The Rights of the People

by David K. Shipler

  The judge polled the jurors one by one, thanked them for their service, then adjourned and went back to the jury room to convey my request to talk to any who were willing. Four agreed: the three white men and one black woman.

  It turned out that the jurors were not actually unanimous inside their own minds. From the start of deliberations, three of them thought Andrews had thrown the gun out of the car, and all three were sitting before me in the jury room: the African-American woman and two of the white men. The third white man had seen cops misbehave enough to disbelieve them. “I have been around a lot of police officers,” he said. “I have a negative feeling about the police. One of the places I go to eat is a Salvadoran restaurant, which is always full of police officers with guns, drinking.”

  The black woman had changed her mind over the Easter weekend as “reasonable doubt” crept into her thinking while she reflected on Bos’s opening statement. “I gave it serious thought,” she said. “There was sloppy work on the part of the police department. They could have come in more prepared.… There was a lot of confusion going on.”

  But the two white men did not change their minds, only their votes. “I thought he was guilty,” one said.

  “He was there,” said the other. “The police put him in the passenger seat; the gun didn’t fall from heaven.”

  “He’ll be back on the streets, and next time he might kill somebody,” the first declared.

  So if they still believed in his guilt, why vote to acquit? “Because I knew it wasn’t going to go the other way,” said the second white man.

  “We knew that we weren’t gonna sway nine other people,” the first explained. “If we had stuck, it would have been a mistrial.” He found himself thinking, What if it had been reversed, with himself in the minority for acquittal? In that event, “I would never have changed my vote,” he declared, “because I would never want an innocent man to go to jail.”

  “I would not have, either,” said the woman. The second white man agreed. He would never vote guilty if he didn’t believe it, he insisted, although he had voted not guilty without believing it.

  That was exactly right for a system designed to free a dozen guilty rather than imprison a single innocent. It is an ideal hardly attained, and one seriously eroded in a time of terrorism, but the jurors’ adherence to the standard reminded me of an admiring comment I’d heard from a Soviet legal scholar fifteen years before. His own country had no juries, and when he attended trials during visits to England and the United States, he was surprised and moved by watching ordinary people without legal training become attentive, serious jurors who worked hard to be just. They grew into their awesome roles.

  Yet the two white men did not feel so noble. “I’ve never been on a jury before,” said the first. “My impressions are not so good, because we let a guilty person go.”

  “It’s not a perfect system,” said the second, and it got him thinking. “Out of all the death-penalty cases, how many have this ambiguity?”

  THE AIRTIGHT ARREST

  Sergeant J. J. Brennan didn’t want his drug cases to have any ambiguity at all. When his undercover narcotics officers went out on a “buy-bust” (a purchase and an arrest), the preparations were meticulous, at least when I was present. They xeroxed the fives, tens, and twenties to be paid to a dealer so their serial numbers were recorded. The undercover officer (U.C.) who carried the bills was often wired with a tiny radio transmitter and, if the transaction occurred on the street, videotaped by a plainclothes officer sitting behind the tinted windows of an unmarked car nearby.

  If everything went perfectly, the U.C. made the buy with the registered bills, the conversation was recorded, the scene was taped, the U.C. got away safely with the drug evidence, and within minutes the plainclothes officers swooped out of the shadows and down on the seller with the incriminating serial numbers in his wallet—tying it all up for the prosecutors in a neat package of indisputable proof. I watched the unit do this fast-paced sting operation again and again like a well-drilled offensive squad.

  It played like any professional team, mostly by the constitutional rules but occasionally with a subtle foul in the hope no referee would notice: a pat-down without suspicion or permission, a quick interrogation without a Miranda warning. Here is where the Fourth and Fifth Amendments met the road—and sometimes got a little bent.

