab work on television.
The prosecution rested, and then the defense had to decide whether to put Douglas on the stand. The problem was, Douglas would have to pay a high price for giving the jury his version: If he testified, the prosecutor would cross-examine him about a prior conviction. It would come down to the word of a young black felon against a veteran white policeman.
In general, a defendant’s criminal record remains unknown to the jurors, who are supposed to judge guilt or innocence regardless of prior conduct. But if the accused testifies, the prosecution is free to cross-examine about past convictions involving dishonesty, just as the defense can try to impeach the credibility of testimony by government witnesses.
In this case, however, jurors already knew that Douglas was a felon, because the fact was woven into the federal charge he faced: possession of a firearm by someone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”30 It is a highly prejudicial accusation that tarnishes defendants even if they remain silent in their trials.
What the jurors did not know were the details, and his lawyers didn’t want them to find out. In 1995, Douglas had been sentenced in Maryland to five years, all but one suspended, for two robberies and a burglary. He had no serious blemishes on his record since, and Petras and Quint hoped that Judge Kennedy would allow him to testify without having that conviction introduced. Petras stayed in jail until midnight prepping him for his possible testimony the next day, but in the morning, Kennedy found the conviction admissible under the Rules of Evidence, which admit priors whose sentences have ended within the previous decade.
Under the circumstances, Quint’s more seasoned colleagues advised against putting Douglas on the stand. “They said the details of his priors would come out, and you never know what a defendant will say under cross-examination,” she noted. Worse, the Federal Sentencing Guidelines would increase the penalty if he testified and was found guilty: His sentence would be raised by two levels for “obstructing justice,” a perverse twist that punishes those who profess their innocence. Just by going to trial and refusing to plead guilty, Douglas had forfeited a sentence reduction of two levels for “acceptance of responsibility.” The dice were loaded.
Therefore, the defense didn’t really put on a case beyond relying on the holes that Quint and Petras hoped they had poked in Neill’s story. After the summations, the jurors filed out to deliberate, and the courtroom was left in heavy silence.
Over the next two days, jurors were confounded and divided. Some had not taken notes, one told me later, so they asked Kennedy twice for transcripts, which they assumed they had a right to see. But the judge refused without telling them why, causing irritation in the jury room; had they known in advance, they would have been writing. Kennedy accepted Quint’s argument that excerpts out of the context of body language and inflection would be distorting, and the judge did not want the case retried in bits and pieces of transcript. Quint didn’t want Neill’s credentials paraded again in print before the jury.
At 3:15 p.m. on the second day of deliberations, the foreman passed Judge Kennedy this note: “Unfortunately, we are at an impasse. We have taken two votes. Please instruct us on how to proceed. We feel we have said all that we have to say.” The judge sent them home and brought them in for a third day, when the foreman finally notified him that they were hopelessly deadlocked. Kennedy did what judges hate to do: He declared a mistrial.
The jurors broke down mostly along racial lines, according to one of them, a young white woman. The African-Americans tended to disbelieve Neill, and the whites and Asian man voted for conviction. Some jurors told of friends and boyfriends who carried guns. During voir dire, the young woman added, a number of jurors had concealed their negative experiences with the police, which had created bias, although she obviously had biases of her own. “I’d rather that the cops presumed that something was bad rather than good,” she said. “I think the same thing with tapping our phones to catch terrorists. So what? Let the cops presume something and then find nothing.” The police, she declared, should have the right to search any car at any time for any reason.
Luckily for Douglas, other jurors were not as credulous, and Quint and Petras had aimed at just the right points of vulnerability. “One gentleman had problems with Neill being under investigation,” the juror said. “One gentleman was stuck on the fact that there were not fingerprints, even though statistically only 10 to 15 percent of guns have fingerprints,” as the lab technician had testified. Some were bothered by the open-ended questions that Neill had put to Douglas. “I wasn’t,” the woman remarked. “I’m in marketing, and I ask open-ended questions all the time to get more information.”
She found the whole experience frustrating. “There were a couple of people who didn’t want to deliberate. They were stuck on the verdict from the beginning. They played paper games, crossword puzzles. I said I could be convinced if somebody could give me reasons why Sergeant Neill would lie. Why would he perjure himself over something as insignificant as this?” But the deliberations moved the other way, she reported, as one black woman who began in support of conviction shifted to not guilty. “Six of us believed Sergeant Neill. He wasn’t the most stellar witness. He was very excitable by defense questioning. If he had kept his cool,” she said, he would have been more credible. “His demeanor had a huge part” in jurors’ reactions to him. So Quint and Petras had been smart to oppose providing the sterile transcript.
Douglas’s failure to testify bothered this juror, because “nobody contradicted Sergeant Neill.” And there was speculation in the jury room about what Douglas’s felony had been. She was surprised to learn from me that his crime was nonviolent and more than a decade old. She had assumed worse, and the new details improved her opinion of him. So, perhaps he would have been helped even further by taking the stand.
