How to Become Irretrievably Hung
Hung? Hung out to dry? Hung by my own petard? Hung over? Well hung? What in the cosmos can I mean?
This article is by far the longest I have ever published here. It runs almost four single spaced 8–1/2 by 11 standard letter–sized pages. You are thus forewarned, so hang on and read on if you have the stomach for it. Just don’t get hung up on anything.
Come Hither, They Said
Two weeks ago I got the dreaded jury summons, no big deal, I’ve gotten them before. The day of, this past Monday, I appeared as summoned at my county courthouse and joined about 100 other prospective jurors in the assembly area. We waited undisturbed until mid–afternoon, if you can call listening to daytime game shows like the Price is Right undisturbing. Then 72 of us were called and given juror numbers to wear up high on our shirts and sweaters. I was Juror 26. I had hoped for a higher number, as one might in a military service draft lottery.
We were marched into a large courtroom with the judge and three other court officers, and the prosecuting and defense attorneys, for jury selection. I have always been dismissed from service on one of three pretexts: 1) I know several attorneys personally, 2) I am a scientist — this is tricky, since one does not necessarily want to dismiss someone who might look at evidence from a more critical or quantitative perspective, but anyway, and 3) I have had more than one brush with the Law in my checkered past, none of which left a sweet taste in my mouth. But not this time, and I was empaneled along with 11 other primary jurors and two alternates. I became Juror 8. It was quite late at this time and we were released, to drive home in darkness.
Service With a Smile
We reported about 8:30 AM on Tuesday for the trial, which was a criminal case. There were two counts of aggravated assault; the victim of the crime was shot and recovered. There were two counts of robbery, during which the assault was allegedly committed. And there were four counts of conspiracy to accompany the four counts just described, so eight in all.
The prosecution presented first and called a series of six witnesses, five of which were in the law enforcement business in some capacity or other, plus the victim of the crime. What took place the rest of the day was a tragicomedy of criminally shoddy police work and a lack of reliable testimony and conclusive forensic evidence. There was considerable physical evidence, but as it turned out, some jurors were unable to conclude that any of it could be used to show definitively that the defendant was physically present at the location of the crime, nor that the weapon used in the crime belonged to or had been used by him.
Just The Facts Ma’am
An army of police and forensic investigators descended on the crime scene while the alleged robbery/assault was taking place. Almost immediately after the first responders arrived, two individuals were taken into custody outside an apartment building in a large complex, and a number of pieces of physical evidence were taken into custody and “bagged and tagged” to preserve the evidentiary chain of custody. These included an AR–15 style assault rifle, two big jars of marijuana, a silver 9mm handgun, and a uniform top which turned out to belong to the victim’s wife and which inexplicably was taken with the other items during the robbery.
Do You Swear or Affirm…
The primary responding police officer took the stand first. He clearly was an experienced witness and provided a very detailed and quite credible account of what took place from his perspective upon and after his arrival at the scene. He described seeing two individuals and taking one into custody. This turned out to be the first defendant, who was apprehended wearing tan pants and a black t–shirt with a garish, bright purple design on both the front and back of the shirt. This turned out to be a key piece of evidence on which the case largely depended. More later.
The second individual was taken into custody by the primary responding officer’s partner, who arrived in a separate vehicle right after the first officer. This person was wearing a solid black t–shirt and pants. Both arrestees have distinctive and quite different physical and facial characteristics, and if you did not know better, and at this point you do not, you would have thought it a straightforward matter for eyewitnesses to identify them unambiguously and place them both at the scene of the crimes, which allegedly took place first just outside the victim’s apartment, then continued inside. But no.
A 911 call made by the building superintendent, who lives in the apartment right across the hallway from the victim, was logged during the incident. This man was so shaken up by what he observed happening through his peephole that it was very difficult to understand him. He obviously was very fearful and whispered much of the time. The recording was also of poor quality and full of static, further compounding the difficulty of understanding its contents. By the time supporting officers and other investigators arrived at the victim’s apartment, the alleged perps had departed the building, whence they were arrested outside.
Now For the Evidence
The next witnesses were from the county CID (Criminal Investigation Division), one an expert in obtaining fingerprint and DNA evidence, as well as the expert in fingerprint analysis and identification. Another was an expert in blood and DNA analysis. The first investigator arrived on the scene some 30 minutes after the first responders and remained on scene until it was cleared by the local police department. That occurred about five hours after the first responders arrived, just minutes after the 911 call.
The first CID investigator went into very lengthy and fine detail about how he collected forensic evidence, some suspected blood spatter on the first defendant’s clothing, as well as how he swabbed the weapon tied to the crime by ballistic evidence from the victim’s apartment for fingerprints and DNA residue. This weapon was a large black revolver which — wait for it — was not found until almost two hours AFTER the police had cleared the crime scene.
The revolver was discovered and reported by a resident of another building some 50 to 75 feet from the building where the crime took place. It was found lying in plain sight under a large bush not far from that resident’s building. The revolver’s location was along the flight path of the first defendant just prior to his arrest. Subsequent analysis of the suspected blood evidence could not confirm the presence of blood on the first defendant’s clothing. Only one fingerprint was lifted from the barrel, and it proved not possible to match it to the defendant. No DNA was found on the revolver either. In summary, there was no credible forensic evidence at all to tie the revolver to the defendant.