  The first time I went out with Brennan’s bunch, they were after a bigger dealer than the street sellers who hang around on seedy corners. This one had already sold crack to three U.C.s, and was slated tonight to make a fourth sale of a greater amount, over fifty grams, which would bring a heavier punishment. It’s a common police tactic to induce larger and larger sales until the defendant qualifies for a long stay in prison, and sometimes, defense attorneys say, the dealer is duped into borrowing the drugs just to meet a contrived demand that is uncharacteristic of his usual level of business. Usually in vain, the lawyers try to persuade judges that this constitutes entrapment, because the crime—in this case its magnitude—is instigated by the police. Evidence so gathered would be inadmissible.

  But few judges put the brakes on the cops. The war on drugs has eroded rights and empowered law enforcement, as the war on alcohol did under Prohibition and the war on terrorism has since 9/11. Rarely do courts find entrapment in any but the most blatant cases. Brennan had no cause for worry tonight.

  Unlike the standard buy-bust on the street, the plan here was to do the buy, then to obtain a search warrant for the dealer’s home, where a significant stash of drugs and guns might be found, and finally to seek a grand jury indictment.

  You would never guess by looking that this was a police unit: a gray-haired black woman wearing a bandanna, a young woman in hot pants, a lithe black man in torn jeans, a beefy white guy wearing a sleeveless shirt and tattoos on his biceps, a short white man with a ponytail and a baseball cap on backwards. He was the lead officer on this case. About twenty members of the squad, dressed down to blend into the neighborhoods, gathered around a table at the Narcotics Branch, a few blocks from Union Station, where “Ponytail” briefed them with sketches, maps, and aerial photos.

  There was happy tension in the air, like a football team pumped up in the locker room for a big game. They heard the intelligence about the “target” and his usual patterns: He was five feet five inches tall, two hundred pounds, drove a white Cadillac, and had been watched for a long time. Tonight’s buy would be made by a young black female officer, “R,” who had been introduced to him as the girlfriend of a seasoned confidential informant (C.I.).

  The first buy had been here, at the corner of Seventh and P, Ponytail said, pointing to a grid he had drawn with a black marker, and then the dealer drove up to this street, across here, down here, and then around, in a kind of U. “He’s very comfortable in this area.” The second sale was made inside a 7-Eleven on the corner here, and then he drove here, down here, up here. Ponytail expected him to cruise the neighborhood before meeting R and the C.I. The squad didn’t have to be told to park their unmarked vehicles in quiet alleys or dark lots, and to roll up their tinted windows so they couldn’t be seen.

  As practiced as they were, though, they were plainly anxious about R’s safety. They devised a signal for her to indicate danger: two hands clasped above her head. A sergeant laughed nervously that she shouldn’t do any idle scratching unless she wanted to be rescued. They worried that the dealer would invite her into his car and make the sale there, out of sight, without video.

  And sure enough. She went to meet the C.I., and the others fanned out in their unmarked vehicles, found unobtrusive spots to park, listened to their radios, talked to one another on their cell phones, and waited. R was in view of the “eyes,” a young black officer who watched her from his car, followed her, monitored the transmissions from her wire, and gave the squad running commentary. He was one of those people who marveled that he was actually getting paid for his enjoyment; he loved his work in narcotics, because it had an exc
iting element of risk, and he got to outwit street-smart drug dealers—all on behalf of the Department of Justice!

  Just before the rendezvous, Ponytail reassured R gently on the cell phone, told her to stay calm and remember that she had plenty of backup. She linked up with her “boyfriend,” the C.I., and when the target came driving along, not in his white Cadillac but in a burgundy Pontiac, she did what they’d hoped she would not have to do: She and the informant got into the car. The tension in Ponytail rippled through him like an electric current; I was sitting behind him, and I could see it in his body. He gripped a handheld radio in one hand, his cell phone in the other, as the “eyes” reported that the car was moving, the eyes following and giving the vehicle’s locations as it meandered among the dangerous blocks of the neighborhood.

  The time of sitting and waiting in the darkened car seemed to run on and on, and finally the crackling voice of the eyes reported her out of the Pontiac. Ponytail flipped his phone open, its screen glowing in the dark, and made a call to order her picked up. His instructions were relayed by radio, and soon she was safe inside an unmarked police vehicle.