An outright acquittal would have set Douglas free, but a hung jury offers the prosecution the option of a retrial, so Kennedy left him locked up pending that decision. A couple of months later, the U.S. Attorney’s office offered him a plea bargain, and he took it: guilty of a misdemeanor for possessing a gun and ammunition, twelve months’ probation.
In a similar gun-throwing case tried two months later, in March 2006, the same background information about Neill was kept from jurors, who believed his testimony and voted unanimously for conviction.
The arrest had occurred at 1:30 on a cold December morning. As Franklin Dorn was leaning into a car, Neill’s unit approached and asked to search him. “He turned and walked away, which he’s allowed to do,” said his lawyer, Jonathan Jeffress. “They grabbed him, turned him around, and he ran.” He got away by coming out of his coat, which one officer held. Neill said that he saw Dorn throw a gun, and he found cocaine in the coat pocket.
The status of each investigation into Neill’s activities was identical to what it had been during the Douglas trial, and Jeffress, an assistant public defender, argued similarly that Neill should be cross-examined about them all. “For at least the past five years,” Jeffress wrote in his brief, “Sergeant Neill has been under invest
igation by the Metropolitan Police Department continuously.… Evidence that Sergeant Neill has been investigated—and is being investigated—for conduct related to abuse of authority, excessive force, and violations of the Fourth Amendment makes it more probable that he engaged in such conduct, and/or is biased, in the instant case. In the absence of such evidence, it is less probable that the jury will believe that Sergeant Neill is being dishonest or has a reason to ingratiate himself with the government.… The defense should have the opportunity to explore, through cross-examination, whether the range of incidents in Sergeant Neill’s history constitute a potential source of bias.”31
“Logically,” the government argued in rebuttal, “a witness accused of misconduct unrelated to the case in which he is testifying, or that allegedly occurred long before the events of the case on trial, or that is being investigated by an entity separate from the agencies handling the trial matter, has little incentive to shade his testimony to favor the prosecutor.”32
The government’s reasoning was accepted by Judge Colleen Kollar-Kotelly, who applied a stricter test than Judge Kennedy had. She found all the incidents too far removed to motivate Neill to lie on the stand. The only pending investigation, into the Hatch Act violation, was being conducted neither by the police department nor the U.S. Attorney’s office, she noted, but by the Office of Special Counsel, a federal agency that Neill could not favor by testifying falsely. “From a factual perspective,” she wrote, “it is difficult to see how the investigations at issue—all but one of which are presently closed—would prompt biased testimony on the part of Sgt. Neill.”33
Excluding the allegations against Neill not only kept facts from the jury but also reduced the tension of the cross-examination, which affected Neill’s demeanor. He told me later that he thought he had done better in the Dorn trial than against Douglas, and it seemed likely that he had removed one factor that had made the Douglas jurors doubt him: his excitable defensiveness.
Written statutes and regulations and court opinions are too brittle to embrace the supple nuances of human behavior, and so reasonable judges can obviously disagree on how to apply the code to the vagaries of actual conduct. As a general rule, though, investigations exonerating officers have less chance of getting before juries than those that find wrongdoing, and while that seems legitimate, it also provides police officials with additional motivation to whitewash misconduct. If departments justify a citizen’s complaint and punish the cop, they may lose a credible police witness.
Dorn was sentenced to twenty-seven years in prison.
Had the investigations of Neill been introduced, “It would have made a difference with some of the jurors,” Jeffress speculated. “I don’t think we would have gotten an acquittal,” but all he needed for a hung jury, of course, was one member who refused to convict.
“Guilty” may be pronounced only unanimously in federal courts, and even as basic rights are battered, this remains a bedrock protection for the tiny fraction of defendants who go for trials rather than plea bargains. The same is true in forty-eight states. (The exceptions, Oregon and Louisiana, require all twelve jurors in first-degree murder and death-penalty cases, respectively, but allow just ten to convict of lesser felonies.) The rule of unanimity annoys the veteran sergeant J. J. Brennan, who thinks that juries should be able to convict by majority vote. “Crooks got enough rights,” he told me late one night as he led his narcotics squad on its shift. “They’re covered. The right not to give a video statement. The right to this, the right to that. Then the government to convict has to prove it beyond a reasonable doubt.” He found it inconvenient.
SOWING REASONABLE DOUBT
Since thrown guns often provide openings for the defense to plant reasonable doubt about police credibility, the police are often tempted—as they write their reports and shape their testimony—to see everything unfold with remarkable clarity.
