The Silken Tent My Letter to the World September, 1999

Most of what I know of the justice system I've learned from television dramas. I grew up with Dragnet and Perry Mason as part of the soundtrack of my life. Later there was Owen Marshall (the legal profession's Marcus Welby),  The Young Lawyers with Zalman King (before his career producing skin flicks), and The Mod Squad ("three young crime fighters -- one white, one black, one blonde"). More recently I've followed L.A. Law, Equal Justice, NYPD Blue, and Law & Order.

I know what I'm seeing on those shows is made for TV. Nevertheless, when I walked into the courtroom for my first voir dire the scene had a familiar look. Four men sat at two tables. Three of the men wore suits and ties, held their conservative haircuts with a hint of gel, and used gold Cross pens to make notations on the papers stacked in front of them. The fourth sported dreadlocks (albeit neat and attractive ones) and wore a bright orange pullover that was not a prison jumper but looked like one.

The dreadlocked man (we'll call him Matthew) stood accused of unlawful delivery of a controlled substance (cocaine) and unlawful possession with intent to deliver a controlled substance (marijuana), charges stemming from two separate arrests. The prosecution promised to prove beyond a reasonable doubt that Matthew was indeed guilty of these offenses. The defense seemed equally assured that their side would be equally compelling, although we were reminded that they don't have to prove anything -- the burden of proof rests with the state. We were also reminded that only the facts presented should be considered, that the opening and closing remarks of the attorneys were not pieces of evidence, and that Matthew could not be presumed guilty just by virtue of having been arrested.

The cocaine charge was the result of an undercover operation in which a "confidential informant" working with an out-of-town police officer arranged to buy cocaine from Matthew. He did this by calling a pager, receiving a call back at a public phone booth (which is directly across from an elementary school) and then waiting for Matthew to come by in the lunch truck from which he usually sells hot dogs, hamburgers, fries, and drinks. This "controlled buy" was part of an ongoing investigation then in its sixth or seventh month.

The buy was captured on videotape. The district attorney warned us that the video would not be what we were accustomed to from television. He was right. The video lasted 24 minutes, about 20 of which showed nothing but the undercover officer and the informant waiting for Matthew. But it was important to the defense that we see those 20 minutes, because they claimed that any one of the half dozen people who happened to walk by could have slipped the drugs to the informant.

It was chilly that day, and most of the silent video showed the informant pacing and shivering while the sumac weeds in the vacant lot where they were parked waved in the wind. Several people did walk by -- two schoolchildren with backpacks, a young woman pushing a stroller and trailed by two toddlers, and an elderly woman in babushka and overcoat.

Presently Matthew pulled up in his lunch wagon. Unaware that it might be helpful if he parked where the surveillance camera could have a clear view, he stopped the truck behind a row of gas pumps. This left him and anyone who might approach the truck visible only from the waist up. The truck was first approached by a man whom Clemenza in The Godfather would call "a pain-in-the-ass innocent bystander." He hailed Matthew as a friend. Matthew would later testify that this man was admiring the truck, which at the time was new. As the informant approached, the bystander turned and high-fived him -- this exchange was visible to the surveillance camera, but not to the undercover officer.

A brief conversation and then an exchange of something (hidden by the gas pumps) took place, the informant and the officer returned to their vehicle, and Matthew drove away. He was not arrested for this incident until six weeks later, when the investigation was drawing to a close. Although his pager, his cell phone, a pack of blank sales receipts, and some cash were seized, the marked bills allegedly used by the undercover officer were not recovered.

The marijuana charge came about because of an incident that took place some two months after Matthew's arrest on the cocaine charge. Uniformed officers responded to a "shots fired" call at a bar not far from the courthouse. (This bar figured in two other unrelated cases under consideration last week -- evidently it's a happenin' place.) Among the patrons milling about outside the bar was Matthew. An officer observed him throw something to the ground near a trash can. The officer picked up the object, which was warm to the touch on the layer of packed ice that covered the ground that night. He determined that it was marijuana in a little zip-lock bag, and on the strength of that discovery, searched Matthew and found four more zip bags and a plain bag of a substance that "field tested" for the presence of THC, the active ingredient in  marijuana. (A field test is reliable but not conclusive, as a lab test is.)

The prosecution called as witnesses the undercover officer involved in the cocaine buy, the uniformed officer who did the search and made the arrest in the marijuana incident, and the state police chemist who performed the test on the cocaine. That chemist also presented the report of the lab test on the "brown herb-like substance" recovered in the second incident, but the report was not admitted as evidence because the chemist who actually performed the test was not available to read it himself. They introduced into evidence the bag of cocaine, the bags of marijuana, the cell phone, the pager, and the blank receipts.

The defense called Matthew's father, a city bus driver who said that he owned the lunch truck which Matthew operated, and that he paid Matthew $350 a week to do so, which salary appeared to be the means by which Matthew supported himself and five dependents. Matthew also testified on his own behalf, saying that what had been exchanged that day between himself and the informant (whom he knew and whom he had served before) was a menu. Regarding the other charge, he denied asking the arresting officer to "lose" the zipper bags of marijuana so that the charge would be simple possession.

Testimony also included a short course for the uninformed in how a controlled buy is accomplished, why out of town officers are involved, and how the integrity of a piece of evidence is maintained from the time it is seized until it is submitted at a trial.

The prosecution's case then was partly evidentiary and partly circumstantial. The defense hoped that we would have reasonable doubt about what was exchanged behind the gas pumps and believe that the bystander, the schoolchildren, or perhaps the babushka had somehow passed to the informant the cocaine that he turned over to the undercover officer. They also hoped we would doubt that the brown herb-like substance was marijuana, since no conclusive test had been submitted to support that contention.

Our deliberation as a jury in this case took slightly less time than the surveillance video. Part of the time was spent explaining to an older woman juror how a pager works (she was unclear as to why the pager was called after it was seized and made to display the police station's office number) and explaining to me that it was the packaging of the marijuana and not necessarily the quantity which drew the more serious charge of intent to deliver rather than just simple possession.

Thus after a trial that consumed about nine hours over two days, Matthew was found guilty on both counts. The jury was discharged to return to the array, and as we were led out of the courtroom and back upstairs to the assembly room, we heard the judge calling Matthew to draw near the bench for a sentencing date. We never saw him again.