  Ponytail hadn’t quite relaxed yet. Because the buy hadn’t been taped and the C.I. was present, he needed to be sure that it had been done properly. He punched a number on his cell phone, reached R, and asked her whether the drugs and cash had passed directly between the dealer’s hand and hers, and not through the informant’s. That would have tainted the transaction. “And it went directly from your hand to his hand?” he asked. She must have said yes. “Directly from your hand to his hand?” Again, she must have reassured him. He asked again and again to be sure that it had all been done by the book.

  SUBTLE SHORTCUTS

  Most members of the squad had been out on the streets long enough to grow calluses against residents’ anger and insults, which seemed to slide off harmlessly. But sometimes the officers got annoyed, not just personally but on principle.

  A month after the sting against the big dealer in the burgundy Pontiac, we were waiting in the early evening darkness for a buy-bust. The eyes had a woman’s voice this time, radioing clear alerts as a U.C. was about to make a buy from a “black male, white T-shirt, gray sweatpants, tan boots, black baseball hat with a brown bill. Stand by.”

  The sale made, she broadcast, “Good to go!” and gave his location and the direction he was walking. We took off flying in civilian cars with no flashing lights, zooming through streets where people stood gaping at us as if we were completely crazy.

  So it went, bust after bust. One nabbed a man older than usual, probably about forty, with a hole in his throat from a tracheotomy, and fitted with a piece of hardware that allowed him to speak when he put a small amplifier up to his larynx.

  With his hands cuffed behind him, he couldn’t hold the gadget, and the officers confiscated it. “They’ll take it away from you” in jail anyway, one politely explained and added that he’d give it to the man’s wife, who could deliver it to him tomorrow when he would see his lawyer.

  Brennan knew the guy’s name: Mr. O. “We’ve met this man before,” he told me. They’d arrested him with drugs and a pistol but didn’t prosecute because “he cooperated” by testifying in a murder case. “And he’ll cooperate again.” Drug charges are routinely used by homicide detectives as leverage to squeeze out information on unsolved murders in the neighborhoods. No matter that such informants and witnesses have high motivation to make up a good story to get themselves off; their unreliability seems more obvious to defense attorneys than to judges.

  While Mr. O stood in handcuffs, his family and neighbors poured into the alley to gawk, to object, to plead. A cacophony of chatter and complaint reverberated off the walls. Everyone had something to say except for a sad-faced woman, his wife, who sat silently behind the wheel of an SUV, waiting—waiting, it turned out, to drive their young daughter, about eleven or twelve, to her school graduation. Dressed up neatly in a white blouse and dark skirt, the girl ran out of the house in desperate tears.

  Loudly, the dealer’s mother protested repeatedly that he had done nothing. His snaggle-toothed sister screamed wildly, “I ain’t no crackhead! I ain’t no crackhead! You the crackheads!”

  Brennan typically tried to strike a balance between vigilance and calm, he told me later. “Somebody could go inside and come out with a pistol,” he said, so his men had to be watchful. But if they’d moved too aggressively, say, to arrest the mother and sister for disorderly conduct, which he felt they had cause to do, tempers in the alley would have flared. Only one complaint about his unit had been made in the last eighteen months, he said proudly, and that was for talking in an offensive tone of voice to a man after his arrest.

  So Brennan had to cool off a couple of his officers who got into verbal duels with bystanders. “We’ve arrested him before, and the family always has the same reaction,” one told me in disgust. Another grumbled furiously, “How can they be so mad at us? The father is out selling drugs when his daughter’s about to go to her graduation! Why aren’t they fucking pissed off at him? They ought to dig a deep hole and put dealers like him in it and pile rocks on them!” The police wouldn’t mind a little praise from neighborhoods they are trying to protect.