Formally, they may be taught to document only what they actually witnessed, not what they surmised. “Put down what you saw, not what you think you saw,” Sergeant Curt Sloan told officers in the Washington, D.C., training course on finding guns. “If you seen it was a gun, it was a gun,” he said. Otherwise, it was “a dark object.” Or, he told them, you heard a metallic object hitting the pavement. If you didn’t see it in the perpetrator’s hand, say so. And write every detail, he instructed, since the case may not come to trial for a year or two, long after your memories will be cluttered by multiple intervening arrests.
Ironically, however, police officers who are precisely honest may lose convictions, because truth invariably contains ambiguities and contrasting perspectives. Reality is rarely neat and orderly, and anyone who investigates it, whether journalist or detective, knows that accuracy includes contradictions and blank spots, which can be spun by a skilled defense attorney into an impression of fabrication. To avoid appearing to have made up a story, then, some officers make up a good one, scrubbed clean of every question mark.
Not so an experienced cop named Wayne, a tall, beefy, talkative officer with a shaved head who was touched when jurors believed him, even though their verdict was not guilty. He had followed three men, hurrying to get away from him, into the hallway of an apartment building, and he could see blurrily through a glass wall as one of them fumbled with his keys. Then he heard a gun drop to the floor.
He had heard a lot of guns drop and knew the sound. When he approached, he saw that the man with the keys had just dumped his pockets on the floor: keys, change, gun, everything. He made the arrest and was honest about saying that he hadn’t actually seen the defendant holding the gun. “I could have,” he told me. “I could have said I saw the gun. It was a challenge to my integrity.”
Jurors told attorneys after the trial that they accepted his account but thought it left reasonable doubt about which man had held the gun. And so, while it was hard to lose the case, Wayne felt proud to be seen as truthful—the lightness in his voice confirmed that this was so.
Another case of a thrown gun illustrated the complicated interaction between honesty and credibility. No dirt on the arresting officers could be found, but the circumstances seemed ambiguous.
About 12:30 one morning, narcotics police observed what they suspected were drug transactions in a parking lot. They saw the dealer get out of a blue Chrysler Pacifica, make what seemed to be sales, and get into a black sedan. The policemen fired several shots to halt the black car, but it rammed a police cruiser and took off.
The cops then stopped the Pacifica, and as it maneuvered in an attempt to flee, they saw the front passenger door open briefly. One officer spotted something silver fly out; another heard a metallic thud and the sound of metal sliding across pavement. Officers found a gun under a nearby parked car and another gun on the driver. Since a thirty-two-year-old man named Antoine Andrews was riding in the front passenger seat, the cops connected him to the tossed pistol. A back-seat passenger was not arrested.
Andrews’s lawyer, David Bos, deftly teased out contradictions in the officers’ stories. One said the parking lot was brightly lit; another said it was dark. The sketch by a crime-scene technician showed a light blocked by trees. Initially, in a written report and at a preliminary hearing, an officer indicated that the car had come to a halt before the gun flew out but later said that it had been moving. The car’s location seemed uncertain.
Andrews had a few convictions behind him, two for drugs and one as an accessory after the fact of murder. But he vehemently denied to me that he’d had a gun and insisted that he’d never owned one. In his version, the cops were shooting at the black car and then stopped his, yanked open the passenger door, pulled him out, threw him on the ground, handcuffed him, and put a foot on his head.
Bos, no stranger to miscreants, thought Andrews was the innocent victim of a drug bust gone wrong. The police, embarrassed that the dealer had escaped, had to file a report after the shooting, Bos surmised, and charged Andrews to lean on him for information about the occupants of the
black sedan. When he didn’t cooperate, they prosecuted.
Andrews tried to dress up for his trial. He wore a mismatched suit with a dark jacket that was too large, pants of a slightly different color, and a sparkling clean white shirt whose collar was so loose that his tie couldn’t be entirely tightened. Jurors were more casual, and some looked like what they were supposed to be: his peers. All were black except for three white men. The foreman was an African-American with his hair in cornrows and his head wrapped in a blue bandanna.
After the jury began deliberations, Easter weekend intervened, and the next Monday morning, Bos carefully placed Andrews on a bench on the main floor of the courthouse, hoping that jurors would see him as they walked by and recognize him as a real person whose life was in their hands. He looked much younger than his thirty-two years and, as a condition of his release pending trial, had been in a halfway house for a year. Bos said that he had never before had a client who actually obeyed all the rules for that long.
At 10:15, the jury sent word that it had reached a verdict. “I’m nervous,” Andrews said. His face was contorted with anxiety as he entered the courtroom.
The jurors filed in. The foreman passed a piece of paper to Judge Richard W. Roberts, who read it and then passed it back.
“How do you find the defendant?” Roberts asked.
The foreman answered: “Your honor, we find the defendant not guilty.”
Andrews closed his eyes and clasped his hands in front of him, as though praying. Bos put his arm around his shoulder in a brotherly hug. The prosecutor showed no emotion. She had lost cases before.
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