The Rights of the People (19 page)

Even then, however, a judge isn’t always willing to let the jury hear about a cop’s fabrication in an earlier trial. Kramer ran into this obstacle when the federal District Judge Richard J. Leon denied him permission to cross-examine Officer Efrain Soto, Jr., on precisely that point.

Kramer had the record. In a prosecution three years before, Superior Court Judge Harold L. Cushenberry, Jr., had declared, “I think Officer Soto lied. I think he lied” by giving “palpably incredible” testimony that he had spotted drugs in a defendant’s hand.
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In the new case, Soto claimed to have seen another man, Gerald F. Whitmore, run from the police, hold his right hand to his waist, and then throw a gun into a window well. A
second officer saw the sprint and the asymmetrical movement of his arms but not the gun, leaving Soto as the lone witness.
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Yet Judge Leon blocked Kramer from using Judge Cushenberry’s finding of past dishonesty to question Soto’s present veracity. Nor would Leon allow jurors to learn anything else negative about Soto—that he had failed to pay child support and had violated regulations by neglecting to tell superiors that his driver’s license had been suspended. Leon ruled that Kramer could neither ask Soto about these matters nor call three witnesses to Soto’s untruthful character.

With the judge running interference, the prosecutor was free to call jurors’ attention to the absence of any indication that the officer had lied, and the jury, kept ignorant of Soto’s background, found Whitmore guilty of the gun charge as well as possession of a small bag of cocaine discovered in his pocket. Leon sentenced him to eighty-three months for the gun and, concurrently, one year for the drugs.

Kramer dug into the jungle of case law, wrote a fifty-five-page brief in appeal, and argued before three judges of the D.C. Circuit that Leon had erred. The appeals court, while finding the character witnesses too remote and biased to be allowed, agreed that Leon should have permitted Soto to be cross-examined on his prior untruthfulness, his license suspension, and his unpaid child support. “Nothing could be more probative of a witness’s character for untruthfulness than evidence that the witness has previously lied under oath,” the court declared. It overturned the gun conviction and left the drug penalty, which was shorter than the time Whitmore had waited in jail for justice. The government, lacking a sanitized chief witness, didn’t bother with a retrial, and he was released.

Two months after the court of appeals opinion, the U.S. Attorney’s office decided to keep Soto from testifying as the only officer to see a driver he had stopped drop a bag of cocaine on the ground. The prosecutor tried to introduce Soto’s testimony indirectly, through another officer’s account, so that Soto couldn’t be cross-examined. But Mary Petras put Cushenberry’s finding before the judge in the new case, arguing successfully that the stop was unjustified and the evidence inadmissible. The government filed an appeal, then withdrew and dropped the charge.
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It shouldn’t be so hard for an accused to exercise his Sixth Amendment right “to be confronted with the witnesses against him,” which naturally implies the right to confront their foibles as well. In principle, the credibility of any witness, including someone in law enforcement, may be challenged on cross-examination. But there are limits set by the Federal Rules of Evidence, which are promulgated by the Supreme Court
and emulated by most states. How a judge applies them can obviously be pivotal to what a jury learns about a cop’s prior conduct, and therefore to the outcome of a trial.

The closest you could get to a laboratory test of this variable came in two trials two months apart, with two different results for two men, each of whom Sergeant G. G. Neill claimed to have seen throwing a gun as he ran away. After one judge allowed Neill to be cross-examined about investigations of his conduct, the jury deadlocked; in the other man’s trial two months later, different jurors were barred by a different judge from hearing the same information about Neill, and they delivered a guilty verdict.

The rules are aimed at moving a trial along efficiently without creating confusion or prejudice, and they apply equally to prosecution and defense witnesses. But some lawyers find them muddy and contradictory, a blurry labyrinth of obstacles and gateways.

For example, if a judge in an earlier case found that a policeman had done an unconstitutional search, a jury in a later trial could not be told unless the current judge regarded the violation as “evidence of the habit of a person or of the routine practice of an organization,” according to Rule 406.
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That has been practically impossible to demonstrate.

A judge also has discretion under Rule 608 (b) to allow cross-examination about a witness’s conduct “if probative of truthfulness or untruthfulness,” which means the defense may question the police about past allegations of dishonesty.
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That was the provision the appeals court found applicable to Officer Soto in the Whitmore case. But the opening is limited by another rule, 404 (b), which bars lawyers from introducing evidence of earlier wrongdoing simply to show that the misconduct is likely to have been repeated in a current situation. The goal is to avoid a detour into an old case, a trial within a trial to resolve disputed facts. So if the vice squad in the
Bullock
red-light arrest made another disputed traffic stop in a later prosecution, a defense attorney probably could not show the jury Judge Jackson’s written disbelief of the officers’ account in
Bullock
. The lawyer could only ask the cops about it, thereby diluting Jackson’s finding with their explanations and denials.

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 jail
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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.
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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:

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.
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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.)
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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.
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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.”
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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.