  The team searched the SUV and came up with the buy money hidden on the floor under the front passenger’s seat, but no drugs. They might have been swallowed by Mr. O—the inside of his mouth was all white—and the cops urged him to spit out the crack, but he kept mouthing the words, “I don’t have any.” They didn’t believe him, told him it was dangerous, and after dispatching him to jail in a paddy wagon, filled out a Form 313 to forward him like a sack of mail to the hospital.

  Like reporters and doctors who relieve their own stress after witnessing violence and injury, these narcotics cops indulged in plenty of tasteless gallows humor. One wondered if Mr. O’s drugs would pop out of the tracheotomy. Another said maybe they should have gone fishing for them with a spoon through the hole. And the cops often mixed hostility with derisive laughter, as in the case of another dealer they had arrested.

  The squad converged on him, wrestled him to the ground, cuffed his wrists behind his back, then jerked him to his feet and frisked him for weapons. Following standard procedures for anyone being locked up, they relieved him of all valuables and any tools that might come in handy for committing suicide: his belt and shoelaces. They took off his watch and emptied his pockets onto the ground, then looked around for a loitering friend or relative whom he might trust with the valuables so they could be spared an inventory. There was nobody for this man.

  One possession seemed inseparable from the suspect, who screamed in pain as a beefy officer tried roughly to wrench loose his ring. “You’re breaking my fucking finger!” The cop kept twisting, red-faced with frustration, the man kept screaming and begging them to use water, and a gentler officer finally went to his car for a little bottle of lotion and greased the ring loose. Brennan, watching from inside his vehicle, mistakenly thought the guy was holding relentlessly onto some drugs.

  The narcotics were discovered as they searched him and pulled a bag of crack from his underwear. “They’re not my underpants,” the seller protested; they were borrowed, he insisted. The cops got a kick out of this, and to prolong the comic relief made fun of his T-shirt inscribed with drawings of two goats and the inexplicable words GOAT WRESTLER. On the street, you grab a laugh wherever you can find it.

  A lot of sellers operate in teams of three: a runner, a juggler, and a holder. The runner makes the connection with the buyer, takes the money, and delivers the cash to the juggler, who gets the drugs from the holder and passes them back through the chain. That way, nobody is actually exchanging drugs for money directly with the U.C. So it seems logical that the less sophisticated operators are the ones who get caught, which raises a question: Has this so-called war on drugs gone about as well as the war in Afghanistan? Supply has increased, driving prices down. Treatment centers are saturated with addicts, wit
h no beds to spare. Drug-related murders continue unabated. And courts whittle away the Fourth Amendment, all in the name of stopping a scourge that won’t be stopped.

  The cops rationalize their work by speculating that things would be even worse if they weren’t there, and that may be. Murder rates do drop when the squad is operating in a neighborhood, Brennan says. But the overall inability to sense significant progress reduces the effort to a series of isolated contests, each of which has to be won individually to cause any satisfaction.

  So if the refs aren’t looking, you can get away with a foul here and there—and why not? The cops know their man is guilty. They don’t need a jury to tell them; he just sold them crack. Besides, it’s hard to help crossing the line in the heat of the moment, as it’s easy to imagine officers doing when they’re less well led than Brennan’s bunch and unaccompanied by, say, a civilian writing a book.

  I saw a case that skated close to a line and might have fallen apart had it led to an arrest. A U.C. bought drugs from a fellow wearing a Redskins jacket, who then entered an apartment house, exited, and entered again. The narcotics squad swarmed the block of two-story buildings, each with four apartments, two upstairs and two down, but they lost him. Someone on the radio said that he might have left by the back, so we zoomed around into an alley, where a white officer was already questioning a black woman leaning on a fence at the rear of the tiny yard. She was smoking languidly, trying to look casual.

  He spoke roughly to her. “I saw you come out of that apartment. I saw you. Open that door.” The ground floor apartment he pointed to was dark. She hadn’t come from there, she insisted, and took a puff. He then felt the outside of her pockets, looking for keys—an illegal pat-down, since she was not suspected of anything, had done nothing to suggest she was armed, and did not fit the description of the “lookout” the police were trying to find.