The assault rifle supposed to have been carried by the second defendant was subsequently and definitively tied to him. But that weapon had not been fired during the robbery. The second defendant was supposed to have been tried jointly with the first one, but the second had been being held in a separate facility, at which a wave of COVID infections had taken place recently. The facility was under lockdown, and the second defendant was not permitted to appear in court along with his codefendant. It is not known whether he intended to finger his accomplice, or exactly on what charges he was supposed to have been tried.
So What’s Your Story Then?
Eventually the victim was called to the witness stand and gave his version of the story. He was adamant that he could identify both defendants, especially the first one who is alleged to have shot him with the revolver, the one who was wearing the distinctive black and purple t–shirt. But the victim’s testimony was found to be inconsistent in a couple of critical details with testimony he had given at the scene, and subsequently at the hospital where he was treated for his gunshot wound and kept there for a couple of days until he was well enough to be discharged.
I Rest My Case
At the end of the day, the prosecution rested, and so, immediately, did the defense without calling any witnesses or presenting any testimony or evidence. This is, of course, one of the linchpins of our system of justice, that a defendant cannot be compelled to testify against himself, and that the jury may take no inference whatsoever of guilt based on that refusal. Innocent until proven guilty beyond a reasonable doubt, that is the standard, and what reasonable person would want it any other way? The burden of proof was on the prosecution, and that burden was shouldered quite incompetently due largely to the unbelievable ineptitude of the police and investigating officers. Without anything else to go on, the only remaining evidence was the 911 call.
Beyond a Reasonable Doubt
The next day we received our instructions and were taken to the jury room to begin our deliberations. We almost immediately found we were split 7–5 on all counts. The majority was unable to conclude that the defendant had been placed beyond a reasonable doubt at the scene of the crime, nor that he could be tied to the weapon used to shoot the victim. The minority was just as sure that he had been so placed and tied. Five hours passed as we traded insights and opinions, mostly in a civil manner. We returned to the courtroom twice to listen to the 911 call again, but that did not overcome the difficulty understanding what the caller was saying. Finally we were provided wireless headsets, and miraculously, the recording became crystal clear and we were able to understand every word, even the tremulous, fearful whispers of the caller.
What were we looking to find? We all agreed that everything turned on the victim’s unsupported identification of the shooter, the one wearing the black and purple shirt and tan pants. These items were so spectacularly identifiable that we expected that the 911 caller, when asked repeatedly to describe the perps, would be able to identify them clearly and unambiguously, and as having been worn by the defendant. But that did not happen. Although the caller at first said there were two men outside the apartment door, he subsequently only identified the second defendant, the one holding the assault rifle, and described him only as wearing a black shirt. The first defendant arrested wearing those tan colored slacks and the distinctive black and purple shirt was not described at all by the 911 caller.
None of the jurors voting to acquit were persuaded by any of this to change their positions, nor were any of the jurors voting to convict persuaded to change theirs. We ended our deliberations just as divided as when we had started, and the forewoman so informed the court. We were called back into the courtroom, and each of us was asked individually if we thought we were so hopelessly hung that no amount of additional deliberation had any chance at all of producing a unanimous verdict either way on even one of the eight counts. Each of us, all twelve of us, replied that we did think that it was hopeless. The judge declared a mistrial, and we were dismissed with warm thanks from the court for having discharged our constitutional duties faithfully. We drove home in darkness for the third time.
Oh What Fun It Is to…
Once I became resigned that I was not going to be dismissed and would have to serve, I found the whole process extremely interesting and satisfying. I had never been empaneled before, and no amount of TV or movie drama can prepare one for the actual experience of an actual trial conducted from start to finish. I learned a lot about our system of justice, as well as about myself and my fellow jurors. I’m glad to have had the experience, while at the same time hoping I never have to do it again.
I lost only three days of my life to this, for which I am very thankful. But it did happen during the last week of the semester and completely trashed my schedule for presenting the last of the material and conducting a Final Exam review. I did accomplish that this past Saturday via Online Zoom Lectures, and Monday I gave the students their Exams as scheduled in the classroom. I now have graded them and all the other assignments, have calculated the students’ numerical scores, and have assigned letter grades based on those scores. On Thursday I will submit Final Grades, and this will conclude my career in the classroom, as I turn 70 on the 30th of this month and am retiring. I begin drawing Social Security benefits in January and will mark another great milestone in my life. I’ve got plans, believe me, great ones.
One last thing — while I will never teach another Physics course in the classroom, my department became shorthanded during the pandemic. A couple of our instructors could not adapt to 100% Online courses and did not come back this semester as we returned for the first time to the classrooms on campus. In fact, I have been teaching overload courses to make up for their absence for the last year and a half. My Department Chairman has been having a terribly difficult time finding replacement instructors, and as a courtesy to him I have agreed to teach two more sections as 100% online courses in the coming Spring semester. But after that, Elvis will have well and truly left the building for good.
All the best,
On Tuesday, December 21 at 6:30 PM from Broomall, PA,